JUDGMENT & ORDER : J.B. PARDIWALA, J. 1. This first appeal under section 82 of the Employees' State Insurance Act, 1948 is at the instance of the Employees State Insurance Corporation and is directed against the judgment and order dated 28th June, 2013 passed by the ESI Court in the Second Appeal No.13 of 2013. 2. The case of the appellant-corporation, as pleaded in the memorandum of the first appeal, is as under; "2. The appellant herein, is an establishment of Central Government and is constrained to challenge the impugned common judgment and order because in its most humble submission that the impugned judgment and order is illegal, arbitrary, oppressive, unreasonable and unjustified and also discriminatory. The impugned order is contrary to the provisions of the ESI Act. This apart, the impugned judgment and order is contrary to and in total disregard to the vital documentary/oral evidence on record and is also without any evidence to support and justify the diverse findings, observations and conclusions made and recorded by the ESI Court in the impugned judgment and therefore, the same is also perverse and deserves to be set aside. While passing the impugned judgment and order, the ESI Court has committed serious, manifest and apparent errors of law apparent on the facts of the record and the impugned judgment and order also suffers from serious error of non-application of mind to the relevant facts and evidence and also suffer from serous irregularities as a result of which the same is vitiated and rendered unsustainable in law as well as on facts. The appellant most humbly submits that the impugned judgment and order deserves to be quashed and set aside. 3. The opponent is an insured person and covered under the Act. On 14.11.2010, the opponent herein, due to his own negligence and ignorance met with minor accident and sustained minor injury in his left leg. After getting complete recovery, the Appellant referred the case of the Opponent to the Medical Board. The Medical Board assessed 3% of disability after clinically and medically examining him and considering the income aspect as well. Though there was no reduction in earning capacity but only with a view to misuse the benevolent provisions, the Respondent approached to the MAT whereby the MAT granted 20% of disability without considering the aspect from the reduction in earning capacity. Though there was no reduction in earning capacity but only with a view to misuse the benevolent provisions, the Respondent approached to the MAT whereby the MAT granted 20% of disability without considering the aspect from the reduction in earning capacity. Hereto annexed and marked Annexure-B is the copy of the order passed by MAT. Being aggrieved with the said order passed in MAT (Appeal) No. 489/11 by MAT, the Appellant as well as the Respondent both preferred cross Appeal before the EI Court being ESI 2nd Appeal No.97/2012 and 13/2013. However, the ESI Court without even referring the definition under which the % of disability was enhanced by the MAT and without considering the facts about reduction in earning capacity and without adjudication about functional loss on part of the Respondent enhanced the % of disability from 20% to 35%." 3. The substantial questions of law, formulated in the memorandum of the appeal, are as under; "(a) in facts of the present case and in view of the ESI Act, Rules and Regulations made there under, WHETHER it is open for the MAT and ESI Court to assess the disability at different % what has been opined and/or awarded by Medical Board? (b) In facts of present case and in view of the ESI Act, Rules and Regulations, WHETHER the ESI Court is right and justified not setting aside the order/judgment of the MAT? AND can the opponent be given the 35% of the permanent disability ignoring the provisions of the section 2(15A) & 2(15B) vis-a-vis Second Schedule of the Act and without leading any evidences and without considering the vital aspect viz. Reduction in earning efficiency and without considering the nature of work and only on assumption and presumption? (c) Whether it is right and justified by MAT to assess the % of disability without leading any evidence and/or without considering the expert opinion of the Medical Board and whether the MAT is right and justified in enhancing the % of disability without considering the functional loss, if any on part of the Respondent/Insured Person? (c) Whether it is right and justified by MAT to assess the % of disability without leading any evidence and/or without considering the expert opinion of the Medical Board and whether the MAT is right and justified in enhancing the % of disability without considering the functional loss, if any on part of the Respondent/Insured Person? (d) WHETHER the ESI Court is right and justified in not upholding the views of the Medical Board and awarded the 35% disability and erred in wrongly interpreting the provisions of the Act and erred in enhancing the % of disabilities without assigning the reasoning and without referring the clear and unambiguous language of the Second schedule of the Act? (e) WHETHER the diverse findings and conclusions of the ESI Court are right and justified and based on without leading evidence or they are contrary to the weight of evidence on record AND WHETHER the ESI Court is right and justified in ignoring the genuine views of the Medical Board, which are based on evidences and the provisions of the Act?" 4. It appears from the materials on record that the respondent is an employee of a Company running in the name of Arvind Ltd. The Company is covered under the ESI Act. The respondent suffered a serious injury on his left leg while working. The respondent was referred to the Medical Board for the assessment of the permanent disability under Regulation 72 of the ESI (General) Regulations, 1950 as amended. The Medical Board, consisting of two medical experts including one Orthopedic surgeon examined the respondent on 9th November, 2011 and certified that there is partial permanent disablement on account of the injury and, accordingly, assessed the loss of earning capacity at 3%. 