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Appeal No. WCK-3 of 1976, heard on 14th January 1976.

Workmen's Compensation Act (VIII of 1923)

----S. 30-Appeal---Commissioner accepting opinion of doctor appointed by mutual agreement of parties during course of proceeding before Commissioner---Contention in appeal that award of Commissioner based merely on certificate of doctor without doctor's examination by Commissioner as witness was not valid in circumstances rejected.

A. T. Mahmood for Appellant.

Date of hearing: 14th January, 1976.

This is an appeal against the order of the Commissioner awarding com pensation under the Workmen's Compensation Act.

2. The respondent sustained serious injuries arising out of and in the course of employment on 12th February 197 5, after obtaining medico: certificate he filed a claim before the Commissioner. The appellant was duly served and several adjournments sought for filing written statement. How ever, on 10th July, 1975 Mr. M. A. Shaikh, Advocate appearing on behalf of the appellant pointed out that the notice sent by the appellant was duly replied and the respondent was directed to get himself examined by the Company's Doctor but he had failed to submit for examination. He also made a proposal for the examination of the respondent by Dr. Irshad Waheed and it was agreed that the disability assessed by Dr. Irshad Waheed should be acceptable. Mr. S. A. Channa, Advocate appearing on behalf of the res pondent accepted this proposal. Consequently, the respondent was examined by Dr. Irshad Waheed and permanent partial disability was assessed at 20 %. The medical certificate was brought on record and the case was adjourned for filing compromise. However, on the adjourned hearing another counsel Mr. A. T. Mahmood appeared and sought adjournment for filing fresh written statement instead of compromise. The case was adjourned to the following day and written statement was filed in which the employment of the respondent was disputed.

3. On the basis of the pleadings following two issues were framed

(1) Whether the applicant was in the employment of the respondent

(2) To what relief the applicant is entitled

4. Evidence was recorded and on the assessment of the evidence the learned Commissioner awarded compensation. Aggrieved by this, the present appeal had been filed.

5. The only plea which has been taken before me is that the learned Commissioner had based his decision as regards disability solely on the certificate issued by Dr. Irshad Waheed and this certificate could not be relied upon as Dr. Irshad Waheed was not examined. I find no force in this contention as the respondent was examined by Dr. Irshad Waheed at tile n instance of the appellant and it was clearly agreed that any opinion given by the aforesaid doctor would be accepted. Thus it was unnecessary to examine the doctor. The appellant is stopped from resiling from the statement made by his counsel. It was on account of this reason that the learned Com missioner did not call the doctor in evidence. Consequently, he can have no grievance against the course adopted by the learned Commissioner.

6. In the result the appeal is summarily dismissed.

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