Koshi, C.J:— This is an appeal by the employer from an order of the Commissioner for Workmen's Compensation awarding respondent 1 a sum of Rs. 840/- as compensation in respect of an accident and Rs. 20/- as costs of the proceeding. Respondent 1 was a workmen employed by the appellants, the Merchant Steam Navigation Co. Ltd., for loading and unloading cargo from “Victoria Marie” which was in the port of Alleppey on 10-11-1950.
2. The employment was made through respondent 2, the Stevedoring Contractor of respondent 1. On 10-11-1950 the respondent was engaged in stacking oil drums in hatch No. 2 of the Steamship mentioned and while engaged in that work his light thumb get jammed between two drums, with the result he sustained a cut at the he of the thumb and the nail got lost. The necessary medical aid was given to the workman and in due course the Alleppey Port Workers' Union took up his cause and notified the appellants that they should give him due compensation. Except an amount of Rs. 18/- paid by respondent 2 towards medical charges nothing further was done by respondent 1 or respondent 2. The workmen therefore moved the Commissioner for workmen's compensation and the learned Commissioner found that the average weekly wages of the workmen was Rs. 90/- and that extent of the disability resulting from the accident was 20 per cent.
3. Accordingly he found that as per Sch. IV of Act 13 of 1114, (Travancore) the workman was entitled to a compensation of Rs. 840/-. The injury sustained was treated as permanent total disablement of the thumb. Deducting from the said sum of Rs. 840/- the amount of Rs. 18/- paid by respondent 2, an award was made in favour of the workman for Rs. 822/- together with costs (Rs. 20) against respondent 1. The appeal is against this decision.
4. The learned Advocate General who appeared in support of the appeal raised several points before us and the respondent's counsel contended that the appeal itself was incompetent, inasmuch as no substantial question of law was involved in the appeal. The objection was straightaway overruled as in our opinion a challenge to the legality of the procedure adopted by the Commissioner would constitute a good ground for the appeal.
5. Besides, the Advocate General's arguments covered various questions of law such as whether the applicant before the Commissioner was a workman within the meaning of the Workmen's Compensation Act and whether the injury sustained amounted to any “permanent total disablement”. In the view we take of certain matters of procedure arising in the appeal, it is, however, unnecessary to go into the latter questions.
6. The first irregularity we notice in respect to the proceedings before the Commissioner is that while the applicant before him, that is, the workman, had not claimed any compensation on the basis that his thumb had sustained permanent Page: 56total disablement, the Commissioner treated the injury as such and proceeded to award compensation accordingly. On 1-12-1950 the Alleppey Port Workers' Union wrote to the Commissioner as follows:
Alleppey Port Workers' Union
(Reg. No. 7).
Alleppey.
Ref. 479/26.Date: 1-12-’50.
Merchant Steam Navigation Co., Ltd., Alleppey.
Dear Sirs,
Ref: Accident in s.s Victoria Marie.
With reference to the above accident we have to inform you that Com. Mohemed Kunju Apooka had been admitted in the District Hospital on 10-11-50 and even now he is under treatment and unable to attend to his work. So we have to request you to kindly make necessary arrangements so that his rightful wages and medical charges are immediately paid. Till yesterday he had lost 8 wages and further we have to inform you that he is liable to receive his medical charges and wages till he is completely cured of.
Requesting you once again to do the needful immediately and oblige.
Yours faithfully,
Sd/- President.”
7. We cannot treat the demand made here as anything more than a claim for compensation for temporary disablement. The petition before the Commissioner is also couched in similar terms. Paragraphs 5 and 6 of the petition and the prayer portion thereof may usefully be quoted here:
“(5) The applicant is accordingly entitled to receive the rightful wages of compensation till completely cured of for work and an amount of Rs. 50/- for expenses against medical treatment.
(6) The applicant has taken the following steps to secure a settlement by agreement namely: on behalf of the applicant the representative of the Alleppey Port Workers' Union approached the Agent and requested him to give the applicant his rightful wages of compensation and the necessary financial aid for the medical treatment; but the Agent declined to do so stating that he is not bound to give such a compensation or monetary aid, and hence it has proved impossible to settle the question in dispute.”
8. You are therefore requested to determine the following questions in dispute, namely:
(a) Whether the opposite party is liable to pay such compensation as is due;
(b) Whether the opposite party is liable to meet the expenses for medical treatment for the injured thumb of the applicant.”
9. No doubt prayer (a) says “such compensation as is due” but to understand what ‘due compensation’ according to the applicant was the petition has to be read as a whole. We are clear in our minds the prayer was only for such compensation as was admissible under col. 4 of Sch. 4 of the Act that is, “half-monthly payment as compensation for temporary disablement”. The Commissioner went out of his way and exceeded his jurisdiction in proceeding to hold the enquiry and award compensation as if the injury resulted in permanent total disablement of the thumb.
10. The next irregularity we notice in the procedure adopted by the Commissioner is of the use he made of the Medical certificate issued by the Medical Officer in charge of Alleppey District Hospital. The medical officer was not examined. Indeed the certificate was issued as the result of a requisition from the Commissioner himself.
