JUDGMENT O.N. Khandelwal, J.
1. This appeal under section 82 of the Employees State Insurance Act, 1948 (hereafter referred to as the ESI Act) has been filed against the order dated 27.4.1992 passed by the Employees Insurance Court, Kanpur.
2. The respondent employee sustained employment injuries in his left ear on 30.10.1992 when he was on duty in the Elgin Mill No. 2 Kanpur. The first certificate was issued by the Insurance Medical Officer on 31.10.1992. He was administered analgesic and antibiotic medicines and remained under the continuous treatment from 31.10.1992 to 9.11.1992. Form No. BI (1) (a) duly filled by the Insurance Medical Officer was sent for information of the Medical Board. The Medical Board in Form BI (2) entered details and other employment injuries that of left eye on account of accident dated 9.6.1978, of left knee on account of accident dated 6.10.1987. The Medical Board vide its report dated 23.12.1992 examined and found Injury (left) ear O/E (On examination) no external scar mark (Left) ear vicinity EAM (External Audiometery Meatus) Bil NAD (No abnormality detected). T.M. Bil (Tympanic Membrane Bilateral) intact.
No perforation, Lombard test, C.M.T. ... does not reveal hearing defect pertaining to injury.
3. It was signed by the Chairman and one Member. The decision of the Medical Board was communicated to the Employees State Insurance Corporation (hereinafter referred to as the ESI Corporation), who in turn informed its decision to the employee through its letter dated 28.02.1992.
4. Dissatisfied with the decision of the Medical Board, the employee preferred an appeal under Section 54A(ii) of the ESI Act before the Employees State Insurance Court on 16.1.1993. According to the insured employee, there was defect in the injured left ear and it being non-scheduled injury, he was entitled 50% loss of earning capacity on the permanent basis. ESI Corporation in its objection supported the decision of the Medical Board. It was stated that there is no evidence on record to rebut the decision of the Medical Board.
5. The ESI Court, after receiving objection from the ESI Corporation, fixed 9.4.1993 for argument, which was again adjourned to 20.4.1993, on which date the arguments were heard. Taking into consideration the document which was filed by the insured employee on 20.4.1993, the ESI Court observed that the Medical Board did not give reasons for not accepting the report of Ear specialist called for by itself, the appellant was referred to E.N.T. Surgeon in L.L.R. Hospital, Kanpur who after audiometery test found A B gapping, loss of 40 odds. In the absence of any contrary evidence, report of E.N.T. Specialist could not be disbelieved and this being a non-scheduled injury and considering the nature and extent of the same and also the report of the E.N.T. Surgeon, 30% loss of earning capacity was assessed and the appeal was allowed by the impugned order dated 27.4.1993 holding 30% loss of earning capacity permanently.
6. The appeal was admitted and record of lower court was called for.
7. I have heard the parties at length and have also perused the record of lower court. The finding of the ESI Court has been challenged mainly on the ground that there was no medical and legal evidence to arrive at a conclusion that there was 30% loss of earning capacity, besides no reasoning has been given to assess the percentage of loss. But according to the learned counsel for the respondents, this is a question of fact and in view of the decision given in ESI Corporation, Indore v. Babu Lal and Ors., 1982 LAB I.C. 468 (M.P.) the appellate court cannot interfere with the findings of fact under Section 82 of the ESI Act. He has also placed reliance on the Regional Director, ESI Corporation v. S. Saravanam, 1990 (60) FLR 165 (Karnataka High Court), according to which ESI Court is not barred from estimating and fixing its own percentage of loss of earning capacity. The emphasis has been laid on the Full Bench decision of this Court rendered in Windless Steel Crafts v. Employees' State Insurance Corporation Kanpur, 1984 (48) FLR 369, in which it has been held that the High Court as the appellate court cannot interfere with the findings of fact recorded by the Employees Insurance Court and an appeal under Section 82 can be admitted only when it involves a substantial question of law.
8. I have given due consideration to all the rulings cited by the learned counsel for the respondents and in my view, following substantial question of law is involved in the present appeal:
"Whether the ESI Court can base its finding regarding loss of earning on a document which has neither been admitted nor proved in accordance with the law?"
