JUDGMENT : D.H. Shukla, J. The Appellant, Mohamed Abdulla, is an insured person under the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act'). He is an employee of M/s. Marsdan Mills Ltd., Ahmedabad. It is not a disputed position that he sustained an employment injury on 8.12.1976. It appears that the injury was sustained by him on his right leg. He was referred to the Medical Board for determination of the question of his disablement and assessment of the loss of his earning capacity caused by the said employment injury. The Medical Board assessed his loss of earning capacity at 9 per cent after having examined him. 2. Having been aggrieved by the decision of the Medical Board dated 7.3.1978, the Appellant preferred an appeal to the Medical Appeal Tribunal, bearing No. 239 of 1978. The Medical Appeal Tribunal, however, dismissed the appeal and confirmed the decision of the Medical Board and so being further aggrieved by the decision of the Medical Appeal Tribunal, he preferred an appeal to the Employees' State Insurance Court under Section 54-A(2)(i) of the Act. It is contended that the decision of the Medical Appeal Tribunal is erroneous: that it did not consider the nature and effect of the injury to the Appellant's right leg which has lost utility value for all practical purposes: that it ignored the provisions of foot-note of Schedule II of the Act and other grounds. The learned Judge, the Employees' Insurance Court, Ahmedabad, dismissed the appeal by his order dated 29.2.1980 and hence the present appeal is filed by the Appellant under Section 82 of the Act. Sub-section (2) of Section 82 of the Act provides that an appeal shall lie to the High Court from order of the Employees' Insurance Court if it involves a substantial question of law. 3. The Appellate Judge proceeded to deal with the matter on the principal ground that the Medical Board assessed the loss of earning capacity at 9 per cent after examining him and that the same assessment was confirmed in appeal by the Medical Appeal Tribunal. So, on the one hand the loss of earning capacity is assessed by the competent statutory Tribunals and on the other hand the Appellant has not challenged this position by examining an expert, i.e., to say of medical professions, although an opportunity was provided to him to do so. So, on the one hand the loss of earning capacity is assessed by the competent statutory Tribunals and on the other hand the Appellant has not challenged this position by examining an expert, i.e., to say of medical professions, although an opportunity was provided to him to do so. Not only that but the Appellant did not remain present at the time of the hearing of the appeal, nor did he choose to examine himself. The Appellant made submissions in writing about his present ailing condition but since he did not remain present at the time of the hearing of the appeal, the lower Appellate Judge observed that he had no opportunity to consider his ailment. He, therefore, accepted the assessment of loss of earning capacity at 9 per cent as assessed by the statutory Tribunals. 4. Miss Asha Gupta, the learned Advocate for the Appellant, submitted before the lower appellate court that the loss of earning capacity was to be determined not only in the light of the impact of the injury on the physical powers, but it was also to be considered in the light of the unserviceable condition to which he was put in any market reasonably accessible to him on account of the impact of the injury. This argument did not persuade the lower Appellate Judge to take the view canvassed by Miss Gupta that the Appellant had suffered a total disablement as the Appellant had not entered the witness-box at all and he felt that he had no evidence with regard to the work which the Appellant was capable of performing at the time he suffered the accident, other than what he was actually doing in his employment at the time of the accident. Miss Gupta relied upon the evidence of the two witnesses, namely, Suresh Kumar Natvarlal Dave (Exh. 10) and Shantilal Kalidas Shah (Exh. 15) to show that the Appellant was rendered unfit for any employment which he was capable of doing at the time he suffered an accident and that therefore he was entitled to recover compensation on the strength of a permanent total disability. For the reasons stated in his judgment, the lower Appellate Judge considered the evidence of these two witnesses not dependable. For the reasons stated in his judgment, the lower Appellate Judge considered the evidence of these two witnesses not dependable. He then proceeded to consider the effect of the principal injury, i.e. fracture of the femur and based on the reasoning stated in the judgment, he came to the conclusion that the injury principally complained of by the Appellant did not render him totally disabled. These are the principal reasons stated by the lower Appellate Judge for dismissing the appeal. 