JUDGMENT :

KAUSHAL JAYENDRA THAKER, J.

1. Heard Shri Rajesh Tiwari, learned counsel for appellant and perused the judgment and order impugned.

2. This appeal has been preferred under Section 82 of the Employees State Insurance Act, 1948, at the behest of the Employee State Insurance Corporation, has been preferred against the judgment and order dated 21.9.1993 passed by Employees Insurance Court, Kanpur in Appeal No. 70 of 1993 awarding 10% loss of earning.

3. The factual matrix as necessary for our purpose are that respondent sustained employment injuries on 11.6.1991 in his right eye. The medical board did not consider the injury as causing any loss of earning capacity, which dissatisfied the respondent herein. The respondent preferred an appeal and has claimed 10% loss of earning capacity which appeal has been accepted by the 1st appellate authority.

4. The objections were filed by the appellant-herein and the medical examination of the injury of the insured person and the reports were also placed on record. The medical board did not find any diminution of vision and, therefore, held that the respondent was not entitled for any compensation.

5. The moot question which arises for consideration of this Court is that can this Court in appeal preferred under Section 82 of the Employees State Insurance Act 40 inquire with and the factual findings.

6. It is submitted by counsel for appellant that there is no evidence about diminution of vision of the eye and, there was no loss of earning capacity just holding that injury falls within Serial 32 of II Schedule of the Act can this be considered to be a substantial question of law, the answer to the same is “No.” The reason being finding as to whether the injury was covered by Serial No. 32 of the II Schedule is finding of fact and not question of law.

7. The grounds urged are basically question of facts. The award passed by Employees Insurance Court cannot be said to be perverse. It is not necessary that the owner should be declared as insolvent as alleged.

8. The appeal under Workmen Compensation Act has to be viewed very seriously in view of the judgment in Golla Rajanna vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the injured was an employee who had sustained employment injury and was incapacitated to the tune 10%.

9. The Apex Court recently in Golla Rajanna (Supra) has been considered by this High Court in F.A.F.O. No. 1070 of 1993 (E.S.I.C. vs. S. Prasad) decided on 26.10.2017 wherein this Court has held as follows:

“The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna vs. Divisional Manager and Another (supra) in paragraph 8 holds as follows “the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis.”

10. I am even supported in my view by the decision of the Apex Court in Civil Appeal No. 7470 of 2009 North East Karnataka Road Transport Corporation vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:

“15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.

16. Now coming to t