1. In an appeal under S.54A(2)(ii) of the Employees' State Insurance Act, 1948 against the decision of the Medical Board determining the disablement of an insured person, is it proper for the Employees' Insurance Court to determine the percentage of disablement mainly taking into consideration the circumstance that the insured person is practically incapable of doing the work or the employer is not willing to give him any suitable work or that his earning capacity is nil since he is unemployed?.

2. This important question arises in this appeal filed by the Regional Director, Employees' State Insurance Corporation, Trichur, hereinafter referred to as the E.S.I. Corporation. The appellant before the E.S.I. Court who is the respondent herein, is hereinafter referred to as the employee. The employee met with an accident in the course of his employment on 12-12-1987, when he was working as a Winder in M/s. Kerala Spinners Ltd. After discharge from the hospital where he was treated, he had complaints of severe pain at the lower portion of his vertebral column which was diagnosed as 'intervertebral disc prolapse' which was caused due to the accident. He was examined by the E.S.I. Medical Board, Alleppey. As per Ext.P5 decision of the Medical Board dated 12-8-1988 he had 20% permanent disablement. He challenged the decision of the Medical Board by filing an appeal before the E.S.I. Court from which this M.F.A. arises.

3. Before the E.S.I. Court the employee examined himself and a doctor who issued Ext.P4 Medical Certificate. He also produced Exts. P1 to P5. The E.S.I. Corporation examined D.W.I who was one of the doctors in the Medical Board. After the closing of the evidence the lower court asked the E.S.I. Corporation to make an enquiry whether any lighter employment could be provided to the employee. After making the enquiry it was submitted that the employer had informed them that they are not in a position to give any suitable lighter work to the employee. The E.S.I. Court held that the employee is practically incapable of doing the work which will be normally provided to him in his company, and se his earning capacity is nil. Therefore, by the order under challenge the court directed the E.S.I. Corporation to give him full rate of the benefit as if his disability was 100%. The court also observed that the E.S.I. Corporation may make proportionate deductions, as and when it is found that the employee is gainfully employed in any place.

4. The appeal before the E.S.I. Court was one under S.54A(2)(ii) of the E.S.I. Act. Under S.54A the employee is given the option either to challenge the decision of the Medical Board before the Medical Appellate Tribunal or before the Employees' Insurance Court. Medical Boards are constituted under Regulation.75 of the Employees' State Insurance (General) Regulations, 1950.

5. Therefore the E.S.I. Court had to determine the case of the employee for permanent disablement benefit after examining whether the decision of the Medical Board was proper or not. The court will have to determine the question of disablement keeping in mind S.54 of the E.S.I. Act, which is as follows:

"34. Determination of question of disablementAny question

(a) Whether the relevant accident has resulted in permanent disablement; or

(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or

(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or

(d) in the case of provisional assessment, as to the period for which such assessment shall hold good; shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereinafter be referred to as the 'disablement question'."

Since there is no specific provision as to the manner in which the court is to examine the correctness or otherwise of the report of the Medical Board, the court will have to decide the question after considering t