Gujarat High Court
Bhanubhai Govindbhai vs Employees State Insurance Corp. on 5 October, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/FA/2328/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2328 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHANUBHAI GOVINDBHAI
Versus
EMPLOYEES STATE INSURANCE CORP.
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Appearance:
MS ASHA H GUPTA(1025) for the PETITIONER(s) No. 1
MR SHASHIKANT S GADE(1706) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 05/10/2018
ORAL JUDGMENT
1. The present First Appeal, under Section 82 of the Employees' State Insurance Act, 1948 ['the Act, 1948', for short] is directed against the judgment and order passed in Second Appeal No.17 of 1997 decided on 22.02.2000.
Page 1 of 15C/FA/2328/2000 JUDGMENT
2. The case in brief is that present appellant met with an accident and sustained employment injury to his right hip ankle and leftwrist injury. He sustained communicated basi trochanteric injury [fracture of neck femur which resulted in stiffness of all movements of hip joint with half inch shortening]. The appellant on account of such injury remained under treatment upto 21.03.1996. Later on, the Medical Board examined him on 30.07.1996 and awarded 16% disability for "stiffness of Right hip following fracture half inch shortening Ankle and left wrist." Feeling aggrieved by such 16% disability, the appellant preferred an appeal, under Section 54 of the Employees' State Insurance Act, 1948, before the Medical Appellate Tribunal being MAT No.268 of 1996 and prayed inter alia to award 60% disability because he can not climb squat or sit crossed legs. As the carrierman, he has to climb 100 steps at least two to fifteen times in his safe hours. Additionally, he can not ride bicycle or walk without support. As a result of such, the Medical Appellate Tribunal partly allowed the appeal and vide order dated 30.01.1997 recommended 20% disability finding of shortening of right lower limb by half inch and stiffness of right hip in all moments.
3. The appellant feeling aggrieved by action challenged the said order of Medical Appellate Tribunal by preferring Second Appeal being No.17 of 1997 before the Employees Insurance Court and prayed for setting aside the order of 20% disability and claimed 60% ability. The said appeal came up for consideration before the learned Employees' State Insurance Court who vide order dated Page 2 of 15 C/FA/2328/2000 JUDGMENT 22.02.2000 was pleased to reject the medical bill and it is against this rejection of appeal, the present First Appeal has been filed under Section 82 of the Employees' State Insurance Act, 1948.
4. Originally, the Court issued notice on 01.10.2002 and thereafter it has been admitted vide order dated 18.12.2003 and thereafter it has come up for final disposal with this background before this Court in which learned advocate Ms.Gupta has represented the appellant whereas Mr.Gade, learned advocate has appeared on behalf of respondent.
5. Ms.Asha Gupta, learned advocate appearing on behalf of appellant has contended that the authorities below including the ESI Court has committed serious error in not considering the disability which is of permanent nature and ought to have granted 60% disability. It has been contended that there is no iota of evidence on account of which it can be justified by the authorities below that 20% disability would be just and proper. It has been contended that the appellant was a carrier in the employment and by inviting attention to the duties of the carrier, a contention is raised that the nature of work is such which requires perfect physical fitness. It has been contended that the injuries, which are certified by authorities below, are such which would not be capable enough to undertake duties which are stipulated as mentioned on page:11 Clause (iv) and thereby contended that this disability though is a nonscheduled injury ought not to have been so lightly ascertained and certified. Ms.Gupta, learned advocate has further submitted that shortening of hipjoint with halfinch would clearly Page 3 of 15 C/FA/2328/2000 JUDGMENT hamper smooth working of appellant and there was also additionally a stiffness in the right hip following fracture related to ankle and left wrist and, therefore, these injuries are sufficient enough to indicate that whatever awarded is not just and proper. It has been contended that statute has confirmed a right in the person who ascertained employment injury to receive appropriate and reasonable compensation and here is a case in which these injuries being seriously affected the working prospect of the appellant, the authorities below ought not to have ignored this material aspect since ultimately this is nothing but a benevolent legislation and, therefore, the medical benefit ought to have been provided to the appellant. It has further been pointed out that there are injuries that may not result in actual economic loss but physical fitness would definitely has the effect in working and, therefore, the Tribunal and the authorities below have erroneously held that there is nothing economic loss nor there any functional loss. In fact, the Tribunal while coming into such conclusion ought to have examined narration of injury. Having not done so, impugned orders are nothing but an example of nonapplication of mind. It appears that, according to Ms.Gupta, learned advocate, since shortening of a hip is not a scheduled injury, possibly such an evasive conclusion is arrived at by the authorities below. As a result of this, the approach shown by the authorities below is perverse, erroneous, not sustainable in eye of law. As a result of this, orders passed by the authorities below deserve to be corrected by granting 60% disability which has been prayed for. Ms.Gupta, learned advocate has further submitted that since this being a First Appeal, substantial question of law which arises for consideration is that Page 4 of 15 C/FA/2328/2000 JUDGMENT loss of physical capacity is not coextensive that loss of running capacity and that running capacity of a person depending on his physical fitness is a question of consideration in the present First Appeal and, therefore, since the question involves a public importance to be treated as a substantial question of law and can be dealt with in the present appeal. Learned advocate has relied upon decision delivered by the coordinate bench of this Court in First Appeal No.539 of 2014 decided on 28.08.2018 and by referring few of paragraphs, a contention is raised that in such a peculiar set of circumstance, the Court may kindly consider the case of present appeal and grant the relief as prayed for. To substantiate the stand taken by learned advocate, she has drawn attention to the various documents which are attached to the appellant compilation more particularly the discretion of the duties which the appellant had to undertake throughout is working. As a result of this, ultimate request which has been made is not to allow the impugned orders to be sustained in eye of law. No other submissions have been made.
