THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.3249 OF 2004. DATED:17-03-2010. Between: The Regional Director, ESI Corporation, Hyderabad. … Appellant and 1. B.Ramakrishna Reddy and four others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.3249 OF 2004. JUDGMENT: This appeal is filed under Section 82 of the Employees State Insurance Act, 1948 (for short ‘the ESI Act’) against the order, dated 31-12-2003, in E.I.A. No.12 of 2002, on the file of the Employees Insurance Court and Chairman, Industrial Tribunal I, Hyderabad, in setting aside the order passed by the Medical Appeal Tribunal, dated 11-10-2001 in Appeal No.8 of 1998, wherein the loss of earning capacity of the 1st respondent herein was determined as Nil. 2. The 1st respondent herein is an employee in M/s Madanapalli Spinning Mills Ltd., Madanapalli Mandal, Chittoor District. On 20-12-1995, he met with an accident and sustained injury to his right ear. He was taken treatment in E.I. Dispensary and later referred to S.V.R.R. Hospital, Tirupathi, who in turn referred to S.V. School of Dumb and Deaf, Tirupathi, where necessary tests including audiogram was conducted and thereafter, he was given treatment. After treatment, he was unable to hear clearly as his right ear has become deaf. He was handicapped in discharging his normal duties and functions. Thereafter, he was referred to Medical Board duly constituted under the E.I. Act, which in turn referred him to ENT hospital, Koti, Hyderabad. The hospital conducted further tests at the instance of the Medical Board. The Medical Board after taking into consideration the entire evidence on record, concluded that the 1st respondent herein sustained loss of earning capacity to the extent of 40%. Challenging the same, ESI corporation preferred an appeal against the order of the Medical Board before the Medical Appeal Tribunal, which passed order, dated 11-10-2001 determining loss of earning capacity as Nil. Aggrieved thereby, the 1st respondent herein preferred appeal before the Employees Insurance Court. 3. Before the Employees Insurance Court, the 1st respondent herein was examined as P.W.1 and got marked Exs.P1 to P9. On behalf of the appellant herein, R.W.1 was examined and Exs.R1 to R14 were marked. 4. The Employees Insurance Act, after considering the oral and documentary evidence available on record, set aside the order passed by the Medical Appeal Tribunal. Aggrieved thereby, this appeal is preferred by ESI corporation. 5. The substantial question of law under Section 82 of the ESI Act that arises for consideration in filing this appeal is ‘that in a case where the E.I. Court has observed that the order of the Medical Board has been set aside by an improperly constituted Medical Appeal Tribunal, then it is not proper for the E.I. Court to direct the State Government to constitute a proper Tribunal in accordance with the Regulation 76 of the ESI Act and re-examine the 1st respondent, in stead of mechanically setting aside the order of Medical Appeal Tribunal on the said ground? Should the E.I. Court rely upon the unsigned report of the Medical Board and set aside the order of the Medical Appeal Tribunal which is valid and legal?’ 6. Heard the learned standing counsel appearing for the appellant. None appears for the 1st respondent in spite of service of notice. 7. The E.I. Court set aside the order of the Medical Appeal Tribunal on the ground that the Medical Board has not been constituted properly as per Regulation 76 of ESI Act and the opinion of the Medical Board is not legally valid. Regulation 76 of the ESI Act reads thus: “76. Appeal Tribunals: For the purposes of Regulation 74, appeal tribunal shall be constituted by the State Government and shall consist of a judicial officer of the State Government being a person other than the judge of Employees Insurance Court, who shall be assisted by the following persons to be selected by him as assessors. (a) One or more medical experts (b) One or more officials or members of trade union or unions. But, they sought clarification whether such a provision was there or not. On that, ESI Corporation issued a clarification on 02- 01-2004, wherein Regulation 76 reads thus: “76. Medical Appeal Tribunals: For the purposes of the Act, the State Government shall constitute as many Medical Appeal Tribunals as it thinks fit. Each such Medical Appeal Tribunal shall consist of such persons, exercise such jurisdiction and follow such procedure (Save for the manner in which and the time within which the appeals may be filed as may be prescribed by rules framed by the Central Government under the Act) as the State Government in consultation with in Corporation may, from time to time, decide. Notwithstanding the amendments hereby made, all appeals pending before the Appeal Tribunal at the date of coming into force of the provisions of the Act relating to Medical Appeal Tribunal shall be disposed of by the Appeal Tribunals.” From the above clarification, it is clear that the Medical Appeal Tribunal need not consist of a judicial officer. The trial Court was not correct in setting aside the opinion of the Medical Appeal Tribunal, dated 11-10-2001. The Medical Board consists of a Commissioner as Chairman, Medical Expert, Speech Pathologist and Audiologist and non-technical assessor. Therefore, constitution of Medical Board cannot be said to be improper or in violation of Regulation 76 of ESI (Gen.) Regulation, 1950. Hence, the impugned order is liable to be set aside. 7. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order, dated 31-12-2003, in E.I.A. No.12 of 2002, on the file of the Employees Insurance Court and Chairman, Industrial Tribunal I, Hyderabad. No order as to costs. --------------------- K.C.BHANU, J DATED:17-03-2010 Hsd