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ALLAHABAD HIGH COURT
O.N. Khandelwal, J.
Employees State Insurance Corporation
Versus
Sarfuddin, Shri Nooruddin
First Appeal from Order 1374 of 1993
Decided On : 27 May 2005
First Appeal From Order 1374 Of 1993
Employees State Insurance Act - Appeal against Medical Board's decision - Violation of Rules - Remand for fresh decision
Fact of the Case:
The employee sustained employment injuries in his left ear and appealed against the Medical Board's decision. The Employees State Insurance Court assessed the loss of earning capacity at 30% based on a document that was not proven in accordance with the law. The appeal was admitted and the record of the lower court was called for.
Finding of the Court:
The court found that the entire proceedings before the Employees State Insurance Court were carried out in violation of the rules, and the reliance on a document for assessing the loss of earning capacity was not in accordance with the law.
Issues: The main issue was whether the Employees State Insurance Court can base its finding regarding loss of earning on a document which has neither been admitted nor proved in accordance with the law.
Ratio Decidendi: The court held that the proceedings before the Employees State Insurance Court were violative of the rules and the reliance on an unproven document for assessing loss of earning capacity was not valid.
Final Decision: The appeal was allowed, the impugned order of the Employees State Insurance Court was set aside, and the case was remanded to the court below for deciding afresh in the light of the observations made above. No costs were awarded.
( 1 ) THIS appeal under section 82 of the Employees State Insurance Act, 1948 (hereafter referred to as the ESI Act) has been filed against the order dated 27. 4. 1992 passed by the Employees insurance Court, Kanpur.
( 2 ) THE respondent employee sustained employment injuries in his left ear on 30. 10. 1992 when he was on duty in the Elgin Mill No. 2 Kanpur. The first certificate was issued by the Insurance medical Officer on 31. 10. 1992. He was administered analgesic and antibiotic medicines and remained under the continuous treatment from 31. 10. 1992 to 9. 11. 1992. Form No. BI (1) (a)duly filled by the Insurance Medical Officer was sent for information of the Medical Board. The medical Board in Form BI (2) entered details and other employment injuries that of left eye on account of accident dated 9. 6. 1978, of left knee on account of accident dated 6. 10. 1987. The medical Board vide its report dated 23. 12. 1992 examined and found injury (left) ear o/e (On examination) no external scar mark (Left) ear vicinity EAM (External Audiometery meatus) Bil NAD (No abnormality detected ). T. M. Bil (Tympanic Membrane Bilateral) intact. No perforation, Lombard test, C. M. T. . . . does not reveal hearing defect pertaining to injury.
( 3 ) IT was signed by the Chairman and one Member. The decision of the Medical Board was communicated to the Employees State Insurance Corporation (hereinafter referred to as the ESI corporation), who in turn informed its decision to the employee through its letter dated 28. 02. 1992.
( 4 ) DISSATISFIED with the decision of the Medical Board, the employee preferred an appeal under section 54a (ii) of the ESI Act before the Employees State Insurance Court on 16. 1. 1993. According to the insured employee, there was defect in the injured left ear and it being non-scheduled injury, he was entitled 50% loss of earning capacity on the permanent basis. ESI corporation in its objection supported the decision of the Medical Board. It was stated that there is no evidence on record to rebut the decision of the Medical Board.
( 5 ) THE ESI Court, after receiving objection from the ESI Corporation, fixed 9. 4. 1993 for argument, which was again adjourned to 20. 4. 1993, on which date the arguments were heard. Taking into consideration the document which was filed by the insured employee on 20. 4. 1993, the ESI Court observed that the Medical Board did not give reasons for not accepting the report of Ear specialist called for by itself, the appellant was referred to E. N. T. Surgeon in L. L. R. Hospital, Kanpur who after audiometery test found A B gapping, loss of 40 odds. In the absence of any contrary evidence, report of E. N. T. Specialist could not be disbelieved and this being a non-scheduled injury and considering the nature and extent of the same and also the report of the e. N. T. Surgeon, 30% loss of earning capacity was assessed and the appeal was allowed by the impugned order dated 27. 4. 1993 holding 30% loss of earning capacity permanently.
( 6 ) THE appeal was admitted and record of lower court was called for.
( 7 ) I have heard the parties at length and have also perused the record of lower court. The finding of the ESI Court has been challenged mainly on the ground that there was no medical and legal evidence to arrive at a conclusion that there was 30% loss of earning capacity, besides no reasoning has been given to assess the percentage of loss. But according to the learned counsel for the respondents, this is a question of fact and in view of the decision given in ESI corporation, Indore v. Babu Lal and Ors. , 1982 LAB I. C. 468 (M. P.) the appellate court cannot interfere with the findings of fact under Section 82 of the ESI Act. He has also placed reliance on the Regional Director, ESI Corporation v. S. Saravanam, 1990 (60) FLR 165 (Karnataka High court), according to which ESI Court is not barred from estimating and fixing its own percentage of loss of earning capacity. Th
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