The main legal point established in the judgment is the necessity of medical evidence and the condition precedent for assessment of disability of injured persons to claim compensation under the Workmen's Compensation Act, 1923.

A.H. Saikia, J.

1. Heard learned Counsel for the parties.

2. This appeal has been directed against the judgment dated 02.02.1999 passed by the learned Commissioner for Workmen's Compensation (for short, 'the Commissioner') in Title Suit (W.C.) 24 of 1996 dismissing the claim petition so preferred by the appellant as claimant seeking compensation under the Workmen's Compensation Act, 1923 (for short, 'the Act') due to injury suffered by him in an accident in course of his duty as driver while driving the vehicle in question involved in the accident, holding that the appellant was not entitled to get any compensation basically on the sole ground that he failed to examine the doctors who gave the disability certificate as well as the discharge certificates on different dates.

3. Assailing the impugned judgment, the learned Counsel representing the appellant, has strenuously contended that the learned Commissioner has committed a patent error of law in observing that due to non-examination of the doctors concerned who issued the disability certificate wherein percentage of disablement of the claimant-appellant was assessed to 25% and 39% as well as the discharge certificates dated 28.09.95, 04.11.95 and 08.12.95 the claimant was not entitled to any compensation under the Act.

4. Since no substantial question of law as required under proviso to Section 30 of the Act has not been formulated at the time of admission of this appeal on 18.06.99, the learned Counsel has tried to impress upon this Court today itself in the course of hearing to formulate the substantial question of law on the basis of the submission referred to above as follows:

Whether the learned Commissioner was justified in rejecting the claim petition for non examination of the doctors when the validity of disability certificate as well as the discharge certificates issued by them were not challenged by the respondents including the Insurance Company as well as owner of the vehicle.

5. To substantiate the formulation of the above substantial question of law, the following judicial authorities have been pressed into service:

(i) D. Venu and Ors. v. Senen Fernandes and Ors. reported in 1995 (2) TAC 309 (Ker).

(ii) United India Insurance Co. Ltd. v. Abdul Gafur and Anr. reported in 2004 (Suppl). GLT 118.

6. In D. Venu's case (Supra), the High Court of Kerala in paragraphs-3 and 5 categorically held as follows:

3. Counsel for the appellants relying on a Division Bench Judgment of this Court rendered in Achoor Estate v. V. Nabeesa 1994 (1) LLN 743, 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 Company 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 applie