024-NLR-NLR-V-49-CATHIRANA-FERNANDO-Appellant-and-COORAY-CO.-Respondents.pdf
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Cathirana Fernando v. Cooray <5s Co.
1947Present: Windham J.
CATHIRANA FERNANDO, Appellant, and COORAY &CO., Respondents.S. C. 1,207—Workmen’s Compensation C 31106145.
Workmen's Compensation Ordinance, s. 48—Adequacy or sufficiency ofevidence—Point of law—Right of appeal.
The question of sufficiency or adequacy of evidence is not a pointof law such as is appealable under section 48 of the Workmen’sCompensation Ordinance.
(1945) 30 O. L. W. 89.
WINDHAM J.—Calhirana Fernando v. Cooray db Co-
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-A.PPEAL from an award of the Commissioner of Labour made underthe Workmen’s Compensation Ordinance.
M. M. Kumarakulaaingham with T. A. de S. Wijesundere, for theappellant.
J.A. L. Cooray, for the respondent.
Cur. adv. milt.
December 10, 1947. Windham J.—
This is an appeal by the widow of a deceased workman against theinadequacy of an award of the Commissioner of Labour made in herfavour against the respondent company, in whose employ the deceasedmet his death. Only the amount of the award is in issue, the respondentshaving admitted liability.
The learned Commissioner had on December 17, 1946, made a decidenisi in favour of the appellant in the amount of Rs. 3,500. On January17, 1947, being satisfied from a letter addressed to him by the respondentsdated January 6, that their non-appearance in the ex parte proceedings wassatisfactorily accounted for, he revoked the decree nisi, and on March 12,1947, he proceeded to reopen the proceedings inter partes, and afterhearing evidence on both sides he delivered his final award on September9, 1947, in the appellant’s favour in the amount of Rs. 900.
The first ground sought to be argued on appeal is that the learnedCommissioner erred in making his order of Januray 17 revoking thedecree nisi, in that he failed to comply with the requirements of section 86of the Civil Procedure Code (applicable by virtue of paragraph 20 of theWorkmen’s Compensation Regulations, 1935) with regard to the settingaside of decree nisi. This argument cannot be entertained on its merits,however, for the present appeal is not against the order of January 17setting aside the decree nisi, but against the final order of September 9,1947. The appeal is expressed to be against the later order, and whenit was lodged an appeal against the order of January 17 was in any caselong out of time. An appeal could have been lodged against that order,but itwas not. Nor was any objection taken to it, either upon itsdelivery, when the appellant was unrepresented, or upon March 12, 1947,at the opening of the proceedings inter paries, when the appellant wasrepresented. This ground of appeal accordingly fails.
The second ground of appeal is directed to the merits of the award ofSeptember 9, 1947, and the main contention is that the learned Com-missioner erred in accepting, as the evidence of the deceased’s “ monthlywages ” upon which he based his award, the testimony of the individual,one Manuel Fernando, by whom the deceased had been employed onbehalf of the respondent company at the time of his death." This witness,called for the respondents, had in the ex parte proceedings given evidencefor the appellant which differed from that given by him for the re-spondents in the proceedings inter partes. The learned Commissioneraccepted the later evidence, as to the average monthly earnings of a
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WINDHAM J.—Cathirana Fernando v. Cooray <k Go.
•workmen employecTby him for the same work as the deceased during thetwelve months preceding the accident, which the witness supported hyproduction of books, the entries in which, he said, he had supervised, andhe rejected (it must be presumed) the evidence of the appellant withregard to the deceased’s actual earnings, which placed the earnings at aconsiderably higher figure. It was admitted that the deceased, who wasa temporary toddy tapper, had been employed by the respondents foronly 21 days preceding his death. In these circumstances I consider thatthe learned Commissioner rightly applied the provisions of section 7(1) (b)of the Workmen’s Compensation Ordinance in calculating the “ monthlywages ” of the deceased ; nor do I find any error in his calculations underthat section, based on the evidence of the witness Fernando. Withregard to the question whether the Commissioner was right in acceptingthe evidence of Fernando, and in particular in admitting the latter’sbooks, the entries in which Fernando did not say that he “ kept ” butmerely that he “ supervised ”, I consider that this is a question of suffi-ciency or adequacy of evidence, and not a point of law such as is appealable•under section 48 of the Workmen’s Compensation Ordinance.
For these reasons the appeal is dismissed.
Appeal dismissed.