JUDGMENT : H.K. Rathod, J. Heard learned advocate Mr. S.D. Vasavada on behalf of appellant-Corporation and learned advocate Mr. Daifraz Havewalla for defendant-claimant. 2. By way of this appeal u/s 82 of ESI Act, appellant-Corporation has challenged order passed by ESI Court Ahmedabad in ESI Application 16 of 1997, Exhibit 44 dated September 26, 2006 whereby ESI Court has allowed application filed by defendant-claimant and declared that applicant-claimant is entitled to temporary disablement benefits (TDB) from date of his accident i.e. April 26, 1996 and directed opponent i.e. present appellant-Corporation to refer case of applicant-claimant to medical board for determination of his permanent disablement. 3. Learned advocate Mr. Sachin Vasavada raised contention before this Court challenging impugned order passed by ESI Court that in light of facts of present case and in view of provisions of Section-49 to be read with ESI (General) Regulations, 1950, whether ESI Court is right and justified in holding that opponent herein is entitled for temporary disablement benefit and whether ESI Court is right and justified case before Medical Board to decide percentage of permanent disablement? He also raised contention whether opponent was suffering from disease namely neurological symptoms? He has further contended whether ESI Court is right in entertaining ESI application which was not issued before Corporation and without verifying true and correct facts of case that too without explaining reasons in not producing medical insurance certificate as prescribed under Act? He further contended whether ESI Court has properly appreciated evidence on record and whether such accident is considered to be occurred during course of employment and whether injury received by opponent is considered to be employment injury or not? 4. Learned advocate Mr. Sachin Vasavada submitted that opponent was examined by Government recognized Doctor namely Neuro Physician and said Doctor gave opinion that such disease has got nothing to do with his working condition as well as job and cannot be said as an accident and therefore, claimant-defendant herein cannot claim for any kind of benefits. He submitted that there is no causal connection of accident with nature of job. 5. Learned advocate Mr. Daifraz Havewalla appearing on behalf of defendant-claimant submitted that ESI Court has rightly examined matter in accordance with ESI Act and issues have been properly dealt with on basis of evidence on record and ESI Court has not committed any error which requires interference by this Court. 5. Learned advocate Mr. Daifraz Havewalla appearing on behalf of defendant-claimant submitted that ESI Court has rightly examined matter in accordance with ESI Act and issues have been properly dealt with on basis of evidence on record and ESI Court has not committed any error which requires interference by this Court. He submitted that wife of original applicant was examined at Exhibit 14 and according to her evidence her husband while unloading Carba of acid from vehicle in factory on April 26, 1996 at about 1.45 p.m. inhaled fumes of acid and sat down holding his head with his hands. Thereafter he become unconscious. The man of employer filled up form of accident and sent applicant to home. When she came home after her work she found that her husband's condition was serious and hence she took him to hospital of Dr. Rambhai Patel who asked her to go to insurance hospital and said hospital referred applicant to Civil Hospital, Ahmedabad where he was admitted from April 27, 1996 to May 6, 1996 as indoor patient. According to her evidence, her husband was not able to speak and therefore, she had filed affidavit. Learned advocate for original opponent i.e. present appellant had cross examined wife of applicant wherein she stated that her husband was working in Boiler Department but that department was since closed, he was working in Acid Department. She also stated that when he came home there was no signs of bodily injury and she took him to hospital at about 21:00 hours on said day. She further stated that there was no talk between them as her husband was not able to speak. On next day, she again took him to hospital and Dr. Rambhai told that because of inhalation of acid, said situation had arisen. Thereafter she took him to insurance hospital and then to Civil Hospital, Ahmedabad. She denied that it was not on account of acid gas. She also denied that applicant had less intelligence. Therefore, learned advocate Mr. Havewalla submitted that ESI Court has properly appreciated evidence of wife of applicant and thereafter considering evidence of Dr. Balkisan N. Desai-Neurosurgeon at Exhibit 32 and after considering evidence of Dr. She denied that it was not on account of acid gas. She also denied that applicant had less intelligence. Therefore, learned advocate Mr. Havewalla submitted that ESI Court has properly appreciated evidence of wife of applicant and thereafter considering evidence of Dr. Balkisan N. Desai-Neurosurgeon at Exhibit 32 and after considering evidence of Dr. Sunita Sureshchandra Bhalakia at Exhibit 39 who was examined from opponent side and thereafter said doctor was cross examined by applicant and then came to conclusion on basis of evidence on record that applicant met with an accident on April 26, 1996 which occurred during course of employment. Accordingly issue No. 1 has been decided. Thereafter in respect to disablement benefit, Section-54 of ESI Act is considered. Accordingly ultimate direction has been issued by ESI Court. Therefore, learned advocate Mr. Havewalla submitted that no error is committed by ESI Court while passing order in favour of applicant-claimant. He also submitted that there is no substantial questions of law involved and arise in present First Appeal filed by appellant. Therefore, he submitted that present appeal is required to be dismissed. 