Judgment:
P.K. Misra, J.
1. The insurer has filed this appeal challenging the judgment of the Commissioner for Workmen's Compensation, Bhubaneswar, in W.C. Case No. 46 of 1992 directing the payment of Rs. 80,640/- to respondent No. 1.
2. Respondent No. 1 had filed the claim application claiming that he was injured while travelling as a labourer in the mini truck belonging to the husband of present respondent No. 2. A common written statement had been filed on behalf of the present appellant and respondent No. 2 denying the allegations made in the claim application. The case was heard analogously with W.C. Case No. 45 of 1992 which had been filed by another labourer who had sustained injury in the same accident. The Commissioner held that both the claimants were, in fact, workmen under deceased K.C. Sahu, the husband of present respondent No. 2, in the mini truck belonging to the aforesaid K.C. Sahu and the injuries had been sustained in the course of employment. On the basis of the medical certificate issued by the doctor, the Commissioner awarded Rs. 80,640/-to the present respondent No. 1.
3. In this appeal, which was heard along with Misc. Appeal No. 434 of 1994, it was contended by the appellant that the finding of the Commissioner to the effect that the present respondent No. 1 was an employee under K.C. Sahu, the owner of the mini truck, is not sustainable. It was also contended that since the doctor who had issued the certificate on the basis of which the award had been made was not examined, the certificate should not have been admitted into evidence. It was, therefore, suggested that the matter may be remanded to the Commissioner for examining the doctor as a witness.
4. The learned Counsel appearing for the claimant-respondent No. 1 submitted that the finding to the effect that respondent No. 1 was an employee under late K.C. Sahu, the owner of the mini truck, is not liable to be interfered with in an appeal under Section 30 of the Workmen's Compensation Act, as no substantial question of law is involved. It was also contended that the procedure adopted before the Workmen's Compensation Commissioner being a summary one, the technical provisions of the Evidence Act are not applicable and as such the certificate issued by the doctor had been rightly accepted by the Commissioner.
5. So far as the first contention of the appellant is concerned, I am not in a position to accept the same as the question as to whether the respondent Ne. 1 was an employee under the late K.C. Sahu is essentially a question of fact. Section 30 envisages that an appeal is maintainable in High Court only on substantial question of law. The finding of the Commissioner is based on discussion of evidence and no question of law, far less any substantial question of law is involved in the said finding. In such view of the matter, I am unable to countenance the first contention raised by the counsel for the appellant.
6. So far as the second contention is concerned, the counsel for the appellant has relied upon several decisions of this Court as well as other High Courts to the effect that in the absence of examination of the doctor, the medical certificate by itself is not admissible to prove the liability. Such contention appears to be well-founded. Since the question of quantum is dependent upon the opinion of the doctor regarding percentage of disability, it is always desirable to examine the doctor so that the parties can have ample opportunity to cross-examine the doctor. The opinion of doctor in such cases assumes much importance and it would not be in the ends of justice to grant relief only on the basis of certificate issued by the doctor without affording an opportunity of cross-examination by the owner or the insurance company.
7. In such view of the matter, in normal course, I would have remanded the matter for fresh disposal before the Commissioner. However, faced with the prospect of a remand and a prolonged litigation thereafter, the counsel for claimant-respondent No. 1 has suggested that the matter may be disposed of in the spirit of Lok Adalat and any amount appearing just and fair may be awarded. The accident itself took place in August, 1991, about six years back. The parties have already faced a prolonged litigation. Therefore, I am inclined to accept the suggestion of the counsel for respondent No. 1 that instead of remanding the matter for fresh trial, some amount from the compensation may be reduced and the matter may be finalised here. Having regard to the facts and circumstances of the case, and the nature of injury as indicated, it was suggested by me that a sum of Rs. 62,000/- may be paid towards compensation. The counsel appearing for both the parties have fairly accepted the suggestion. I, therefore, modify the award of the Commissioner and direct that a sum of Rs. 62,000/- may be paid by the insurance company.
8. From the records, it appears that the entire awarded amount had been deposited in this Court which has been kept in fixed deposit. A sum of Rs. 62,000/- from the said amount may be paid to the claimant-respondent No. 1 within a period of four weeks from today and the balance amount along with accrued interest may be refunded to the appellant insurance company.
9. In the result, the appeal is allowed in part to the extent indicated above. There will be no order as to costs.