Bombay High Court
Niranjan Ganpat Samantrai vs The Deputy Director on 2 December, 2025
2025:BHC-AS:52450
fa1760-05.doc
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
TRUSHA
TRUSHA TUSHAR CIVIL APPELLATE JURISDICTION
TUSHAR MOHITE
MOHITE Date:
2025.12.02
14:02:20
+0530
FIRST APPEAL NO.1760 OF 2005
Niranjan Ganpat Samantrai .. Appellant
Versus
The Deputy Director,
S.R.O. ESI Hospital Complex,
Thane - 400 004. .. Respondent
Ms.Nivedita S. Deshpande i/b Mr.S.N.Deshpande, Advocate for the
Appellant.
Mr. Shailesh S. Pathak, Advocate for the Respondent.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: OCTOBER 17, 2025
PRONOUNCED ON: DECEMBER 02, 2025
JUDGEMENT:-
1. This First Appeal is filed against the Judgement dated 6 th July 2005 passed by the Employees State Insurance Court at Thane whereby the Application of the Appellant, under Section 75 of the Employees' State Insurance Act, 1948 ("hereinafter referred to as the ESI Act"), was dismissed.
2. The facts of the case are that, on 5 th February 1998, the Appellant had gone to the establishment of M/s. Mukand Iron and Steel Mohite 1/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc Company, for discharging duties as a Grinder on a grinding machine. At about 3.00 p.m. he had put up a steel plate on the grinding machine. The same went off from the machine and fell on his left thigh. The said steel plate was required to be removed with the help of a crane. In the said accident, the Applicant suffered a personal injury for which he was hospitalized and underwent medical treatment. The ESI Corporation gave the Appellant disability benefits of 40%.
3. Being aggrieved by the disability benefit of 40%, the Appellant filed an Application before the ESI Court claiming permanent total disablement.
4. Before the ESI Court, oral evidence was led by the parties.
5. The ESI Court held that the ESI Corporation had placed heavy reliance on the oral evidence of Dr. Keshav Bhagat, Chairman of the Medical Board of the ESI Corporation. The ESI Court held that Dr. Keshav Bhagat was examined in evidence. He had stated that when the Appellant was admitted in the ESI Hospital at Mulund, the Medical Officer found that the Steel Plates in his leg had been improperly placed and that was causing infection.
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6. Further, the Court held that Dr.Keshav Bhagat, in his capacity as a Chairman of the Medical Board, had clinically examined the Applicant and certified the percentage of his loss of earning at 40%. Accordingly, he had issued the certificate. Further, the said Doctor had totally denied that the disability of the Appellant was 75%. The ESI Court further held that, in his cross-examination, the said evidence of Dr.Keshav Bhagat was not shaken to any extent, and, therefore, upheld the medical certificate of 40% issued by Dr.Keshav Bhagat, being the Chairman of the Medical Board of the Respondent Corporation.
7. Further, the ESI Court held that the Appellant had simply placed on record disablement certificate of 75%, issued by the Superintendent of St. George Hospital. The ESI Court held that the said medial certificate did not disclose, to any extent, as to what were the criteria before the Doctor to arrive at a conclusion that the disability of the Appellant was 75%. Further, the ESI Court held that the signatory of the said disability certificate had not been examined before the ESI Court. In these circumstances, the ESI Court was unable to uphold the Certificate issued by the Superintendent of St.George Hospital.
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8. Further, the ESI Court held that the Appellant had statutory disability of 40% as certified by Dr. Keshav Bhagat, the Chairman of the Medical Board of ESI Corporation and as deposed by him in his oral evidence before the ESI Court.
9. The ESI Court further held that, though the Applicant had claimed that, in the accident, his leg had been shortened by 6 inches, the Court had got an opportunity to see the leg of the Applicant and found that the shortening cannot be to the extent of 6 inches. Further, the ESI Court held that Dr.Keshav Bhagat, who had examined the Appellant, had found the shortening of the leg by 2.5 inches.