5. The respondent, being dissatisfied with the decision of the Medical Board, preferred an appeal with the Medical Appeal Tribunal under MAT No.489 of 2011 constituted under Regulation 76 of the ESI (General) Regulations, 1950. The Medical Appellate Tribunal consists of its Chairman, two medical experts and a trade union representative. 6. The Appeal Tribunal, vide its order dated 29th December, 2011 awarded 20% loss of earning capacity. 7. Thus, being dissatisfied with the decision of the Tribunal, two appeals came to be filed before the ESI Court. One by the respondent himself and another by the Corporation. 6. The Appeal Tribunal, vide its order dated 29th December, 2011 awarded 20% loss of earning capacity. 7. Thus, being dissatisfied with the decision of the Tribunal, two appeals came to be filed before the ESI Court. One by the respondent himself and another by the Corporation. The appeal filed by the respondent came to be registered as the ESI Second Appeal No.97 of 2012, whereas the appeal filed by the Corporation came to be registered as the ESI Second Appeal No.13 of 2013. 8. Mr. Vasavada, the learned counsel appearing for the Corporation submitted that the impugned judgment and order is illegal and erroneous in law. The same is based on surmises and conjectures. According to Mr. Vasavada, there was no evidence worth the name before the Tribunal to enhance the disability from 3% to 20% and in the same manner, the ESI Court also could not have enhanced the disability from 3% to 35%. In such circumstances, referred to above, Mr. Vasavada prays that there being merit in this first appeal, the same may be allowed. 9. Having heard the learned counsel appearing for the appellant and having gone through the record and proceedings, the only question that falls for my consideration is whether the ESI Court committed any error in passing the impugned judgment and order. 10. Let me look into the report of the Medical Appeal Tribunal. It reads as under; Surgery has been performed on the left leg. On examining the x-ray, there is plating for the fracture. There is less mobility of the left hip. Pain in the left hip. He faces difficulty in sitting in cross-legged position. In view of the post of fireman, there is 03+17=20% (Twenty) permanent disability." 11. The ESI Court recorded its findings as under; "(6) Considering the appeal of both the parties, there is no dispute on the point that on 14/11/2010, the employee has sustained employment injury while working as a fireman. Employee suffered a fracture on his left leg. As the matter was placed before Medical Board for assessment of permanent disability, the Medical Board made assessment of 3% permanent disability, whereas on producing the employee before Medical Appeal Tribunal, assessment of 20% permanent disability has been made. Employee suffered a fracture on his left leg. As the matter was placed before Medical Board for assessment of permanent disability, the Medical Board made assessment of 3% permanent disability, whereas on producing the employee before Medical Appeal Tribunal, assessment of 20% permanent disability has been made. Corporation states that he had produced report of Medical Appeal Tribunal and documents before the State Medical Commissioner and he had stated that the assessment of 20% is wrong. Corporation has not submitted such report of State Medical Commissioner. They have also not produced any documentary proof relying upon which they have taken such decision. Report of State Medical Commissioner can be helpful to the Corporation for their opinion, but their opinion is not binding to the Courts and there is no legal importance of it. (7) Record of Medical Appeal Tribunal has been produced in this case. Employee had mentioned in detail the difficulties and defects caused due to injury before the Medical Appeal Tribunal. In the same way, he had mentioned in detail the difficulties caused in doing the work. Corporation had produced their reply in writing vide Exhibit-4, but only blanks were filled in this written reply. They did not produce their detailed reply. Employee had submitted B.I.3 Form, wherein assessment of 3% permanent disability was made by stating that 'left I/T # united in good position, difficulty in squatting and sitting cross-legged position.' Employee was sent to Medical Appeal Tribunal. Chairman of Medical Appeal Tribunal is the Judge of the Labour Court. Besides this, two medical assessors and two representatives of Trade Union sit there. They examined the employee and made assessment of 20% permanent disability. Medical Appeal Tribunal had noted in its physical examination report that a surgery has been performed on the left leg. On examining the x-ray, plating has been done for fracture. There is less movement of left hip. There is pain on the left hip and difficulty with sitting in cross-legged position. In view of the post of a fireman, assessment of 3 + 17 = 20% permanent disability has been made. Thus, Medical Appeal Tribunal has made assessment of 20% permanent disability by keeping in view the defects that have been left due to the injury. There is pain on the left hip and difficulty with sitting in cross-legged position. In view of the post of a fireman, assessment of 3 + 17 = 20% permanent disability has been made. Thus, Medical Appeal Tribunal has made assessment of 20% permanent disability by keeping in view the defects that have been left due to the injury. In his award, the chairman of the Medical Appeal Tribunal has maintained the assessment of 20% by mentioning about the injuries, but no reason has been given for increasing the assessment up to 20%. (8) Looking to the injury sustained by the employee and defects occurred due to it, the assessment of 20% is also less and it is not appropriate and reasonable. Taking all the documentary evidences into