JUDGMENT :

Rajesh H. Shukla, J.

The present First Appeal has been filed by the appellant E.S.I. Corporation being aggrieved with the impugned judgment and order passed in E.S.I. Second Appeal No.10 of 2009 by the E.S.I. Court dated 29.4.2011 on the grounds mentioned in the appeal, inter alia, that the observations and findings by the E.S.I. Court in the impugned order is wholly unjustified, without any application of mind towards the evidence or material on record and are based on surmises, conjectures and presumptions. It is also contended that the E.S.I. Court ought not to have held that the Medical Board had rightly observed the percentage of disability and the E.S.I. Court was not justified in interfering with the same findings as per the provisions of law and ought not to have enhanced without assigning any valid and cogent reasons. It is also contended that the E.S.I. Court erred in not entertaining the Second Appeal of the appellant-Corporation and has erred in confirming the view taken by the Medical Appellate Tribunal (for short, 'M.A.T.') in enhancing the percentage of disability from 0% to 10%.

2. Heard learned counsel Mr. S.D. Vasavada for the appellant. He has submitted that the Medical Board had, on the basis of the material and evidence, made the assessment with regard to the disability at 0%. However, the M.A.T. has assessed the disability at 10% which has been assailed by the Corporation before the E.S.I. Court. However, the E.S.I. Court has confirmed the findings given by M.A.T. in Appeal (M.A.T.) No.51/2006 which is not justified and it is not supported by any reasons.

3. Learned counsel Mr. Vasavada has submitted that the court is required to consider whether it would be a jurisdictional error or not on the part of both M.A.T. as well as the E.S.I. Court. He referred to the impugned order, para 5, and submitted that word referred to is "medical assessors", whereas there was only one Doctor present at the relevant time. Therefore, learned counsel Mr. Vasavada submitted that, is it possible for M.A.T. or the E.S.I. Court to decide the percentage of disability with only one doctor present, whereas the Medical Board consisting of a panel of doctors has made the assessment at 0%. He referred to this aspect and submitted that in fact the quorum or the constitution of the M.A.T. was not sufficient. As would be seen, another Dr. G.D. Tharadra was not present and only one Dr. M.M. Prabhakar was present. Therefore, he submitted that the present appeal may be allowed and the matter may be remanded. For that purpose, he has referred to Regulation 76.

4. Learned counsel Mr. Vasavada has also submitted that the M.A.T., while deciding Appeal No.51 of 2006 and the E.S.I. Court while confirming the said order of M.A.T., has not given any reasons for the findings which are required to be given. He, therefore, submitted that the present appeal may be allowed.

5. The submissions made by learned counsel Mr. Vasavada are two-fold. First, with regard to the proper quorum or the constitution of M.A.T. which decided Appeal No.51 of 2006 setting aside the order of the Medical Board and accepting the disability at 10%. At the time when the appeal was heard, over and above the Chairman, the medical assessors who have been named included one Dr. M.M. Prabhakar and another Dr. G.D. Tharadra was absent. However, if it is examined with reference to Regulation 76, the submission is misconceived as it clearly provides that

"an Appeal Tribunal shall be constituted by the State Government and shall consist of a Judicial Officer of the State Government being a person other than the Judge of an Employees' Insurance Court, who shall be assisted by the following persons to be selected by him as assessors -

(a) one or more medical experts.

(b) one or more officials of or members of Trade Union or Unions."

In other words, if there is one medical expert to assist as an assessor it would be sufficient and in fact the legislature in its wisdom has provided for