JUDGMENT
S.C. Mohapatra, J.
1. This is an appeal by insurer under Section 30 of the Workmen’s Compensation Act (hereinafter referred to as ‘the Act.’)
2. There being delay in preferring the appeal, an application was filed and long after the delay having been condoned, this appeal has come up for admission. Since facts arc admitted by both the parties and question of law is to be decided, I admitted the appeal. Since cause of action is of the year 1987 and workman is deprived of the compensation, with consent of parties the appeal is heard finally as parties agreed that record from the Commissioner would not be necessary.
3. Claiming to be workman driver of the vehicle ATJ 9457, respondent No. l filed an application claiming compensation under the Act alleging that on May 6, 1987, while driving the vehicle in course of and arising out of employ-menu he met with an accident sustaining injuries. Respondent No. 2 the employer admitted the accident, employment and injuries. It is stated that workman was getting remuneration of Rs. 1000/- per month. It discloses that during the relevant period the insurer appellant has accepted the premium and issued the policy to indemnify the employer and accordingly liability, if any, is to be discharged by the insurer. Insurer disclaimed its liablity on the ground of absence of insurance policy as well as fact of accident.
4. Commissioner found that claimant was driver of the vehicle and being employee of respondent No. 2 is a workman. Commissioner accepted the salary as indicated by the employer as well as the workman sustaining injuries as a result of the accident. Liability of the insurer is also fixed on account of the policy being issued to indemnify the workman. Taking into consideration the injuries, Commissioner has directed payment of compensation by the insurer which is the grievance of appellant.
5. In support of the injuries, a medical certificate granted by the Chief District Medical Officer has been filed by the workman. It is submitted on behalf of the appellant that Commissioner without examining the Medical Officer ought not to have accepted the certificate indicating the disability to be 37%. It is submitted that perusal of the certificate would indicate that the Medical Officer has not taken into consideration the loss of earning capacity on account of the injuries. Therefore, a finding of the fact on the basis of such certificate being unreasonable a question of law arises to be considered.
6. It is no doubt true that for proving percentage of disability a Medical Officer is to certify the same. For certifying the same, he is to take into consideration the nature of injuries and the loss of earning capacity. However, it is not necessary that the Medical Officer should reflect the same in the certificate itself. Being in the cadre of Chief District Medical Officer, who granted the certificate, it can be presumed that he took note of the requirements of law to determine the percentage of disability where such percentage is not mentioned in the schedule. If at all insurer was of the view that the percentage as indicated is not reasonable, it could have requested the Commissioner to summon the Chief District Medical Officer so that the insurer, by cross-examination, could have satisfied the Commissioner that determination by the Medical Officer in respect of percentage of disability is either unreasonable or is based on no material. When insurer has not taken such steps, Commissioner has jurisdiction to assess the percentage and determine the percentage of disability on basis of the certificate.
7. It is submitted by learned counsel for the appellant that without proof by the person granting the certificate as is required under the Evidence Act, such certificate is not admissible in evidence and accordingly, such certificate should not have been entertained. He has relied upon the decision reported in (1993-I-LLJ-142) (Ker) (United India Insurance Co. Ltd. v. Sethu Madhavan) where Kerala High Court held that Evidence Act is applicable to a proceeding under the Act. I am afraid that such broad observation would not be correct. No doubt, proceeding before Commissioner being quasi-judicial, principles of the Evidence Act are to be followed. However the technicalities of that Act as would be applicable to a suit, would not be attracted to a quasi-judicial proceeding, Accordingly, certificate can be entertained as a piece of evidence by the Commissioner without formal proof of it, where Commissioner is satisfied that it is genuine. Whether such certificate would be accepted as a piece of evidence is a question of fact, when the certificate is relevant for the purpose of determination of compensation. There is no dispute that if the certificate is accepted and the salary per month is also accepted, decision of the Commissioner is correct.
8. Reiterating the stand that the medical expert ought to have been examined, learned counsel for appellant has relied upon decision of this Court in (AIR 1993 Ori 103) (LIC of India v. Narmada Agarwalla) where an order was set aside and the proceeding was remitted back to give opportunity to parties for examination of the Medical Officer. Where the certificate requires explanation of the expert who has granted the certificate, Appellate Court can give such opportunity. However, a general rule cannot be laid down that, howsoever experienced the medical expert may be, he should be examined in a proceeding. It will always depend upon the status, experience, knowledge and acceptability of the report. In the present case the Chief Dispel Medical Officer having given the certificate which is accepted by the Commissioner, I am not inclined to set aside the order on that ground alone in a case where in respect of an accident of the year 1987, workman has been deprived of the compensation for more than six years.
9. It is submitted on behalf of the appellant that the rules made under the Act have not been followed by the Commissioner and accordingly, the order is vulnerable. No such stand was taken before the Commissioner and for the first time this being raised, I am not inclined to entertain the same when the rules are not mandatory, if such plea would have been taken by the insurer before the Commissioner and the Commissioner has ignored the same, in appropriate cases, appellate court can examine effect of non-compliance of the rules and prejudice caused to insurer to mitigate such prejudice. However, I may observe that rules are made to be followed and following the procedure would be hall mark of authenticity eradicating the feeling that Commissioner acted arbitrarily just to support cause of a workman. Adjudicating authorities should gain confidence of all parties.
10. It is submitted by learned counsel for appellant that interest ought not to have been directed to be paid in this case and taking into consideration the fact that insurer is a Government company which is to act through individuals some more time ought to have been granted. I need not go into the said question in the present case. I am inclined to hold that ends of justice would be best served in case I direct that in case the amount is not deposited before the Commissioner within one month from today, it shall carry interest at 6% per annum from the date of application till the date of deposit. Non-availability of a certified copy of this order will not be a ground to deposit within time stipulated since this order was dictated in presence of both the parties.
11. Injured workmen become destitute who are to be protected under the Act. Many persons in name of assisting the workman or his dependents take advantage by depriving the person of a portion of the compensation paid. Commissioner who administers the benevolent provision of the Act has duty to give full protection to the workman so that benefit given to him is fully enjoyed. Therefore, on deposit of the amount or before the stipulated date Commissioner shall hear the workman to know legitimate expenses incurred by him or to be incurred and on determination of the same release that amount in cash. To protect a workman I can direct investment of the amount in proper manner in Banks of the choice of the workman so that periodical payment would be available to him for better assistance in future. In case after such deposit, urgent necessity demands release of some amount. Commissioner finding the necessity can release a portion by informing the bank of the order. Bank should be instructed to make deposits unencumberable so that workman who belongs to weaker section of the society is well protected Commissioner is to take care of the workman taking into consideration his own experience of the life so that adjudicating machinery does not become ill reputed. Absence of a reason creates an impression of arbitrariness. To avoid such inference, Commissioner is to support his orders by reasons.
12. In result, order of Commissioner is modified so far as the payment of interest. Subject to the same, appeal is dismissed. There shall be no order as to costs.