123-NLR-NLR-V-56-M.-GANAPATHY-Appellant-and-M.-RAMASAMY-Respondent.pdf
PULLE J. Oanapothy v. Ramasamy
465
1954Present : Pull© J. and Fernando A.J.M. GAN APATITY, Appellant, and M. RAM AS AMY,RespondentS. C. 105—D. C. Colombo, 19,035
Postponement—Conflict oj medical certificates—Proper assessment.
Where a medical certificate which was submitted on behalf of the plaintiffin support of an application for a postponem' nt of the hearing of evidence wasin oonfliot with the report of the medical practitioner who examined him onthe next day on a commission issued by Court at the instance of the defendant—Held, tliat tho medical certificate should not be rejected unloss it could besaid that the medical practitioner who issued it and the plaintiff had conspiredto conceal the true facts.
-^-PPEAL from an order of the District Court, Colombo.
N. E. Weerasooria, Q.C., with H. W. Jayewardene, Q.C., and D. R. P.Qoonelilleke, for the plaintiff appellant.
C. Thiagalingam, Q.C., with V. Arulambalam, for the defendanrespondent.
Cur. adv. vult.
December 15, 1954. Pulle J.—
Tho order from which 1his appeal is taken arises out of an applicationmade by the plaintiff’s counsel on the 18ih December, 1952, for a post-ponement of tho hearing fixed for that date on the ground of plaintiff’sill ness. Tho application was supported by a medical certificate datedthe 17h December, which readB :
" This is to certify that Mr. M. Ganapathy is under my treatmentfor influenza whli a temperature of 100 degrees and chest pain. Hois confined to bed and unfit to move about. ”
The certificate was challenged by defendant’s counsel apparently on thoground that the statements therein were untrue and he obtained a com-mission on Dr. Cyril Fernando to have the plaintiff examined the sumoday. Dr. Fernando examined him on the 18th December at 12.45 p.m.,and reported that his temperature was 98*2, pulse 84, and lungs and throatclear. In his opinion the plaintiff wa3 not suffering from influenza andwas fit to attend court. The case was called on the 19th Decemberwhen defendant’s counsel moved that it be fixed for trial ex-parte. Thiswas resisted on two grounds, first, that an enquiry should be held on themedical reports and, secondly, that in any event the trial should proceedinter partes. The learned District Judge fixed the whole matter for
496
PULLE J.—Qanapathy e. Jtamasamy
enquiry on the 9th .Mirch, 1953, and after hearing evidence he came tothe finding that the plaintiff was fit to attend court on ihe 18ih Decemberand to continue his evidence and that his absence was without sufficientcause and made order that the case be set down for trial but that bothon the plaintiff’s claim and the defendant’s claim in reconvention theplaintiff would not be entitled to be heard. The plaintiff appeals fromthis order.
The only evidence there is of the condition of the plaintiff on the nightof 17th December is that of Dr. S. Chinniah. He was sent for to the houseof the plaintiff on the 17th at about 7.30 p.m., and found him with atomperature of 100 degrees. The plaintiff complained of severe chestpain and pains all over the body. He prescribed a mixture, a powderand an ointment for the pain. The circumstances in which he gave tothe plaintiff the certificate quoted earlier are spoken to by him as follows : .
“ Plaintiff told me that he had a case and that he had to attendcourt the next day. I told him that, as he had a chest pain, it wasbctteT for him to be in bed and take the necessary medicine. Hewanted a certificate and I gave him a certificate stating tho conditionthat he was in at the time. ”
It is relevant at this stage to mention that the plaintiff claimed a sumof Rs. 26,012 and the defendant counter-claimed Rs. 35,002. The trialcommenced with the evidence of the plaintiff on 23rd July, 1952, andwas continued on 24th July, 13th and 14th October and 15th December,
On the last mentioned date further hearing was put off for the18; h and 19'.h December, 1952. The cross-examination of tho plaintiffcommenced on 23rd July and was to be resumed on 18th December sothat on five different dates he had appeared and submitted himself forcross-examination. I think there is considerable force in the contentionthat it was unlikely that the plaintiff having contested the case thus farwould have taken the risk of forfeiting his claim and of having judgmententered against him on the counter-claim by simulating illness to avoidan appearance on the 18th December. "
Tho District Judge has accepted the evidence of Dr. Chinniah that theplaintiff was not sufficiently well on the night of 17; h December to leavehis bed and that he had fever and pain : in other words, that tho certi-ficate was factually truo.
