Sambhu Chandra Ghose, C.J.
1. This is an appeal from the judgment of the Commissioner, Workmen's Compensation Tribunal. The claimant resnon dent was a workman employed by a contractor with the appellant alleged to have received personal injury by accident arising out of and in the course of his employment on the 12th January, 1967. The cause of the injury was that while he was working as a surface talwan, coal fell upon his waist, both legs and feet. The claimant alleged that he had sustained injuries in the waist, both legs and feet. The monthly wages of the claimant amounted to Rs. 150/200. In the written statement filed by the appellant, the appellant denied any liability. According to the appellant, the claimant sustained injury to his left leg only and nowhere else. The claimant, according to the appellant, completely recovered from the effect of the injury and resumed his duty on 25th January, 1967 and since then has been working without loss of efficiency and reduction in his earnings. According to the appellant, it was a case of temporary disability only without any loss of efficiency or reduction in earning of the claimant respondent. The claimant has claimed Rs. 980 at the rate of 10%' loss in earning capacity. The following issues were framed in adjudication.
1. What is the extent of disablement sustained by the applicant?
2. Was Rs. 31.50 paid to the applicant as compensation?
2. No issue with regard to the loss of earning capacity was raised. By consent the medical certificate of the doctor who examined the claimant respondent was admitted in evidence formal proof having been dispensed with. It was urged by Mr. Dhar on behalf of the appellant that there was no medical evidence as to the injury and as such no claim can be admitted. As in most of the cases heard by us the medical report of the doctor examining the injured worker on behalf of either side is tendered by consent, the formal proof having been dispensed with and the doctors are not called or tendered as witnesses and we have to decide the case without the oral or documentary medical evidence to settle the point and inasmuch as the respondent did not appear through any lawyer nor personally we requested Mr. Jayanta Mitter to appear as amicus curiae to assist us in this matter, Mr. Mitter in true tradition of the Bar agreed to do so and rendered valuable assistance to the Court in the instant matter. Mr. Mitter drew our attention to the case of Ali Akbar v. Jaya Bengal Line, Calcutta AIR 1937 Cal 697 wherein it was held that the medical certificates are not of themselves admissible in evidence; if the workman on his side and the employer on their side desire to put medical testimony before the Court, they must do so by calling a medical witness. In such a case if the Commissioner relies on the medical certificate, there is material irregularity of procedure. Mr. Mitter then cited the case of Panchanan Ghose v. Bhaggu Bari reported in : AIR1950Cal261 wherein a Division Bench of this Court observed that a finding as to incapacity or the extent of incapacity cannot be founded upon mere medical certificates which are the worst form of hearsay evidence. They merely record what somebody who is not a witness, has written. Similarly it is not proper for the Commissioner to base his findings upon his own observation of the injured workman. Again in Rameswarlal Agarwalla v. Ramswami (1950) 54 Cal WN812. Chief Justice Harris observed that a medical certificate is a hearsay evidence when produced by a person other than a doctor who gave it and this being so, it cannot be shown to prove injuries or the extent of disabilityof a workman under the Workmen's Compensation Act and award cannot be passed on such medical certificate. In the case of Kunchali Rudrani v. Baby reported in 1979-I L.L.J. 306 the High Court of Kerala held that the Evidence Act does not strictly apply to a proceeding before the Commissioner under the Workmen's Compensation Act, but even then he must follow the principles of natural justice.
3. In the instant case we do not find any medical evidence of either side. The medical certificates which have been tendered, in the absence of evidence the doctors issuing them, are mere hearsay evidence. In the case of Calcutta Licensed Measures Bengal Chambers of Commerce v. Md. Hossain : AIR1969Cal378 a Division-Bench of this Court observed that the loss of earning capacity or the extent of it is a question of fact. It has to be determined by taking into account the diminution or destruction of physical capacity as disclosed by the medical evidence and then it is to be seen to what extent such diminution or destruction should reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performs. The medical evidence as to physical capacity or diminution of physical capacity is an important factor in the assessment of loss of earning capacity. In the absence of medical evidence by doctors examining the claimant on behalf of either side, it is difficult to measure the physical disability of the claimant and thus also the diminution or otherwise of the earning capacity. Thus in our opinion, in the instant case, it is impossible to arrive at any conclusion as to the extent of loss of earning capacity of the claimant. The award, in our opinion, is vitiated in that respect.
4. The appeal therefore succeeds and is allowed. The award is set aside. In the facts and circumstances of the case, there shall be no order as to costs.
R.N. Pyne, J.
5. I agree.