consideration, there is no dispute about the issue that the employee has sustained employment injury and he has sustained a fracture on the left leg and on account of the same, he has been left with permanent defects. Employee has also been examined before this ESI Court in person. On examining the employee, he is not able to bend the left leg completely. He cannot walk by weight bearing. He cannot squat due to injury and due to that reason, he faces much difficulties in doing his routine chores. He has difficulty in getting up after he sits once. Movement of the left leg has become very restricted. He is not able to sit in cross-legged position with his both legs. Expert doctor of Medical Appeal Tribunal has noted that there is less movement of left hip. Pain persists on the left hip and he has difficulty in sitting with cross-legged position. In view of the post of fireman, he has made assessment of 20% disability. In his appeal, employee has mentioned about the work of fireman, which includes compulsorily climbing up and down 40 steps of the iron stair case once a week for opening the valve for releasing the steam and for closing the valve, situated 20 to 25 feet above on the boiler. In the same way, he has to attend the boiler situated at a height of 40 to 45 feet. As per the duties of the employee, he should be able to work with both of his legs completely. Employee performs his such duties due to cooperation of his colleagues. In the same way, he has to attend the boiler situated at a height of 40 to 45 feet. As per the duties of the employee, he should be able to work with both of his legs completely. Employee performs his such duties due to cooperation of his colleagues. (9) Thus, in view of the injury sustained by the employee, the assessment made by the Medical Board was prima facie very less. Medical Board had mentioned that he has difficulty in sitting in cross-legged position with both the legs, but Medical Board has not taken note of the other difficulties besides this. Whereas Medical Appeal Tribunal has clearly stated that there is less movement of the left hip and there is continuous pain on the left hip and he has difficulty in sitting in cross-legged position. The Chairman of the Medical Appeal Tribunal is Judge of the Labour Court. Besides this, medical assessor and representative of Trade Union are also members. In view of this, it is their specific responsibility that they make appropriate assessment after taking all the law points into consideration. When the injury sustained by the employee is a non-scheduled injury, then in such cases, assessment of the permanent disability should be made by taking into consideration all the facts like permanent difficulties faced by the employee and its effects on the service. In view of his duties, the employee cannot work without assistance of others. The employee has not been retrenched from service, but looking to the injury sustained by the employee, his efficiency to get employment out in the market has decreased remarkably. Thus, Medical Board and Medical Appeal Tribunal have not taken all these points into consideration. Thus, taking the injury sustained by the employee and the effects produced by it into consideration, if assessment of 35% permanent disability is made, it would be considered as appropriate and reasonable and order is passed as follows. :: ORDER :: (1) Hence, Second Appeal No. 13/2013 of the Corporation is rejected. Second Appeal No. 97/2012 of the employee is partly allowed and assessment of 35% permanent disability is made after making amendment in the assessment of 20% permanent disability made by the Medical Appeal Tribunal and accordingly, the Corporation shall make payment of compensation to the employee. (2) No order is passed regarding the cost." 12. Second Appeal No. 97/2012 of the employee is partly allowed and assessment of 35% permanent disability is made after making amendment in the assessment of 20% permanent disability made by the Medical Appeal Tribunal and accordingly, the Corporation shall make payment of compensation to the employee. (2) No order is passed regarding the cost." 12. The Act is enacted for the benefit and welfare of the employees and the benefits contemplated under the Act are of various types ranging from extending medical facility for providing continuous monetary benefit. Chapter V of the Act defines different kinds of benefit that can be extended to the employees and procedure to be followed in this regard. As and when question of determination of benefit to be extended to the employee arises, the nature and extent of disability suffered by the employees becomes an important factor and for that purpose, Schedule II of the Act contains list of various injuries that are per se treated as those resulting in permanent total disablement and permanent partial disablement. Needless to say that the list of injuries contained in Part I, II and III of Schedule II is not exhaustive but illustrative in nature. While assessing the disablement, the Court is required to keep in mind definition of permanent partial disablement as defined by sub-section (15A) and (15B) of section 2 of the Act. 13. Section 82 of the Act clearly provides that an appeal shall lie to the High Court from an order of an Employees Insurance Court, if it involves a substantial question of law. In the present case, it can hardly be said that there is any substantial question of law involved in the present appeal so as to consider by the High Court as the assessment of disability is based on medical evidence and also appreciation of evidence. Therefore, the ESI Court while referring to the injury and the disability as provided in second Schedule of the Act, gave categorical finding that the respondent suffered disability to the extent of 35%. No fault can be found in arriving at a conclusion based on the medical evidence led before the Court below. So, it cannot be said that the ESI Court has come to the conclusion about the disability without any basis and has come a conclusion contrary to the evidence led before the Board confirming the order passed by the Tribunal below. So, it cannot be said that the ESI Court has come to the conclusion about the disability without any basis and has come a conclusion contrary to the evidence led before the Board confirming the order passed by the Tribunal below. The ESI Court has recorded detailed reasons in paras Nos.6,7,8 and 9 of the impugned order so as to arrive at 35% disability. 