10. The ESI Court held that, considering the nature of disability suffered by the Appellant to his leg, the same could not be 75%. The ESI Court upheld the contention raised by the ESI Corporation that such disability can be said to be 40%. In these circumstances, the ESI Court found that the claim made by the Appellant for 75% disability was totally improper and unjustified. Further, the ESI Court held that the injuries sustained by the Appellant had not totally incapacitated him to undertake the work which he was performing at the time of accident.
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11. In the light of the aforesaid findings and conclusions, the ESI Court dismissed the Application of the Appellant.
12. The Appellant filed the present First Appeal, which was admitted by this Court on 20th September, 2005.
13. The learned Counsel appearing on behalf of the Appellant submitted that the disability of the Petitioner due to the said accident suffered by him was a permanent total disablement under Section 2 (15B) of the ESI Act as it was disablement of a permanent nature which incapacitated the Appellant for all work which he was capable of performing at the time of the accident resulting in such disablement.
14. The learned Counsel for the Appellant referred to the evidence of the Appellant stating that he could not undertake work which he was doing prior to meeting with the accident and that he could not walk properly due to the disability.
15. The learned Counsel for the Appellant also drew the Court's attention to paragraph 17 of the Reply of the ESI Corporation before the ESI Mohite 5/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc Court wherein it was stated that the Contractor had not allowed the Appellant to join his duty after six months from the date of his accident.
16. In support of her submissions, the learned Counsel for the Appellant relied upon the judgements of this Court in Jitu Yadav, Thane vs. Employees' State Insurance Corporation, Mumbai (2001) (III) CLR 153 and in Shaikh Salim Ramzan, Dhule vs. Ashok Beniram Kothawade, Dhule & Anr. (2010) III CLR 776.
17. Further, the learned Counsel for the Appellant stated that the medical certificate issued by St.George Hospital, stating 75% disability, was accepted in evidence, and therefore, the same ought to have been given weightage by the ESI Court.
18. The learned Counsel for the Appellant submitted that, for all these reasons, the impugned Judgment was required to be set aside.
19. On the other hand, the learned Counsel for the Respondent first referred to Section 82 of the ESI Act and submitted that, by virtue of the provisions of Section 82 (2) of the ESI Act, an Appeal lies to this Court from an order of the ESI Court only if it involves a substantial question of law. He Mohite 6/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc submitted that, in the present Appeal, no substantial question of law was involved, and, therefore, on this ground itself, the Appeal is liable to be dismissed.
20. The learned Counsel for the Respondent also referred to Section 54 of the ESI Act and submitted that, under the provisions of Section 54, the determination of question of disablement has to be done by the Medical Board constituted in accordance with the provisions of the Regulations. He submitted that, as per these provisions, the Certificate had to be issued by the Medical Board of the ESI Corporation and any other Certificate cannot be the basis for determining loss of earning capacity.
21. Further, the learned Counsel for the Respondent also referred to the first proviso to Section 54A of the ESI Act and submitted that, in light of the Appellant having accepted disablement benefit of 40%, the Appellant was not entitled to file the present Appeal.
22. Further, the learned Counsel for the Respondent referred to Section 75 of the ESI Act. He submitted that the present Application had been made to the ESI Court under Section 75 of the ESI Act. However, the Mohite 7/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc ESI Court had no jurisdiction regarding the same under Section 75 and that the jurisdiction would be under Section 54A of the ESI Act.
23. Further, the learned Counsel for the Respondent submitted that Dr.Keshav Bhagat, who was the Chairman of the Medical Board, had given a Certificate of 40% disability and had been examined before the ESI Court, and his evidence had not been shaken in cross-examination.
24. On the other hand, the doctor issuing the Certificate in favour of the Appellant of 75% disability had not been examined in evidence and, for that reason itself, no weightage can be given to the said Certificate.
25. The learned Counsel for the Respondent also referred to the evidence of Dr.Keshav Bhagat and submitted that the same clearly demonstrates that the disability of the Appellant was of 40%.
26. The learned Counsel for the Respondent further referred to the cross-examination of the Appellant wherein he had stated that it was true that a compromise had been reached between the Appellant and the ESI Corporation before the ESI Court for giving him disability benefit on the basis of 40% disablement, on the basis of a certificate issued by the Hand Mohite 8/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc Rehabilitation Institute, Bombay placed on file by him. He pointed out that the Appellant had further admitted that he had been paid the said disability benefit by the ESI Corporation.
