J.B. PARDIWALA, J.

1. This first appeal under section 82 of the Employees' State Insurance Act, 1948 is at the instance of the Employees State Insurance Corporation and is directed against the judgment and order dated 28th June, 2013 passed by the ESI Court in the Second Appeal No.13 of 2013.

2. The case of the appellant-corporation, as pleaded in the memorandum of the first appeal, is as under;

"2. The appellant herein, is an establishment of Central Government and is constrained to challenge the impugned common judgment and order because in its most humble submission that the impugned judgment and order is illegal, arbitrary, oppressive, unreasonable and unjustified and also discriminatory. The impugned order is contrary to the provisions of the ESI Act. This apart, the impugned judgment and order is contrary to and in total disregard to the vital documentary/oral evidence on record and is also without any evidence to support and justify the diverse findings, observations and conclusions made and recorded by the ESI Court in the impugned judgment and therefore, the same is also perverse and deserves to be set aside. While passing the impugned judgment and order, the ESI Court has committed serious, manifest and apparent errors of law apparent on the facts of the record and the impugned judgment and order also suffers from serious error of non-application of mind to the relevant facts and evidence and also suffer from serous irregularities as a result of which the same is vitiated and rendered unsustainable in law as well as on facts. The appellant most humbly submits that the impugned judgment and order deserves to be quashed and set aside.

3. The opponent is an insured person and covered under the Act. On 14.11.2010, the opponent herein, due to his own negligence and ignorance met with minor accident and sustained minor injury in his left leg. After getting complete recovery, the Appellant referred the case of the Opponent to the Medical Board. The Medical Board assessed 3% of disability after clinically and medically examining him and considering the income aspect as well. Though there was no reduction in earning capacity but only with a view to misuse the benevolent provisions, the Respondent approached to the MAT whereby the MAT granted 20% of disability without considering the aspect from the reduction in earning capacity. Hereto annexed and marked Annexure-B is the copy of the order passed by MAT. Being aggrieved with the said order passed in MAT (Appeal) No. 489/11 by MAT, the Appellant as well as the Respondent both preferred cross Appeal before the EI Court being ESI 2nd Appeal No.97/2012 and 13/2013. However, the ESI Court without even referring the definition under which the % of disability was enhanced by the MAT and without considering the facts about reduction in earning capacity and without adjudication about functional loss on part of the Respondent enhanced the % of disability from 20% to 35%."

3. The substantial questions of law, formulated in the memorandum of the appeal, are as under;

"(a) in facts of the present case and in view of the ESI Act, Rules and Regulations made there under, WHETHER it is open for the MAT and ESI Court to assess the disability at different % what has been opined and/or awarded by Medical Board?

(b) In facts of present case and in view of the ESI Act, Rules and Regulations, WHETHER the ESI Court is right and justified not setting aside the order/judgment of the MAT? AND can the opponent be given the 35% of the permanent disability ignoring the provisions of the section 2(15A) & 2(15B) vis-a-vis Second Schedule of the Act and without leading any evidences and without considering the vital aspect viz. Reduction in earning efficiency and without considering the nature of work and only on assumption and presumption?

(c) Whether it is right and justified by MAT to assess the % of disability without leading any evidence and/or without considering the expert opinion of the Med