THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.846 OF 2005. DATED:17-03-2010. Between: Manager, Branch Office, ESIC, Nellimarla, Vizianagaram District, Rep. by Regional Director, ESIC Corporation, Hyderabad. … Appellant and 1. P.Narayana and another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.846 OF 2005. JUDGMENT: This appeal is filed under Section 82 of the Employees State Insurance Act, 1948 (for short ‘the ESI Act’) against the order, dated 15-10-2004, in E.S.I. Appeal No.1 of 2004, on the file of the Senior Civil Judge, Vizianagaram, in confirming the order passed by the Medical Appellate Tribunal, dated 03-3-2003 in Appeal No.25 of 2001, wherein loss of earning capacity of the 1st respondent herein was determined at 25%. 2. The 1st respondent herein is an employee in Nell Marla Jute Mills and during his employment, he sustained some injury. The matter has been referred to Medical Appellate Tribunal under the ESI Regulations and the 1st respondent herein was referred to Medical Board. Basing on the medical report, the Medical Appellate Tribunal held that the loss of earning capacity was enhanced to 25%. Aggrieved thereby, the Manager, Branch Office, ESI Corporation, Nell Marla and the Joint Director, Sub Regional Office, Vijayawada, preferred the appeal before the Senior Civil Judge, Vizianagaram. The Senior Civil Judge, vide impugned order, dismissed the appeal confirming the order passed by the Medical Appellate Tribunal. Challenging the same, this appeal is preferred. 3. The substantial question of law that arises for consideration in this appeal is ‘could the EI Court arrive at a decision without calling for documents/Medical reports which are legible in nature? Does the EI Court has jurisdiction to direct the ESI corporation to pay compensation to those cases of injured persons for injuries to them has not arisen out of ‘Employment Injury’ as envisaged under the ESI Act?’. 4. Learned standing counsel appearing for the appellant herein contended that the decision of the Medical Appellate Tribunal with regard to loss of earnings is post-operative disability, but not loss of earning capacity due to employment and hence, he prays to allow the appeal. 5. On the other hand, learned counsel appearing for the 1st respondent herein contended that the decision of the Medical Board was challenged before the competent Civil Court under ESI Appeal No.1 of 2004, that the Civil Court rightly confirmed the order passed by the Medical Appellate Tribunal and hence, there are no grounds to interfere with the same. 6. The competent Civil Court has given a finding that the report of the Medical Appellate Tribunal is valid. The present appeal is filed against the order of the Civil Court, dated 15-10- 2004. No doubt, the decision of the Medical Appellate Tribunal shows that the loss of earning capacity of the 1st respondent herein was determined at 25% on the ground of post operative laminactomy with failed back syndrome, but at the same time that injury was caused during the employment. This was assessed after the 1st respondent herein was examined by the Medical Expert, who was one of the members of the Tribunal. The decision does not indicate that the loss of earning capacity estimated at 25% is a post operative disability. As the 1st respondent herein sustained injury during the course of employment, the Medical Board rightly assessed the disability at 25%. Therefore, there are no grounds to interfere with the same. Hence, the appeal is devoid of merit and is liable to be dismissed. 7. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the order dated 15-10-2004, in E.S.I. Appeal No.1 of 2004, on the file of the Senior Civil Judge, Vizianagaram. No order as to costs. --------------------- K.C.BHANU, J DATED:17-03-2010 Hsd