1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1461/2010 Munja s/o Tukaram Girwad, Age : 42 years, Occ. Driver, R/o Shivaji Nagar, Tq. And Dist. Parbhani. ...Appellant. (Orig. petitioner) Versus 1 Anant s/o Prakashrao Gade, Age : 30 years, Occ. Business R/o Trimurti nagar, Parbhani Tq.and Dist. Parbhani. 2 Oriental Insurance Co. Ltd., through its Branch Manager, Branch Office, “Daulat Building”, Shivaji Road, Parbhani, Tq. and Dist. Parbhani. ...Respondents. (Orig. respondents) Mr. Aniruddha S. Usmanpurkar, Advocate for the appellant. Mr. P.C. Mayure h/f Mr. P.P. Bafna, Advocate for respondent No.1. CORAM : SMT. MRIDULA BHATKAR, J. DATED : 19th Sept., 2011. ORAL JUDGMENT: 1. Heard. 2. Admit. By consent of both the parties, the appeal is taken up for final hearing and disposal. 3. The appellant by this appeal raises an exception to the judgment and award passed by Civil Judge (Senior Division), and Ex- Officio Commissioner for Workmen Compensation Act, Parbhani in N.F.A. No. 01/2005, dated 25th September, 2009. The appellant was working as driver with respondent No.1 who is the owner of jeep 2 bearing registration No. MH/22-B-8289 residing at Parbhani. On 16/04/2005 when he was driving the jeep and was on duty, the front wheel from the driver side burst and jeep dashed against the tree and toppled down. The appellant sustained injuries including the fracture of tibia, contusion and other multiple injuries all over the body. The appellant took treatment in the Orthopaedic hospital of Dr. Amit Shah and thereafter he was shifted to Civil Hospital, Nanded for further treatment. The appellant thereafter filed claim petition for compensation under section 4 of Workmen’s Compensation Act, 1923. The appellant tendered evidence and the matter was decided and the claim was allowed on 15/09/2006. The respondent / Insurance Company preferred an appeal and at the time of hearing of said appeal, this Court remanded the matter giving an opportunity to the appellant to adduce necessary evidence. It was re-tried in F.A. No. 1255/2006 which was filed by the respondent, against the order of award. This Court found that the Commissioner did not give thought to the proof of fact of permanent disability which can be covered under sub-clause (c) of Section 4(1) of the Act. It is held that it was improper to arrive at quantum of compensation without finding as to whether the accidental fall caused scheduled injuries or loss of earning capacity. The matter was remanded to enable the applicant to lead evidence. On remand, the appellant filed purshis before the Commissioner that the appellant adopted evidence which was tendered by him in the previous trial and choose not to examine any other witness. The Insurance company did not lead any further evidence. The Commissioner after considering the evidence before it, delivered judgment and award. However, in the second round, the judgment 3 was against the appellant as the claim for the compensation under the Workmen Compensation Act was denied and the claim was dismissed by the impugned order. Being aggrieved by the said order, this appeal is filed. 4. A short question before this appellate Court in this matter is, whether the appellant has proved his case of permanent disability as contemplated under Workmen’s Compensation Act or not ? Learned counsel for the appellant has submitted that the appellant sustained fracture of tibia of right leg. He was working as driver on the jeep of respondent No.1 and was drawing Rs.3,000/- per month. He submits that this fact is not denied. Learned counsel argued that the appellant has proved the fact of permanent disability on the basis of Exhibit 39 and Exhibit 45 before the trail Court. Learned counsel argued that Exh. 39 is injury certificate proved by Dr. Amit Shah at Ex. 38. Exhibit 45 issued by Medical Officer working at Civil Hospital, Nanded. He submits that Exhibit 45 is issued by public servant and hence, it is a public document and therefore, on production contents therein are proved. 5. Learned counsel Mr. P.C. Mayure, for respondent No.1 argued that Medical Officer, Civil Hospital, at Nanded has issued Exhibit 45 and then that certificate is required to be proved by putting concerned medical officer in the witness box. He submitted that as per section 4(1)(c)(ii) and explanation II, the injuries caused to the injured are non scheduled injuries. In support of his submission, he relied on the case of Raj Kumar Vs. Ajay Kumar and another reported in 2011(1) ALL MR 402 (S.C.). 