IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.902 of 2005 Date: 4th August, 2010 Between: Ghanshyam Singh .. Appellant And The Regional Director, Employees State Insurance Corporation, Regional Office, Hill Fort Road, Hyderabad and others. .. Respondents ORAL JUDGMENT: This Civil Miscellaneous Appeal under Section 82 of A.P. Employees State Insurance Act, 1948 is directed against the order made in E.I.A.No.23 of 2002 dated 9.6.2004 on the file of the learned Chairman, Industrial Tribunal-I-cum-Employees Insurance Court, Hyderabad. It appears, the appellant while working as Helper in Finishing Department with M/s Sirpur Kagaznagar Paper Mills Limited had sustained employment injury on 12.1.1999, wherein the spinal card and right forehand were fractured and he was treated at ESI Hospital, Sirpur Kagaznagar. The Medical Board constituted under the E.S.I. Act fixed the disability of the appellant at 60%. Being aggrieved by the same, management filed appeal before the appellate authority-second respondent in Appeal No.81 of 2000. The appellate authority vide its order dated 19.2.2002 reduced the percentage of disability of the appellant from 60% to 20%. The order of the appellate authority reads as under: “On examination of the injured person, the Medical Expert expressed his views as follows: ‘Blunt injury lower spine there is slight tenderness over the lumbar spine. Patient able to walk well able to pass urine normally, no neurological deficit. There is slight tenderness over right wrist joint. Head function is normal. Entrem flexion of the right wrist joint is restricted. Patient has difficulty in bending forward. The percentage of disability is 20%. Hence, the loss of earning capacity is reduced from 60% to 20%’. Taking into consideration of the facts and circumstances of the case and the opinion expressed by the Medical Expert, it is decided that the loss of earning capacity be reduced from 60% to 20% (Twenty percent only)”. Questioning the said order, appellant filed E.I.A. Case No.23 of 2002 before the Second Appellate Authority-Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad. The second appellate authority, however, on appreciation of the entire material placed before it, came to the conclusion that the total disability can be fixed at 40%. The Industrial Tribunal recorded the following reasons for holding so: “7.11 The documentary evidence will help to arrive at that decision. Ex.P1 is issued by medical board on 11.4.2000 wherein 60% disability is noted. The findings of medical board are mentioned in the certificate and Ex.P1 discloses the fracture of spinal card and the disability is of permanent nature and it is up to 55% as the appellant is walking with support and unable to walk freely and is unable to bend. Whereas the fracture on the right arm is assured as partial disability and it is due to the stiffness and it is fixed at 5%. The same facts are mentioned in the medical board report which are produced on behalf of respondent and is marked as R3. 7.12 The decision of the medical appellate tribunal is marked as Ex.R3. It discloses that the injured person was examined by the medical expert at the time of tribunal decision and he gave opinion as follows: ‘Blunt injury lower spine there is slight tenderness over the lumbar spine. Patient able to walk well able to pass urine normally, no neurological deficit. There is slight tenderness over right wrist joint. Head function is normal. Entrem flexion of the right wrist joint is restricted. Patient has difficulty in bending forward. The percentage of disability is 20%. Hence, the loss of earning capacity is reduced from 60% to 20%’. 7.13 Thus acting on the opinion of the medical expert the loss of earning capacity is fixed to 20% by the appellate Tribunal. 7.14 In this case Ex.R1 is most important document and it has been issued by the Doctor who has examined the appellant soon after the injury. The appellant sustained injury at 10.00 p.m. on 12.1.1999 and he was examined at 2.00 p.m. on 12.1.1999 at ESI hospital, Sirpur Kagaznagar and Ex.R1 was issued. This certificate discloses that the appellant sustained fractures of spinal card. 7.15 Admittedly the appellant was on a long treatment from 12.1.1999 to 7.1.2000 and Ex.R2 establishes this fact. Ex.R2 also discloses that the fracture on lumbar spine L2, L3, L4 and patient is complaining pain and not able to bend forward and there is tenderness present and the first Doctor assessed the disability at 20% provisionally. It is only provisional. 7.16 Whereas the report of medical board is based on examination of the petitioner on 11.2.2000 and the report of medical appellate tribunal is dated 19.2.2002 and it is the latest. 7.17 The appellate tribunal report discloses that the injury of lower spine and tenderness of the lumbar spine and appellant is walking and there is tenderness over right wrist joint and there is restriction of joints and the appellant is unable to bend forward. 7.18 There are specific guidelines for evaluation of permanent physical impairment of trunk. For a vertebral compression the disability is 25%. 7.19 For a lower lumbar spine fracture of vertebral compression with one or two bones the percentage of disability is between 15% to 20% and with persistent pain and stiffness, when the person is unable to lift heavy objects the disability will be between 30% to 40%. 7.20 In the instant case, the appellant was examined as PW1 and he admitted that he is working in the same company and earlier he used to work as finisher on piece rate but now as attender on fixed salary he is continuing in the same company and he is drawing fixed salary and not on piece rate as worker. He did not produce any document to show that he used to earn more salary before the accident and now his salary is reduced. Thus, there is o evidence of loss of income to him. 7.21 Considering the nature of injury on spinal card and his impairment such as unable to bend forward and unable to walk freely his disability of the spinal card is fixed at 35% and it is permanent in nature because he is not able to recover fully despite of long treatment and his future recovery is remote.] 7.22 As far as his fracture to the wrist it is only 5% on it is a temporary disability. But since he is having the said problem from longtime it can be treated as continuous disability. 7.23 Thus the total loss disability is 40%. 7.24 Before me it is stated that the respondent has paid amounts at the rate of 60% from the date of medical board report and the respondent is entitled to recover the same. 7.25 I am of the opinion that in case if the respondent has paid at the rate of 60% disability from the date of report of medical board till now they are at liberty to adjust the same to future payments at the rate of 40%.” As noticed above, the second appellate authority examined the injuries sustained by the appellant and ultimately came to the conclusion that there are specific guidelines for evaluation of permanent physical impairment of trunk and for a vertebral compression the disability is 25%. For a lower lumbar spine fracture of vertebral compression with one or two bones the percentage of disability is between 15% to 20% and with persistent pain and stiffness, when the person is unable to lift heavy objects the disability will be between 30% to 40%. The learned counsel for appellant strenuously contended that reduction of percentage of disability as fixed by the Medical Board from 60% to 20% by the first appellate authority or enhancement to 40% by the second appellate authority is without any basis and contrary to the evidence on record. This is a case where an appeal is provided against the decision of the Medical Board. Therefore, management filed appeal before the first appellate authority and thereafter questioning the decision thereof, appellant-employee preferred second appeal before the second appellate authority. Therefore it cannot be said that there is no jurisdiction to deal with the matter. In the facts and circumstances of the case, I am of the opinion that the second appellate authority has furnished cogent reasons in coming to a conclusion that the appellant has suffered 40% disability. Therefore, the impugned order does not suffer from any illegality or irregularity calling interference of this Court. However, it appears that in view of his disability, appellant has been accommodated as Attender and he was being paid the salary of Attender, which is contrary to the provisions of Section 47 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Protection) Act, 1995. I am of the view that the appellant is entitled for protection of his last drawn salary in the post of Finisher. Therefore, the respondents are directed to protect the salary of the appellant in the category of Finisher, to which post he was initially appointed. Further, it is made clear that if the appellant is paid any amounts treating the disability at 60%, the same shall not be recovered from him. With the above observations and directions, the CMA is disposed of. No order as to costs. ______________ C.V.RAMULU, J Date: 4.8.2010 DA