27. The learned Counsel for the Respondent submitted that, although there was no dispute with the proposition of law laid down in the judgements of Jitu Yadav, Thane (Supra) and Shaikh Salim Ramzan, Dhule (Supra) cited by the learned Counsel for the Appellant, the same do not carry the case of the Appellant any further.
28. Further, the learned Counsel for the Respondent relied upon the judgment of the Hon'ble Supreme Court in Union of India and Another vs. Talwinder Singh (2012) 5 SCC 480 wherein the Hon'ble Supreme Court held that it is a settled legal proposition that the opinion of the Medical Board should be given primacy in deciding cases of disability pension and the Court should not grant such pension brushing aside the opinion of the Medical Board.
29. The learned Counsel for the Respondent also relied upon the judgement of the Hon'ble Supreme Court in Nek Pal and Others vs. Nagar Mohite 9/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc Palika Parishad and Others (2024) 12 SCC 347 on the issue that the Appeal should be on a substantial question of law.
30. The learned Counsel for the Respondent submitted that, for all these reasons, the present First Appeal ought to be dismissed with costs.
31. I have heard the learned Counsel for the parties and perused the documents on record. The issue that arises in the present First Appeal is whether the ESI Court was right in dismissing the Application of the Appellant.
32. Section 54 of the ESI Act reads as under:
"54. Determination of question of disablement. Any question-
(a) whether the relevant accident has resulted in permanent disablement; or
(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or
(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or
(d) in the case of provisional assessment, as to the period for which such assessment shall hold good, shall be determined by a Medical Board constituted in accordance with the provisions of the regulations and any such question shall hereinafter be referred to as the "disablement question"."
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33. By virtue of Section 54 of the ESI Act, the question of disablement and the question of loss of earning capacity has to be determined only by the Medical Board constituted in accordance with the provisions of the Regulations. For this reason alone, the certificate issued by the Superintendent of St.George Hospital, which has been relied on by the Appellant, cannot determine the disability of the Appellant.
34. Further, the doctor issuing the said certificate of disablement of 75% has not been examined in evidence. In the absence of the doctor deposing to the correctness of the contents of the said Certificate and offering himself for cross-examination, the said Certificate has no probative value.
35. On the other hand, Dr.Keshav Bhagat, who is the Chairman of the Medical Board (referred by Section 54 of the ESI Act) has certified 40% disability. Dr.Keshav Bhagat has been examined before the ESI Court. Dr. Keshav Bhagat has deposed that he was working in the post of the Chairman of the Medical Board since 1982 and that he had medically examined the Appellant on 9th May 2003. Dr. Keshav Bhagat has further deposed that, on clinical examination, he found that the percentage of the earning loss of the Appellant was 40%, and, accordingly, he issued a Certificate stating the same. Dr.Keshav Bhagat has further deposed that the claim made by the Appellant, Mohite 11/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc about 75% disability arising out of the accident suffered by him, was a false claim. In his cross-examination, Dr. Keshav Bhagat denied the suggestion that, after the accident, the length of the leg of the Appellant was shortened by 6 inches and stated that the shortening of the leg was only 2.5 inches and the same could be corrected. Dr. Keshav Bhagat had also denied the suggestion that the Appellant is entitled to the benefit of 100% of incapacity.
36. In my view, on a reading of the examination in chief and cross- examination of Dr.Keshav Bhagat, it is very clear that his testimony in chief has not been shaken in cross examination. On this basis, the ESI Court has rightly accepted the evidence of Dr.Keshav Bhagat and held that the injury sustained by the Appellant had not totally incapacitated him to undertake the work which he was performing at the time of the accident.
37. In my view, the findings of the ESI Court do not suffer from any infirmity. The ESI Court has rightly accepted the evidence of Dr.Keshav Bhagat and rejected the Certificate issued by the Superintendent of St.George Hospital. Further, for all the aforesaid reasons, the ESI Court has rightly dismissed the Application of the Appellant.
