Kerala High Court
D. Venu And Ors. vs Senen Fernandez And Ors. on 20 February, 1995
Equivalent citations: 1996ACJ1078, (1995)IILLJ1113KER
Author: N. Dhinakar
Bench: K.T. Thomas, N. Dhinakar
JUDGMENT N. Dhinakar, J.
1. The only contention that was raised in the M.F.A. before us is whether the Commissioner for Workmen's Compensation was right in accepting exhibit A-3, medical certificate, issued by the doctor wherein he certified that the disability suffered by the first respondent is 40 per cent. on account of an injury sustained by him, without examining the doctor who issued that certificate.
2. The first respondent was employed in the saw mill of the appellants and on October 4, 1989, at about 4 p.m. while the first respondent was doing his work, an accident occurred on account of which the left hand of the first respondent was caught under the saw machine which completely severed his left forearm. The respondent then was treated in the Medical College Hospital, Alappuzha, and the doctor who treated him has issued the medical certificate, exhibit A-3, which certified 40 per cent. disability on account of total ankylosis of wrist and finger joints and that there was total anaesthesis of the left hand. The certificate was to the effect that the injuries caused total disablement to the left hand of the respondent.
3. Counsel for the appellants relying on a Division Bench judgment of this court rendered in Achour Estate v. Nabeesa (1994-II-LLJ-969) Ker contended before us that the Commissioner was in error in accepting exhibit A-3, medical certificate, and awarding compensation without calling upon the respondent to examine the doctor who issued that certificate. The Division Bench, after considering the judgments of the various High Courts, finally came to the conclusion that the loss of earning capacity is to be assessed by the qualified medical practitioner and he should be examined to prove the certificate. If there are special reasons, the Division Bench stated, that the Commissioner can accept other evidence to prove the medical certificate and that the probative value of the medical certificate has to be adjudged by the Commissioner taking into consideration the other evidence in the proceedings. We are firmly of the view that the Division Bench did not lay down a law stating that the medical certificate can only be proved through the doctor who issued it and that in the absence of such an oral evidence by the doctor the medical certificate cannot be accepted. In this connection, we may refer to a judgment of another Division Bench of this Court in United India Insurance Co. Ltd. v. Sethu Madhavan (1993-I-LLJ-142). In the said case, the learned judges considered whether a medical certificate can be taken into consideration by the Commissioner without the doctor being examined. The learned judges also considered whether the provisions of the Evidence Act can be applied to a proceeding before a quasi-judicial Tribunal like the Commissioner for Workmen's Compensation Court. The Division Bench held that the medical certificate can be admitted in evidence without examining the doctor and it will be open to the party interested in challenging the medical certificate to apply for steps to examine the doctor which the Commissioner will consider. This judgment of the Division Bench in United India Insurance Co. Ltd. v. Sethu Madhavan (supra) was in fact respectfully adopted by the later Division Bench in Achoor Estate v. Nabeesa (supra). The later Division Bench stated: (para 10 on page 973) "However, it goes without saying that the probative value of the medical certificate has to be adjudicated by the Commissioner taking into consideration the other evidence in the proceedings. We respectfully adopt the reasoning of this Court in United India Insurance Co. Ltd. v. Sethu Madhavan (supra)".
4. We see no reason to disagree with the view taken earlier.
5. When we asked counsel, it was stated that the appellants did not summon the doctor who issued the certificate for the purpose of examining him. They did not take any steps before the Commissioner to show that the certificate issued by the doctor is not a true one. The appellants having not questioned the certificate before the Commissioner cannot at this belated stage contend that the non-examination of the doctor has prejudiced their case. The fact that the appellants did not question exhibit A-3, the medical certificate, can only mean that they have accepted that certificate before the Commissioner. If the appellants really wanted to challenge exhibit A-3 they could have summoned the doctor which they did not do and under the circumstances the Commissioner was right in accepting exhibit A-3 and granting the respondent an award on the basis of that certificate.
6. We are firmly of the view that the Evidence Act would apply only to judicial proceedings in or before any court and that administrative or quasi-judicial Tribunals are only fact-fining bodies, and the method of fact-finding varies from that sanctioned by law in courts. If it is insisted that the doctor should be examined then perhaps, in this particular case, the very purpose of the Act will get defeated and the Commissioner will not be able to adjudicate on the issue before him. The learned Judges of the Division Bench in United India Insurance Co. Ltd. v. Sethu Madhavan (supra) have held in para 18 at page 149 "The administrative and quasi-judicial proceedings are not fettered by technical rules of evidence and the Tribunals are entitled to act on materials which may not be accepted as evidence in a court of law. But they should adhere to the rules of natural justice."
7. Considering all the materials we are of the view that the Commissioner did not commit any error in accepting the medical certificate without the doctor being examined,
8. We see no error in the judgment of the Commissioner and accordingly we dismiss this M.F.A.