JUDGMENT Barkat Ali Zaidi, J.
1. The respondent who is an employee in a factory, suffered injury in his right ear and was referred by the Corporation to the Medical Board for Medical Examination for determination of his disablement as postulated in Section 54A of the 'Employees State Insurance Act, 1948' (hereinafter referred to as the ' Act') read with Regulation- 72 of the year 1950 under the Act.
2. The Medical Board in its report dated 20.2.1992 noted that the test does not reveal Hearing Loss and there was no disablement injury, and, therefore, the employee was not entitled to any disablement benefit. The employee then went before the Employees Insurance Court, Kanpur. He did not file an appeal before the Medical Appellate Tribunal against the decision of the Medical Board because he had the option to go straight to the court by Virtue of the provisions as contained in Clause-II Sub-section 2 of Section 54A of the Act. The provision is as follows:
(2) If the insured person or the Corporation is not satisfied with the decision of the Medical Board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to-
(i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees' Insurance Court, or
(ii) the Employees' Insurance Court directly;
3. Before the Employees Insurance Court, the respondent filed a report of his examination of his ear of L.L.R. Hospital, Kanpur which stated that there was approximately loss of 40 dts. Of hearing because of injury. The learned judge accepted the report of L.L.R. Hospital in part and held that there was 30% loss of earning capacity of the employee permanently and set aside the decision of the Medical Board.
4. The appellant Corporation has come in appeal against the said order.
5. Counsel for both the parties have been heard.
6. One of the argument advanced by the counsel for the appellant Corporation is that the Part-II of Schedule-I of Section 2(15)A and (15)B of the Act does not contain any reference to any Ear injury and no disablement benefit can, therefore, be awarded for an Ear injury. The relevant Section 2(15)A is as follows :-
(15) A "Permanent partial disablement" means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement;
Provided that every injury specified in Part-II of the Second Schedule shall be deemed to result in permanent partial disablement.
7. The argument of the learned Counsel for the appellant is unacceptable because it will appear from the reading of the aforesaid section that injuries contained in Part-II of Schedule-I above are not exhaustive and rightly so because injuries to Human Body can be so varied and variegated that it is not possible to classify or codify them in their entirety . The earlier part of Section 2(15)A before the proviso clearly indicates that there can be can be deemed to cause disablement.
8. The other point for consideration where the appellant however, succeeds is that the court below has taken into consideration the report of a hospital in preference of the report of the Medical Board constituted under The Act.
9. The 'Act' does not provide for an examination of the injured person to decide the Disablement benefit by any other doctor or hospital except the Medical Board constituted under the Act. If reports from a private doctor or of hospital are allowed, it will open a flood-gate for diverse reports and there will be chaos and confusion and it will be difficult for the Court to decide the matter. Since the 'Act' has provided for a Medical Board and also for an appeal before the Medical Appellate Tribunal, it is these two only which have the authority to give Reports, with regard to the injury of an employee.
10. Counsel for the Respondent has referred to the case of The New India Assurance Co. Ltd. v. Mohd. Islam and Anr. (2003 All. O 938) and has argued that in that case which was under the Workmen's Compensation Act, 1923, the report of a Private Medical Practitioner was found admissible. He has specially referred to Paras 6 & 7 of the report which are as follows: -
6. The learned Counsel for the appellant has strenuously urged that in the circumstances of the case, since the injuries of the nature suffered by the injured workman are not indicated in the list of injuries which are deemed to result in permanent total disablement as provided under Schedule-f Part-I of the Act, the Workmen Compensation Commissioner could not, in the absence of the certificate contemplated under Section 4(c)(ii) issued by a qualified Medical Practitioner, assess the extent of disability to be 40%. It is asserted that in the present case, the injured workman apart from bringing on record the injury report and the X-ray report, had not filed a certificate in regard to the proportional loss of earning capacity. The contention is that the Workmen Compensation Commissioner in such a situation had no jurisdiction to assess the accident of disability on account of the nature of the injuries.
7. So far as the aforesaid aspect of the matter is concerned, it cannot be lost sight of that it is for the Workman Compensation Commissioner to accept or not to accept the 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 the injuries received by the workman is only to furnish a data, on the basis of which a conclusion can be reached by the Workmen Compensation Commissioner. However, in a case where the workman concerned has brought on record the details of the injuries and their effect on the normal functioning of the human body, the extent of the loss of earning capacity can be reasonably assessed. The Workmen Compensation Commissioner cannot be said to have acted in an unauthroised manner in case of embarks on his own assessment about the nature of injuries and the resultant extent of the disability.
11. It will appear from what has been said in the case above, that there was provision for the admissibility or for the report of Private Medical Practitioner under the Workmen's Compensation Act. Rule-14 in Part-IV of the workmen Compensation Act also provides for examination of the Workmen by a Private Medical Practitioner. There is no provision in Employees State Insurance Act, 1948 about the report of a Private Medical Practitioner being admissible and the counsel for respondent has not been able to show any such provision despite demand. Such Private Medical Practitioner's report cannot be admissible in a case under the provisions of the Employees State Insurance Act, 1948.
12. The counsel for the respondent has referred to one more un-reported decision rendered in First appeal From Order No. 1931 of 2002 (Employees State Insurance Corporation v. Vijai Narain) on 13.9.2004 and has specifically pointed out the following observations made:-
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 Insurance Co. Ltd. v. Mohd Islam 2003 Allahabad Civil Journal, 938, 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.
13. In this case, there was no report of the Private Medical Practitioner and the question before the Court was that on the basis of Medical Data furnished in the case, the Employees Insurance Court Could differ from the view of the Medical Board . There is no finding in this case that the Report of a Private Medical Practitioner will be admissible under the Employees State Insurance Act. This case cannot, therefore, be used and utilized ay the counsel for the respondent for this purpose.
14. Where an Act provides Procedure and Forum, it is only the same which is to be accepted and no other procedure or forum can be substituted.
15. The Court below was, therefore, wrong in accepting the L.L.R. Hospital's Report. Since the report of the Medical Board, constituted under the Act says that there was no disablement of any kind, the appeal has, to be allowed.
16. The appeal, consequently, succeeds and is allowed. The judgment dated 3.11.2005 passed by the learned Employees Insurance Court, Kanpur in appeal No. 80 of 1992 is set aside.