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38. As far as the judgement of this Court in Jitu Yadav, Thane (Supra) is concerned, this Court has held, on an interpretation of Section 2(15B) of the ESI Act, that if a person sustains an injury specified in Part I of the Second Schedule, the disablement sustained thereby is treated by fiction of the law as permanent and total. However, even if an injury is not specified in Part I of the Second Schedule, the injury may be still such as would fall for classification as a permanent total disablement if it is of such a character as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement. Further, in Jitu Yadav, Thane (Supra), this Court has also held that the meaning and import of Section 2(15-B) is not that an employee should be incapacitated from rendering all work whatsoever, but work of the kind and character which he was capable of performing at the time of the accident. If the injury he has sustained precludes an employee from performing the work which he was capable of performing at the time of accident, meaning thereby, of the nature that he was performing at the time of the accident, the disablement constitutes a permanent total disablement. The judgement in Shaikh Salim Ramzan, Dhule (Supra) also comes to the same conclusion.
39. In my view, there can be no dispute with the proposition of law laid down in these two judgements. However, in the present case, after Mohite 13/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc considering the evidence on record, the ESI Court has come to the conclusion, on the basis of that evidence, that the injury sustained by the Appellant had not totally incapacitated him to undertake the work which he was performing at the time of the accident. Therefore, even applying the ratio of the judgements in Jitu Yadav, Thane (Supra) and Shaikh Salim Ramzan, Dhule (Supra), the case of the Appellant does not fall within Section 2(15B) of the ESI Act.
40. Further, in the case of Talwinder Singh (Supra), the Hon'ble Supreme Court has held as under:-
"10. In Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity this Court while placing reliance upon a large number of earlier judgments including the Constitution Bench judgment in University Of Mysore v. C.D. Govinda Rao held that ordinarily, the court should not interfere with the order based on opinion of experts on the subject. It would be safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be.
11. This Court recently decided an identical case in Union of India v. Jujhar Singh and after reconsidering a large number of earlier judgments including Ministry of Defence v. A.V Damodaran, Baljit Singh and ESI Corpn. v. Francis De Costa, came to the conclusion that in view of Regulation 179, a discharged person can be granted disability pension only if the disability is attributable to or aggravated by military service and such a finding has been recorded by Service Medical Authorities. In case the medical authorities record the specific finding to the effect that disability was neither attributable to nor aggravated by the military service, the court should not ignore such a finding for the reason that the Medical Board is a specialised authority composed of expert medical doctors and it is a final authority to give opinion regarding attributability and aggravation of the disability due to the military service and the Mohite 14/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc conditions of service resulting in the disablement of the individual.
14. We are of the view that the opinion of the Medical Board which is an expert body must be given due weight, value and credence. A person claiming disability pension must establish that the injury suffered by him bears a causal connection with military service. In the instant case, as the injury suffered by the respondent could not be attributable to or aggravated by the military service, he is not entitled for disability pension"
41. It is clear from the said judgment of the Hon'ble Supreme Court that, ordinarily, the Court should not interfere with a Judgement or Order based on the opinion of experts on the subject and that it would be safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. The Hon'ble Supreme Court has held that the opinion of a Medical Board, like the Release Medical Board of the Armed Forces, which is an expert body, must be given due weight, value and credence.
42. In my view, the law laid down by the Hon'ble Supreme Court in this judgement clearly applies to the present case. In the present case, also, Dr.Keshav Bhagat, the Chairman of the Medical Board of the ESI Corporation has examined the Appellant and certified that his disability was 40%. Dr.Keshav Bhagat was examined in evidence and his evidence in chief was Mohite 15/16 ::: Uploaded on - 02/12/2025 ::: Downloaded on - 02/12/2025 21:03:59 ::: fa1760-05.doc not shaken in cross-examination. For this reason, the ESI Court has rightly relied upon his opinion as an opinion of an expert.
43. For all the aforesaid reasons, the present Appeal is required to be dismissed.
44. In the light of these findings, I have not dealt with the other arguments advanced by the learned Counsel for the Respondent.
45. For all these reasons, the following order is passed:
a. First Appeal is hereby dismissed.
b. There will be no order as to costs.
[FIRDOSH P. POONIWALLA, J.]
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