J.M. Shelat, J.
1. The petitioner, working as a mechanic, at Bhadar Dam under the 1st opponents as the contractors, on a salary of Rs. 200/- per month mot with an accident at about 11-0 Hrs. on the night of 1-5-1956. When he was returning to his residence he fell in a ditch which was 12 to 15 ft. deep and where a foundation one had been laid. No lights were placed by the contractors near about the ditch so as to serve as a warning to persons walking nearby at night against falling into the ditch. As the accident took place when the petitioner was returning to his residence after his work, the workman must be said to have sustained injuries as a result of the accident arising out of and in the course of his employment. He received injuries to both of his legs and these injuries caused fractures to the bones near the ankles. The petitioner first took treatment from a bone setter and thereafter took treatment from a doctor. His case was that in spite of these and other treatments such as massaging he was not completely recovered though he was in a position to put on shoes on both his feet and also could walk, though slowly. His case further was that there was no longer any trouble In his right leg but there was still a defect in his left leg with the result that he could not sit or walk with pressure on his left leg and, therefore, could not work a generator or fit oil engines. He is also not in a position to walk without the assistance of a stick. As regards the agreement dated the 4% of September, 1957 his allegation was that that was taken from taint under pressure by his employers. He admitted that he had received a sum of Rs. 500/-under that agreement. The workman examined Dr. Popat who deposed that though the fractured bone of the left leg had united and though there was no apparent defect in the left leg, the workman was complaining of pain when he was made, to stand erect and to apply pressure on his left foot. The workman had also complained to him of getting pain whenever he walked a long distance. Dr. Popat's evidence next was that in his view the workman would have difficulty in doing engineering work whenever in the course of such work he would have to stand for 3 to 4 hours or walk a distance of about 2 or more miles.
On this evidence, the Commissioner found that though there was a ditch of about 12 to 15 ft. in depth the employers had not taken any precuation such as to keep lights at night. He also found that the injuries sustained by the workman were the result of an accident which occurred out of and in the course of his employment. But the Commissioner, held on a consideration, by him of the medical testimony, that the accident had not resulted in the loss of use of both the legs of the workman, and, that there was loss of use of the left leg of the workman which loss was not total. In other words, he found that there was only a temporary disablement as there was neither a total nor a partial permanent disablement of the use of the left leg.
On the question of the agreement dated 4-9-1957 Ex. 5 the Commissioner held that the agreement was valid and binding on the parties and directed that the agreement be registered as provided for by Section 28 of the Workmen's Compensation Act.
Consequently, the Commissioner for Workmen's Compensation, Rajkot, dismissed the workman's claim for Rs. 5100/- and relying upon the agreement Ex. 5. entered into by the parties on the 4th of September, 1937, awarded a sum of Rs. 500/- only. The workman preferred an appeal from the order passed by the Commissioners.