Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 2221 of 2002 Appellant :- E.S.I.C.
Respondent :- I.Mohd.
Counsel for Appellant :- P.K.Asthana Counsel for Respondent :- A.K.Sachan
Hon'ble Salil Kumar Rai,J.
1. List has been revised. Learned counsel for the appellant is present. Sri A.K. Sachan representing the sole respondent is not present. The appeal was filed in 1988, and therefore, the Court has proceeded to hear the case on merits in the absence of learned counsel for the respondent.
2. Heard learned counsel for the appellant.
3. The present appeal has been filed under Section 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as, 'Act, 1948') by the Employees State Insurance Corporation against the order dated 27.4.1988 passed by the Employees Insurance Court, Kanpur in Appeal No. 26 of 1988.
4. The facts of the case are that respondent-insured was employed as weaver in M/s. Elgin Mill No. 2, Kanpur and it was alleged that on 3.9.1987 he sustained employment injuries in his right elbow. The Medical Board did not award any loss of earning to the insured and therefore against the decision of the Medical Board dated 16.12.1987, the insured filed an Appeal under Section 54-A (2)(II) of the Act, 1948. The Employees Insurance Court, Kanpur vide its judgement and order dated 27.4.1988, after examining the injured elbow, found that there was some difficulty in the movement of the elbow joint causing restriction and the movement was painful. The Employees Insurance Court held that it was a non-scheduled injury and considering the nature of work of the insured and the condition of the injured hand allowed 5% loss of earning capacity permanently. The appellant has challenged the aforesaid order of the Employees Insurance Court on the ground that the order was without jurisdiction as vide Notification dated 17.5.1988 issued under Section 74 of the Act, 1948, the Civil Judge Kanpur was notified as the Employees Insurance Court for Kanpur and the impugned order was passed by a Magistrate acting as Employees Insurance Court. It has been further argued that Employees Insurance Court was bound by the observation of the Medical Board and the Employees Insurance Court had exceeded its jurisdiction in allowing 5% loss of earning capacity permanently ignoring the recommendations of the Medical Board.
5. I have considered the submission of learned counsel for the appellant and also perused the record.
6. The impugned judgement and order dated 27.4.1988 was passed by the Employees Insurance Court, Kanpur before the Notification dated 17.5.1988 was issued under Section 74 of the Act, 1948. In that view of the matter the impugned order cannot be held to be without jurisdiction because of the Notification dated 17.5.1988.
7. The argument of the learned counsel for the appellant that the Employees Insurance Court had exceeded its jurisdiction in modifying the opinion of the Medical Board is also not tenable. It has been held in numerous decisions that under the Act, 1948, the Court does not act as rubber stamp to accept whatever the experts say. It was observed by this Court in Regional Director, E.S.I.C. Vs. Abdul Rauf, 2005 LAB. I.C. 492 that the Employees Insurance Court was not bound by the decision of the Medical Board and the Employees Insurance Court deciding upon the disablement question is not barred from estimating and fixing its own percentage of loss of earning capacity of an insured person resulting from an employment injury suffered by him for determining the strength of disablement benefit to which such persons became entitled under the Act, when it finds that such injury falls outside the description of one or other injury described in the second schedule to the Act. The observations of this Court in Paragraph Nos. 11 to 13 in the case of Regional Director (Supra) are reproduced below :-
"11. From the scheme of the Act it is clear that the Medical Appeal Tribunal or the E.I. Court deciding upon the disablement question is not barred from estimating and fixing its own percentage of loss of earning capacity of an insured person resulting from an employment injury suffered by him for determining the strength of disablement benefit to which such persons became entitled under the Act, when it finds that such injury falls outside the description of one or other injury described in the second schedule to the Act.
12. Therefore, the argument of the learned counsel for the appellant that the E.I. Court is bound by the decision of the Medical Board has no merit. Otherwise the very purpose of providing an appeal against the decision of the Medical Board would become nugatory and would be a mere formality.
13. The E.I. Court on the basis of the material produced by the parties before it is competent to differ from the decision of the Medical Board. But the E.I. Court cannot act whimsically. Its view should be supported by some evidence on the record and the appeal to the reason. A Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Mohd. Aslam (2003) 2 All CJ 938 : (2003 Lab IC 3900), under the Workmen's Compensation Act has held that it is for the Workmen's Compensation Commissioner to accept or not to accept report of the Medical Practitioner. The report of the Medical Practitioner in the matter relating to the assessment of the earning capacity on account of injuries received by the workmen is only to furnishing a data on the basis of which a conclusion can be reached by the Workmen's Compensation Commissioner."
8. An appeal under Section 82 of the Act, 1948 lies only on a substantial question of law. No substantial questions of law are involved in the present case. The appeal lacks merit and is dismissed.
Order Date :- 29.11.2018 Anurag/-