JUDGMENT :

J. C. DOSHI, J.

1. This Appeal is filed under Section 82 of the Employees’ State Insurance Act, 1948 (for short the “ESI Act”), challenging the judgment and order dated 02.01.2023 passed by the learned Employees’ State Insurance Court, Ahmedabad, in E.S.I. Second Appeal No.15 of 2022, whereby the Second Appeal came to be dismissed and the disablement of 4% assessed by the Medical Appeal Tribunal was confirmed.

2. The brief facts of the case are that the respondent – Mr.Vishnukumar Lalsingh Dabhi was an employee of M/s. Odhav Enviro Project Ltd. On 26.02.2019, while he was working, he sustained employment injury on his right leg. The case was referred to the Medical Board. The Medical Board has particularly noted that the opponent had suffered a right knee injury; the X-ray report was suggestive of a united fracture of the right patella, and the range of movement at the knee joint was full and normal. Accordingly, under the ESI Act, the Medical Board assessed the functional loss at 0%. Being aggrieved, the respondent filed an appeal before the Medical Appeal Tribunal, Ahmedabad (for short “MAT”), being MAT (Appeal) No.31 of 2021. By order dated 15.09.2021, the MAT has assessed 4% disability. Being aggrieved, the ESI Corporation filed Second Appeal before the ESI Court. As stated hereinabove, the said Second Appeal was dismissed. Hence, the present First Appeal is filed by the ESI Corporation.

3. Heard learned advocate Mr.A.V.Nair for the appellant and learned advocate Mr.S.S.Gade for the respondent – original claimant.

4. Learned advocate Mr.Nair for the appellant would submit that the learned ESI Court has committed a serious error in assessing 4% functional disability. He would further submit that the respondent was working in M/s. Odhav Enviro Project Ltd. and sustained employment injury on his right leg. He would also submit that the assessment of the functional loss as permanent partial disablement is prescribed under Schedule-II of the ESI Act, therefore the learned ESI Court erred in equating permanent partial disablement with functional loss.

4.1 Vide order dated 30.08.2024, the present Appeal was admitted on following substantial questions of law:-

“(1) Whether in the facts and circumstances of the present case, the Hon'ble Employee State Insurance Court has exceeded in its appellant jurisdiction under section 54 (2) (i) of the ESI Act, in upholding the findings of the Medical Appellate Tribunal, without assigning any cogent reasons?

(2) Whether the Hon'ble Employee State Insurance Court has appreciated section 2(15-a) defining "permanent partial disablement" in its true and correct spirits in the facts of the present case?

(3) Whether the impugned Judgment and award is perverse and illegal on account of no cogent or legally tenable reasons having been assigned for arriving at the conclusion?

4.2 In view of the aforesaid submissions, Mr.Nair, learned advocate, urged that the present appeal be allowed as it involves substantial questions of law.

5. Upon service of notice on the respondent, Mr.S.S.- Gade, learned advocate appeared and supported the judgment of the ESI Court. Since the present appeal is filed under Sec- tion 82 of the ESI Act, at the out set, I refer to Section 82(2) of the ESI Act, which is reproduced as under:-

82(2) An appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves a substantial question of law.”

6. In view of Section 82(2) of the ESI Act, an Appeal before the High Court from an order of ESI Court is maintainable only if it involves a substantial question of law. The expression “substantial question of law” appearing in Section 82(2) of the ESI Act is akin to that used in Section 100 of the Civil Procedure Code, which governs Second Appeal. However, it cannot decide the same on merits or on questions of fact determined by the learned Trial Court unless it is established that the appeal involves a substantial question of law. The interpretation of the expr