Rajesh H. Shukla, J.

The present First Appeal has been filed by the appellant-Corporation (original opponent) being aggrieved and dissatisfied with the impugned judgment and order passed by the ESI Court in Second Appeal No. 24 of 2009 dated 8.12.2011 assessing the disability at 40% on the grounds stated in the memo of Appeal contending inter alia that the lower Court has erred in not considering the disability assessed by the panel doctors in Medical Appellate Tribunal, which is acceptable by Corporation. It is also contended that if the decision was not acceptable then it has to remand to the Tribunal for re-assessment but the Court has no jurisdiction to enhance the disability. Heard learned counsel, Mr. Hemant S. Shah for the appellant-Corporation and learned counsel, Ms. Asha Gupta for the respondent.

2. Learned counsel, Mr. Hemant Shah has referred to the papers as well as details of evidence and submitted that the Medical Board had assessed to 10% and the appellate Tribunal consisting of the medical doctors has increased it to 18%. However, learned counsel, Mr. Shah submitted that ESI Court has assessed the disability at 40% without any basis or justification. He submitted that the medical evidence on assessment of the disability by the doctor or the Tribunal would be justified and the Court cannot substitute its findings. He strenuously submitted that it ought to have been remanded to the Board or the Tribunal for reassessment. Learned counsel, Mr. Shah has also referred to and relied upon the judgment of this Court case of Mohamed Abdulla Vs. Employees' State Insurance Corporation, Ahmedabad and submitted that as observed, the substantial question of law is involved in appreciation of evidence, which has not been properly appreciated. He, therefore, submitted that the present Appeal may be allowed and at the most, it may be remanded back for the assessment of the disability.

3. Learned counsel, Ms. Asha Gupta, however, referred to the papers including the medical papers and pointedly referred to Exhibit 6 and others papers with regard to the injury as well as the assessment and submitted that as stated in detail in this medical case papers, there is a specific note made in case papers as well as subsequently by the Tribunal, which is produced at Exhibit 5. She submitted that he has stated that "Operated: R/u. & Humerus with restriction of elbow mov. & supiretion proration forearm (r) side. MB 10% + MAT 8% = 18%. Eighteen percent."

4. Therefore, it was submitted that the Court has considered the impact of the disability and has enhanced the disability, which has not been considered for the purpose of functional disability. She therefore submitted that the respondent herein is a labour, who has stiffness and it can bend upto 145 degree and, therefore, it will be difficulty for him to do any work and, therefore, the assessment of the disability is just and proper.

5. Learned counsel, Ms. Gupta has also submitted that there is no substantial question of law involved and unless there is substantial question of law involved, this Court may not interfere with the findings. In support of her submission, she has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Hotel New Nalanda Vs. Regional Director, E.S.I. Corporation, (2009) 14 SCC 558 and submitted that against the finding of fact, which is not perverse, no Appeal may be entertained.

6. In view of these rival submissions, it is required to be considered, whether the present First Appeal can be entertained or not.

7. As can be seen from the material and evidence and case papers including Exhibit 5 and also other papers, the opponent had suffered injury while operating machine and there is a permanent disablement. Inspite of 180% (sic 80%), left hand had multiple fracture resulting into stiffness and movement is restricted and instead of 180 degree, it is restricted upto 135 degree. Admittedly, the assessment made by the Medical Board has not f