Gujarat High Court
Regional Director,Employees State ... vs Mulji Devji Since Deceased Through His ... on 1 October, 2025
NEUTRAL CITATION
C/FA/238/2005 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 238 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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REGIONAL DIRECTOR,EMPLOYEES STATE INSURANCE CORP.
Versus
MULJI DEVJI SINCE DECEASED THROUGH HIS LEGAL HEIRS & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
MR HASIT H JOSHI(2480) for the Defendant(s) No. 1.1,1.2
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 01/10/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - Employees State Insurance Corporation against the judgment and order dated 07.04.2004 passed by the Employees State Insurance Court, Rajkot (hereinafter referred to as 'the E.S.I. Court") in ESI First Appeal No. 1 of 1987, whereby, the appeal filed by the respondent herein was partly allowed by assessing the disability of the respondent at 40% and also directed the appellant to pay compensation accordingly.
2. The short facts giving rise to present appeal are as under :
2.1 That, the respondent herein was an insured person under ESI Act with Insur. No. 37/3771264 and was working in M/s. Karanchi Page 1 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined Engineering & Foundry Works, Jamnagar. That, the insured workman Mulji Devji, while working, alleged that he sustained an employment injury on 07.04.1980 to his left hand thumb and two fingers near left thumb. That, he remained temporarily disabled for the period from 06.04.1980 to 22.09.1980, for which, the appellant Corporation had paid him Temporary Disablement Benefit as per provisions of the ESI Act. That, the respondent workman was referred to Medical Board on 19.06.1981 which was duly constituted under Regulation 75 of the ESI (General) Regulations, 1950 for assessment of loss of earning capacity, if any. That, the Medical Board examined the respondent workman and awarded him 25% disability stating : "Partial amputation of left thumb at I.P. Joint Level (Loss of distal Phalanx) restriction of movements of L. I. F. and L. M. F.)".
2.2 It is the case of the appellant that, the respondent workman, if aggrieved and dissatisfied with decision of Medical Board, was supposed to file an Appeal before Medical Appeal Tribunal which was legally constituted body under Regulation 35 of ESI (General) Regulations, 1950 but, instead of preferring an Appeal before the Medical Appeal Tribunal as per ESI Act, 1948, the respondent workman, took permanent disability certificate on 14.10.1980 from Assistant Professor of Orthopedics, M.P. Shah Medical College and Irwin Group of Hospital, Jamnagar, in which permanent disability was shown as 40%. On the basis of the said disability certificate, the respondent filed the aforesaid ESI First Appeal No.1 of 1987 before the E.S.I. Court No.1, Rajkot and the E.S.I. Court partly allowed the said First Appeal by assessing the disability of the respondent at 40% and also directed the appellant to pay compensation accordingly.Page 2 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025
NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined
3. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the ESI Court, the appellant ESI Corporation has filed the present First Appeal under Section 82(2) of the Employees State Insurance Act, 1948.
4. Heard Ms. Dimple Thaker, learned counsel appearing for the appellant - ESI Corporation and Mr. Hasit Joshi, learned counsel appearing for respondents - original claimants.
5. Learned counsel Ms. Thaker has submitted that the impugned judgment and order passed by the ESI Court is illegal, arbitrary, unjust and contrary to law and facts on record. She has submitted that the ESI Court has erred in relying upon the certificate issued by the doctor who assessed higher than the Schedule II of the Act and who neither deposed in the witness box nor treated the injured respondent, however, believing the certificate issued by the said doctor, the ESI Court allowed the application of the respondent workman by assessing the disability to 40%, which is illegal and improper. She has further submitted that the certificate of the doctor relied upon by the ESI Court is contrary to the statutory Schedule II entry no.16 and findings of Medical Board constituted under Regulation 75 of the ESI (General) Regulations, 1950, as the said certificate is an inadmissible evidence. She has submitted that the said doctor had neither treated the respondent workman nor he was examined before the ESI Court and the certificate issued by the said doctor was neither proved nor corroborated by oral testimony. She has submitted that the disability assessed by the doctor exceeds the percentage fixed under Schedule II, which is a binding statutory indicator under the Act and in such Page 3 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined circumstances, reliance on the said certificate amounts to accepting untested hearsay evidence and ignoring the statutory scheme.
5.1 Learned counsel Ms. Thaker has drawn the attention of this Court to Section 2 (15A) & 2 (15B) of the Act, which reads as under :
Section 2 (15A) of the Act defines :
"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;
Section 2(15B) of the Act defines :
"permanent total disablement" means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement:
PROVIDED that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;] 5.2 Relying upon the aforesaid Sections, learned counsel Ms. Thaker has submitted that in the present case, the injury suffered by the respondent workman is an admitted Scheduled injury, namely, partial amputation of the left thumb at the inter phalangeal (I.P.) joint, specifically involving the terminal phalanx, which is expressly covered Page 4 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined under Entry 16 of Part II of Schedule I, which prescribes a 25% loss of earning capacity, however, by awarding 40% disability solely on the basis of a certificate issued by a doctor who neither treated the injured nor was examined before the Court, the ESI Court has clearly overridden the binding statutory mandate of Section 2(15B). She has further submitted that the percentage of disability for a Scheduled injury, once statutorily prescribed, cannot be altered or enhanced in the absence of cogent, admissible evidence and there is no scope for subjective assessment or judicial discretion where the statute has fixed the percentage loss of earning capacity. She has submitted that thus, the ESI Court's award of 40% disability in a case where the Schedule fixes it at 25% is ultra vires Section 2(15B) and the schedule II and the judgment impugned is liable to be set aside for being contrary to the express statutory framework. She has submitted that the ESI Court has committed a grave error in law by accepting the untested and unproved medical certificate while discarding the findings of the statutory Medical Board, as the percentage of disability for Schedule II injuries is binding, and any deviation must be supported by cogent, tested medical evidence, which is lacking in the present case.
