IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 238 of 2005 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK ================================================================

Approved for Reporting Yes No ================================================================

REGIONAL DIRECTOR,EMPLOYEES STATE INSURANCE CORP.

Versus MULJI DEVJI SINCE DECEASED THROUGH HIS LEGAL HEIRS & ORS.

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Appearance:

MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1 MR HASIT H JOSHI(2480) for the Defendant(s) No. 1.1,1.2 MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1 ================================================================

CORAM:HONOURABLE MR. JUSTICE HEMANT M.

PRACHCHHAK Date : 01/10/2025

ORAL JUDGMENT

1. Present appeal is filed by the appellant – Employees State Insurance Corporation against the judgment and order dated 07.04.2004 passed by the Employees State Insurance Court, Rajkot (hereinafter referred to as ‘the E.S.I. Court”) in ESI First Appeal No. 1 of 1987, whereby, the appeal filed by the respondent herein was partly allowed by assessing the disability of the respondent at 40%

and also directed the appellant to pay compensation accordingly. 2. The short facts giving rise to present appeal are as under :

2.1 That, the respondent herein was an insured person under ESI Act with Insur. No. 37/3771264 and was working in M/s. Karanchi Engineering & Foundry Works, Jamnagar. That, the insured workman Mulji Devji, while working, alleged that he sustained an employment injury on 07.04.1980 to his left hand thumb and two fingers near left thumb. That, he remained temporarily disabled for the period from 06.04.1980 to 22.09.1980, for which, the appellant Corporation had paid him Temporary Disablement Benefit as per provisions of the ESI Act. That, the respondent workman was referred to Medical Board on 19.06.1981 which was duly constituted under Regulation 75 of the ESI (General) Regulations, 1950 for assessment of loss of earning capacity, if any. That, the Medical Board examined the respondent workman and awarded him 25% disability stating : "Partial amputation of left thumb at I.P. Joint Level (Loss of distal Phalanx)

restriction of movements of L. I. F. and L. M. F.)".

2.2 It is the case of the appellant that, the respondent workman, if aggrieved and dissatisfied with decision of Medical Board, was supposed to file an Appeal before Medical Appeal Tribunal which was legally constituted body under Regulation 35 of ESI (General) Regulations, 1950 but, instead of preferring an Appeal before the Medical Appeal Tribunal as per ESI Act, 1948, the respondent workman, took permanent disability certificate on 14.10.1980 from Assistant Professor of Orthopedics, M.P. Shah Medical College and Irwin Group of Hospital, Jamnagar, in which permanent disability was shown as 40%. On the basis of the said disability certificate, the respondent filed the aforesaid ESI First Appeal No.1 of 1987 before the E.S.I. Court No.1, Rajkot and the E.S.I. Court partly allowed the said First Appeal by assessing the disability of the respondent at 40%

and also directed the appellant to pay compensation accordingly.

3. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the ESI Court, the appellant ESI Corporation has filed the present First Appeal under Section 82(2) of the Employees State Insurance Act, 1948.

4. Heard Ms. Dimple Thaker, learned counsel appearing for the appellant – ESI Corporation and Mr. Hasit Joshi, learned counsel appearing for respondents – original claimants.

5. Learned counsel Ms. Thaker has submitted that the impugned judgment and order passed by the ESI Court is illegal, arbitrary, unjust and contrary to law and facts on record. She has submitted that the ESI Court has erred in relying upon the certificate issued by the doctor who assessed higher than the Schedule II of the Act and who neither deposed in the witness box nor treated