Gujarat High Court
Regional vs Rampratap on 22 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
FA/77/2010 6/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 77 of 2010 With
CIVIL
APPLICATION No. 553 of 2010
In
FIRST APPEAL No. 77 of 2010
=========================================================
REGIONAL
DIRECTOR - Appellant(s)
Versus
RAMPRATAP
VIRENDRASING THAKOR - Defendant(s)
=========================================================
Appearance
:
MR
BP BHATT for
Appellant(s) : 1,
MR CHETAN K PANDYA for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/02/2010
ORAL
ORDER
Heard learned Advocate Mr.BP Bhatt for appellant, Regional Manager, ESI Corporation and learned Advocate Mr. Chetan K. Pandya for respondent Rampratap Virendrasing Thakor.
Appellant ESI Corporation has challenged judgment and order dated 27th February, 2009 passed by ESI Court in ESI Application NO. 17 of 2007 Exh. 7 filed by respondent wherein ESI Court has modified order passed by Medical Appellate Tribunal dated 17.11.2005 in First Appeal NO. 129 of 2005 from 20 per cent permanent disability to 30 per cent permanent partial disability. Accordingly, difference of amount of compensation is required to be paid by appellant corporation to respondent as per said order passed by ESI Court.
Learned Advocate Mr. Bhatt appearing for appellant has raised contention before this court that the opponent insured person working with Madhusudan Raw Rolling Mill as a helper. He submitted that claimant Shri Rampratap Virendrasing Thakor met with an accident on 30.11.2004 and sustained injury to Right hand thumb and after paying him temporary disablement benefit for the incapacity paid from 30.11.2004 to 11.1.2005, was referred to Medical Board for assessment of loss of earning capacity. He submitted that the Medical Board consisting of expert Doctor along with Orthopedic Surgeon on 19.5.2005, after examining gravity of accident, diagnosised case as traumatic amputation right side thumb at 1st phalanx proximal through joint of DP and awarded 20 per cent which is correct as per second schedule of ESI Act, 1948, since 40 per cent award is for loss of thumb and its meta corpal bone and 30 per cent is for total loss of thumb under Sr.No.12 of second schedule of ESI Act respectively where there is simply traumatic amputation of DP Joint for which 20 per cent award is quite reasonable and appropriate. He further submitted that against decision of Medical Board and Medical Appeal Tribunal, Second Appeal NO. 17 of 2007 was filed by present respondent before ESI Court at Ahmedabad. He further submitted that opponent had not adduced any evidence and lower court has not considered any evidence with regard to actual extent, nature and quantum of actual disability caused or suffered by respondent as a consequence of alleged injury. Learned Advocate Mr.Bhatt for appellant further submitted that ESI Court has erred in arriving at the conclusion only on the basis of general nature of injury without examining any evidence whatsoever or without referring to any medical expert considering the relevant documents on record in form of examination by Medical expert. That the lower court assumed that because of alleged injury of the respondent person for earning capacity must have been reduced to the percentage awarded by him in judgment. For determining as to what according to documentary evidence on record is the extent and quantum of disability suffered by opponent by itself is no ground for awarding any permanent partial disability compensation unless actual extent of disability is determined in accordance with law. He submitted that as per definition of permanent partial disablement, such earning capacity of employment in employment which he was capable of undertaking at the time of accident resulting in disablement. He further submitted that the ESI Court has not even cared to look at the medical certificate issued by Special Medical Board which consists of experts on the disease and who have examined respondent physically and personally verified and have arrived at the conclusion on the basis of documentary evidence which was produced on record before ESI Court. He further submitted that relevant evidence has not been taken into consideration by ESI Court and ESI Court has, on the basis of general assumption and basis of extent, nature and gravity of alleged injury, determined disability without any reference to the actual reduction of earning capacity of the respondent. In short, his submission is that normally, ESI Court has not to interfere with conclusion arrived at by Medical Board/Medical Appeal Tribunal to the extent of disability when expert doctor has examined opponent and specified injury and percentage of disability.
Learned Advocate Mr. Pandya appearing for respondent has submitted that this aspect of permanent disability, ESI Court has properly examined considering functional disability of thumb of opponent and on that basis, thumb is not able to function and due to that, he was reverted to lower post and, therefore, it has adversely affected earning capacity of respondent. He further submitted that the respondent was served with notice by employer pointing out that because of crush injury received by him, now, respondent is not able to do the work of bundling, cutting, lifting, cutting and, therefore, instead of terminating his services, now, the work of lower level miscellaneous helper will be given to him. Therefore, it suggests that the respondent is not able to do the work which was being carried out earlier, prior to accident, by him. He further submitted that ESI Court has rightly considered injury caused to thumb of right hand first phalanx which has been totally destroyed and on that basis, ESI Court has rightly come to conclusion that now because of such injury on right hand thumb, which has become totally of non-use, opponent is not able to work on right hand with said thumb, therefore, ESI Court has rightly increased and enhanced disability from 20 per cent to 30 per cent and in doing so, as per his submission, no error has been committed by ESI Court and, therefore, there is no substance in this appeal and same is required to be dismissed.
