Ramachandra Iyer, J.
1. This is an appeal at the instance of the employer against the Order of the Additional Commissioner for Workmen's Compensation, Madras, in W.C. No. 540 of 1956, granting a sum of Rs. 1,470 as compensation for the injuries sustained by the respondent while working for the appellant.
2. When the matter came up before the Commissioner, the employer and the workman agreed as follows:
(1) The monthly wage of the applicant was Rs. 139. (a) The percentage of loss of earning rapacity, if any, sustained by the applicant will be estimated by a Medical Board constituted by the Director of Medical Service, Madras, and the estimate of the Board will be accepted as final and binding on them and (3) The employer will pay compensation to the applicant on the basis mentioned in items 1 and 2 above.
In accordance with that agreement the matter was referred to the Medical. Board and the Medical Board assessed the loss of earning capacity sustained by the respondent in respect of a partial permanent disability at 30 per cent. On the basis of that assessment the Commissioner calculated the compensation payable at Rs. 1,470 and directed the employer to pay the sum to the respondent. The employer has thereupon filed this appeal.
3. The only contention of Mr. R. Kannan who appeared for the appellant before me was that the assessment of the Medical Board was incorrect and that the Medical Board has given no sufficient data for arriving at the conclusion that the loss of earning capacity of the respondent could be put at 30 per cent. I am of opinion, that that contention would not be available to the appellant. He and the respondent agreed to refer the matter of the ascertainment of the loss of earning capacity to the Medical Board and agreed to abide by the decision of the Board. In such a case they would be bound by their agreement and they could not challenge the correctness of the assessment. That being so it would not be open to the appellant to challenge the order of the Commissioner based as it was on the conclusion of the Medical Board, by way of appeal under Section 30 of the Workmen's Compensation Act.
4. In Burgess v. Morton L.R. (1896) A.C. 136 a question of fact was raised and referred to the Court at the instance of certain arbitrators. Under the law only questions of law could be so referred. The Judge, however, gave judgment on the question referred to him. The question arose whether an appeal from the judgment would lie. The House of Lords held that as only questions of law could be referred to the Court as a special case, proceedings which referred the question of fact could be considered to be extra cursum curiae and that the judgment of the Court, in such a case, would be in the nature of an arbitrator's award and an appeal could not lie from it. At page 138 Lord Halsbury, L.C., stated the law thus:
My Lords, it has been held in this House that where with the acquiescence of both parties a Judge departs from the ordinary course of procedure and, as in this case, decides upon a question of fact, it is incompetent for the parties afterwards to assume that they have then an alternative mode of proceeding and to treat the matter as if it had been heard in due course.
The jurisdiction to decide the loss of earning capacity of an injured workman is with the Commissioner. It has been held that medical evidence being only opinion evidence would not be decisive of the question and that the Commissioner had to independently give a finding as to the extent of the loss of earning capacity. If at the invitation of the parties the Commissioner goes outside his jurisdiction and refers what should have been properly his decision to the decision of the Medical Board or some other agency, it should be held that he acted extra cursum curiae and that the parties would be bound by the opinion of the referee and that no one of them would have a right to complain if it goes against him. It is settled that in such a case there would be no right to appeal. Apart from the objection to the assessment of the loss of earning capacity by the Medical Board, there is no other objection to the assessment of compensation by the Commissioner.
5. The appeal, therefore, fails and is dismissed with costs.