14. Needless to say that the effort of the Tribunal and the Court in the matter of calculation of such damages may be objective, because it would be impossible to evolve a full proof formula to cover all possible situations. The loss of earning capacity resulting out of the injuries is dependent upon so many factors like the nature of injury, nature of employment and the impact of injury on the efficiency of the employee. On perusal of the impugned judgment of the ESI Court, it appears that the Court discussed the injuries objectively and stated its conclusion with cogent reasons and facts confirming the order passed by the Tribunal. Therefore, this Court does not find any basis to interfere with the findings of fact recorded by the ESI Court. 15. It would be appropriate to refer to the observations recorded by the Hon'ble Apex Court in case of Employees State Insurance Corporation Vs. Ameer Hasan, (1981) AIR SC 174 and more particularly, para 3 thereof, which introduced as under: "WHAT more justice did the Corporation seek? Save and except to satisfy its own ego it carried the matter to this Court by way of the present petition seeking special leave against the decision of the High Court. An attempt was made to urge that there was some conflict of decisions in the view taken by the Calcutta High Court and the view taken by the Allahabad High Court. The judgment under appeal has considered the Calcutta judgment which is un-favourable to the workman. Such minor conflicts need not provide a fruitful ground to the Corporation to rush to this Court. The judgment under appeal has considered the Calcutta judgment which is un-favourable to the workman. Such minor conflicts need not provide a fruitful ground to the Corporation to rush to this Court. One cannot appreciate this too legalistic approach in the name of some conflict in decisions to force a workman whose misfortune was that he was governed by the Act and a beneficiary of the beneficent provisions of the Act to be dragged to this Court to fight for a meagre compensation with his own funds against a powerful Corporation trying to thwart his claim with the funds obtained from the very workman. The glaring paradox is that the workman suffers deduction from his wages so that the Corporation can fight him with his own money. This has led to mounting disaffection amongst industrial workmen against the Corporation. What faith the workman will have in the Corporation set up to ameliorate his misery multiplying it by appeal to Court after Court compelling the workman to follow in the footsteps of the Corporation to save his meagre benefit? A time has come to cry a halt to this litigious mentality on the part of public corporations set up to achieve the goals enumerated in the Constitution. This approach is destructive of the purpose for which Corporation was set up. What then is the difference between a private employer who was liable for compensation under Workmen's Compensation Act and a public sector Corporation set up to replace the private employer for providing the much needed medical relief? In fact such an approach needs to be disapproved and that is why a speaking order." 16. A useful reference can be made to the observations made by the Hon'ble Apex Court interpreting the provisions of this very Act in a judgment in case of Transport Corporation of India, Vs. Employees State Insurance Corpn. & Anr., (2000) AIR SC 238, wherein it has been quoted from the earlier judgment in case of Buckingham and Carnatic Co. Ltd. v. Venkatiah, (1964) AIR SC 1272, as under :- "It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, Courts would be justified in preferring that construction to the other which may not be able to further the object of the Act" 17. It has also been again quoted as under :- "Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment." 18. Thereafter in a subsequent judgment in case of Regional Provident Fund Commissioner Vs. Hooghly Mills Co. Ltd. & Ors, (2012) AIRSCW 902, the Hon'ble Apex Court has referring to the Provident Funds Act made observation as under :- "Under the Directive Principles the State has the obligation for securing just and humane conditions of work which includes a living wage and decent standard of life. The said Act obviously seeks to promote those goals. Therefore, interpretation of the said Act must not only be liberal but it must be informed by the values of Directive Principles. Therefore, an awareness of the social perspective of the Act must guide the interpretative process of the legislative device." 19. It is well accepted principles regarding the interpretation about the breach in such cases. In Seaford Court Estates Ltd. Vs. Therefore, an awareness of the social perspective of the Act must guide the interpretative process of the legislative device." 19. It is well accepted principles regarding the interpretation about the breach in such cases. In Seaford Court Estates Ltd. Vs. Asher, (1949) 2 AllER 155 (CA), Lord Denning, advised a purposive approach to the interpretation of a word used in a statute and observed :- "A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out" He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." 20. Therefore, bearing in mind the legislative intent and the fact that it is a beneficial piece of legislation intended for a social welfare, the submissions made by learned counsel, Mr. Vasavada cannot be accepted. 21. Therefore, the present First Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.