D VENU Vs. SENEN FERNANDEZ

JUDGEMENT

(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 Ext. A3 medical certificate issued by the doctor wherein he certified that the disability suffered by the first respondent is 40% 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 4-10-1989 at about 4 p.m. while the first respondent was doing his work, a 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 Ext. A3 which certified 40% 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 Achoor Estate v. Nabeesa ( 1994 (1) KLT 657 ) contended before us that the Commissioner was in error in accepting Ext. A3 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 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 ( 1992 (2) KLT 702 ). 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 (1992 (2) KLT 702) was in fact respectfully adopted by the later Division Bench in Achoor Estate v. Nabeesa (1994 (1) KLT 657) The later Division Bench stated: