DECISION This appeal calls in question the order of the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act allowing compensation to the respondent in the sum of Rs.10,250 for the 25% permanent incapacity suffered by him in an accident during the course of his work. The circumstances forming the background of this case in brief are as follows:- M/s. Lodigiani S.P.A. Were given a contract to build a fish shed at Karachi and the petitioner was engaged as a `steel erector' on 12-9-1990. During the course of his duties he fell down from a height of about 25 feet and received injuries on both the Calconeal Bones of Feet. He was taken to a hospital where he had remained under treatment for about 15 days.
2.On 31-3-1991 he was allowed to resume his duties but "on a light work." On 8-6-1991 he was found by the doctor to fit to resume his normal duties. On the day following i.e. On the 9th of June his services were terminated. The letter inter alia reads as follows:-- "Since the job for which you were hired is completed and you, being the, only worker in your category, have become surplus to our requirement.
Therefore, your service is hereby terminated with immediate effect and you may collect your final dues including one month's salary in lieu of notice from the Cashier in the Karachi Office."
3. Before leis services came to be terminated he had himself been examined by Dr. A.Z. Rehman, who had diagnosed 25% permanent incapacity as a result of the aforesaid injuries.
4. On 10-6-1991 the petitioner had sent a notice to the respondent through his counsel along with the aforesaid Certificate offering to get himself examiners, within 3 days of the receipt of the notice.
The letter went on to say that in case no reply was received within three days the matter will be referred to the Commissioner for Workmen's Compensation. - 5.. The respondent had sent a reply to this letter from Mr. Saifuddin Channa, counsel for the petitioner, repudiating the claim. The respondents had shown their readiness "to refer the petitioner to medical practitioner for a second opinion" provided he reports to the company within three days of the receipt of this letter". The letter went on to say that the offer was without prejudice to the company's stand "that he was declared 100% fit without any loss of capacity".
6. Hearing nothing from the company for days together the petitioner filed the application in the Court of the Commissioner for Workmen's Compensation.
7. The application came to be resisted by the respondent. It was contended that as the petitioner was getting a pay of over 1,500 rupees per month the application before the Commissioner for Workmen's Compensation did not lie; that the incident was the result of sheer negligence, which did not entitle him to any compensation and that the claim as put forward was not sustainable otherwise too.
8. The petitioner apart from himself examined Ghulam Akbar and Dr. A.Z. Rehman, while Mazhar Ali Rajput appeared on behalf of the respondent.
9. The learned Commissioner found that the application was competent as the monthly wages of the respondent worked out to be below 1,500 rupees per month; the injury was in the course of duty, and that the petitioner had suffered permanent incapacity as deposed by Dr. A.Z. Rehman. He, however, found that the petitioner had not succeeded in proving medical expenses. As a, result the claim of the petitioner was showed to the extent of Rs. 10,250 only out of a total claim of Rs.16,350.
10. The respondent had worked only for a few weeks before he met with this unfortunate accident.
The pay received by him, therefore, was only for 3 weeks from 12-9-1990 to 4-10-1990. It is not disputed that the respondent was working on daily wages at the rate of 70 rupees per day. Looking to the ratio laid down in Karachi Shipyard and Engineering Works Ltd., West Wharf, Karachi v. Sher Muhammad 1989 PLC 779, which excluded the weekly holidays and also made adjustments ' towards various allowances the learned Commissioner found the petitioners monthly wages to be below Rs. 1,500 per month. No fault can be found with the conclusion reached by him.
11. Mr. Ashraf Khan learned counsel for the appellant very properly did not argue that the accident though at the building site of the respondent, was because of the sheer negligence of the respondent or that the latter will not be liable for any compensation. His main contention was that once the appellant had volunteered to have the respondent examined by a competent Surgeon at their own expense the respondent could not decline the offer.
12. It has, however, to be seen that the letter sent on behalf of the appellant though bearing the date of 17-6-1991 was received by Mr. Saifuddin Channa to whom it was addressed on 27-6-1991.
That was the post mark on the envelope which was before the learned Commissioner.
13. Zafar Ali Rajput the witness for the present appellant demurred about the delay and had undertaken to produce the postal receipt for the despatch of the reply to Mr. Saifuddin Channa. The case was adjourned, but the postal receipt, however, was never produced. The inference under the circumstances would be that the appellant did not choose to produce the same as it did not suit them. Anyway looking to the scheme of section 11 of the Compensation Act, the respondent could not wait for the reply beyond a reasonable limit.
14. Dr. A.Z. Rehman has stated that his testimony was eased on the clinical examination of the respondent according to which the incapacity suffered by the respondent was to the extent of 25%.
Mr. Ashraf contended that his diagnosis was not based on proper data. But Dr. Rehman had appeared in Court and was subjected to cross-examination. The Certificate of 8-6-1990 according to which the respondent was fit enough to resume his duties, carries no data. Or details at :all.
There is also no explanation, as to why the doctor who gave that certificate was not produced before the learned Commissioner.
15. I do not see any reason in the circumstances to differ from the conclusion reached by the learned Commissioner. I will, therefore, uphold the order and dismiss the appeal. The amounts deposited with the Commissioner would be released to the respondent.