5. After hearing Miss Gupta for the Appellant and after carefully considering the record, I am of the view that the lower Appellate Judge has failed to read the evidence before him correctly and has failed to appreciate the material which was before him, namely, the report of the radiologist dated 27.4.1978 and the accompanying X-ray plate of the injured part of the Appellant as well as the card issued by the hospital dated 5.4.1977, on a technical ground that the same report has not been proved according to law before him; such failure has resulted into miscarriage of justice. The point of law which is thus involved before me is that the lower Appellate Judge has erred in law in not properly reading the evidence before him and in not considering, the evidence of radiologist which was on the record before him. The failure on the part of the lower Appellate Judge to correctly read the evidence has directly resulted in miscarriage of justice and it is a substantial point of law since it has directly and substantially affected the merits of the case and has resulted in miscarriage of justice. The Supreme Court in the case of Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314 observed as under at para 6: "We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. Ltd., AIR 1962 SC 1314 observed as under at para 6: "We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general and public importance for whether it directly and substantially affects the rights of the parties, and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or called for discussion of alternative views...." (Emphasis supplied). 6. In the present case, the lower Appellate Judge has failed to scan the evidence as I shall presently show and has also failed to take into account the important piece of evidence, namely, the radiologist's report on technical ground that the Appellant failed to prove it. 7. The Appellant was referred to the Medical Board under Section 54 of the Act. Section 54 of the Act runs as under:- "54. Determination of question of disablement.-Any question,- (a) whether the relevant accident has resulted in permanent disablement; or (b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or (c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or (d) in the case of provisional assessment, as to the period for which such assessment shall hold good; shall be determined by a Medical Board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the 'disablement question." 8. The determination of the disablement question of the Appellant was made by the Medical Board on 7.3.1978. It appears that on an earlier date, the Medical Board has called for all relevant case notes from the date of injury onwards, with the IP and thereafter it had decided the disablement question on 7.3.1978. Their first finding is that there is no appreciable disablement. It appears that on an earlier date, the Medical Board has called for all relevant case notes from the date of injury onwards, with the IP and thereafter it had decided the disablement question on 7.3.1978. Their first finding is that there is no appreciable disablement. Their second finding is that the disablement can be declared to be of a permanent nature and the extent of loss of earning capacity can be assessed permanently (i.e. to say finally). The findings of the Medical Board are summarised as follows:- "Minor wasting of lower limbs with some weakness." The assessment of loss of earning capacity is placed at 9 per cent. 9. Now, a close perusal of this decision of the Medical Board shows that it has not given any finding as to exactly what industrial injury the Appellant had suffered. The finding that there is minor wasting of lower limb with weakness does not indicate as to what is the injury which the Appellant exactly suffered from. It does not become clear from the decision of the Medical Board as to whether it had examined the case of the Appellant that he had suffered from fracture of the femur. If it had found that injury, it should have first come to the conclusion that the first injury, namely, fracture of the femur did exist and then it should have proceeded to pronounce as to what was the functional loss on account of such an injury and further what was the extent of loss of earning capacity which could be assessed from such functional loss. This is the statutory duty of the Medical Board under Section 54 of the Act and it appears that the Medical Board has pronounced its decision laconically without discussing facts (i.e. to say the actual injuries) and without setting out its reason for assessing the functional loss at 9 per cent. The approach of the Medical Board as is reflected by its order does not rationally bring out as to what was the actual data gathered by the Medical Board from the physical examination of the Appellant and for what reasons did it come to the conclusion of assessing the loss of earning capacity at 9 per cent. The approach of the Medical Board as is reflected by its order does not rationally bring out as to what was the actual data gathered by the Medical Board from the physical examination of the Appellant and for what reasons did it come to the conclusion of assessing the loss of earning capacity at 9 per cent. It is pertinent to note that the decision of the Medical Board was given on 7.3.1978, whereas in the card dated 5.4.1977, the Appellant is stated to have suffered a fracture and besides that card, there is a report of Dr. Belani dated 27.4.1978 which runs as under: "Name: Mohamed Abdulla Ref: Dr. Seif Investigation: X-ray Pelvis A.P. in neutral and weight bearing: There is a fracture through inferior ramus of right pubic bone just above the Ischeal tuberosity marked with arrow. During the weight bearing there is a deformity of pelvis with internal rotation of upper third of femur suggesting possibility of instability of joint." So, the evidence of the Appellant having suffered a fracture