Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 622 (GUJ)

Regional Director v. Siyaram Bihari Pal

2017-03-20

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. The present First Appeal is filed by the Appellant - Employees' State Insurance Corporation under Section 82(2) of the Employees' State Insurance Act, 1948 being aggrieved with the impugned judgment and order in E.S.I. Second Appeal No.44 of 2012 and E.S.I. Second Appeal No. 71 of 2012 dated 3.5.2013 posing the substantial questions of law as follows: (a) Whether Ld. E.S.I. Court has any powers to decide the judgment and award passed by Medical Appeal Tribunal under law? (b) Whether Medical Experts are found in Ld. E.S.I. Court to enhance disability under provisions of ESI Act? (c) Whether in present case, 100% disability meaning thereby giving double salary to Respo. work man IP for single employment under erroneous order of Ld. EI Court which has no medical experts is permissible under four corners of law? 2. Heard learned Advocate Shri Shashikant S. Gade for the Appellant. 3. Learned Advocate Shri Shashikant S. Gade has referred to the judgment of the ESI Court and submitted that the court has no jurisdiction to assess the disability, and therefore, the court below has committed an error. He submitted that the assessment of the disability is made on the basis of assessment and guess work without any supporting material and evidence. He also referred to Schedule 2 of the Act which defines disability. He pointedly referred to the injuries at Srl. No. 28 and submitted that at the most, it could be 50%. The injury at srl. no. 28 provide: "Amputation of one foot resulting in end-bearing - 50% disability." However, he submitted that the ESI Court has presumed the disability at 100%, which is erroneous, and therefore, the present Appeal may be allowed. 4. As could be seen from the background of the facts, the ESI Second Appeal No.44 of 2012 is preferred by the Corporation whereas ESI Second Appeal No.71 of 2012 is preferred by the injured workman being aggrieved with the order in Appeal (MAT) No.246 of 2011. The workman has received the injury on 5.6.2010 on his left leg for which he was referred to the Medical Board. The Orthopedic Surgeon, on examination, has assessed the disability at 50%. Therefore the workman had preferred the Appeal before the MAT. The MAT on examination of the record as well as the examination of the injured, assessed the disability at 75%. The Orthopedic Surgeon, on examination, has assessed the disability at 50%. Therefore the workman had preferred the Appeal before the MAT. The MAT on examination of the record as well as the examination of the injured, assessed the disability at 75%. It is also stated that the injury is a schedule injury and the ESI Corporation also preferred an appeal with the order of the MAT assessing the disability at 75% is not proper. The injury was caused when the iron sheets were being taken for cutting by the machine and the injured is not able to now walk without the support after the amputation. It is also observed on the basis of the record that as the injury is caused to one leg and 100% disability is assessed, which is assailed in the present Appeal. However, the ESI Court on the basis of material and evidence and having considered the provisions of law particularly Schedule II has also assessed the disability at 100% on the ground that the employee is lost his earning capacity and therefore it should be treated as 100% disability. 5. It is in this background the submission made by learned Advocate Shri Shashikant Gade is required to be considered. The reference to the provisions of Schedule-II Entry 28 referred to the injury and the assessment of the disability. However, it is not an absolute formula for the purpose of assessment of disability for the purpose of compensation. 6. Thus, the percentage of disability cannot be an abstract formula but it has to be considered with reference to the nature of injury and its functional effect. A useful reference can be made to the judgment of the High Court reported in 2008 (2) GLH 412 in case of Employees State Insurance Corporation v. HMT Ltd. and anr. 2008 (2) GLH 412 . 7. It is required to be stated that even if some regulations provide for the general guidelines for assessment of damages, it cannot be said to be a absolute formula. In other words each case is to be considered depending upon its own facts. A useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in AIR 1994 SC 268 in case of case of Advocates-on-Record Association & ors. v. Union of India AIR 1994 SC 268 . In other words each case is to be considered depending upon its own facts. A useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in AIR 1994 SC 268 in case of case of Advocates-on-Record Association & ors. v. Union of India AIR 1994 SC 268 . It is not in dispute that the Respondent employee received injury during the course of his employment by accident. The Black's Law Dictionary provides and defines the word "accident": "An unintended and unforceseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated, An unforeseen and injurious occurrence not attributed to mistake, neglect or misconduct." 8. The Hon'ble Apex Court in a judgment in case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr., reported in AIR 2007 SC 248 has clearly observed that it would be enough for the workman to succeed and establish the work attributed to him causing the personal injury. Thus, it is the nature of work in course of employment while on duty which leads to an event of accident resulting in injury and permanent disability which is required to be considered. 9. Again, for that purpose, as stated above, there cannot be any rigid formula either for the assessment or the disability and the compensation which has to be considered with totality of the facts and circumstances, the disability has to be considered with reference to the functional disability if the person who is doing the labour work or a manual work is affected in such a manner like in the present case when he cannot be able to do the labour work or the manual work because of the injury, which would certainly amount to affecting his earning capacity. In fact it would affect his chances of getting job in the labour market doing manual work. Even if, he is given such work, he would be at disadvantage, and therefore, considering the disability and the facts and circumstances, the submissions made by learned Advocate for the Appellant that the ESI Court has provided for 100% disability merely on the guess work is misconceived. The Schedule to the Act may provide for the broad guidelines for the purpose of assessment. The Schedule to the Act may provide for the broad guidelines for the purpose of assessment. However, the disability or his effect on the earning capacity may have to be considered depending upon the facts and circumstances of the case. Therefore when the ESI Court having discussed on the aspect of nature of injury as well as its impact on the earning capacity and having assessed the disability at 100%, it cannot be said that it is erroneous, which would call for any interference in the present First Appeal filed by the Corporation. The provisions of Section 82(2) of the ESI Act provide: "(2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves substantial question of law." 10. Thus, it is only when the substantial question of law is involved, it may call for any interference. In the facts of the present case, there is no question of law but rather appreciation of evidence vis-a-vis the impact of disability has been considered, and therefore, the present Appeal cannot be entertained and deserve to be dismissed and accordingly stands dismissed. Civil Application also accordingly stands dismissed.