FA/4685/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4685 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================= 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 CORPORATION - Appellant(s) Versus INDRASINH KARANSINH - Defendant(s) ========================================= Appearance : MR SACHIN D VASAVADA for Appellant(s) : 1, MS ASHA H GUPTA for Defendant(s) : 1, ======================================== CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 25/03/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Sachin D. Vasavada for the appellant and learned advocate Ms. Asha H. Gupta for the respondent. FA/4685/2006 2/6 JUDGMENT 2. This appeal is directed against the judgement and order passed by the ESI Court in Second Appeal No. 43/2005 dated 30th June, 2006 by which the learned Judge has allowed the said appeal and enhanced the disability to the extent of 100% and dismissed Second Appeal No. 24/2005. 3. Learned advocate Mr. Sachin D. Vasavada representing the appellant submitted that the order passed by the ESI Court is contrary to the vital documentary and oral evidence, which was produced on the record of the case. The ESI Court committed serious and manifest error of law on the face of the record of the case and, therefore, the judgement and order requires to be quashed and set aside. 4. The respondent is an insured person and covered under the ESI Act. However, due to his own negligence and ignorance, he met with an accident and sustained injuries on the right leg. Therefore, the ESI Court ought to have rejected the contention raised by the respondent. The ESI Court has seriously erred in holding that the respondent, on the basis of the evidence on record, requires to be given benefit of 100% permanent disability and thereby ignored the provisions contained under Section 2 (15A) and 2 (15B) of the Employees' State Insurance Act, 1948. The ESI Court has wrongly interpreted the ESI Act in enhancing the disability of the respondent to the extent of 100%. The learned FA/4685/2006 3/6 JUDGMENT advocate for the appellant further submitted that the expert opinion was not sought by the ESI Court nor the expert doctor was examined by the ESI Court before enhancing the disability to the extent of 100% and, therefore, the order passed by the ESI Court requires to be quashed and set aside. 5. The learned advocate heavily placed reliance on the judgement reported in 2007(2) SCC 349, NATIONAL INSURANCE CO. LTD. Vs MUBASIR AHMED AND ANR and submitted that the Court has to indicate the reason or the basis for enhancing the disability and further if the conclusion arrived at by the Court is not on the basis of any reasoning, then the same is not sustainable. 6. The learned advocate submitted that the Apex Court considered the provisions of the Workmen's Compensation Act, 1923 while setting aside the order passed by the High Court and restoring the order of the Commissioner. Thus, the learned advocate submitted that in view of the ratio laid down by the Apex Court, since the expert doctor is not examined by the ESI Court before enhancing the disability, the matter, at the most, requires to be remanded afresh to the ESI Court. 7. As against the aforesaid submission, learned advocate Ms. Asha Gupta for the respondent vehemently submitted that the ESI Court has taken into consideration the fact that the respondent FA/4685/2006 4/6 JUDGMENT was not in a position to do normal work after sustaining serious injuries in the accident. The injury took place during the course of the employment. The learned Judge has also taken into consideration the evidence on record and rightly held that the disability suffered by the respondent requires to be enhanced from 70% to 100% and, therefore, the appeal was rightly allowed and no interference is required to be made in the order passed by the ESI Court in rejecting the appeal preferred by the appellant. 8. Heard learned advocate Mr. Sachin D. Vasavada and learned advocate Ms Asha H. Gupta at length and in great detail. 9. I have perused the reasons assigned by the learned ESI Judge in Second Appeal bearing no. 43/2005 as well as 24/2005. The Record and Proceedings, which were called for, were received by this Court and I have also perused the Record and Proceedings of the case as well as the evidence on the record of the case. Taking into consideration the evidence adduced by both the parties, it appears that the respondent sustained injuries on 18th August, 2000 during the course of the employment on the right leg and he could not perform his normal duty for couple of days. Thereafter, he was referred to the Medical Board and the Medical Board assessed the disability to the extent of 50%. Thereafter, when the matter went before the Medical Appeal Tribunal, the Medical Appeal Tribunal held that the respondent had sustained “non-union fracture s/f (Rt) with shortening” and, therefore, assessed the FA/4685/2006 5/6 JUDGMENT disability to the extent of 70%. Aggrieved by the aforesaid order, the present appellant as well as the respondent both preferred the appeal before the ESI Court. The ESI Court, after considering the evidence on record and the submissions made by both the sides, dismissed the appeal preferred by the appellant and allowed the appeal preferred by the respondent and enhanced the disability from 70% to 100%. The ESI Court has considered the entire gamut of oral deposition and the documentary evidence as well as the earning capacity of the respondent after sustaining the injuries to perform normal work. It is observed by the ESI Court that after sustaining injuries, he was not able to do normal work and faced lot of hurdles in the way. Thus, the ESI Court, after going through the evidence on record of the case, enhanced the disability of the respondent from 70% to 100%. 10. The present appeal is preferred under Section 82 of the Employees' State Insurance Act, 1948. Section 82 is reproduced hereinbelow; 82. Appeal-(1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees' 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. (3) The period of limitation for an appeal under this section FA/4685/2006 6/6 JUDGMENT shall be sixty days. (4) The provisions of sections 5 and 12 of the Limitation Act, 1963 (36 of 1963) shall apply to appeals under this Section. 11. On bare perusal of Section 82 it becomes clear that save as expressly provided, no appeal shall lie from the order of the Employees' Insurance Court. The appeal shall lie to the High Court from an order of an Employees' Insurance Court only if it involves a substantial question of law. 12. The reasoning given by the learned Judge, in my view, while enhancing the disability from 70% to 100% does not call for any interference in appeal preferred under Section 82 of the ESI Act. The scope of jurisdiction of this Court is very narrow and limited. In view of the aforesaid facts and circumstances, the appeal preferred by the Insurance Company is devoid of merit and the same deserves to be dismissed. 13. For the foregoing reasons, the appeal preferred by the appellant is dismissed with no order as to costs. (H.B. ANTANI, J.) siji