JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 82(2) of ESI Act, 1948, to set aside the decree and Judgment of the Employees' State Insurance Court cum Labour Court, Tiruchirappalli passed in E.S.I.CMA No.1 of 2015 dated 05.01.2017 as illegal and against the specific provisions of law and allow the above appeal with costs.)

1. This Civil Miscellaneous Appeal has been filed to set aside the decree and Judgment, dated 05.01.2017 on the file of the Employees' State Insurance Court cum Labour Court, Tiruchirappalli, in E.S.I.CMA No.1 of 2015.

2. Heard Mr.I.Pinayagash, learned counsel appearing for the appellants and Mr.A.Shajahan, learned counsel appearing for the respondent.

3. This Civil Miscellaneous Appeal is filed on the ground that the learned Judge ought to have dismissed the above appeal on the ground that there is a bar to file any appeal against the decision of the 2nd respondent Medical Board U/s 54A(2) of the E.S.I. Act, 1948. The learned Judge has failed to note that the Medical Board has fixed the disablement benefits as per the guidelines issued by the Government of India and the loss of earning capacity of the respondent. The learned Judge has failed to consider that there is no provision in Employees' State Insurance Act, 1948 about the report of the private Medical Practitioner being admissible and the respondent has also not produced any provision of law that the private Medical Practitioner's report being admissible. Before fixing permanent disablement benefits, the appellants corporation has paid temporary disablement benefits to the respondent on 25.07.2007 as provided u/s 51 of the E.S.I. Act, 1948 apart from the treatment and further, as per decision of the 2nd appellant's Medical Board, dated 20.02.2007 permanent disablement benefits are paid to the respondent every month. On receipt of the said case benefits, he has not raised any objection or dissatisfaction till he approached the 1st appellate tribunal and the above facts are not considered by the learned Judge.

4. The respondent herein/petitioner has filed E.S.I. C.M.A.No.1 of 2015 before the Employees State Insurance Court Cum Labour Court, Tiruchirappalli, under Section 54A of E.S.I. Act, 1948 and Rule 20(b) of E.S.I.Act, 1950, to assess permanent disability as 100% since there was amputation of left hand below elbow due to accident occurred at the time of employment.

5. The medical board assessed the disability as 80%.

6. The ingredients of Section 54-A (2) of E.S.I. Act is extracted hereunder:

Section 54-A(2)(ii) of Employees Insurance Court directly:

“Provided that no appeal by an insured person shall lie under this sub-section if such person has applied for commutation of disablement benefit on the basis of the decision of the Medical Board and received the commuted value of such benefit.

Provided further that no appeal by the corporation shall lie under this Sub-section if the corporation paid the commuted value of the disablement benefit on the basis of the decision of the Medical Board.

In this particular case, the respondent applied for commutation of disablement benefit and the appellant ESI Corporation has also paid the disablement benefits as per the decision of the Medical Board. Therefore, the appellant has no right to file an appeal under the above provision of law”.

7. The relevant portion of the order, dated 20.12.2017 is extracted hereunder:

“(a) The medical board has assessed the degree of your permanent disability at 80% finally.

(b) As the assessment is not final it will be subject to view under Section 54-A of the ESI Act 1948 and the date, time and venue of the medical board to which you will be referred again will be intimated in due course.”

Therefore, the assessment in permanent disability certificate dated 06.12.2017 is not final accuracy in the order.

8. But, as rightly pointed out by the appellant, a private doctor cannot be examined to prove the disability.

9. The provision of Section 54(A)(2) of E.S.I. Act, is extr