6. I have considered submissions made by both learned advocates and perused impugned order passed by ESI Court. The ESI Court has considered evidence on record including cross examination of witnesses in respect to both doctors examined before ESI Court. The finding given by ESI Court in para-12 and 13 are quoted as under: 12. It is true that on the basis of the opinion of the doctor of the opponent Corporation, it had rejected the claim of the applicant. The said doctor was only a MBBS and who firmly believes that acid smell cannot cause any effect on the brain, whereas the doctor examined by the applicant was a Neuro-Surgeon and is of the opinion that lifting of heavy weight may cause paralysis and also fumes of the acid may cause the effect which was apparent on the person of the applicant. I have, before me two opinions one of an expert and another of an ordinary doctor. Naturally opinion of an expert gets more weightage and the ESI Act being social welfare legislation, the benefit should go to the weaker section of the society. I have, before me two opinions one of an expert and another of an ordinary doctor. Naturally opinion of an expert gets more weightage and the ESI Act being social welfare legislation, the benefit should go to the weaker section of the society. The ESI doctor has however stated in the BI-1 from Exhibit 27 that probable cause of the injury was accidental and in the column of the severity of injury, the concerned doctor has stated that it is “Dangerous to life”. In the column of whether or not the injury will interfere with his future employment, if so, for how long? The concerned doctor has recorded the opinion that “it will interfere with his future employment”. And in fact the applicant is not employed anywhere either with his erstwhile employer or anywhere else. 13. Looking to other documents, the statement of the applicant was recorded by the Local Office Manager of the opponent on June 21, 1996 (Exhibit 28) wherein it is written that there was a sudden jerk in the left shoulder while lifting the carba and he felt reeling and hence he sat down holding his head. The applicant could sign as “Gafur” he could not have been able to speak as per the opinion of doctor Desai. Another statement of VK Yaduvanshi (Exhibit 29) does not throw light as to how the accident had occurred. None of the advocates have thrown light as to what Exhibit 30 suggests of which heading is “details of M.Cs.” Exhibit 24 is submission of accident case of the applicant to the Regional Office. Exhibit 25 is an employment injury report by the Local Office Manager of the opponent corporation. Exhibit 26 is the accident report submitted by the erstwhile employer to sanction compensation of the accident to the applicant. But to my surprise, none of the learned advocates relied upon those documents nor they throw any light as to their relevancy. The deposition of the Local Office Manager at Exhibit 36 appears to be formal throwing no lights on the controversy involved in this case. 7. Thereafter ESI Court has considered case of applicant for TDB as prayed for in application. The deposition of the Local Office Manager at Exhibit 36 appears to be formal throwing no lights on the controversy involved in this case. 7. Thereafter ESI Court has considered case of applicant for TDB as prayed for in application. The ESI Court has considered Section-51 and 54 of ESI Act and thereafter came to conclusion that under Section-51 it is obligatory for opponent-Corporation to award TDB because since date of accident i.e. from April 26, 1996 applicant was not able to pursue his normal pursuits. He has been practically rendered invalid because of that accident and hence applicant is entitled to temporary disablement benefits being more than three days in terms of Section-51 of Act. Accordingly issue No. 2 is answered in affirmative by ESI Court. Now in respect to determination of permanent disablement of applicant, u/s 54 of ESI Act, Corporation will have to refer case of applicant to Medical Board (though it was determined as 70% by Dr. Desai). Therefore, considering Section-54 of ESI Act direction has been issued by ESI Court to Corporation to determine permanent disablement of applicant. 