9. At the very outset, I may observe that the entire proceedings before the ESI Court have been carried out in violation of the rules framed by the State of U.P. under Section 96 of the ESI Act which empowers the State Government to make rules not inconsistent with the Act with regard to various matters including the procedures to be followed before the ESI Court. U.P. Employees' Insurance Courts Rules, 1952 were framed and notified vide notification No. 263 (LL)/XVIII (L)-520 (LL)-49 dated 20.2.1952. If we go through the rules read with Section 74 of the Act, it will appear that the Courts that are to be constituted by the State Government by notification in official Gazette are to be presided over by a person who is or has been a judicial officer or is a legal practitioner of at least five years standing. Such court shall be, as is provided by Rule 11 of the 1952 Rules, subject to the administrative control and superintendence of the High Court. Rule 13 of 1952 Rules specifically provides that every application under Section 77 of the Act, shall be verified in the same manner as a pleading in the Civil Court and applications not in accordance with rules, may be rejected.
10. Rule 14 of 1952 Rules provides that when any application is based upon a document, it shall be appended to such application. The Rules further provide that after service of summons, the opposite party may file its written statement duly verified in the manner as a pleading in a Civil Court. The ESI Court has been enjoined duty to frame issues at the first hearing of the application under Rule 24 and at any time after the framing of the issues, the court may call upon the parties to produce their evidence in support of the issues. On the date fixed for the hearing of the application, the party having right to begin, shall state his case and produce his evidence in support of the issues, which he is bound to prove. Thereafter the other party shall state his case and produce his evidence. The evidence of each witness has to be taken down in writing. The Court has thereafter to pronounce its final order giving its finding upon each separate issue. Rule 40 provides that a decree in Form 9 shall be prepared in conformity with the order made by the Court.
11. In the present case after issuance of summons/notice, the ESI Corporation filed its written statement but thereupon neither the issues were framed nor the parties were called upon to adduce evidence. As such I am of the view that entire proceedings being violative of Rules stand vitiated.
12. According to the order sheet of the lower court, 20.4.1993 was fixed for hearing of the argument. There is no mention in the order sheet that any document was filed on that day. However a photo stat copy of the hospital prescription has been filed along with the list of documents and vakalatnama on 20.4.1993 as mentioned in the general index. It is a dim copy and nothing can be deciphered from it. There is nothing on record to indicate that it was ever shown to the opposite party or he was given any opportunity to rebut it.
13. According to Section 64 of Indian Evidence Act, the documents must be proved by primary evidence except in the cases mentioned in Section 65.
14. In the present case no oral evidence of any of the parties was recorded. According to Rule 47 of the Rules, 1952 "in respect of matters relating to procedure or admission of evidence for which no specific provision is made in this rule, the provisions of the Code of Civil Procedure 1908 (V of 1908) including the Rules made thereunder and the Indian Evidence Act, 1872 (1 of 1872) shall so far as may be, apply to proceedings under the Act." There is no evidentiary value of photo - stat document unless the original is produced and proved by the author of the same in the manner laid down by the Indian Evidence Act. But in the instant case, neither the original was produced/summoned nor the doctor (ENT expert) was examined.
15. One thing more, which I would like to point out that the document pertaining to medical prescription bears a date on the margin which is "25/5" which if believed, would have either been prepared on 25.5.(1992) or on 25.5.(1993) but the employee allegedly sustained employment injuries in the month of October, 1992 and the judgment was delivered in April, 1993. Therefore, this document, cannot be possibly related with the injury complained of while the ESI Court relying upon this document has assessed the loss of earning capacity and given its finding.
16. In the result, the appeal is allowed, the impugned order of the ESI Court dated 27.4.1993 is set aside and the case is remanded to the court below for deciding afresh in the light of the observations made above. No costs.
17. The Registrar-General may circulate the copy of this judgment amongst the Presiding Officers of the ESI Court in the State of U.P. for their guidance and observance of the U.P. Employees' Insurance Court Rules, 1952.