Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 2557 of 2019 Appellant :- E.S.I.C. Respondent :- Mohd. Yassen Counsel for Appellant :- P.K.Asthana Counsel for Respondent :- S.N.Agrawal
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri P.K. Asthana, learned counsel for the appellant. No one appeared for the claimant/respondent despite.
2. As such this appeal is of the year 1988.
3. Employees State Insurance Corporation has preferred this appeal against the order dated 11.05.1988 passed by the Additional City Magistrate/Employees Insurance Court, Kanpur in appeal No.12 of 1988 whereby 5% loss of earning capacity has been determined overruling the decision of the Medical Board holding that there was no loss of earning capacity.
4. The substantial question of law which arises for determination in this appeal is whether the Employees Insurance Court in the absence of any medical evidence to rebut the decision of the Medical Board, on its own examination of the employee can assess the loss of earning capacity.
5. Facts as culled out from judgment are that the claimant/respondent had suffered an employment injury in his middle finger and partial restriction of movement of the inter phalangeal joints due to the injury in middle finger. He remained hospitalised for treatment for some days but the Medical Board refused to award any loss of earning capacity. Employees Insurance Court came to the conclusion that the injury was of a serious nature and since on physical examination, as the employee was unable to work properly, assessed the loss of earning capacity to the extent of 5%.
6. The submission of Sri P.K. Asthana, learned counsel for the appellant is that there is no evidence to assess the loss of earning capacity.
7. Undoubtedly, the permanent disability alleged for the loss of earning capacity suffered by an employee can be assessed by a Medical Expert or the Medical Board. There is no medical certificate or report certifying that the claimant/respondent has suffered loss of earning capacity to the extent of 5%. In the absence of such medical report or certificate, it is not for the Presiding Officer to under the role of a Medical Expert and to determine of earning capacity. The determination by the Presiding Officer, E.I. Court has to be on basis of some medical evidence which is absent in the present case. The personal examination of the injury caused to the employee by the Presiding Officer of the E.I. Court is of no value unless the injury is supported by medical report and the loss is certified by a Medical Expert.
8. The question of law formulated above is thus answered in favour of the appellant and against the claimant/respondent and it is held that the Employees Insurance Court in the absence of any medical report or experts' opinion cannot on its own make an assessment of loss of earning capacity on account of injury sustained when the board held it otherwise.
9. In view of the above, the appeal succeeds and is allowed.
10. The impugned order of the Employees Insurance Court dated 11.05.1988 passed in Appeal No.12 of 1988 (Mohd. Yassen Vs. ESI Corporation) is set aside.
11. I am supported in my view of the decision of this Court in F.A.F.O. No.1381 of 1993, ESIC. Versus Ramji.
12. However, if the amount of loss or any part thereof has already been paid to the claimant/respondent the same shall not be recovered.
Order Date :- 27.09.2019 A.N. Mishra