DECISION f This appeal has been filed under section 30 of the Workmen's Compensatio Act against the order of the Commissioner awarding compensation.
2. The respondent No. 1 was employed on 24th of June 1972 on daily wages as a casual worker. On the same day he sustained an injury. After obtaining a Medical Certificate that the respondent had suffered 50% disability a claim was filed before the Commissioner and it was allowed on the basis of monthly wages ranging between Rs.
350 and 450. Aggrieved by this the present appeal has been filed.
3. The only point which has been" taken before me by the learned counsel for the appellant is that since according to the evidence on record the monthly wages exceeded Rs. 500 he was not a workman within the provision of Workmen's Compensation Act and, therefore, the jurisdiction of the learned Commissioner was barred. To support his contention he referred to the evidence of the respondent himself who stated that'he was earning Rs. 20 to Rs. 25 per day. Same was the statement made by Muhammad Khan witness for respondent No. 1. Muhammad Khan also stated that they were working for 26 days in a month. Thus even taking the minimum wage of Rs. 20 per day for 26 days it comes to Rs. 520. It is clear that the accident had taken place on 24th of June 1972 ' and claim was filed on 22nd of August 1972 and at that time the definition of the workman as contained in section 2(n) was that a person could be a workman if his monthly wages did not exceed Rsr 500. The amendment raising the amount to Rs. 1,000 was brought long after. Consequently the respondent was not a workmen so as to entitle him to claim compensation under the Workmen's Compensation Act but he could claim the compensation having recourse to civil Court. It is not understood on what basis the learned Commissioner came to the conclusion that the respondent was drawiDg between Rs. 350 or 450. There is nothing on record to support his finding. The absence of evidence is a substantial question of law and, therefore, the order of the Commissioner can be interfered with. It seems that the learned Commissioner was misled by a solitary statement made by the respondent in his evidence to the effect that respondent No. 2 had paid him Rs. 450. It was not stated by him that this was his monthly wages nor it could be as he had worked only for one day. Evidently this amount was paid as a compensation to the respondent for the injury which he had sustained.
4. In the result I allow the appeal and set aside the order of the Commissioner. The amount be refunded to the appellant. 1975 Ahmed Ebrahim Agency Ltd. v. Razi Haider Naqvi (Abdul Hamid Baloch, Presiding Officer)