of the pubic bone is already there by virtue of the card dated 5.4.1977 and therefore the question arises as to whether the Medical Board noticed or not this serious injury suffered by the Appellant. If it did notice the injury, how could it express its order to state: "Minor wasting of lower limbs with some weakness." In any case, the decision of the Medical Board, as it reads, is absolutely unsatisfactory. But the matter does not rest there. The Appellant approached the Medical Appeal Tribunal and submitted his physical condition as present at the time of filing the appeal as under: "A. The present condition of the Appellant is as under:- (i) He has limping right side of hip with Trendelenburg test Positive on X-ray dated 27.4.1978 proved 15 weight bearing right side. (ii) Snapping of hip joint right side. (iii) Marked wasting 2" (two inches) and 1" (one inch) wasting in right calf as compared to left side. (iv) He has painful terminal movements with restriction of east of last 10 degrees (ten degrees) external rotation, abduction and flexion. This has given rise to painful shutting and sitting cross legged. (v) Instability has weakened the right hip with inability to walk on even or uneven ground without stick support. (vi) He has sacral strain due to right side limping. This has given rise to painful shutting and sitting cross legged. (v) Instability has weakened the right hip with inability to walk on even or uneven ground without stick support. (vi) He has sacral strain due to right side limping. (vii) He has inability to stand without stick support. (viii) He has lost the total utility of right leg from the hip joint and therefore his permanent partial disablement must be assessed at ninety per cent (90%) as permanent and final according to Serial No. 22 of Second Schedule of the Employees' State Insurance Act. B. The Medical Board has not examined properly and carefully the injuries of the Appellant's accidental parts of right leg and recommended only nine per cent (9%) as permanent and final which is quite improper and rejectable looking to the effects and injuries of the Appellant. And the aforesaid Medical Board has ignored the points which are narrated above. C. The aforesaid Medical Board has completely failed in performing their duties giving the decision of nine per cent (9%) for the effects and injuries of the Appellant which he has sustained due to the employment injury, when it is obviously obligatory for them to recommend the justified assessment of ninety per cent (90%) as per Serial No. 22 of the Second Schedule." He had specifically made a grievance that the Medical Board had not examined him properly and carefully and had ignored to take into consideration the physical condition actually suffered by him. The Medical Appeal Tribunal prepared a physical examination report which is found at Exh. 6. The report runs as under:- "Name of the Appellant:- Mohmed Abdulla Insurance No. 37/409035 1. General appearance Good 2. Weight and Height 5-6 125 lbs. 3. Chest Measurement 31.12 4. Blood Pressure 5. Knee and ankle jerks other reflexes 6. Physical defects or abnormalities 7. Respiratory 8. Cardiac 9. Nervous 10. Accident Injuries NAD 11. Scars 12. Urine Not necessary. 13. Function of limbs 14. Recommendations (i) By Medical Board - Nine per cent (9%) (ii) By Medical Appeal Tribunal. Present condition is unrelated to original industrial injury- Confirmed" Sd/- (Medical Assessor) Sd/- (Trade Union Assessor)" Having prepared the report, it proceeded to give its judgment which is to be found at Exh. 7. Scars 12. Urine Not necessary. 13. Function of limbs 14. Recommendations (i) By Medical Board - Nine per cent (9%) (ii) By Medical Appeal Tribunal. Present condition is unrelated to original industrial injury- Confirmed" Sd/- (Medical Assessor) Sd/- (Trade Union Assessor)" Having prepared the report, it proceeded to give its judgment which is to be found at Exh. 7. It is stated in the judgment that on the date of the hearing a thorough physical examination of the Appellant was carried out by the Medical Assessor in the presence of the Chairman, Medical Appeal Tribunal and Trade Union Assessor and that his physical examination is recorded at Exh. 6. Now, if we read the report, we nowhere find as to what is the finding of the Medical Appeal Tribunal about the injuries actually suffered by the Appellant. On the contrary, at Sr. No. 10 where the accidental injuries are to be indicated the Medical Appeal Tribunal has remarked "NAD" (Nothing Abnormal Detected). At Sr. No. 13, where function of limbs are to be described, there is no remark made whatsoever. The Medical Appeal Tribunal has further remarked. Present condition is unrelated to original industrial injury--Confirmed. The Medical Appeal Tribunal has not at all stated anything about the physical condition which the Appellant was suffering from as expressly stated by him in his memo. The Medical Appeal Tribunal is completely silent on all the injuries expressly stated by the Appellant in his memo. At the time when the Medical Appeal Tribunal decided the question, there was already a radiologist's report dated 27.4.1978 given to the Appellant. We do not know whether this evidence was brought to the notice of the Medical Appeal Tribunal, but if Dr. Belani had found the fracture of the pubic bone, etc., the Medical Appeal Board would certainly have found something about that injury, as to whether it was