DECISION ' This is an appeal under section 30(1)(a) of Workmen's Compensation Act, 1936 against order, dated 30-9-1990, passed by learned Commissioner Workmen's Compensation, Hyderabad awarding Rs,14,700 as compensation to the respondent under the said Act.
2. I have heard Mr. N.A. Talpur, learned Advocate for the appellants and Mr. Syed Fasahat Hussain Rizvi, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The admitted facts of the case are, that respondent, who was employed as workman by the appellant establishment suffered an injury due to accident on 18-4-1986 in the course of employment, which resulted in 70% permanent disability. The respondent being a secured person under the Provincial Employees Social Security Ordinance, 1965 received injury benefits and injury pension of Rs,334.20 per month w,e,f,7-8-1986. Thereafter, he filed an application before the Commissioner for Workmen's Compensation, Hyderabad for grant of compensation under section 8(1) of the said Act in addition to benefits under the Employees Social Security Ordinance which was granted under the impugned order.
4. The contention of Mr.NA. Talpur, learned counsel for the appellants, is that the grant of the compensation under the Workmen's Compensation Act (hereinafter referred to as the 'Act') was barred in view of sections 73 and 81 of the Provincial Employees Social Security Ordinance, 1965. To appreciate the arguments of the respective parties it would be pertinent to reproduce both the aforesaid sections of the Ordinance.
"S.73. Bar on benefits under other laws. When a person is entitled to any of the benefits provided by this Ordinance, he shall not be entitled to any similar benefit under any other law."
"S.81. Supersession of certain laws etc. Workmen's Compensation and Maternity Benefit Payable under the Workmen's Compensation Act, 1923 (VIII of 1923), the Employers' Liability Act, 1938 (XXIV of 1938),the Mines Maternity Benefit Act, 1941 (XIX of 1941), the West Pakistan Maternity Benefits Ordinance, 1958 (W.P. Ordinance XXXII of 1958), or under any other law shall not be payable in respect of any employment on or after the appointed day in respect of such employment and the enactments and laws aforesaid shall, in so far as they are inconsistent with the provisions of this Ordinance, cease to have effect."
5. Mr. N.A. Talpur has also placed certain case law on the issue raised by him.
6. In the case of Mst. Lal Jan v.M/s. Silver Paper Tube Co., Karachi PLD 1974 Kar. 140, a workman Muhammad Yousaf died in the course of employment. His mother Mst. Lal Jan filed claim before the Commissioner under the Workmen's Compensation Act who awarded a sum of Rs,6,000 under section 10 of the Workmen's Compensation Act. The claim was resisted by the management on the ground that it was barred under section 81 of the Ordinance. A learned Single Judge of Karachi Bench of Sindh High Court held as under:- "While the Workmen's Compensation Act speaks of compensation, the West Pakistan Employees'
Social Security Ordinance speaks only of 'death grant' and 'gratuity'. The two concepts are entirely different. Section 37 of the Ordinance has provided some additional benefits but not created any consistent provision. The Social Security Ordinance speaks of gratuity and pension. Gratuity by its very connotation means a sort of bounty and not something which is acquired as a matter of right.
Pension once again is widely different from compensation. It may be termed to be a reward for the services done or things done by an employee for the employer for which he wishes to give some sort of compensation. But by no stretch of interpretation 'gratuity' and `pension' can be considered to be synonymous equivalent for `compensation'. The purposes of the two enactments are different, the beneficiaries under the two enactments arc different, the manner of raising funds for payment to beneficiaries are different. Although the provisions may be dissimilar in certain respects the provisions in so far as they relate to the present case viz compensation, there is no inconsistency so as to be a bar by reason of section 81 of the West Pakistan Employees' Social Security Ordinance."
