Gujarat High Court
Regional Director vs Minbahadur Tejbahadur on 11 November, 2025
NEUTRAL CITATION
C/FA/1772/2008 JUDGMENT DATED: 11/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1772 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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REGIONAL DIRECTOR
Versus
MINBAHADUR TEJBAHADUR
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Appearance:
MR.KRUTARTH K PANDYA(7092) for the Appellant(s) No. 1
MR AJAY L PANDAV(3660) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 11/11/2025
ORAL JUDGMENT
1. This Appeal is filed under Section 82(2) of the Employees' State Insurance Act, 1948 challenging the judgment and order dated 19.01.2007 passed by Employees' State Insurance Court, Ahmedabad in E.S.I. (IInd) Appeal No.7 of 2005.
2. Heard learned advocate Mr.K.K.Pandya for Page 1 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined the appellant - original respondent. Learned advocate for respondent remained absent.
3. Brief facts are as under:-
3.1 The present respondent original appellant before the learned Employees' State Insurance Court had challenged the decision of the Medical Appeal Tribunal dated 10.02.2005 in Appeal No.63 of 2004, whereby the decision of the Medical Board assessing disability at 26% was affirmed by learned Medical Appeal Tribunal.
3.2 It is the case of original applicant -
respondent herein that, during the course employment, he sustained injuries to the index, middle and ring finger of his left hand. After examining him, the Medical Board assessed his disability at 26%. Page 2 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025
NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined 3.3 Respondent appeared and filed Written Statement at Ex.7 and denied the claim of appellant. After considering the evidence on record, learned Employees' State Insurance Court set aside the assessment of disability of appellant at 26% and assessed disability of appellant at 29%. 3.4 Being aggrieved and dissatisfied with the said decision, present appellant - original respondent has filed present First Appeal.
4. Learned advocate for appellant contended that the claimant, who sustained injuries during the employment, was referred to the Medical Board. The Board after examining the claimant, assessed the disability at 26%. The Medical Board observed that the injury is a Schedule injury and by considering Page 3 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined Schedule II, Part II of the Employees' State Insurance Act, opined that the claimant had suffered 9% disability to the left hand index of one phalanx, 12% to the middle finger, and 5% to the ring finger of one phalanx. Thus, the Medical Board assessed the total disability at 26% which was affirmed by learned Medical Appeal Tribunal.
4.1 It is further contended that the learned Tribunal has observed that there is no functional loss sustained to the injured. The Medical Appeal Tribunal, after examining the appellant, also found that there is no functional loss and consequently affirmed the disability assessed by the Medical Board. However, the learned Employees' State Insurance Court, not being consisting of Medical Team, disturbed the finding of Page 4 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined Medical Board and Medical Appeal Tribunal and increased disability from 26% to 29%. It is contended that it is not within the function of learned Employees' State Insurance Court to interfere in the finding of Medical experts, who had examined the injured. The learned Employees' State Insurance Court has also misread II Schedule, Part II of the Act. 4.2. Learned advocate for the appellant has proposed the following substantial question of law for consideration.
"Whether ESI Court has passed legal and justified order by contradicting the order passed by the Medical Appeal Tribunal by assessing the disability of the respondent at 26% and by reversing and not upholding the assessment given by the expert Medical Board at 9%."
4.3 It is further contended that, in the substantial question of law, due to typographical error, the Page 5 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined disability percentage assessed by the Medical Board has been mentioned as 9%, whereas, in fact, the Medical Board had assessed the disability at 26%. 4.3 In support of his submissions, learned advocate for the appellant has placed reliance upon the following decisions:-
(i) Ram Awadh Vs. Employees State Insurance reported in 1995 ACJ 996 dated 16.11.1994 passed by Allahabad High Court;
(ii) Kiran Tulsibhai Vs. Regional Director E.S.I. Corporation passed by this Court in First Appeal No.3644 of 2018 on 09.10.2018.
4.4 By relying upon the aforesaid two decisions, it is submitted by learned advocate for the appellant that when the injury is a Schedule injury and the Medical Board as well as the Medical Appeal Tribunal, consisting of a team of medical experts, have assessed Page 6 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined the disability, should not be disturbed by learned Employees' State Insurance Court as the learned Employees' State Insurance Court had no occasion to examine the injured.