8. In view of aforesaid reasonings given by ESI Court as applicant-claimant was workman in Acid Department and as per evidence of Dr. Desai at Exhibit 32 according to whom because of vapour of acid had gone into applicant's breathing, his brain was getting lesser quantity of oxygen and therefore there are possibilities of difficulties which he stated earlier. According to doctor acid bottles were heavy weight which may also cause paralysis and patient may suffer disablement as stated by him. Doctor also stated that disfigurement of nose was due to fall because of paralysis. In cross examination, said doctor stated that patient had come to him after seven years i.e. on March 5, 2003 and he has admitted that he was not present when accident took place and also admitted that in certificate Exhibit 27 applicant is shown to be suffering from paralysis in left side of brain and left side of brain was not getting blood. He also stated that he has a kind of disease and he was not suffering from diabetes or blood pressure. Dr. Sunita was examined at Exhibit 39. She stated that applicant had taken treatment in private hospital and thereafter in Civil Hospital on account of accident. On June 5, 1996 applicant had come to her for examination. He also stated that he has a kind of disease and he was not suffering from diabetes or blood pressure. Dr. Sunita was examined at Exhibit 39. She stated that applicant had taken treatment in private hospital and thereafter in Civil Hospital on account of accident. On June 5, 1996 applicant had come to her for examination. She produced Exhibit 40 i.e. letter signed by her. She was of opinion that condition of applicant was not due to an accident. She was cross examined by other side where she stated that opinion which was recorded at Exhibit 40 certificate was not her own but was opinion of Dr. Smita Shrof, Neuro Physician and after going through medical reports she had signed. She did not recollect as to whether she had examined applicant or not. However, she stated that fumes of acid can cause bronchitis, pneumonia or respiratory difficulties but cannot affect brain of anybody. Before ESI Court, these two reports were produced by two doctors which has been examined by ESI Court and considering evidence of Dr. Desai who was examined on behalf of applicant and according to Dr. Desai fumes of acid may cause effect which was apparent on person of applicant, therefore, ESI Court has considered that naturally opinion of expert doctor gets more weightage thanary doctor and ESI Act being social welfare legislation, benefit should go to weaker section of society. Therefore, ESI Court come to conclusion that injury caused to applicant being accidental injury and doctor has stated that it is dangerous to life. In column of whether or not injury will interfere with his future employment, if so, for how long?, the concerned doctor has opined that it will interfere with his future employment and in fact applicant is not employed anywhere either with his erstwhile employer or anywhere else. In view of aforesaid discussion made by ESI Court after appreciating evidence on record of two doctors as referred above and wife of applicant, according to my opinion, ESI Court has rightly believed evidence of Dr. Desai as referred in para-9 which is quoted as under: 9. The applicant also examined Dr. Balkisan N. Desai at Exhibit 32, who is a Neuro-Surgeon and who had examined the applicant on February 5, 2003. Desai as referred in para-9 which is quoted as under: 9. The applicant also examined Dr. Balkisan N. Desai at Exhibit 32, who is a Neuro-Surgeon and who had examined the applicant on February 5, 2003. The long certificate given by the said doctor seems to be material on the basis of which he had given deposition, I would rather take down the entire certificate which reads: This is to certify that I have examined one patient named Gafurbhai Galabhai Parmar, for the assessment of his disability. He complained of difficulty in speech, mental retardation, weakness of the right side of the body disfigurement of the face etc. since April 1996. He developed suddenly, weakness of the right side of the body, loss of speech and severe headache on April 27, 1996. He was admitted at Ahd. Civil hosp. On April 27, 1996. He did not have diabetes & hypertension. His CT scan of the brain was asked for, which revealed multiple infarcts in the left temporal occipital & parietal region. He was treated conservatively & was discharged on May 6, 1996 with an advice for regular follow ups & for regular physiotherapy & to continue conservative treatment. On discharge, he was conscious, had total global aphasia (unable to speak), right sided facial paresis of upper motor neurone type, with total paralysis of the right upper limb & partial paralysis of the right lower limb. He had few follow ups & had regular physiotherapy. Today, he is conscious but confused. He has dysphasia (difficulty in speech). He speaks few words only. He is unable to function with right upper limb due to residual paresis, with power of 2 to 3 in right upper limb. He has limping gait due to paresis of the right lower limb, with power of grade 3 and 4. he can walk small distance, few feet without support. His deep tendon reflexes are brisk in right upper and lower limbs. He has disfigured nose, causing gross disfigurement of the face. His headache is continuous, throbbing type with occasional vertigo 3 to 4 times a month, lasting few hours only. Today, he is non-diabetic & non-hypertensive. he can walk small distance, few feet without support. His deep tendon reflexes are brisk in right upper and lower limbs. He has disfigured nose, causing gross disfigurement of the face. His headache is continuous, throbbing type with occasional vertigo 3 to 4 times a month, lasting few hours only. Today, he is non-diabetic & non-hypertensive. In my opinion, his disability due to his hemiparesis (partial paralysis of one side) headache and vertigo and in my opinion, it is permanent, which is assessed at 70% body as a whole, according to Kessler's. P.S. I have seen his medical records. 