IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 MFA.No. 1385 of 2000() ---------------------- ICA.4/1999 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ------------------------------------------ THE REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION TRICHUR BY SR. ADV. SRI.TPM.IBRAHIM KHAN RESPONDENT/APPLICANT: ----------------------------------------- K.A.RAJEEV KANJIRATHINKAL HOUSE KANDANADU, ERNAKULAM ADV. SRI.MATHEWS K.PHILIP FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO: 365 OF 2001 IN M.F.A. NO: 1385/2000 DISMISSED: 5.9.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE JJ /TRUE COPY/ P.A. TO JUDGE J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ M.F.A.NO: 1385 OF 2000 ----------------------------------------------------------- Dated this the 5th September, 2008. JUDGMENT Koshy, J. This appeal is filed by the ESI Corporation against the judgment of the Employees Insurance Court, Alleppey in I.C.A.No:4/99. Respondent in this case sustained injuries during the course of employment. He was a covered employee under the ESI scheme. Medical board of the ESI Corporation assessed 23% disability and directed disablement benefit on the above basis. That was challenged by the Insurance Court. When the appeal was pending before the EI Court, another Injury was sustained on 31.7.1997. The Tribunal directed the Court to consider the effect of both injuries . Again medical board certified 23% disability. In the appeal, certificate issued by the Medical Trust Hospital was produced. But no oral evidence was adduced. Considering the medical certificate issued by the doctor of the Medical Trust Hospital it is found that there is loss of memory and therefore, he is entitled to 100% disability. That is challenged in this appeal. 2. Considering the contentions, we directed the medical board of the appellant Employees' State Insurance Corporation to assess the permanent disability. That order was passed on 9.10.2006. Now a statement was filed by the ESI Corporation and that too on two occasions. Respondent was given opportunity to appear before the medical board on two occasions i.e. 7.11.2006 and 18.1.2007 and notice MFA 1385/00 2 sent was returned with the remark “addressee left.” When the case was called on 4.9.2008 there was no representation for the respondent. Therefore, it was posted for orders. Today also he is absent. Therefore we have decided the matter on merits. 3. After the remand the medical board has considered the matter and found that the applicant was having 23% disability, even though ESI Court has got power to differ from the views, to differ from the assessment of medical board, cogent reasons have to be stated. The medical certificate produced from the Meidical Trust Hospital was not proved by examining the doctor. No oral evidence was also adduced. It is stated in the certificate that there is loss of memory and there is speech difficulty. But certificate also says that further investigation is necessary. In the certificate issued by the Medical Trust Hospital there is no assessment of disability. There is also no material to hold that disability noticed by the Medical Trust Hospital is due to accidental injuries. There was no material before the E.I Court to assess 100% disability. Hence we set aside the decision of EI Court and confirm the views of the ESI Corporation. Appeal is allowed. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj MFA 1385/00 3 J.B.KOSHY & THOMAS P. JOSEPH,JJ. ------------------------------------ M.F.A.NO: 1385 OF 2000 ------------------------------------ JUDGMENT Dated: 5th September, 2008.