healed or united or not or whether it had left any deformity or disability or not. The Medical Appeal Board does not speak anything about what injuries were actually suffered by the Appellant and runs to give a conclusion that the present condition of the Appellant is unrelated to original industrial injuries. The Medical Appeal Board does not speak anything about what injuries were actually suffered by the Appellant and runs to give a conclusion that the present condition of the Appellant is unrelated to original industrial injuries. I do not find either from the report of the Medical Appeal Tribunal or its decision as to what was their finding about the original injury, i.e. to say what actually was the original injury, what was' its nature, extent and its impact on the functional capacity of the affected party. Further, there is no explanation or reasoning, at all to show as to how the present condition of the sufferance of the Appellant was not related to original injury. The opinion must have been expressed by the Medical Appeal Tribunal in a manner which could easily make an outsider understand the report on its perusal. To say that the present condition is unrelated to original injury without stating as to what original injury was, is something like a finding which is not supported by reasons. The reports of the Medical Board and the Medical Appeal Tribunal are incomprehensible. It must be said to the credit of the lower Appellate Judge that he did appreciate this basic lacuna in the reports of the Medical Officers. He has observed: "If we refer reports of the physical examination by the Tribunal it will be seen that it does not record the physical condition of the injured part or limbs. What it has noted is that present condition is unrelated to original industrial injury and the decision of the Medical Board is confirmed." In the judgment of the Tribunal, there is also no indication with regard to the condition of the right leg or hip and it is very silent on that aspect. 10. Having considered this lacuna, the lower Appellate Judge did not make a correct approach to the problem. He noted that the Appellant had failed to examine a medical man to challenge the finding of the Medical Appeal Tribunal and therefore accepted the report of the Medical Appeal Tribunal. He did not have the Appellant before him and he is not a medically qualified person to opine about the impact of the injury. He discussed the effect of the fracture of pelvic bone and came to the conclusion that the appeal had no merit. Although the report of Dr. He did not have the Appellant before him and he is not a medically qualified person to opine about the impact of the injury. He discussed the effect of the fracture of pelvic bone and came to the conclusion that the appeal had no merit. Although the report of Dr. Belani was very much on the record he overlooked it by accepting the argument of the learned Advocate for the Respondent that since it was not proved as required by law, it could not be gone into. 11. In my view, the lower Appellate Judge has not correctly approached the problem. When he realised that the findings of the Medical Board and the Medical Appeal Tribunal were not satisfactory and rationally based, he should have on his own accord remanded the matter for further elucidation by either or both of these Tribunals. It is not a correct approach to accept- the findings although they appeared to be erroneous only on the ground that the Appellant has not led any medical evidence on the point. It is clear from the judgment of the lower Appellate Judge that even without the assistance of a medical witness examined by the Appellant, it did appear to him that the reports of the statutory authorities were not satisfactory and if so how could he have agreed with it only because the Appellant had not examined a medical witness in his support. Thus, the wrong approach on the part of the lower Appellate Judge has resulted in a gross miscarriage of justice to the Appellant, an extremely poor workman, who claims that he has suffered a total disability resulting into 90 per cent loss of earning capacity and has been assessed at only 9 per cent loss of earning capacity. In the case of K. Venkateswara Rao v. State of Andhra Pradesh 1980 Lab IC 178. a Division Bench of the Andhra Pradesh High Court observed: Employees' State Insurance Act is a welfare measure to provide certain benefits to the employees in case of sickness, maternity and 'employment injury'. Therefore, the Act must receive a liberal construction so as to promote its objects. The Division Bench reproduced in its judgment a quotation from Works Manager Central Rly. Therefore, the Act must receive a liberal construction so as to promote its objects. The Division Bench reproduced in its judgment a quotation from Works Manager Central Rly. Workshop, Jhansi v. Vishwanath, AIR 1970 SC 488 as under (para 11): "It is probably true that all legislation in a welfare State is enacted with the object of promoting general welfare; but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The enactments with which we are concerned, in our view, belong to this category and, therefore, demand an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language." 