5.3 Learned counsel Ms. Thaker has submitted that in view of the above, the ESI Court has gravely erred in entertaining and allowing the First Appeal filed by the respondent herein and also gravely erred while misinterpreting the provisions of the law and enhanced the % of disability. Over and above the grounds agitated in the memo of appeal, learned counsel Ms. Thaker has urged that the present appeal be allowed and the impugned judgment and order passed by the ESI Page 5 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined Court be quashed and set aside.
6. As against that, learned counsel Mr. Joshi for the respondent has supported the impugned judgment and order passed by the ESI Court and submitted that the respondent workman had received injuries while he was on duty. He has submitted that because of the alleged accident, the respondent workman has lost his left thumb and two fingers adjacent to it and therefore, he was not able to work with his left hand and suffered permanent partial disablement to the extent of 90%, however, the Medical Board has assessed disability to 25%, which is absolutely illegal and unjust. He has submitted that the respondent workman has suffered permanent disability and accordingly, the disability assessed to 40% by the Irwin Group of Hospitals is rightly considered by the ESI Court. He has submitted that the ESI Court has rightly enhanced the disability from 25% to 40% looking to the injuries sustained by the respondent workman and therefore, no interference is required to be called for in the present appeal. In support of his submissions, learned counsel Mr. Joshi has referred and relied upon the decision of the High Court of Allahabad rendered in case of Regional Director, ESIC v. Abdul Rauf in F.A.F.O. No.797 of 1992 and the decision of this Court rendered in case of Regional Director, ESIC v. Karunakaran Chindran reported in [2007] 3 GLH 550 and urged that the present appeal be dismissed and the impugned judgment order passed by the ESI Court be confirmed.
7. At this juncture, learned counsel Ms. Thaker has submitted that the judgments supplied by the respondent workman is not applicable Page 6 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined in the present case as under :
[I] Regional Director, ESIC v. Abdul Rauf is not applicable to the present case. As clearly indicated in paragraph 5 of the judgment, the injury involved was not a Scheduled injury. Furthermore, a reading of the entire judgment shows that the doctor who issued the disability certificate was not examined, and no argument was advanced regarding the necessity of such examination. Therefore, there is no finding or ratio in the said judgment which would permit the ESI Court to assess a higher disability for a Scheduled injury based solely on an untested certificate, unlike the issue directly arising in the present case.
[II] Regional Director, ESIC v. Karunakaran Chindran is also distinguishable as the injury involved was hearing loss, which is not covered under Schedule II, and although the doctor was not examined, no statutory percentage was overridden. In contrast, the present case involves a Scheduled injury where a higher disability was assessed contrary to the statutory Schedule, solely on the basis of an untested certificate.
8. I have heard the learned counsel appearing for the respective parties and perused the material placed on record. The issue involved in the present appeal is only to the effect that whether the disability considered by the ESI Court is justified in the facts of the present case or not. On perusal of the Record and Proceedings, it appears that Medical Board has assessed 25% disability against which, the doctor of Irwin Group of Hospitals has considered 40% disability permanent in nature. It also appears that the injury sustained by the respondent is a non-schedule injury under the Statutory Schedule II. It also Page 7 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined emerges from the record that the ESI Court after considering the pleadings of both the sides has enhanced the disability from 25% to 40% though there was sufficient evidence recorded by the Medical Board, however, without considering the same and on the basis of the certificate issued by the doctor of Irwin Group of Hospital, Jamnagar, the ESI Court has passed the impugned judgment and order recording the contentions in para-12 that the workman has lost his fingers of left hand on account of the injury sustained by him and without recording any reasons, the ESI Court after considering the submissions of the respondent herein has enhanced the disability from 25% to 40%. While considering permanent partial disablement, the ESI Court has exceeded the jurisdiction and considered 40% disablement when there was specific evidence before the Medical Board, who after evaluating the physical condition of the respondent workman, had come to the conclusion that the deceased workman had sustained 25% disablement, however, without assigning any cogent reason, the ESI Court has considered 40% disablement relying upon the certificate of the doctor who assessed higher that the Schedule II of the Act. Considering the facts of the case and considering the evidence produced on record, I am of the opinion that instead of 40%, if we consider 25% disability permanent in nature in the present case, as assessed by the Medical Board, it would sub-serve the interest of justice and hence, the present appeal is required to be partly allowed.
9. In the result, the present appeal is partly allowed. The impugned judgment and order dated 07.04.2004 passed by the Employees State Insurance Court, Rajkot in ESI First Appeal No. 1 of 1987 is modified to the extent that the disability of 40% is reduced to Page 8 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025 NEUTRAL CITATION C/FA/238/2005 JUDGMENT DATED: 01/10/2025 undefined 25% and on the basis of that, the amount of compensation is to be calculated by the appellant Corporation and to be paid to the respondents - original claimants, after proper verification and after following due procedure through RTGS/NEFT, within a period of eight weeks from the date of receipt of order of this Court. Rest of the order shall remain intact. No order as to costs.
10. Record & Proceedings, if any, be sent back to the concerned Court forthwith.
Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) Dolly Page 9 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:46:43 IST 2025