ORAL JUDGMENT

Admit

1. . Mr.A.B. Patel, learned advocate waives service of notice of admission for and on behalf of the respondent.

2. Heard learned advocates for the respective parties.

3. As the issue involved in this appeal is minor. With the consent of respective counsel for the respective parties, this appeal is heard on issues and decided finally.

4. Brief facts of the case are that the respondent – original applicant met with an accidental injury on his left eye on 20th April, 2011. The issue was referred to the Medical Board. The original applicant was examined on 27th April, 2011. A minor functional loss in the eye to the extent of earning capacity @12% was opined by the Medical Board. The original applicant- respondent challenged the said order before the Medical Appellate Tribunal vide MAT 3/2011 and the Tribunal awarded permanent disability to the extent of 100% without giving any reasons. Thereafter, appellant – original opponent referred the matter to the Medical Commissioner and the Commissioner opined that the MAT has assessed more percentage and therefore, the appellant – original opponent filed Second Appeal (ESI) NO.4 of 2017.

5. Learned advocate for the appellant – original defendant submitted that there is a substantial question of law which needs to be answered is whether the respondent – original applicant has been doing regular work, as he use to perform before the accident. That, the trial Court has considered 100% permanent disability in favor of the original applicant without any documentary evidence, and without any application of law, and therefore, the impugned order is contrary to the provisions of the Act and against the documentary evidence produced on record. It is further submitted that though the respondent produced a report of Medical Board, which was carried out by an expert body of doctors, wherein, the Board opined and certified incapacity of 12%, but the trial Court has not considered the same and thereby relied upon an award of the Medical Appellate Tribunal (MAT) wherein, the Tribunal awarded 100%

permanent disability. It is further submitted that this Appeal may be allowed by quashing and set aside impugned judgment and award dated 30th March, 2018 passed by learned ESI Court, Rajkot in Second Appeal (ESI)No.4 of 2017.

6. Per contra, learned advocate for the respondent submitted that the applicant was referred to M & J Institute of Opthamology, B.J. Medical College, Ahmedabad and was examined by the Civil Surgeon. It is further submitted that as per the opinion of the said doctor, 100% permanent disability was found on 2nd April, 2016. Moreover, on 11th April, 2016, Dr.Nikunj J. Amin, who was serving as a medical officer in the Hospital has also assessed permanent disability @ 100% in favour of the original applicant and the documents were produced at Exh:17 and Exh:20, whereby assessment of 12% permanent disability arrived at by the Board was not considered. It is further submitted that the applicant is not in position to perform his duties as an employee. It is further submitted that since the order passed by the Court below is legal and valid, no interference is called for by this Court.

7. On overall analysis of material available on record, it is an undisputed fact that the original applicant was serving as an employee in “D.C.W. Limited Company, Dhangradhra” and he was insured. On 20st April, 2011, he was on duty. While on duty, certain chemical affected his left eye and he got injured. To ascertain permanent disability, an application was preferred to the Medical Board, having expert doctors. The applicant was examined by the expert doctors on 27th April, 2011 and assessed 12% permanent disability in the earning capacity of the original applicant.

8. Being dissatisfied by the opinion of expert board, the original applicant preferred an appeal before the Medical Appellate Tribunal MAT 3 of 2011 and the Tribunal by an order dated 7th October, 2016, awarded permanent disability to the e