FA/1125/2005 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1125 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= EMPLOYEES STATE INSURANCE CORP - Appellant(s) Versus MINOR HUSAIN IKBAAL THRO'HIS GUARDIAN IKBAAL FULKHAN & 2 - Defendant(s) ========================================================= Appearance : MR SACHIN D VASAVADA for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1, MR MEHUL S SHAH for Defendant(s) : 2 - 3. MR SURESH M SHAH for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 25/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant challenges the judgment and order dated 07.04.2004 passed by the Employees' State Insurance Court, Rajkot (hereinafter referred to as “the ESI Court”) in ESI Application No. 13/88 whereby the application of the opponent no.1 was FA/1125/2005 2/4 JUDGMENT allowed and the appellant corporation and opponent no.2 and 3 were jointly and severally ordered to pay, the monetary benefits with 12% interest. 2. The opponent no.1 was a workman working in the opponent no.2 company. On 20.07.1986, the opponent workman met with an accident wherein he sustained injuries on last two fingers of right hand. Being aggrieved by the said action, the opponent no.1 approached the ESI Court and has asked for total compensation of Rs.1,02,848/-. The ESI Court after hearing the parties passed the aforesaid order. 3. At the time of hearing of this appeal, it is submitted by learned advocates on both the sides that the issue involved in this matter is covered by decision of this Court dated 10-7-2006 rendered in First Appeal No.3193 of 2004, wherein it is held as under: “5. I have gone through the relevant documents on record. At this stage it is evident to peruse the relevant sections relied on by the learned counsel for the appellant. Section 54 of the Act which deals with the determination of question of disablement reads as under : “Any question- (a) whether the relevant accident has resulted in permanent disablement; or (b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or (c ) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or (d) in the case of provisional assessment, as to FA/1125/2005 3/4 JUDGMENT the period for which such assessment shall hold good, shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the “disablement question”. Section 75(2A) reads as under: “If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance court under sub-section (2) of section 54A in which case the Employees' Insurance Court may itself determine all the issues arising before it.” 5.1 As a result of hearing and perusal of records, I am of the opinion that since the medical certificate issued in the present case is by a private doctor, the ESI Court ought not to have taken the same into consideration. Moreover, in view of the provisions of Section 75 (2A), the ESI Court ought to have sent the respondent workman either to a medical board or a Government surgeon. However, the same is not followed by the ESI Court. In that view of the matter, I am of the opinion that in view of the mandatory provisions of law, the ESI Court ought to have considered the matter after getting the medical examination of the employee by a statutory medical board or medical appellate FA/1125/2005 4/4 JUDGMENT tribunal. 6. In the premises aforesaid, the appeal is allowed. The order of the ESI Court is quashed and set aside. The matter is remanded to the ESI Court for reconsideration after following due procedure under the law for medical examination of the respondent workman. No order as to costs.” 4. Since the issue involved in this appeal is covered by aforesaid judgment as per the submission of both the sides, this appeal is also allowed. The order of the ESI Court is quashed and set aside. The matter is remanded to the ESI Court for reconsideration after following due procedure under the law for medical examination of the respondent workman. No order as to costs. (K.S. JHAVERI, J.) *malek