JUDGMENT This is an appeal against the order dated 5-7-1975 of Commissioner for Workmen's Compensation, Multan awarding compensation of Rs. 7,000 to Inayat Ali, respondent.
2. Inayat Ali, respondent was employed as a machine man with Messrs Metal Packages Limited, Multan, appellant, at monthly wages of Rs.
163. On 18-8-1974 while he was working on a machine, he met with an accident, resulting in the cutting of phalonx of 4 fingers of his right hand. Thereafter he was removed to the mill dispensary and from there to Nishtar Hospital, where he was treated for 4 or 5 days. Since the appellant did not give him any compensation, be filed a petition against him claiming compensation of Rs. 7,000. The learned Commissioner accepted the petition and awarded compensation as already stated above.
3. Aggrieved by the above order the appellant has preferred this appeal.
4. In appeal the appellant raised the following legal objections :-- (1) That the respondent was not entitled to claim compensation under the Workmen's Compensation Act, 1923, as he was a secured person under the West Pakistan Employees' Social Security Ordinance, 1965. 1975 Metal Packages Ltd. v. Inayat Ali {Ghulain Rasool Shaikh, Appellate Tribunal) 5. (2) That the respondent was not entitled to claim compensation in view of group insurance. , (3) That the respondent was not entitled to claim compensation as no notice of the accident was given as required under section 10 of the Workmen's Compensation Act, 1923. (4) That no medical evidence was produced and, therefore, it was not possible for the learned Commissioner to hold that the respondent had suffered total disablement to the extent of 50% of his earning capacity and award Rs. 7,000 as compensation. Legal Objection No. 1--In support of this objection the learned counsel for the appellant relied on the judgment of Sind Labour Appellate Tribunal in the case, Brook Bond Limited v. Rab Nawaz (1) wherein it was held that the jurisdiction of the Commissioner under Workmen's Compensation Act was barred by virtue of section 81 of West Pakistan Employees'
Social Security Ordinance, 1965.
6. The learned counsel for the respondent, on the other hand, relied on the judgment of Sind & Baluchistan High Court in the case, Mst. Lai Jan v. Messrs Silver Paper Tube Co. Karachi (2) wherein it was held that the claim for compensation was not hit by the provisions of the West Pakistan Employees Social Security Ordinance and could still be allowed under the Workmen's Compensation Act. In the case, Messrs Crescent Textile Mills Limited, Lyallpur v. Mst. Sakina Bibi (3) I had observed that it could not be said that the benefits provided by West Pakistan Employees' Social Security Ordinance were similar to the benefits provided under the Workmen's Compensation Act and that the provisions in so far as they relate to compensation, there was no inconsistency so as to be a bar by reasons of section 81 of the West Pakistan Employees' Social Security Ordinance. Even the learned Chairman of Sind Labour Appellate Tribunal in a later case, Abdul Aziz v. Moshan Khan (4) changed his views and held that the claim of compensation was not hit by the provisions of West Pakistan Employees Social Security Ordinance.
7. In the result this objection is overruled.
8. Legal Objection No. 2.--In this conection it would be convenient to reproduce Standing Order 10-B(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which reads as follows :-- "The employer shall have all the permanent workmen employed by him insured against death and injury arising out of contingencies not covered by the Workmen's Compensation Act, 1923 (VIH of 1923) or the West Pakistan Employees' Social Security Ordinance, 1965 (W. P. Ordinance No. 10 of 1965)." From the above it is clear that if a person receives group insurance, he will not be entitled to compensation under the Workmen's Compensation Act. In the present case, however, I find that the respondent is not in receipt of group insurance and, therefore, there is no bar to his claiming compensation under the Workmen's Compensation Act.
9. In view of the above this objection is overruled. (2) (1)
1975 PLC 497 (3) 1975 PLC 615P L D 1974 Kar. 140 (4) PLJ 1975 Tr. C. (Lab.) 298 10. Legal Objection No. 3.--In this connection it would be proper to reproduce section 10 of the Workmen's Compensation Act, which reads as follows :-- "Notice and claim.-(l) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim^ is preferred within three years from the date of death : Provided that, where the accident is the contracting of a disease in respect of which the provisions of subsection (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease : Provided further, that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim.-- (?) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or (?) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred : Privided, further, that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred in due time as provided in this subsection, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed. (3) The Provincial Government may require that any prescribed class of employers shall maintain at their premises at which the workmen are employed a notice book, in the prescribed form, which shall be readily accessible at all reasonable times to any person acting bona fide on his behalf. (4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served or, where a notice-book is maintained, by entry in the notice-book.'* 11. In the present case no notice of accident was given but in view of part (b) of second proviso to section 10, no notice was necessary if the employer or any person, responsible to the employer has knowledge of the accident from any other source at or about the time when it had occurred.. ln the present case it has to be seen whether the employer had knowledge of the accident when it took place. There is unrebutted evidence on the record to show that the respondent soon after the accident was taken to the mills dispensary and from there to Nishter Hospital. Thus the person incharge of the dispensary, who was responsible to the employer had come to know of the accident at or about the time when it occurred. Therefore the lack of notice under section 10 would not be a bar to the entertainment of the claim of the respondent. In the result this objection is overruled. l2. Legal Objection No. 4.--It is true that no medical evidence was produced in this case as to the percentage of loss of the earning capacity, but this fact alone will not render the judgment of the learned Commissioner invalid. I am fortified in tMs view by the judgment of the Lahore High Court in the case, Pakistan Western Railway, Lahore, through its Vice-Chairman v. Abdul Majid (1) wherein it was observed : "I do not agree with the learned counsel that unless a doctor gives the opinion as to the percentage of loss of earning capacity, the Commissioner is incompetent under the law himself to determine the same. The doctor's opinion in this behalf can no doubt be taken note of but it cannot control the decision of the Commissioner which is to be based on his own judgment qua the loss of earning capacity in proper exercise of his discretion." The same view was expressed in another judgment of the High Court in the case. Anwar Munir Coal Company, Jhelum v. Mohammad Iqbal and another (2).
13. In the result this objection is also overruled.
14. In view of the above I find no force in this appeal, which is hereby dismissed. No order as to costs. (1) PLD 1975 Lah. 363 (2) PLD 1975 Lah. 367