11. The learned Advocate-General contended that without examining the medical officer who issued the certificate the learned Commissioner ought not to have made that the basis for his award. The Counsel for respondent 1 had to concede that the procedure was irregular and that on the materials in the case the award cannot be sustained. His request, however, was that the case should be remanded for further enquiry.
12. We do not consider that the circumstances of the case warrant it. Before the Commissioner respondent 1 did not want to call the medical officer as a witness nor had he even filed a witness list making the medical officer one of the witnesses on his side. Interest of justice do not demand that the case should go back to the Commissioner especially when the workman himself claimed only compensation for temporary disablement. Very nearly five years have elapsed since the accident took place.
13. This irregularity of using a medical certificate without proof occurs frequently and as it is likely to be repeated we would refer to certain decided cases which deal with the question. Before that it is worth noticing that the commissioner's order states that the medical certificate has been proved by the applicant. The certificate contains the following particulars:
“1. A cut at the tip of the thumb which was healed. The nail is absent.
2. He cannot flex the thumb and as such his use of the thumb is lost to a certain extent though not completely. Hence the percentage of loss in the working capacity may be fixed as 20 per cent.”
14. In awarding a compensation of Rs. 840/- to respondent 1 the learned Commissioner merely adopted the ‘ipse dixit’ of the medical officer who gave medical aid to the workman.
15. The use of medical certificates in Workmen's Compensation cases without proof has been the subject of severe comments in several cases and here we shall content ourselves by referring to three decisions of the Calcutta High Court. In — Ali Akbar v. Java Bengal Line*, Calcutta’, AIR 1937 Cal 697 (A), Costello, Ag. C.J said:
“The learned Commissioner neither at that stage nor at any other stage should have paid any attention whatever to a medical certificate no matter how eminent the giver of it might be. It has been laid down in England on more than one occasion that medical certificates are not of themselves admissible in evidence. If the workman on his side and the employers on their side desire to put medical testimony before the Court they must do so by calling medical witnesses.
In this connexion, I will refer to one authority only; — ‘Richards v. Sanders and Sons’, (1912) 5 BW CC 352 (B). In that case the workman (a painter) claimed compensation for a strain to his heart which he said occurred whilst he was at work on a scaffold. The Judge accepted the applicant's evidence as to the nature of the accident and the manner in which it happened and admitted as evidence, although objection was made, three certificates of a certain doctor who had failed to attend on subpoena and on the strength of these certificates awarded compensation to the workman. The employers appealed and the Court of Appeal held that the certificates were inadmissible.”
16. In — ‘Panchanan Ghose… v. Bhaggu Bari….’, AIR 1950 Cal 261 (C), Harries, C.J dealt with the question as follows:
“Learned advocate for the appellant has also urged that there was really no evidence of incapacity or disablement. Admittedly, no doctors were Page: 57called and the learned Commissioner has acted upon the medical certificates. Medical certificates are the worst form of hearsay evidence. They merely record what somebody who is not a witness has written. There is nothing to suggest that the parties agreed to be bound by these certificates and I cannot see that any order finding incapacity and the extent of incapacity can ever be founded upon a mere medical certificate.
The Commissioner also noted that he had seen the workman. The Commissioner is not medical man and in this class of litigation malingering and false claims are notorious and I am sure that the Commissioner would find it very difficult to say whether an alleged injury to a joint was real or not. However, all the Commissioner had in this case were medical certificates together with his own observation. However, it is not necessary to consider this question further because it is quite clear that this order cannot possibly be sustained and must be set aside.”
17. The third case we desire to refer to is that reported as — ‘Rameswar Lall Agarwala… v. Ram Swami Alias Rama Swami….*’, 54 Cal WN 812 (D). The judgment in that case is also one delivered by Harries C.J, and it contains the following instructive passage:
“………. The only evidence of the extent of disability, if it can be called evidence, was a medical certificate signed by the workman's doctor. A medical certificate is not evidence unless both sides agreed to it being received as evidence. A medical certificate is merely a statement in writing of the doctor's view as to the injury and disability. The applicant could not go into the box to state that the doctor had told him that the disability was 70 per cent. and neither can he produce a medical certificate signed by the doctor.
In producing the medical certificate he is in effect telling the Court what the doctor had told him in writing. A medical certificate is a hearsay evidence when produced by any person other than the doctor who gave it and that being so, it cannot be accepted to prove the injuries or the extent of the disability.
Learned Advocate for the workman has to concede that an award cannot be based on this medical certificate and he further concedes that there was no other medical evidence of any kind upon which the Court could assess the degree of incapacity. That being so, the award cannot stand and must be set aside.”
18. On the records of the present case we cannot find any manner of acquiescence on the part of the employer or his contractor in the procedure adopted by the learned Commissioner.
19. In the result therefore, we would allow the appeal, set aside the order of the Commissioner for Workmen's Compensation and dismiss the workman's claim. No order is made for costs.
20. Appeal allowed.