9. Dr. Desai who is examined at Exhibit 32 also stated that same thing he had narrated in above certificate and further stated that because of vapour of acid had gone into applicant's breathing, his brain was getting lesser quantity of oxygen and therefore, there are possibilities of difficulties which he stated earlier. According to doctor, acid bottles were heavy weight which may also cause paralysis and patient may suffer disablement as stated by him earlier. Therefore, ESI Court has rightly considered evidence of Dr. Desai who is expert doctor against ordinary doctor having degree of MBBS who has been examined by ESI Court. Therefore, conclusion of ESI Court on basis of aforesaid discussion cannot be considered to be erroneous or contrary to evidence on record. Findings given by ESI Court is based on legal evidence and therefore it cannot be considered to be baseless or perverse. Therefore, contention of learned advocate Mr. Vasavada cannot be accepted because in ESI Act no provision is made that particular kind of certificate by doctor is to be accepted otherwise if certificate of doctor should not have to be accepted in absence of specific provision made in ESI Act, ESI Court has rightly considered evidence of Dr. Desai who was examined before Court and cross examined by ESI Corporation and that has been rightly believed and on that basis decision has been taken by ESI Court and accordingly direction is issued. Therefore, according to my opinion, no error is committed by ESI Court while deciding application filed by claimant. Therefore, no interference is required by this Court. Apart from that looking to question/ground mentioned in appeal memo, according to my opinion no substantial questions of law has arisen in this appeal and also not raised before this Court by learned advocate Mr. Sachin Vasavada. Therefore, no interference is required by this Court. Apart from that looking to question/ground mentioned in appeal memo, according to my opinion no substantial questions of law has arisen in this appeal and also not raised before this Court by learned advocate Mr. Sachin Vasavada. The appeal under Section-82 shall lay against order of Employees Insurance Court to High Court from an order of ESI if it involves substantial questions of law. Therefore, whatever contention raised by learned advocate Mr. Sachin Vasavada and also not included in appeal memo, according to my opinion, no substantial questions of law arise and therefore, on merits there are no substantial questions of law. Therefore, there is no substance in present Appeal and same is required to be dismissed. Hence, present First Appeal stands dismissed. 10. Learned advocate Mr. Havewalla appearing for Shri G.G. Parmar-defendant herein submitted that amount is deposited by appellant before Registry of this Court as per direction issued by this Court on August 8, 2008, said order dated August 8, 2008 is quoted as under: 1. Heard, Mr. Vasavada, learned advocate for the applicant and Mr. Havewala, learned advocate for the respondent. 2. Considering the facts and circumstances of the case, interim relief is granted in terms of paragraph 4(c) of the application. It is directed that the awarded amount, which is stated to be deposited by the applicant, shall be invested in fixed deposit receipts with State Bank of India, High Court branch initially for a period of five years. Quarterly interest, which may accrue on such deposit shall be paid to the respondent herein. Such fixed deposit receipt shall be renewed from time to time till the appeal is decided. Accordingly, this Civil Application is allowed. Rule is made absolute with no order as to costs. 11. In pursuance to aforesaid order, learned advocate Mr. Havewalla submitted that appellant has deposited amount before Registry of this Court which has been invested in FDR for a period of five years and interest normally accrued on said deposit shall be paid to defendant-claimant. 12. Rule is made absolute with no order as to costs. 11. In pursuance to aforesaid order, learned advocate Mr. Havewalla submitted that appellant has deposited amount before Registry of this Court which has been invested in FDR for a period of five years and interest normally accrued on said deposit shall be paid to defendant-claimant. 12. In light of this background, when appeal is dismissed by this Court today, the Registry is directed to pay amount with interest if any which is deposited by appellant before Registry of this Court as per order passed by this Court on August 8, 2008 by account payee cheque in name of Shri Gafurbhai Galabhai Parmar-defendant herein after proper verification which is identified by learned advocate Mr. Havewalla.