HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 28 Case :- FIRST APPEAL FROM ORDER No. - 1381 of 1993 Petitioner :- E.S.I.C. Respondent :- Ramji Petitioner Counsel :- Rajesh Tiwari Hon'ble Pankaj Mithal,J.
List has been revised.
Heard Sri Rajesh Tiwari, learned counsel for the appellant. No one appeared for the claimant/respondent despite service of notice deemed to be sufficient.
Employees State Insurance Corporation has preferred this appeal against the order dated 17.5.1993 passed by the Employees Insurance Court, Kanpur in appeal No.48 of 1993 whereby 20% loss of earning capacity has been determined overruling the decision of the Medical Board.
The only 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 can assess the loss of earning capacity.
Admittedly, the claimant/respondent had suffered an employment injury in his left hip. He remained hospitalised for treatment for about days but the Medical Board refused to award any loss of earning capacity. Employees Insurance Court merely for the reason that the employee remained hospitalised for 9 days came to the conclusion that the injury was of a serious nature and since on physical examination, as the employee was unable to sit properly, assessed the loss of earning capacity to the extent of 20%.
The submission of Sri Rajesh Tiwari, learned counsel for the appellant is that there is no evidence to assess the loss of earning capacity.
Undoubtedly, the permanent disability alleged for the loss of earning capacity suffered by an employee can only 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 20%. In the absence of such medical report or certificate, it is not for the Presiding Officer to take the task of a Medical Expert and to determine such loss of earning capacity. The determination by the Presiding Officer, E.I. Court has to be on the basis of some medical evidence which is absent in the present case. The personal examination of the injury by the Presiding Officer of the E.I. Court is of no value unless the injury is supported by any medical report and the loss is certified by a Medical Expert.
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 expert opinion cannot on its own make an assessment of loss of earning capacity on account of injury sustained.
In view of the above, the appeal succeeds and is allowed. The impugned order of the Employees Insurance Court dated 17.5.1993 passed in Appeal No.48 of 1993 (Ram Ji Vs. ESI Corporation) is set aside.
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 :- 11.11.2011 brizesh