REGIONAL DIRECTOR v. YASHWANT PURSHOTTAM GOSWAMI

CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 29/01/2008 ORAL JUDGMENT This appeal is preferred by the appellant under FA/405/2003 JUDGMENT section 82 of the Employees State Insurance Act, 1948 [hereinafter referred to as the ESI Act] against the judgment and order dated 30.08.2002 passed by ESI Court in Second Appeal No. 15 of 1999 whereby the appeal of the appellant was partly allowed and the assessment of disability was fixed at 30%. Aggrieved by the aforesaid judgment and order, the ESI Corporation has preferred the present appeal contending interalia that the judgment and order passed by the ESI Court is erroneous and not in accordance with the provisions of law. Learned advocate for the appellant, Mr. Bhatt, submitted that initially the Medical Board assessed the disability at 10%. Aggrieved by the said decision, the workman preferred appeal before the Medical Appeal Tribunal at Ahmedabad by preferring Appeal (MAT) No. 14 of 1999 and the Medical Appeal Tribunal assessed the disability at 16%, which though on the higher side, the ESI Corporation accepted on humanitarian grounds. Mr. Bhatt submitted that the learned ESI Court ought to have held that the assessment of disability at 16% by the Medical Appeal Tribunal is just and proper and should not have increased the disability to 30%. He submitted that the assessment of disability at 30% is unjust as there is no loss of earning capacity. As against the aforesaid submissions, learned advocate Ms. Asha Gupta submitted that the assessment of disability of the workman to the extent of 16% is on the lower side. The workman had suffered fracture of Tibia and Fibula and encounter serious problems in performing his day to day work. The workman was employed as a Fitter and he is not able to perform his duties because FA/405/2003 JUDGMENT of the fracture sustained by him. The trial Court ought to have held that the disability suffered by the workman has resulted into loss of earning capacity of the workman and, therefore, the disability has been rightly assessed by the ESI Court at 30% and no interference is required in the present appeal preferred by the ESI Corporation and the same is required to be dismissed. This Court has heard Mr. Bhatt for the appellant and Ms. Gupta for the respondent at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record. There is no dispute on the issues that the workman was working as a Fitter and that the injury suffered on

07.03.97 was 'employment injury'. The injury suffered is fracture of upper end of Tibia and Fibula and intra articular. The Medical Board assessed disability at 10% and in First Appeal the Medical Appellate Tribunal re- assessed the disability at 16%. On appeal by the workman praying to enhance the disability to 50%, the ESI Court assessed disability at 30% which is under challenge in the present appeal. In paragraphs 7 and 8 of the judgment, it is clearly stated that the workman was examined before the Court. The problems being faced by the workman in his leg vis-a- vis the duties he has to perform as a Fitter has been considered in the judgment and it is recorded that he is facing difficulties in performing his duties. Considering all these aspects the Labour Court has increased the percentage of disability from 16% to 30%, and this Court FA/405/2003 JUDGMENT is not inclined to interfere with the same. That apart, section 82 of the ESI Act, which provides for appeal, reads as under: “82. Appeal.- (1). Save as expressly provided in this section, no appeal shall lie from an order of an Employee's Insurance Court. (2). 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 appeal, the only question involved is, whether the ESI Court is right in increasing the percentage of disability from 16 to 30. An appeal will lie to the High Court only if a substantial question of law is involved. The aforesaid question, in the considered opinion of this Court, is not a substantial question of law. Hence also, this appeal is not maintainable. In the result, the appeal dismissed. The judgment and order dated 30.08.2002 passed by ESI Court in Second Appeal No. 15 of 1999 stands confirmed. No order as to costs. Consequential benefits flowing from this order be paid to the workman forthwith. Award be drawn accordingly. FA/405/2003 JUDGMENT mathew [H.B.ANTANI, J.]