Report No. 62
7.3. Section 20(3)-obscurity of position of expert.-
There is a brief provision relating to experts in section 20(3). Under this sub-section, any Commissioner may, for the purposes of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any subject relating to the matter under inquiry, "to assist him in holding the inquiry". The provision is not confined to medical experts, and any matter on which "special knowledge" can be acquired, could come within this provision. The number of reported cases on this sub-section is very small1, but its utility is obvious.
However, there is a certain amount of obscurity as to the exact position of the person chosen "to assist the Commissioner in holding the inquiry" under the section. Is he in the position of an assessor, or is he in the position of an expert witness? If he is an assessor, then, he is practically a member of the Court2. If he is an expert witness, he would be subject to cross-examination by the parties.
1. Akbar Ali v. Java Bengal Line, Calcutta, AIR 1937 Cal 697 (701, 702).
2. The word "court" is used here in a wide sense.
7.4. In general, when the opinion of a person having special knowledge of a subject is intended to be utilised by or before a Court, there are several courses open, as will be evident from the brief analysis given below:-
(i) Assessor-The person possessing special knowledge could be an 'assessor'. He then becomes a member of the court. He sits throughout the proceedings. He does not give any "evidence", and cannot, therefore, be subject to cross-examination by the parties1.
(ii) Court expert-The person possessing special knowledge could be described as a "court expert"2. He remains independent of the parties, but is not a member of the court. What he renders to the court can be properly called a "report" or "advice". This, category is not known to our legal system. We are referring to it since the present provision, it may be argued, is in this category.
(iii) Court witness-The person having special knowledge could be treated as a court witness. In this case, he has to be summoned3 and examined on oath, and would be subject to cross-examination by either party4.
(iv) Witness of a party-The person possessing special knowledge could be summoned as a witness at the instance of either party (or produced by a party without a summons). Like any other witness, he would be examined on oath, and cross-examined. The court has no initiative in the matter.
1. Cf. English Act, 1925. First Schedule \rules 5 and 11.
2. For history of expert evidence, see Learned Hand's article in 15 Harvard Law Review 40.
3. Section 23, Workmen's Compensation Act.
4. See case-law on-
(a) Order 16, rule 14, Code of Civil Procedure, 1908;
(b) Section 540, Code of Criminal Procedure, 1898; and corresponding section in the 1974 Code;
(c) Section 165, Indian Evidence Act, 1872.
7.5. It appears to us that so far as the Workmen's Compensation Act is concerned, there is no need to carve out a separate category-(ii) above1,-for the reasons already mentioned. Nor is it necessary to give the specialist the position of an assessor-(iii) above. Category (iv) above-witness of a party-needs no express provision.
1. Para. 7.4,(ii) supra.
7.6. and 7.7. It is therefore enough to empower the Court to call him as a Court witness-category (iii) above1.
1. Para. 7.4,(iii) supra.
7.8. Power to summon a court witness is already contained in the Code of Civil Procedure, and that will be available to the Commissioner1.
1. Section 23, Workmen's Compensation Act, and Order 16, rule 14, Code of Civil Procedure, 1908.
7.9. If the specialist appointed under section 20(3) gives an opinion, the parties should have the right to test the validity of his opinion. At present, the person appointed is more of the nature of an assessor, and is not subject to examination by the parties. The present provision is also defective in another respect; the specialist may be consulted in chambers by the Commissioner, and the parties then know nothing of the advice given by him. This defect should be removed.