ORAL JUDGMENT

1. Heard learned advocate Mr. Sachin D. Vasavada for the appellant and learned advocate Ms. Asha H. Gupta for the respondent.

2. This appeal is directed against the judgement and order passed by the ESI Court in Second Appeal No. 43/2005 dated 30th June, 2006 by which the learned Judge has allowed the said appeal and enhanced the disability to the extent of 100% and dismissed Second Appeal No. 24/2005.

3. Learned advocate Mr. Sachin D. Vasavada representing the appellant submitted that the order passed by the ESI Court is contrary to the vital documentary and oral evidence, which was produced on the record of the case. The ESI Court committed serious and manifest error of law on the face of the record of the case and, therefore, the judgement and order requires to be quashed and set aside.

4. The respondent is an insured person and covered under the ESI Act. However, due to his own negligence and ignorance, he met with an accident and sustained injuries on the right leg. Therefore, the ESI Court ought to have rejected the contention raised by the respondent. The ESI Court has seriously erred in holding that the respondent, on the basis of the evidence on record, requires to be given benefit of 100% permanent disability and thereby ignored the provisions contained under Section 2 (15A) and 2 (15B) of the Employees' State Insurance Act, 1948. The ESI Court has wrongly interpreted the ESI Act in enhancing the disability of the respondent to the extent of 100%. The learned advocate for the appellant further submitted that the expert opinion was not sought by the ESI Court nor the expert doctor was examined by the ESI Court before enhancing the disability to the extent of 100% and, therefore, the order passed by the ESI Court requires to be quashed and set aside.

5. The learned advocate heavily placed reliance on the judgement reported in 2007(2) SCC 349, NATIONAL INSURANCE CO. LTD. Vs MUBASIR AHMED AND ANR and submitted that the Court has to indicate the reason or the basis for enhancing the disability and further if the conclusion arrived at by the Court is not on the basis of any reasoning, then the same is not sustainable.

6. The learned advocate submitted that the Apex Court considered the provisions of the Workmen's Compensation Act, 1923 while setting aside the order passed by the High Court and restoring the order of the Commissioner. Thus, the learned advocate submitted that in view of the ratio laid down by the Apex Court, since the expert doctor is not examined by the ESI Court before enhancing the disability, the matter, at the most, requires to be remanded afresh to the ESI Court.

7. As against the aforesaid submission, learned advocate Ms. Asha Gupta for the respondent vehemently submitted that the ESI Court has taken into consideration the fact that the respondent was not in a position to do normal work after sustaining serious injuries in the accident. The injury took place during the course of the employment. The learned Judge has also taken into consideration the evidence on record and rightly held that the disability suffered by the respondent requires to be enhanced from 70% to 100% and, therefore, the appeal was rightly allowed and no interference is required to be made in the order passed by the ESI Court in rejecting the appeal preferred by the appellant.

8. Heard learned advocate Mr. Sachin D. Vasavada and learned advocate Ms Asha H. Gupta at length and in great detail.

9. I have perused the reasons assigned by the learned ESI Judge in Second Appeal bearing no. 43/2005 as well as 24/2005. The Record and Proceedings, which were called for, were received by this Court and I have also perused the Record and Proceedings of the case as well as the evidence on the record of the case. Taking into consideration the evidence adduced by both the parties, it appears that the respondent sustained injuries on 18th August, 2000 during the course of the employment on the right leg and he could not perform his normal