DECISION ' This appeal has been filed against the order of the Commissioner awarding compensation to the respondent under the Workmen's Compensation Act.
2. Hasham, respondent No, 2, was engaged as a labourer by Mohammad Hussain to work on behalf of the appellants who were acting as Clearing and Forwarding Agents on behalf of Messrs Maqbool Enterprise Ltd., Sialkot City. The respondent, while working, sustained an Injury on account of fall of a package. He was removed to the hospital where his right arm was bandaged. However, the injury was not healed and he was admitted in another hospital where his right arm was amputated. He served a notice on the appellant claiming compensation. Since the appellant failed to pay compensation, the respondent made an application to the Commissioner under the Workmen's Compensation Act.
3. The appellant was served and made an application purporting to be a notice of indemnity under section 12(2) of the Workmen's Compensation Act read with rule 41(1) of the Rules. In this it was denied that the respondent was employed or engaged by them either directly or through any one else. It was, however, stated that without prejudice they, as Clearing and Forwarding Agent of Messrs Maqbool Enterprise Ltd., Sialkot City, entrused the handling L e. Loading and transportation of export goods from M. I. Yard for the purpose of shipment to Mr. Mohammad Hussain son of Ishaque, Carriage and Transport Contractors, care of Truck & Camel Cart Stand near Port Trust Building, Karachi and, therefore, Mohd. Hussain was liable under section 12(2) of the Workmen's Compensation Act to indemnify them against any compensation which they are made liable to pay in respect of the claim filed by the respondent. Written Statement was also filed to the same effect.
4. Notice of the claim to indemnify was served upon Mohammad Hussain and he was also impleaded as party. He filed written statement denying the claim on the ground that he was only a Truck and Camel Cart Supplier and had never contracted with the appellant to supply the labour.
He also pleaded that the labour charges had been paid by the appellant.
5. Evidence was tendered by the parties. On the assessment of the evidence, the learned Commissioner came to the conclusion that the respondent was employed by the appellant through Mohammad Hussain and since the respondent had sustained injury in the course of the employment, the appellant, as principal, was liable to pay the compensation and they could be indemnified by Mohammad Hussain who bad contracted to supply the labour, including the respondent. Consequently, the compensation was awarded.
5. Aggrieved by the aforesaid decision, the present appeal had been filed in which the injured was impleaded as respondent but Mohammad Hussain was not impleaded.
7. On perusal of the record and proceedings and hearing arguments, I see no reason to interfere with the impugned order. At the vary out-self of the arguments, I pointed out to the learned counsel for the appellant that question of facts could not ,be agitated as appeal against the facts was not available but only legal questions could be agitated. To this, he replied that this case involved some legal questions. On hearing his arguments, 1 tailed to agree with him and came to the conclusion that no point or law was involved in the present case but the entire decision was based on the question of facts. Even considering the facts, I am of the view that it was rightly held by the learned Commissioner that the respondent was engaged by the appellant through Mohammad Hussain. There is ample evidence on record to support this conclusion.
8. In the first place, there is evidence of Hashim injured himself. He stated that he was engaged Mohammad Hussain for the appellant and he started working there. In this he was fully supported by witness Ali Mohammad. All Mohammad further stated that the wages were paid by Munshi of the appellant. Of course, Mohammad Ishaque was examined by the respondent, and he did not support him buts as pointed out by the learned Commissioner, he was cousin of Mohammad Hussain and, therefore, his denial was natural. So no reliance could be placed upon the evidence of Mohammad Ishaque.
9. Not only this, but even the case of the appellant in the notice of claim to indemnify as well as in the written statement was that they had acted as agent on behalf of Messrs Maqbool Enterprise, Sialkot City, and they had entrusted the handling I. e. Loading and transportation of export goods from M. I. Yard for the purpose of shipment to Mohammad Hussain, Carriage & Transport Contractor. Thus by these statements, the appellants virtually admitted that they were the 'principals' and Mohammad Hussain acted as their contractor for the supply of labour to carry out the work of loading. It is not understood how, on the face of this admitted position, it has been urged that the appellants were not liable to pay the compensation. Their liability is controlled by section 12 of the Workmen's Compensation Act and they can claim to be indemnified by Mohammad Hussain as has been held by the learned Commissioner.
10. Lastly, it was urged that there is no evidence to show that the respondent had sustained injury in the course of employment and, as a result of that injury, his arm was amputated inasmuch as the medical evidence was not led. I must say that this was not a question of law but that of a fact as the evidence which was sought to be necessary was a supporting evidence. Hashim respondent himself stated that he sustained injury and, as a result of that injury, his arm was amputated. This evidence was believed by the learned Commissioner and this cannot be questioned in appeal as I have already pointed out that appeal does not lie against the question of facts.
11. In result, the appeal is dismissed.