12. The dicta similar in effect are also found in cases which arose under Acts which are generally termed as beneficent legislation. A reference may be made to AIR 1961 SC 647 ; AIR 1961 SC 1491 and AIR 1963 SC 1088 . The lower Appellate-Judge has failed to take an approach which would result in implementation of the beneficent legislation, and has, on the contrary, taken the stand which has resulted into a contrary effect, namely, to deprive the Appellant of his just claim. I do not for the moment suggest that the claim of the Appellant at 90 per cent loss of earning capacity is just and proper, but what I intend to convey is that the decision in his regard so far as regarding the loss of earning capacity is not correctly reached. It was not quite correct on the part of the lower Appellate Judge to refuse to look into the radiological report of Dr. Belani. He could have insisted upon examination of Dr. Belani by the learned Advocate for the Appellant and should also have insisted upon examining the Appellant for satisfaction of his own conscience. It does not appear from the record that the Appellant was in any way recalcitrant in carrying out the order of the lower Appellate Judge or that he was not willing to assist him in coming to a correct conclusion. The lower Appellate Judge could have summoned Dr. Belani on his own motion to satisfy himself about the correctness of the radiologist's report of the injured part of the Appellant. The lower Appellate Judge could have summoned Dr. Belani on his own motion to satisfy himself about the correctness of the radiologist's report of the injured part of the Appellant. The lower Appellate Judge, with respect, has missed the main object of the Act by misleading himself in taking a technical view of the matter. 13. Miss Asha Gupta submitted that apart from the impact of the functional disability on the loss of earning capacity, there is another dimension of the problem which was required to be taken into consideration by the lower Appellate Judge and in support of her submission cited the case of Kali Das Ghosal v. S.K. Mondal, AIR 1957 Cal 660 and the case of Pratap Narain Singh Deo v. Shrinivas Sabate, 1976 SC 222 : (1976 Lab IC 222). The following observation in Kali Das Ghosal's case, AIR 1957 Cal 660 , is indeed useful: "The Workmen's Compensation Act is not concerned with physical injury as such, nor with the mere effect of such injury on the physical system of the workmen, but it is concerned only with the effect of such injury or of the diminution of physical powers caused thereby on the earning capacity of the affected workmen. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the injuries that the opinion of a medical witness is relevant and admissible as the opinion of an expert. But loss of earning capacity is not a matter for medical opinion and is not a matter to which a medical witness can possibly speak. After the medical evidence as to the nature and measure of the physical infirmity has been given, the substance of that evidence is to be taken over and applied in the assessment of the loss of earning capacity as one of the factors and perhaps the principal factor. But loss of earning capacity or the extent of it is a question of fact. But loss of earning capacity or the extent of it is a question of fact. It has got to be determined by taking into account the diminution or destruction of physical capacity, as disclosed by the medical evidence and then it is to be seen to what extent such diminution or destruction could reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performed and from earning the normal remuneration paid for such duties. The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical capacity or power. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. It is, therefore, altogether wrong in taking the evidence of the medical witness not only as relevant but as decisive on the question of the loss of earning capacity." This dimension is not lost by the trial Judge but he has gone into it by considering one fact alone that the Appellant failed to examine himself. But the submission of Miss Gupta was that the evidence of the witness has been wrongly discarded by the lower Appellate Judge and if that evidence is taken into consideration, it provides a sufficient data to consider the loss of earning capacity from the angle stated in the observations above cited. 14. The conclusion of the lower Appellate Judge, therefore, of dismissing the appeal before him cannot be sustained. This appeal is allowed and the impugned judgment and order of the lower Appellate Judge is for the reasons stated above, set aside. I hereby direct that the Employees' Insurance Court at Ahmedabad shall hear the Second Appeal (ESI) No. 11 of 1979 afresh in accordance with law keeping the above observations in view. The rival parties shall be at liberty to lead fresh evidence. The Employees' Insurance Court at Ahmedabad shall consider the evidence which is already on the record as well as the evidence which the parties may choose to lead in the matter hereinafter. Considering the fact that this is an old matter, the Employees' Insurance Court shall dispose of the appeal expeditiously (preferably within four weeks after the receipt of the record and proceedings from this Court). 15. Considering the fact that this is an old matter, the Employees' Insurance Court shall dispose of the appeal expeditiously (preferably within four weeks after the receipt of the record and proceedings from this Court). 15. There shall be no order as to costs so far as this appeal is concerned. Appeal allowed.