( 1 ) HEIRS and legal representatives of deceased Babubhai Maganbhai Patanwadia have filed First Appeal against the judgment and award dated January 8, 2002 passed by the employees State Insurance (hereinafter referred to as E. S. I.) Court in Second Appeal no. 16 of 1999. The E. S. I. Court has held that when deceased Babubhai Maganbhai patanwadia was working with Alembic Glass he was suffering from the disease of Silicosis and that the deceased had 60% disability.

( 2 ) THE facts giving rise to these appeals are as under: the learned counsel for the original appellant late Shri Babubhai Maganbhai patanwadia submits that the appellant was serving in Alembic Glass Industries Limited, vadodara since more than 10 years. In view of his employment he suffered an ailment of silicosis. The original appellant was examined by the Medical Board on March 12, 1986. The medical Board awarded 10% disability. The appellant has produced copy of the order passed by the Medical Board at Annexure-A to the appeal. Being aggrieved and dissatisfied with the said order, the appellant filed appeal before the medical Appellate Tribunal being Appeal (MAT) no. 10/1994. The Medical Appellate Tribunal by its judgment and order dated September 15, 1995 partly allowed the appeal and held that the appellant had disability of 30%. Being aggrieved and dissatisfied with the said order, the deceased Babubhai Maganbhai patanwadia filed ESI Second Appeal No. 16 of 1999 before the ESI Court, Vadodara. ESI court, Vadodara, by its judgment and order dated January 8, 2002 partly allowed the appeal and held that the deceased Babubhai Maganbhai patanwadia has 60% permanent disability from january 1, 1990 and he has been given all benefits upto October 25, 1998 and thereafter all the benefits were given to his heirs and legal representatives. Being aggrieved and dissatisfied with the aforesaid order of the ESI Court, Babubhai maganbhai Patanwadia has filed the present appeal under Section 82 of the Employees state Insurance Act, 1948 before this Court on february 27, 2002.

( 3 ) MR. S. H. Iyer, learned counsel for the appellant, has invited my attention to Rule 57 of the Employees State Insurance (Central) rules, 1950 which provides disablement benefits. The relevant provisions of the said rule read as under:" (7) A person shall be qualified to claim disablement benefits for temporary disablement for not less than three days (excluding the day of accident) for the period of such disablement sustained as an employee under the Act. (2) A person shall be qualified to claim periodical payment for permanent disablement sustained as an employee under the Act, whether total or partial, for such disablement: provided that where permanent disablement, whether total or partial, has been assessed provisionally for a limited or finally, the benefit provided under this rule shall be payable for that limited period, or as the case may be, for life. (3) xxxxx xxxxx xxxxx explanation - The disablement benefit calculated as aforesaid shall be called the "full rate". (4) The disablement benefits shall be payable to the insured person as follows: (a) for temporary disablement, at the full. rate; (b) for permanent total disablement, at the full rate; (c) for permanent partial disablement resulting from an injury specified in Part II of the Second Schedule, at such percentage of the full rate which would have been payable in the case of permanent total disablement, as specified in the said schedule as being the percentage of the loss of earning capacity caused by the injury. "on the basis of the above, the learned counsel for the appellant has submitted that in this case also appellants must get benefit for the perma- nent total disablement at 100% (hundred per- cent ).

( 4 ) MR. S. H. Iyer, learned advocate for the appellant, appeared. He has submitted that the aforesaid award of the learned judge of the ESI court is contrary to and inconsistent with the judgment of this Co