A reassessment of disability is warranted where expert opinions are misapplied or misinterpreted, leading to an unjustified conclusion.

ORAL JUDGMENT

1. The present appeal is filed by the appellant-Employees State Insurance Corporation (hereinafter be referred to as the “Corporation”) under Section 82 of the Employees’ State Insurance Act , 1948 (hereinafter be referred to as the ‘ESI Act”) against the judgment and order dated 9.12.2009 passed by the learned Employees State Insurance Court, Ahmedabad (hereinafter be referred to as the “ESI Court”) in ESI Second Appeal No. 05 of 2007, whereby the learned ESI Court partly allowed the appeal of the respondent employee and held that he is entitled to 30% permanent disability on account of employment injury sustained in his right eye. The appellant– Corporation challenges the said judgment on the ground that the ESI Court has erred in law and on facts in assessing the disability at 30% when the Medical Board and the Medical Appellate Tribunal, both expert bodies, had assessed the disability at 0%.

2.The facts giving rise to present appeal are that the respondent employee, while in the course of employment, suffered an accident resulting in injury to his right eye. The Medical Board assessed 0% permanent disability after clinical examination, as the right eye vision was noted as 6/18. The Medical Appellate Tribunal, Ahmedabad (MAT Appeal No. 20/2005) confirmed the said assessment of 0% disability. Against the said order, the respondent preferred ESI Second Appeal No. 5/2007 before the ESI Court, Ahmedabad.

2.1 After hearing both the sides, the ESI Court had framed the following issues for determination:

1. Whether the appellant (insured employee) proves that the order passed by the Medical Appellate Tribunal is illegal and unjust?

2. Whether the appellant is entitled to the relief claimed, i.e., determination of permanent disability on the basis of loss of vision in the right eye?

3.What order?

2.2 The ESI Court answered Issue Nos. 1 and 2 in the affirmative, and Issue No. 3 accordingly, holding that the employee sustained 30% permanent disability. The ESI Court, after reappreciating the material and after evaluating the evidence, held that the respondent’s right eye vision was 6/36, which, according to the Court, amounts to loss of earning capacity as per Schedule II, Item 32 of the ESI Act, and accordingly assessed the disability at 30%.

3. Heard Mr.Sachin Vasavada, learned counsel for the appellant and Mr.Prabhakar Upadyay, learned counsel for the respondent.

4. Learned counsel for the appellant Corporation has submitted that both the Medical Board and the Medical Appellate Tribunal, which are expert bodies constituted under the ESI Act, have found that the respondent’s right eye vision is 6/18, and therefore assessed 0% disability. He has further submitted that the ESI Court has erred in substituting its own view over the expert opinion without any supporting medical evidence. He has submitted that the ESI Court misapplied Item No. 32 of Schedule II of the ESI Act, which contemplates 30% loss of earning capacity only in cases where there is complete loss of vision of one eye and in the present case, the respondent has partial vision of 6/18, which cannot be equated with total loss of sight.

4.1 Leaned counsel for the appellant further submitted that the impugned judgment and order enhancing the disability from 0% to 30% is arbitrary and contrary to the settled principles of law, and the same deserves to be set aside or suitably modified.

5. On the other hand, learned advocate appearing for the respondent has supported the judgment of the ESI Court. He has