1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 13 OF 2000 The Dy. Regional Director, Employee State Insurance Corpn., "Panchdeep Bhavan:, Ganesh Peth, NAGPUR. ....Appellant. Versus Shri. Janardhan s/o. Kisan Endayit, C/o. Choudhari Colony, H.No. 22, Chikalthana, Aurangabad. ....Respondent. Shri. V.D. Sonawane, Advocate for the appellant. Smt. Kalpalata Bharaswadkar-Patil, Advocate for the respondent. CORAM : R.K. DESHPANDE, JJ. DATE : 15th September, 2009 ORAL ORDER : 1. This appeal is preferred by the original respondent i.e. the Deputy Director, Employee State Insurance Corporation, Nagpur, challenging the judgment and order dated 18.6.1999 in Application No. ESI No. 5 of 1995 passed by the learned Member, Industrial Court at Aurangabad. By this judgment and order, the application filed by the respondent under section 54-A(2) read with section 75 (2) (f) and 2-A of the Employees 2 State Insurance Act, 1948 has been allowed by the learned Member of the Industrial Court, directing the Employees State Insurance Corporation, the present appellant, to pay partial permanent disablement benefit for the loss of earning capacity due to injury to the left leg knee to the extent of 13%, with interest at the rate of 10% per annum from the date of filing of the application till its realization. 2. This appeal is filed under section 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as "the said Act") which required this Court to entertain the appeal only if it involves the substantial question of law. Although this matter was admitted on 8.11.2000, no substantial question of law, as required under section 82 (2) of the said Act, was framed or formulated by this Court. The matter is now taken up for final hearing. After hearing the parties at length, I am of the opinion that the following substantial questions of law arise out of the judgment and order impugned in this present appeal. (i) Whether the learned Member of the Industrial Court was right in relying upon the certificates of disablement at Exhs. 14 and 15 to hold that the respondent herein had suffered permanent disablement to the extent of 13% , without examining the doctor, who had issued the certificates ? (ii) Whether the findings recorded by the learned 3 Member of the Industrial Court that on 4.1.1995 the respondent was not examined by the Medical Board and that his signatures were obtained on blank papers, is based upon any admissible evidence available on record ? (iii) Even assuming that the learned Member of the Industrial Court was right in recording the finding that the applicant was not examined by the Medical Board on 4.1.1995 and that his signatures were obtained on blank papers, whether the learned Member of the Industrial Court was right in passing an order accepting the permanent disablement of the respondent to the extent of 13% without ordering his re-examination by the Medical Board ? 3. The learned counsel for the respondent has relied upon several judgments on the question that the findings on facts are recorded by the Courts below, the High Court cannot interfere in the matter under section 82 of the said Act. 4. However, at this stage, the learned counsel appearing for the parties agree that the learned Member of the Industrial Court at Aurangabad instead of proceeding to decide the issue on the basis of these certificates at Exhs. 14 and 15, should have referrred the applicant to the Medical Board for re-examination. In that view of the matter, the respondent will have to be referred to the Medical Board for re-examination and it would not be necessary for this Court to 4 adjudicate upon the substantial questions of law, which are framed above at Sr. No. (i) to (ii). 5. In view of above, the following order is passed by the consent of parties. O R D E R (i) The order dated 18.6.1999 passed by the learned Member of the Industrial Court at Aurangabad in application ESI No. 5 of 1995 is quashed and set aside. (ii) The application ESI No.5 of 1995 filed by the respondent is allowed to the extent of directing the appellant to constitute the Medical Board and to refer the respondent to the Medical Board for re-examination. After re-examination, the Medical Board shall furnish copy of its decision or report to the respondent/claimant. (iii) The appellant shall constitute the Medical Board and refer the case of the respondent to it before 15th October, 2009. (iv) On 26th of October 2009, the respondent will approach the appellant for getting the date of his medical examination fixed. (v) The Medical Board shall submit its report and communicate it to the respondent/claimant within a period of one month from the date of medical examination of respondent/claimant. (vi) All other points which are raised in this appeal are kept open and it will be also open for the parties to challenge the 5 certificates, if at all they are aggrieved and none of the observations in this order shall come in the way. (vii) The appeal stands disposed of in the aforesaid terms without any order as to costs. [ R.K. DESHPANDE, J. ] ssc/fa13.00