N. VENKATACHALA, J.

( 1 ) THESE appeals, M. F. As. Nos. 300/88 and 301/88, are of the Employees' State Insurance corporation ("the Corporation") filed under Section 82 (2) of the Employees' state Insurance Act, 1948 ("the Act"), against the common order dated 21-9-1987 made in E. S. I. Appeals Nos. 12/86 and 6/86 respectively by the Employees' State Insurance court ("the ESI Court" ).

( 2 ) MATERIAL facts arethe respondent was a Spinner in a Cotton mill at Bangalore. He is an 'insured person' under the Act. He suffered an employment injury in his left foot on 23-1-1985. He obtained treatment for that injury in a E. S. I. Hospital and was away from work till that injury got healed up. He got temporary disablement benefit from the Corporation in that behalf, as provided for under the Act. Thereafter, on 30-10-1985, he made an application, to the Corporation seeking from it permanent disablement benefit pleading that he was entitled to such benefit under the Act respecting the injury which he had sustained. The Corporation referred that application to the Medical Board for assessing the disablement benefit payable to the respondent. The Medical Board took the view that the permanent disablement benefit payable to the respondent was nil and made an order accordingly. The respondent preferred an appeal against that order, under section 54a (2) (i) of the Act to the Medical appeal Tribunal. That Tribunal, which was assisted by a Medical Assessor and a Labour assessor, after due enquiry, made an order assessing the loss of earning capacity of the respondent at 18%. The appellant as well as the respondent, who were dissatisfied with the said order, carried it in further appeals, e. S. I. Appeals Nos. 6/86 and 10/86, to the esi Court. That Court, by its common order dated 21-9-1987, while dismissed the appeal of the Corporation, allowed the appeal of the respondent and held that the loss of his earning capacity was 25%. It is that common order which is appealed against by the corporation by filing the present two appeals, as stated at the outset.

( 3 ) IN these appeals, the learned Counselfor the appellant- Corporation urged that the esi Court has erred in proceeding on the basis that the case before it was that of a temporary disablement benefit and in fixing the loss of earning capacity of the respondent at 25% on its view that the nature of injury suffered by the respondent and the pain and suffering undergone by him for three months on account of that injury called for such fixation. He further urged that the Medical board, the Medical Appeal Tribunal or the esi Court, whichever it may be, cannot assess the permanent disablement benefit payable under the Act to an insured person for an employment injury suffered by him, unless it brings such injury within one or the other of the injuries described in Schedule-II to the act so as to enable it to fix the percentage of loss of earning capacity as mentioned against such injury.

( 4 ) THE learned Counsel for the respondent,on the other hand, submitted that no error was committed by the ESI Court in fixing the loss of earning capacity of the respondent having regard to the nature of injury suffered by the respondent and the pain and suffering undergone by him. She also submitted that the provisions of the Act enable the Medical Board, Medical Appeal tribunal or the ESI Court to find whether the employment injury could fall out-side any of the injuries described in Schedule-II to the act and fix the loss of earning capacity of the injured, having regard to the consequences that flow from such injury.

( 5 ) IN the light of the said submissions oflearned Counsel appearing for the opposing parties, the points which arise for our consideration and decision, may be formulated thus: (I) Whether the ESI Court was right in proceeding with the appeal before it on the basis that the case concerned in the appeal was the case of temporary disablement benefit. (II) Whether the Medical Board, Medical a

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