I have considered submissions made by both learned Advocates. I have also perused impugned award made by ESI Court. I have also considered decisions which have been relied upon by learned Advocate Mr. BP Bhatt on behalf of appellant, which are annexed to memo of appeal. He has also relied upon decision of apex court in case of Jyothi Ademma versus Plant Engineer, Nellore & Another in Appeal (Civil) No.6202 of 2004.
After considering aforesaid decisions referred to and relied upon by learned Advocate Mr. Bhatt on behalf of appellant and submissions made by both learned advocates and perusing impugned judgment and order passed by ESI Court, I have considered definition of permanent partial disablement as defined under section 2 (15A) of Act. Permanent partial disablement, as defined under section 2 (15A) of Act means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement. Proviso to sub section 15A of section 2 provides that every injury specified in Part II of 2nd Schedule shall be deemed to result in permanent partial disablement. In that list, at item no. 11, loss of thumb has been certified being 30 per cent disability. In light of Schedule II, item no. 11 where 30 per cent has been given in case of loss of thumb and looking to facts of this case as considered by ESI Court that because of injury received by opponent on his thumb of right hand, which has become totally useless because, by letter dated 10th January, 2005, employer has given work to opponent on lower post Exh. 6 and in said notice, it is made clear that because of injury received on right hand thumb, opponent is not able to do work of bundling, cutting, lifting and cutting, therefore, instead of terminating his services, he was reverted to post of Miscellaneous Helper which has adversely affected earning capacity of opponent, which was reduced in comparision to earning capacity, of work which was available to opponent before accident. Therefore, in case of loss of thumb, opponent is entitled for 30 per cent and in case of loss of thumb and its metacarpal bone, 40 per cent has been disability specified in second schedule. That has been taken care by ESI Court while deciding matter considering item no. 12 and 11 of second schedule read with definition of permanent partial disablement as per sec. 2 sub section 15A, therefore, according to my opinion, ESI Court has rightly examined matter and has rightly come to conclusion that 20 per cent which has been awarded by Medical Board and Medical Appeal Tribunal is required to be enhanced to 30 per cent, cannot be considered to be erroneous decision.
The contention raised by learned Advocate Mr. Bhatt on behalf of appellant that case of opponent was referred to Medical Board and being aggrieved with order passed by Medical Board, first appeal was preferred by opponent before Medical Appeal Tribunal being Case No. 29 of 2005 where 20 permanent partial disability has been awarded but demand was made by opponent for 40 per cent permanent partial disablement and accident occurred on 30th November, 2004. He submitted that in Medical Board as well as Medical Appeal Tribunal, expert doctors were available who examined opponent and gave 20 per cent disability which ought not to have been interfered with by ESI Court in absence of any medical opinion to the contrary. After examining impugned judgment and order passed by ESI Court and considering injury received by opponent in accident which occurred on 30.11.2004 and second schedule item no. 11 and 12 read with definition of permanent partial disablement as per sub section 15A of section 2 of Act, and also considering that instead of terminating his service as he is not able to do work of bundling, cutting,lifting which he was doing prior to accident,work of lower post of miscellaneous helper given to opponent by employer after accident which is having adverse effect on earning capacity of opponent and it has reduced earning capacity of opponent because of injury received by opponent in accident occurred on 30.11.04, according to my opinion ESI Court has personally verified physical condition of thumb of right hand of opponent where disability received by opponent because of accident, where opponent is unable to do any kind of work with help of thumb of right hand, ESI Court has rightly come to conclusion that after receiving injury on thumb of right hand, opponent is not able to do work with help of that thumb and due to that, thumb of right hand become totally useless and due to that, reversion order is faced by opponent and, therefore, considering item no. 11 and 12, 30 per cent disability has been rightly decided by ESI Court which cannot be considered to be unreasonable or contrary to law or second schedule, therefore, contention raised by learned Advocate Mr. Bhatt cannot be accepted in view of observations made by ESI Court. One important aspect has also been considered by me. Appeal has been preferred by ESI Corporation under section 82 of ESI Act. Section 82 of ESI Act provides that save as expressly provided in this section, no appeal shall lie from an order of an ESI Court unless and until it involves a substantial question of law. Further, as per decision in case of Chhotelal v. Regional Director of ESI Corporation reported in (1989) 58 FLR page 158 (MP), recommendations of Medical Boad are not binding on the ESI Court. I have also considered ground of appeal narrated by appellant in memo of appeal. According to my opinion, no substantial question of law has been raised by appellant and involved in first appeal which is necessary while deciding first appeal filed by appellant under section 82 of ESI Act, therefore, on second ground also, according to my opinion, in absence of substantial question of law, first appeal is required to be dismissed.
In view of above observations made by this court after considering submissions made by both learned advocates and impugned judgment and order of ESI Court, according to my opinion, there is no substance in this appeal and, therefore, this appeal is dismissed.
Today, this court has dismissed first appeal. Therefore, no order is required to be passed in civil application for stay. Therefore, civil application for stay is also disposed of accordingly. It is directed to Appellant ESI Corporation to implement judgment and order passed by ESI Court in favour of opponent within one month from date of receiving copy of present order.
(H.K. Rathod,J.) Vyas Top