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2006 DIGILAW 843 (KAR)

S. KUMAR v. REGIONAL DIRECTOR, ESI CORPORATION, STATE INSURANCE CORPORATION

2006-10-19

V.JAGANNATHAN

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V. JAGANNATHAN, J. ( 1 ) THOUGH this matter is posted for admission, by consent, of the learned Counsel for the parties, the same is taken up for final disposal. ( 2 ) THIS appeal is directed against the order passed by the E. S.. Court rejecting the prayer of the appellant to take the percentage of loss of earning capacity at 30% and not 20% and the main contention put forward by the appellant, as could be seen from the grounds of appeal, is that the neither E. S.. Court, nor the Medical Appellate Tribunal could have disregarded the percentage of loss of earning capacity as mentioned in the second schedule to the E. S.. Act and, therefore, the E. S.. Court could not have taken into account a lesser percentage than the one mentioned in the second schedule in respect of the nature of the injuries caused to the appellant. ( 3 ) THE learned Counsel for the appellant, relying on the decision of the Allahabad High Court in the case of E. S.. Corporation v. Ameer Hasan, submitted that in the instant case, as the appellant had vision acuity of 6/9, it is a case falling squarely under Sl. No. 32 of the Schedule and it is her submission that Entry No. 32 in the second schedule will also include within its scope even partial loss of Vislow of one eye. ( 4 ) THE learned Counsel for the respondent, referring to the order passed by the E. S.. Court and in particular, the reasoning given at paragraph-6 of the order, submitted that the E. S.. Court not only dismissed the appeal filed by the respondent-Corporation, but at the same time, it found on facts that the appellant did not suffer from total loss of vision of one eye and after inferring to the decision on which the appellant has placed reliance viz. , Ameer Hasan's case, the E. S.. Court has found that the facts in the instant case are quite different and furthermore, in view of the vision acquity being put at 6/9, the E. S.. Court opined that there was no total loss of vision and, as such, taking the above acuity ratio 6/9, the E. S.. Court has come to the conclusion that the actual percentage of loss of earning capacity conies to 20% but not. Court opined that there was no total loss of vision and, as such, taking the above acuity ratio 6/9, the E. S.. Court has come to the conclusion that the actual percentage of loss of earning capacity conies to 20% but not. 30% and hence the impugned order was passed by holding that the order passed by the Medical Appellate Tribunal restricting the loss of earning capacity to 20% appears to be just and reasonable. ( 5 ) IN the light of the aforesaid discussion and taking note of the percentage towards loss of earning capacity which is 20% as per second schedule and in the instant case, there being no material to indicate that there was total loss of vision of one eye, the impugned order of the E. S.. Court cannot be held to be erroneous in law. Therefore, the argument advanced by the learned counsel for the appellant, in my considered opinion, does not permit me to take the view that partial loss of vision of one eye can be equated with loss of vision of one eye and, if that were to be so, there was no necessity to add Entry 32-A to the Schedule. As such, the appeal stands dismissed.