6. To meet with the stand taken by learned advocate for the appellant, Mr.Gade, learned advocate appearing on behalf of ESI Corporation has vehemently objected to the grant of any relief in favour of appellant. It has been contended that throughout the authorities below have concurrently held that beyond 20%, there is no disability which can be certified and, therefore, satisfaction arrived at may not be allowed to be intercepted in the present First Appeal. It has been contended that there is no substantial question involved in the present appeal and whatever question which has Page 5 of 15 C/FA/2328/2000 JUDGMENT been brought before this Court is a question of fact which has nothing do with any substantial question of law. In fact, the Medical Board, which is considered to be an expert over such examination, has certified and rather modified the original order of 16% disability to that of 20% and, therefore, there is hardly any reason justifiably available which would justify any claim of the appellant.
6.1 Mr.Gade, learned advocate for the Corporation has further submitted that the authority below has passed a reasoned order cogent enough to sustain the satisfaction which has been arrived at and so much so not only full opportunity was given but additionally has also given a chance and undertook physical examination of the appellant and, therefore, there is hardly any reason which can justify the plea of present appellant. Mr.Gade, learned advocate has further submitted that physical examination of the appellant has permitted the Medical Board to certify disability to the extent of 20%. Such Medical Board is consisting of expertise in the field and there is a specific procedure which has been prescribed under Section 54 of the Employees' State Insurance Act, 1948 has been undertaken to determine the disability and, therefore, in absence of any error being committed, there is hardly any reason to accept the plea of present appellant. Since no case is made out, learned advocate has requested the Court to dismiss the appeal filed by the appellant. To substantiate his submission, learned advocate has relied upon one of the decision of Coordinate Bench of this Court rendered in First Appeal No.2660 of 1996 dated 24.02.1999 and has submitted that since physical examination has taken place of Page 6 of 15 C/FA/2328/2000 JUDGMENT appellant, there is hardly any reason to deviate from the determination which has been made by the lower authority. Considering this set of circumstance, no case is made out and hence requested that appeal may be dismissed.
7. Having heard learned advocates appearing for the parties and having gone through the contents and the relevant record which has been brought to the notice of the Court, few of the circumstances which are not possible to be ignored by this Court while ultimately coming to a conclusion. In fact, AnnexureB [at page:3] has certified that this injury has caused disability to the extent of 16% and this decision of the Medical Board taken under Regulation 73 has specified in detailed the discretion of injury.
7.1 A bare perusal of this decision of Medical Board coupled with the Medical Appellant Tribunal's decision reflects that there is no much variance. On the contrary, it has been found by Medical Appellate Tribunal that a physical examination of the appellant has been carried out by medical assessor and the injury which has been determined is based upon not only expertise medical assessor but also based upon physical examination of the appellant and only thereafter this 20% disability has been described and determined and, therefore, when experts / assessors of the medical field have examined, there is hardly any reason for deviating from such medical opinion.
7.2 Under the provisions of Employees' State Insurance Act, 1948, Section 54 is the process of determination of question of disability and how the same has tobe determined in the provision.
Page 7 of 15C/FA/2328/2000 JUDGMENT The ultimate determination is left it to the Medical Board and this Medical Board is consisting of medical personnel and, therefore, when this very appellant has been even physically examined and thereafter this determination of disability took place, there is hardly any reason to have the different view from that of experts.
7.3 Yet another situation which is being converted by the present appellant is that the injuries which are mentioned are non scheduled injuries and, therefore, applying the general mode from the schedules appropriately the determination has taken place and as such when this authorities below have concurrently held against the present appellant and has determined a particular percentage of disability, there is no other reason as to why the Court can take a different view from that of Medical Board assessors. As a result of this, the finding which has been arrived at apparently is not reflecting any perversity, this Court is not inclined to entertain the appeal.
7.4 Additionally, it is further reflecting from the order that Medical Appellate Tribunal has passed an order after considering certificate, after considering the report of physical examination of the appellant and has passed an order after assigning cogent reason and, therefore, when the principles of natural justice has also been complied with to the fullest extent, there is no other reason for this Court to take the different view. As a result of this, appeal being lacks of merits is not possible to be accepted by this Court.