7. However, this Tribunal in the case of Ahmad Investment Limited. v. Kamani Begum 1979 PLC 477 has held "receipt of survivor's pension and other benefits admissible under Social Security Ordinance debars survivor from claim of compensation under Workmen's Compensation Act as nature of benefit under two statutes is substantially similar. The provisions of Workmen's Compensation Act are inapplicable to an establishment governed by Social Security Ordinance". In this case the Tribunal had also considered the decision of Sindh High Court in the case of Mst. Lal Jan v. Silver Paper Tube Co. Ltd. And disagreed with the decision on the ground that provision of section 42 of the Ordinance regarding payment of survivor's pension to the dependents was not considered by the learned Single Judge of High Court in the case of Lal Jan as Mst. Lai Ian, who had filed appeal, was not deemed to be dependent for the purpose of said Ordinance and hence not entitled to survivor's pension, whereas in the case dealt with by the Tribunal respondent was receiving survivor's pension under the Ordinance and thus could not be entitled to two benefits both similar in the said Act or cause of action. This Tribunal also considered the decision of Sindh High Court in an un-reported case Constitutional Petition No, 15 of 1976 which was decided on 26- 8-1978 wherein it was held that section 81 of Sindh Employees Social Security Ordinance, 1965 was a complete bar to the award of compensation under the Workmen's Compensation Act in respect of the employment to which the provisions of the said Ordinance had been made applicable by reason of the first part of the said section 81 of the Ordinance. It was further held in that decision of Sindh High Court, "that a person who was receiving injury benefit under the Ordinance could not also legally claim or be entitled to compensation under the Workmen's Compensation Act."
Reference was also made by this Tribunal to the decision of Lahore High Court in the case of Crescent Textile Mills Ltd. v. Sakina Bibi PLD 1978 Lah. 231, wherein it was pointed that section 81 of the Ordinance has two parts and the second part of this section was neither dependent upon nor controlled the operation and effect of first part.
8. This issue was considered by their Lordships of the Supreme Court in appeal against the aforesaid decision of the Lahore High Court in the case of Mst. Sakina Bibi v. Crescent Textile Mills Ltd. And others PLD 1984 Supreme Court 241. In that case their Lordships also considered the decision of this Tribunal in the case of Mst. Kamani Begum and decision of a Division Bench of High Court of Sindh in case of Lal Jan and discussed relevant provisions of the two enactments. Their Lordships were of the view that section 81 of the Ordinance was not happily worded and two parts thereof were not properly placed thus giving rise to so much confusion. Their Lordships held that:- "First part of section 81 was to be read with second part to avoid redundancy of one part. The provision regarding implied repeal, will control and override earlier part of section 81 regarding non-payment of compensation and same will operate only subject to the said provision. The compensation and benefit payable under any of laws mentioned, in first part would be obtainable only if it is saved after going through exercise relate able to inconsistency referred in second part.
The benefits and compensation available under 'enactment and laws' if become incompatible with benefits obtainable under Social Security Ordinance, 1965 then former would not remain obtainable. The benefit under such laws, if same, including its nature, as is obtainable under Ordinance so as to make both of them synonymous they would become incompatible thus inconsistent, 'same' entity being subject-matter of two laws one, on account of interaction of both parts of section 81 would give way to other. The benefit if not, same in sense of synonymous and thus not inconsistent to obtain, then both benefits would remain obtainable in so far as section 81 is concerned. The mere fact that there would be duplication of different benefits for same injury/loss or for that matter addition or in that sense only, overlapping, will not make any difference. Such addition was not prohibited on any general principle. The compensation available under Workmen's Compensation Act, 1923 being not inconsistent/incompatible with relevant benefits under Social Security Ordinance, 1965, both benefits under both laws could be obtained."
' Their Lordships finally came to the conclusion that "exercise made in Karachi case of Mst. Lal Jan regarding inconsistency in the sense of incompatibility would have to be made in every case of present type and after doing the same it would be resolved whether or not the benefit and/or compensation available under any of the laws mentioned in the first part of section 81, would not be obtainable in addition to the benefits under the Social Security Ordinance. In this case proper comparison was made by the special forums constituted in this behalf, on the lines as was done in the case of Mst. Lal Jan. The compensation available under Workmen's Compensation Act to the appellant was not found inconsistent/incompatible with the relevant benefit under the Social Security Ordinance. Accordingly "both the benefits under both the laws could be obtained by the appellant." It may be pointed out that Mst. Sakina Bibi had also claimed the compensation with regard to the accidental death of her husband and she had also obtained the benefits under the Ordinance.
9. Word 'compensation' is defined in the Workmen's Compensation Act as 'compensation as provided for by this Act'. It may be pointed that word compensation is not defined in the Social Security Ordinance. The definition of word 'compensation' as accepted by Anwarul Haq, J., in the case of Land Acquisition Collector v. Abdul Aziz PLD 1965 Lah. 327, was "counterbalancing, rendering equivalent, requittal, weighing one thing against another". In Chambers (20th Century) Dictionary the word 'compensation' is defined as "act of compensating, to make up".
10 In the instant case the proper comparison of lines mentioned in the case of Mst. Lal Jan was ably done by the learned Commissioner. It will be pertinent to reproduce his reasoning with regard to the comparison of the benefits under the two enactments.