It is in evidence that Dr. Chinniah again examined the plaintiff atabout 10.30 a.m. on the I8th December and found that his temperaturehad returned to normal. He complained of pain in the leg and saidthat he could not go to court and “ was sending the certificate”. Dr.Chinniah was satisfied that he was ndt in a fit condition to go to courtand I have no reason to doubt that the plaintiff acted on the opinion ofhis medical adviser. If in fact that opinion was not well founded onecan yet understand a medical adviser wring on the side of caution intelling his patient to liemp in bed some fifteen hours after he had foundhim suffering from influenza.'.
PULL.E J.—Qanapathy v. Ramasamy
407
The opinion of Dr. Fernando which has been accepted, and rightly,by the Judge is that the plaintiff’s condition at about 10.30 a.m. onthe 18th December, which was the time of the second examination byDr. Chinniah, would have been much the same in which he found himat 12.45 p.m. Now accepting the entirety of Dr. Fernando’s evidencecan it be said that the plaintiff’s absence was without sufficient cause ?
It is definitely established that on the night of the 17<h Decemberthe plaintiff was suffering from influenza. Assuming that Dr. Chinniahon the morning of -the 18ih December formed erroneously the opinionthat the plaimiff was not fit to attend court it appears to me that theplain1 iff acted reasonably in accepting the advice of.a medical practi-tioner who had commenced to treat him only the night before for an illnesswhich may recur, unless the pat ient lies up in bed for two or three days.
After describing the condition of the plaint iff as found by Dr. Chinniahon the 18th morning the learned Judge says in his order :
“ But that, even on Dr. Chinniah’s evidence, was all that was wrongwrit him on the 18ih morning. Why Dr. Chinniah says that evenat that lime lie was satisfied the plaintiff was not in a fit condition togo to court I am at a loss to understand. As regards the pain, ofcourse, lie could have only gone on what the plainiiff told him. Butwhen the pl-iint iff told him that, he was sending the certificate grantedon the 17th to ihe court. I think Dr. Chinniah should have objoctodto such a course. ”
Dr. Chinniah may have made an incorrect assessment on the 18th morningof plain iff’s fitness to attend court immediately on the day following theonset of influenza but should the fact that the plaintiff acted on medicaladvice expose him to all the consequences, almost penal, of the claimmade by him and that made against him being adjudicated upon withouthis being heard ? I do not think so. The purpose for which Dr. Chiiuiialimade out his conificate on the 17th was undoubtedly to excuse plaintiff’sabsence on tlio 18 h. If he believed on the 18th that the plain' iff wasnot in a fit eonili ion to appear on that day, the propriety or otherwiseof the usi to which the certificate would havo been put could hardlyhave oct urred to 1 im. I may even bo permr ted to add, with all respect,that in the circumstances Dr. Chinniah need not havo objected to thecon ificate being produced when the plaini iff said 1 hat lie was “ sonding ”it. Bosi '.es, i is highly probable that at the time he examined the plain-tiff (i .o., 10 30 a.m. on the 18th) the certificate was already in the handsof counsel wi'.li hardly any time to countermand it.
It is no doubt true that the condition of the plaintiff described in thecertificate did not accord with the facts as they existed on the 18ih butcan the application be aptly described in the words of the learned Judge“ ns a deliberate attempt by the suppression of the true facie, which itwas e: a ntial that the court should have been apprised of, to have thetri .1 de ayed ” ? Unless it could be said that Dr. Chinniah and the plain-tiff had conspired on the 18th morning to conceal the true state of affairs,
498WEERASOORIYA J.—Dharmaratna t>. Fernando
I think that a charge of deliberate suppression cannot be made out onthe evidence.
For the reasons which I have stated I am of the opinion that the plaintiffhad sufficient cause to be absent ■ on the 18th. It is, therefore, notnecessary to deal with the further submissions on behalf of the plaintiffthat even if the finding of fact is accepted as correct the order oannotin law be supported.
I would set aside the order appealed from and remit the case for hearingin due course. The plaintiff will pay to the defendant the taxed costsof the 18th and 19th December, 1952, (including the expenses of thecommission). Each party will bear his own costs of appeal and thocosts of 9th March, 1953.
Fernando A.J.—I agree.
Order set aside.