7.5 Further, while coming to the conclusion the Court found the issue which has been raised in the present appeal is not possible to Page 8 of 15 C/FA/2328/2000 JUDGMENT be framed as substantial question of law since substantial question of law has been now well defined by catena of decisions and therefore the issue which has been raised in the present appeal as substantial question of law can never be accepted as substantial question of law and therefore in absence of any substantial question of law, the appeal is also not possible to be entertained by this Court. With respect to terminology of 'substantial question of law' which has been well propounded by various decisions of the Apex Court which are referred to and relied upon, more particularly in the decision in the case of in the case of Kashmir Singh vs. Harnam Singh reported in AIR 2008 SC 1749 has propounded of course while dealing with the Second Appeal as to what constitutes a substantial question of law and some observations related to it since material, more particularly in para:15, are quoted hereunder.
"15. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the Page 9 of 15 C/FA/2328/2000 JUDGMENT indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See : Santosh Hazari v. Purushottam Tiwari (deceased) by L.Rs. [(2001) 3 SCC 179)."
7.6 Yet another decision which is well propounded the difference between the question of law and substantial question of law and while observing and dealing with such citation the observations which have been made by the Apex Court in the case of Syeda Rahimunnisa vs. Malan BI (dead) by legal representatives and another reported in (2016) 10 SCC 315 worth to be taken note of. Hence, observations contained in paras:25 and 28 having considered by this Court are reproduced herein after.
"[25] A threejudge Bench of this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs., 2001 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under:
"9. xxx ....
11 .... xxx
12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance"
as has been done in many other provisions such as Page 10 of 15 C/FA/2328/2000 JUDGMENT Section 109 of the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, 1928 AIR(PC) 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., 1962 AIR(SC) 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, 1951 AIR(Mad) 969:
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
"The proper test for determining whether a question of law raised in the case is substantial Page 11 of 15 C/FA/2328/2000 JUDGMENT would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
13. ...xxx
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the Page 12 of 15 C/FA/2328/2000 JUDGMENT indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis".
[28] In our considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court for remanding of the case to the trial court for de novo trial in all the civil suits. This we say for following reasons."
8. In view of aforesaid discussion, since the substantial question of law is also not involved, there is hardly any reason for this Court to accept the appeal.
8.1 Additionally, learned advocate for the respondent has heavily relied upon the decision delivered by coordinate Bench of this Court in First Appeal No.2660 of 1996 dated 24.02.1999 wherein the observations contained in paras:5 and 6 being relevant are reproduced herein after.
"5. First of all, this is an appeal under section 82 of the Employees State Insurance Act, 1948. An appeal under this provisions is competent only on substantial question of law. In the present appeal there is no such substantial question of law, and / or any question of law whatsoever. The only question raised is as regards the extent of permanent partial disability.
6. The Medical Board had assessed the permanent partial disability of the injured workman at 15%, which was raised to 20% by the Medical Appellate Tribunal. This was further raised to 25% by the ESI Court. The Page 13 of 15 C/FA/2328/2000 JUDGMENT appellant herein now seeks a further upward revision only on facts. However, in my opinion, the ESI Court, on the facts and evidence on record, could not have raised the extent of disability on mere ipsi dixit when there was an expert medical finding recorded by the Medical Appellate Tribunal to the effect that the disability is 20%.However, since this is an appeal by the workman for the purpose of revising upward the extent of disability, I am not inclined to reduce the figure determined by the ESI Court."
Considering the aforesaid observations also this Court is unable to accept the appeal filed by the present appellant.
8.2 In addition to this, it is settled position of law that when the experts have determined a particular aspect normally the Court should not dwelve much upon such opinion of experts unless stinking perversity is reflecting and here is a case in which no such perversity is reflecting. As a result of this, Court is not inclined to accept the appeal.
8.3 With a view to establish the case, Ms.Gupta learned advocate has relied upon the nature of work which has been stipulated in the duty chart reflecting on page:11 but then when this has been also dealt with by the authorities below, there is no other valid reason available with this Court to intercept the conclusion which has been arrived at. So far as the order of this Court which has been passed in First Appeal No.539 of 2014 dated 28.08.2018, the fact situation of the said judgment are basically different. There is no conflict of any opinion much less any different opinion that the provision of Employees State Insurance Act, 1948 would provide for social welfare to the workman who suffer the employment injuries. In Page 14 of 15 C/FA/2328/2000 JUDGMENT fact, there is a loudable objection in said provisions of the ESI Act but that would not permit the Court to take lenient view contrary to what has been taken by medical experts and, therefore, keeping these circumstances of the case on hand, this Court is of the opinion that the said decision is of no avail to the appellant. Of course, salutary principles which are discussed by the said judgment worth to be taken note of but applying the same here in this peculiar set of circumstances is hardly possible for this Court. As a result of this, First Appeal being lacks merits deserves to be dismissed and accordingly the impugned judgment and order passed by the Courts below are hereby confirmed. The reasons which are assigned are not sufficient enough to interfere and additionally there is hardly any question of law much less substantial question of law which would permit this Court to dislodge the findings. As a result of this, appeal is dismissed. Rule is discharged. No order as to costs.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 15 of 15