' In order to appreciate the inconsistency/similarity of provisions/benefits under the two enactments in this particular case, let us see what benefits are offered under these enactments. In cases of employment injury where the applicant suffers from any reduction/loss of earning capacity, the injured person, under the provisions of section 39 of the Ordinance and Regulation No,20 of Provincial Employees Social Security (Benefits) Regulations, 1967, is entitled to claim of injury benefit at certain percentage of daily rate of wages of injured person for a period not more than one hundred and eighty days after which if the incapacitation continues he shall be entitled to disablement pension etc. Which is discussed later herein. The Act, in the same circumstances allows under its section 4-D and Schedule IV Column IV, half monthly payments of varying amounts during period of disablement or a period of one year from the date of injury whichever period is less and in case of chronic lung disease, upto 5 years' period or less if the disease ceases earlier. It will be appreciated that until the injury employment has resulted in certain permanent disablement both enactments extend benefits of periodical payments which may differ in magnitude but are essentially similar in nature and form and even purpose. Therefore, the benefit of half monthly payments and relevant provisions i,e, section 4-D are certainly similar to those under the Ordinance--section 39 and Regulation No,20 made thereunder, and therefore inconsistent and incompatible if applied simultaneously. The said provisions of the Act shall therefore give way to the corresponding provisions of the Ordinance.
' After the injury benefit of maximum period of one hundred and eighty days, if the incapacitation prevails, the Ordinance provides for payment of disablement benefits of various natures. Initially, disablement pension is granted under section 40 of the Ordinance which continues till the disablement continues and ceases to be paid when the disablement ceases. But in case the pension is paid for five years then it shall be paid for life. Therefore, this provision is an extension of provisions in respect of injury benefit, and the benefit continues for life if paid for five years whether or not the condition and extent of disablement has improved or deteriorated further. Another feature of this benefit is that pension is made in monthly payments which is accordingly to half monthly payments under the Act. Yet another, and in my humble opinion a very important feature of this benefit is that beneficiary in order to be benefitted by the pension shall have to live longer so as to get more instalments. Consider a situation when the applicant dies within five months of enjoying the pension. He then would have received very meagre amount in comparison to the lump sum amount he would have received under the Act. There are other differences also. The Ordinance classifies disablements on the basis of percentages. The disablement fall owing below twenty percentage is treated as 'minor', that falling between twenty one per cent and sixty six per cent is treated as 'partial' and it is total when it is in excess of sixty per cent. The disablement pension is allowed in cases of partial or total disablement and not in case of 'minor' disabilities in which case pension gratuity at certain rates in lump sum is allowed under section 41 of the Ordinance and Regulation Nos, 22, 22(i) and 22(ii) of the quoted Regulations. Even minor disabilities are not treated the same as there is no cash benefit under the quoted provisions for disability to the extent and upto five per cent.
' On the other hand the Act provides for a lump sum amount for permanent disabilities under sections 4-B and 4-C at the rates mentioned in Schedule 1 thereof without any classification whatsoever in respect of permanent disabilities. A comparison between relevant provisions and benefits shows that except the benefit of disablement gratuity available under the Ordinance for minor injury from the extent of six per cent to twenty per cent, other benefits of pension are totally different from the lump sum compensation payable under the Act. Apart from the differences between the two discussed earlier they are dissimilar in other respects also. One is that the benefit of pension looks after reduction in earning capacity of injured person on continued basis while the benefit of compensation provides immediate relief and to cushion the shock received by injured person. Secondly there is certainty that injured will enjoy the compensation because he receives it in whole immediately, while the pension does not provide this benefit to injured as it may terminate before period of five years and then again he may not live longer to enjoy equal or more amount by way of pension than amount of compensation.
' From these I conclude that the two benefits are different. There does not remain any inconsistency in respect of benefits/provisions regarding partial and total disabilities because the injured is to receive pension from the Social Security Institute in monthly payment and the compensation is paid by employer himself. The opponent has not pointed out nor in my humble opinion there is any element of incompatibility to deprive the worker froth claiming compensation because as discussed earlier the two benefits are different in form and nature. It is therefore my well- considered opinion that the applicant is entitled to lump sum payment of compensation under the Act also.
11. The learned Commissioner has taken great pains to compare the re benefits of two enactments receivable by the respondent and I fully agree with his line of reasoning and the conclusion that he has arrived at. I am also of the view that the respondent was entitled to the compensation under the Act in addition to the benefits that he has been allowed under the Ordinance.
12. In view of the above discussions the appeal is dismissed.