DECISION This is an appeal under section 30 of the Workmen's Compensation Act.
2. The respondent was engaged as a Labourer in the unloading of goods from a truck. One bag of rice fell on hi.n as a result of which he sustained injury This incident took place on the 19th of August 1972.
He approached Dr. Aftab Ahmed Qureshi on the 4th of October 1972 and a certificate assessing permanent partial disability at 40% was issued. The respondent, therefore, claimed compensation on the basis of his monthly pay at Rs. 450 per month, and application to the Commissioner was made.
3. The claim was resisted by the appellant and various pleas were taken. It was denied that the respondent was either a workmen or the injury was sustained by him in the course of employment. The question of disability and average monthly wages were also disputed. In addition it was pleaded that the respondent did not submit himself for medical examination as asked by the appellant.
4. The Commissioner after framing the issues recorded evidence. On the assessment of the evidence the evidence of medical officer was accepted and the compensation for Rs. 3,6C0 in addition to other charges was allowed. Aggrieved by this present appeal had been filed. 5. {7D7072FF-22B2-4B16-9098-FC6FF3AF4FA3}unloading of goods in the mechanically propelled vehiclesThe learned counsel for the appellant at the outset pleaded that the application under Workmen's Compensation Act was not maintainable as according to item No. 26 of Schedule 2 it was necessary that there should be 100 or more persons employed in the handling and transport of goods and in the present case the number did not exceed 11. This contention is misconceived as this item requires that the handling and transport of goods should be in and within the premises of any market. He conveniently ignored item No. 7-A which lays down that the presons employee '
Division are workmen. The -case of respondent is clea this item. He was employed in the unloading of goods from the truck.
6. The next plea which has been raised is that the learned Commissioner had based his conclusion regarding disability solely on the evidence of the medical officer and that evidence was not such which could be treated an evidence in the eye of law and, therefore, it was not mere question of fact but a question of law and could be assailed in appeal. I entirely agree with this contention. I have gone through the evidence of Dr. Aftab Ahmed Qureshi but it does not take us any far. In fact it is not an evidence which could form the basis of conclusion reached by the leamed Commissioner. Of course he stated that he had assessed the permanent partial disability at 20% inasmuch as the injuries of sacsal region and right knee resulted in persistent pain and difficulty in walking and bearing weights but it is surprising g to note that he did not put the respondent to any such physical test. In the absence of aoy such test the opinion of the Medical Officer has absolutely no value. Not only this but in the cross-examination he stated that by weight bearing he meant the body weight of the respondent. This is rather a strange explanation. The respondent was a Labourer employed in the lifting of gunny bags and this should have been taken in relation to lifting of that weight and not of the body. Indeed in the cross- examination a suggestion was refuted that the assessment of disability was based on speculation but looking to the fact that no physical or actual test had been made by him this suggestion could not be said to be un-founded. Since the disability of the c respondent was based solely on the evidence of the medical offieer this evidence c is not such which can establish the disability the case of the respondent must fail. It may, further, be noted that the respondent, as stated by him, took the treatment in the Civil Hospital for three months from the very beginning yet the Doctor who treated him was not produced in evidence nor any certificate was obtained from him but instead another Doctor was - chosen for the reasons best known to the respondent.
7. In the result I allow the appeal and set asid 1he order passed by the Commissioner. The amount which has been paid to the respondent be refunded by him.