6. The points arise for consideration :- 4 I Whether the appellant has proved that he is permanently disabled ? No. II Whether the appellant is entitled to any compensation ? No. 4. Admittedly, in the accident occurred on 16/04/2005 the appellant got injured. He sustained fracture of tibia of right leg. At that time, he was driving the vehicle of respondent No.1. To the success of the claim under the Workmen’s Compensation Act, it is the claimant to prove the fact of the disablement, total or partial as it is claimed. In the present matter, the appellant claims that he has sustained 40% total permanent disablement. Section 4(b) speaks about permanent total disablement and 4(1) (c) is about the permanent partial disablement. If the injury is scheduled, then accordingly the loss of earning capacity can be assessed. However, in respect of the non scheduled injuries, it is necessary to prove the act of disablement as claimed to enable the Commissioner to assess the loss of earning capacity of the person. Section 4(1) (c) (ii) states about the non scheduled injuries. Permanent disablement is to be proved through qualified Medical practitioner. No doubt, Dr. Amit Shah is a qualified Medical Practitioner. He holds necessary educational qualification and experience. Exhibit 39 is Medical certificate issued by him on 19/04/2005. In the certificate, he has given details of injuries sustained to the appellant. By examining Dr. Amit Shah, the appellant has proved the fact of injury sustained to him in the accident. However, it is pointed out by learned counsel for respondent that Dr. Amit Shah has admitted in the cross examination that he can not state about the loss of earning capacity of the petitioner, unless the 5 appellant is physically examined by him. Moreover, it is to be noted that the accident has taken place on 16/04/2005 and certificate was issued on 19/04/2005. Such period of three days is very short to certify permanent disability and assess the loss of earning capacity of a person. A time factor plays major role to know the effects of the injury. Recovery and healing depends on time. Exh. 39 medical certificate and Exhibit 38 evidence of Dr. Amit Shah are not sufficient to prove the fact of total permanent / partial disability and loss of earning capacity which is claimed as 42%. 5. Learned counsel for the appellant submits that another certificate Exhibit 45 was issued by Medical Officer, working in Civil Hospital, Nanded and that certificate being public document is to be accepted as proved. The educational qualification and competency of Medical Officer, Civil Hospital, Nanded to issue Exhibit 45 can not be questioned. However, by mere production of Exhibit 45, the contents in the said document are not proved. The certificate may be considered as a puiblic document in view of Section 74 of the Indian Evidence Act, 1872, as the said certificate forms an official act of the public officer. However, it is an opinion of the expert under section 45 of the Evidence Act and the contents are necessarily to be proved through said Medical Officer. A certificate issued by the Doctor working in the Government hospital, is a part of his job and so it is a document which forms function or the act of the public officer. It can not be proved if it is controverted by the other side and especially when it is tendered to prove the fact of injury and loss of earning capacity. It is a matter of standard of proof or the degree of proof which the Court expects to be 6 tendered and proved by the appellant while proving any medical certificate issued by Medical Officer working in Civil Hospital. Witness Dr. Amit Shah has correctly stated in the evidence that unless he examine the patient physically, it is difficult for Doctor to opine about the loss of earning capacity and degree of permanent partial disability. The certificate is an opinion given by the expert and that expert’s evidence on the point of the contents mentioned therein is to be established by putting a witness in the witness box. It is necessary for the Medical Officer who has issued the certificate to depose that he has examined the injured and thereafter he has issued a certificate. The Court also should get an opportunity to verify the fact of disablement. In support of this, I placed reliance on Raj Kumar Vs. Ajay Kumar and another reported in 2011(1) ALL MR 402 (S.C.) Supra and para 12. Para 12 :- “The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give ‘ready to use’ disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be a proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically 7 examined and assessed the extent of disability of claimant, is tendered for cross examination with reference to certificate.” The claimant has failed to prove his case on this point. In fact, he was given an opportunity of second round, which he did not avail of. Under these circumstances and legal position, no interference is required on the order passed by the Commissioner. ORDER The appeal is dismissed. [SMT. MRIDULA BHATKAR, J.] ts k/2011/Sept.19/fa1461.10