5. I have considered the submissions and perused record and proceedings. It appears that the challenge in the present appeal is limited to increase in the assessment of disability from 26% to 29%. The respondent herein admittedly, suffered injuries during the course of employment. It is also an admitted fact that the respondent sustained injuries to the index, middle and right fingers of the left hand. Due to the said injuries, the index finger of left hand is amputated from the first phalanx and second phalanx had suffered fracture. The whole middle finger is amputated and the Page 7 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined ring finger is also amputated.
It appears from the submissions canvassed by learned advocate for the appellant that there is no dispute regarding assessment of 12% disability in respect of the middle finger. The only question for consideration is for assessment of disability of the index finger and ring finger of left hand. As per Second Schedule, Part II of the Act, the assessment of disablement of index finger of one phalanx is assessed at 9%, whereas in the cases of two phalanx, disability is assessed at 11%. So far as ring finger is concerned, disability is assessed at 5% for one phalanx and 6% for two phalanx.
6. In the present case, it appears that the appellant has not placed on record the decision of Page 8 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined Medical Board, though the decision of learned Medical Appeal Tribunal is placed on record by way of paper book. On perusal of the order of learned Medical Appeal Tribunal, it is observed that the physical examination of the appellant was carried out by medical assessors; however no examination report of employee is placed on record. There is no discussion with regard to functional loss sustained by appellant. The learned Employees' State Insurance Court had occasioned to consider Form No.7. However, no such Form No.7 is placed on record of this Court. The learned Employees' State Insurance Court has observed that, in Form No.7, there were no notes or calculations recorded to justify the assessment of disability at 26% and all columns of Form No.7 are blank. The Medical Board has also opined that there is stiffness PIP joint Page 9 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined which has been affirmed by learned Medical Appeal Tribunal. It is the case of respondent herein that he is suffering from stiffness in injured fingers. Therefore, appellant as well as respondent are on the same page with regard to the stiffness sustained the respondents.
6. The substantial question of law which has been formulated by appellant is nothing but an attempt to reassess the evidence on fact. The assessment of disability is on the basis of evidence produced on record. The decision which has been relied upon by learned advocate for the appellant in the case of Ram Awadh (supra), the Medical Appeal Tribunal gave adequate valid reasons for accepting the report submitted by doctor in preference to the opinion of Medical Board and there was evidence in the form of Page 10 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined opinion of medical experts and considering the opinion of medical experts which was placed on record the assessment of disability was arrived at. The Medical Appeal Tribunal determined the loss of earning capacity on the basis of valid material placed on record. In the present case, however, the Medical Appeal Tribunal has not considered any aspect with regard to the loss of earning capacity and has merely recorded that the Tribunal has examined the injured and affirmed the assessment of disability. The examination report of respondent herein by the team of experts is not placed on record, and therefore, in absence of any material evidence, learned Employees' State Insurance Court, in the present case, has rightly increased the assessment by considering II Schedule, Part II of the Act. In my view, therefore, the decision Page 11 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025 NEUTRAL CITATION C/FA/1772/2008 JUDGMENT DATED: 11/11/2025 undefined in the case of Ram Awadh (supra) is not helpful to the appellant. In the case of Kiran Tulsibhai (supra), the fact on which the disability was increased from 3% to 5% are not found. The Co-ordinate Bench of this Court in the decision held that once there is an expert's opinion with regard to the extent of disability, the Court ordinarily should not interfere unless the decision arrived at by the Board as well as by the Appellate Board is found to be absolutely erroneous in law.
In the present case the findings of Medical Appeal Tribunal are erroneous to the extent that there is no finding on functional loss. Further, no evidence in the form of report is placed on record. Therefore, the said decision is not helpful to the appellant. Page 12 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025
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7. As observed above, in Form No.7, all columns pertaining to assessment of disability were left blank. Therefore, it appears that the learned Tribunal failed to appreciate the lacuna in Form No.7.
8. Considering the aforesaid facts, appellant has failed to point out any contrary material whereby this Court can entertain the First Appeal and disturb the findings of fact. In the totality of facts, I am of the view that there is no question of law, much less, substantial questions of law, involved in the present First Appeal.
9. In light of the above discussions, present First Appeal lacks merit and deserves dismissal. Accordingly, the same is dismissed. No order as to costs. Page 13 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025
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10. Record and proceedings, if any, be transmitted back to the concerned learned Court forthwith.
(D. M. DESAI,J) MANOJ Page 14 of 14 Uploaded by MANOJ KUMAR(HC01092) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:10:24 IST 2025