IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2187 of 2010 ==========================================================

REGIONAL DIRECTOR Versus NARBHERAM MAVJIBHAI ==========================================================

Appearance:

MR HEMANT S SHAH(756) for the Appellant(s) No. 1 MR HITESH K PANDYA(10018) for the Defendant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 12/03/2026

JUDGMENT

1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 18.12.2009 delivered by the Employees’ State Insurance Court, (for short “ESI Court”), Ahmedabad in ESI Second Appeal No.21 of 2009, the Regional Director of ESI Corporation, Ahmedabad, has preferred this appeal under Section 82 of the Employees’ State Insurance Act, 1948 (for short “ESI Act”), whereby the ESI Court dismissed the appeal and confirmed the order dated 23.01.2008 passed by the Medical Appeal Tribunal (for short “MAT”) in Appeal (MAT) No.40 of 2007, assessing 40% hearing loss due to employment injury suffered by the employee.

2. Briefly stated, the facts of the case are that, the employee – Shri Narbheram Mavjibhai, was working in Arvind Mills Ltd. as a weaver. Since 02.12.2003, he had been suffering from hearing loss, allegedly due to an employment injury. The employee underwent treatment at ENT Department of Bapunagar General Hospital. It was claimed that the injury was employment related, and accordingly, the matter was referred to the Special Medical Board by the Department. On 06.03.2007, the Medical Board concluded that although the employee had sustained hearing loss, the same could not be attributed to noise arising during the course of employment, and therefore, assessed 0% physical disablement.

2.1 Being aggrieved, the employee preferred an appeal before the Medical Appeal Tribunal, being Appeal (MAT) No.40 of 2007, wherein the MAT, consisting of specialist Doctors, assessed 40% permanent disablement. Being further aggrieved, the ESI preferred an appeal before the learned ESI Court by way of Second Appeal No.21 of 2009 on medical grounds. By order dated 18.12.2009, the ESI Court dismissed the Second Appeal and confirmed the findings of the MAT that the employee had sustained an employment injury resulting in

40% permanent disablement due to hearing loss.

3. The present appeal was admitted by the Co- ordinate Bench and notice was issued; however, none appeared on behalf of the employee.

4. In appeal memo, the appellant raised the following questions as substantial questions of law:-

“(I) Whether the ESI Court has jurisdiction to ignore the opinion of expert body like the Special Medical Board regarding proportion of hearing disability?

(II) Whether the ESI Court has jurisdiction to reply upon the decision of incomplete Medical Appeal Tribunal the expert Doctor being absent on the date of examination of injured person and order as against decision of expert Special Medical Board?

5. In the aforesaid background, learned advocate Mr.Hemant Shah assailing the judgment and order passed by the learned ESI Court would submit that the MAT exceeded its jurisdiction in assessing 40% permanent disablement. He would further submit that the proceeding of Appeal (MAT) No.40 of 2007 indicate that Dr.Prabhakar, a specialist Doctor was absent at the time when the assessment of disablement was carried out. Despite the absence of an ENT specialist and other specialist doctors, the incomplete MAT Board proceeded to assess 40% permanent disablement. He would submit that neither Schedule-II nor Schedule-III of the ESI Act, 1948 provides any basis or evidence to support the conclusion that the employee had suffered an employment injury warranting 40% permanent disablement. According to him, such assessment is excessive, exorbitant, and legally unsustainable. Therefore, the ESI Court ought to have scrutinized this aspect and held that the proceedings before the MAT were bad in law due to ins