JUDGMENT : R.D. Kothari, J. The Regional Director - Employees' State Insurance Corporation has preferred present appeal. The respondent- workman was working as a helper in Maneklal Harilal Mill. On the day of incident, he was doing light fitting work. The accident has occurred as he was doing some work on ceiling and the board on which the workman was standing and doing the work slipped-away and the workman fell down from height about 20 feet. He had received injury on left hand, below neck and waist area. Though the workman has received fracture injury, it is an admitted fact that the workman has received non-schedule injury. When the case was referred to Medical Board, the Board has assessed 0% disability on account of head and back injury received by the applicant. The injured workman had filed an appeal being MAT No.112/2010 before the Medical Appeal Tribunal. That Medical Appeal Tribunal has assessed disability at 25%. Being aggrieved by the said order of the Tribunal, the workman had filed appeal before E.S.I. Court. In the said appeal being Second Appeal No.8/2011, the ESI Court after hearing the parties and considering the material on record, was pleased to allow the appeal and has assessed disability of workman at 60%. It is, against the said order, the Regional Director has preferred present appeal before this Court. 2. Heard Mr. Shashikant Gade, learned advocate for the appellant and Mr. Nirav Joshi, learned advocate for the defendant. 3. Mr. Gade, learned advocate for the appellant has submitted that the order under appeal is erroneous and unsustainable. He has pointed out that in the present case at the earlier point of time, the Medical Board has found 0% disability upon examining the workman. In contrast to the said finding, the findings recorded by the E.S.I. Court of disability to the extent of 60% is bad. 4. On the other hand, Mr. Nirav Joshi, learned advocate for the defendant has supported the order under appeal. It was submitted that the workman was examined by the medical expert and only, thereafter, the extent of disability incurred by the workman is assessed by the respective authority. It was submitted that the order under appeal does not call for any interference by this Court. 5. In order under appeal, the E.S.I. Court has referred the fact that the Medical Board has assessed 0% disability of the workman. It was submitted that the order under appeal does not call for any interference by this Court. 5. In order under appeal, the E.S.I. Court has referred the fact that the Medical Board has assessed 0% disability of the workman. The E.S.I. Court has considered rival submission of the party and has also dealt with the same. It has referred that the Medical Appeal Tribunal consist of three different heads i.e. Judge of the Labour Court who would seat as a Chairman and Medical Expert and one Member of Trade Union would conduct the case of the workman. That the said body, after considering the condition of the workman and considering the papers of given case, would arrive at finding of the disability incurred by the workman. Referring to the present case, The E.S.I. Court has taken note that Medical Appeal Tribunal and has considered physical examination report of the workman and in the said report, the finding is recorded that movement of work is restricted 40%. It is, therefore, recorded that the workman required to be walk only with the assistance of the stick. That he cannot walk without the help of the stick, then, even when he cannot walk like normal person and he walk with the help of stick only, he walks by taking a "jump". It may be noted that the workman was present before the Medical Appeal Tribunal and also, before the ESI Court. The Court has recorded that finding that the condition of the workman is such that he cannot walk like normal person and he walk with the help of stick only by taking a Jump. However, The ESI Court has erred in concluding that the difficulty faced by the workman at present and he has to face difficulty in future, the disability should be assessed at 60%. Holding so, the ESI Court has concluded that the workman has incurred disability 60%. Considering the material on record and upon considering the submission of learned advocates for the parties, in my opinion, if 40% disability of the respondent-workman is believed, it would be just and proper. The E.S.I. Court has committed an error in assessing disability on higher side. There is material on record to arrive at 40%. Considering the material on record and upon considering the submission of learned advocates for the parties, in my opinion, if 40% disability of the respondent-workman is believed, it would be just and proper. The E.S.I. Court has committed an error in assessing disability on higher side. There is material on record to arrive at 40%. Submission of learned advocate for the respondent that the order of ESI Court is just, legal and proper and it does not call for any interference is not possible to accept. Therefore, the appeal required to be allowed to that extent. 6. In view of the above, the appeal is partly allowed. The disability of the workman is considered 40%. The order of the ESI Court is hereby set aside. Rule is made absolute to that extent. Appeal is partly allowed.