Gujarat High Court
Employees State Insurance Corp vs Gordhanbhai Durlabhbhai Vakeria on 8 October, 2025
NEUTRAL CITATION
C/FA/2077/2005 JUDGMENT DATED: 08/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2077 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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EMPLOYEES STATE INSURANCE CORP.
Versus
GORDHANBHAI DURLABHBHAI VAKERIA
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
MR BHARAT SHAH(3345) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 08/10/2025
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the impugned judgment and award dated 28.12.2004 passed by the Employees' State Insurance Court, Ahmedabad in ESI Second Appeal No. 40 of 2003, present appeal is filed under Section 82 of the Employees State Insurance Act, 1948 [hereinafter be referred to as "the ESI Act"] by the appellant - Employees State Insurance Corporation.
2. Brief facts of the present case are that the appellant is/was working as Labourer in Maneklal Harilal Mill and on 04.05.2001, the Page 1 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined cloth roll was fallen down on the right feet leg, due to which, the appellant sustained serious injury and, thereafter, he was taken to Bapunagar General Hospital for treatment where he was admitted as an indoor patient and taken treatment from 04.05.2000 to 01.06.2000 and he has also taken the treatment from 22.06.2000 to 17.07.2000 and on 26.06.2000, the operation of toe of right leg and bone of cuboid of right leg was performed and bone of toe was imputed and he enjoyed all temporary benefits viz. Medical benefit, temporary disablement benefits etc. That, after getting recovery, the respondent resumed his duty and started to work with efficient manner, however, to enjoy the more benefits from the appellant Corporation, the respondent herein preferred an application to refer his case before the Medical Board and accordingly, Medical Board physically examined him and after considering all the records available with them, the Medical Board assessed with 9% of disability and found efficiency in his work.
2.1 Being aggrieved with the order of the Medical Board, the respondent herein preferred an appeal before the Medical Appellate Tribunal (for short "the Tribunal") and the Tribunal, without appreciating evidence on the record, nature of job/work, extent of reduction in efficiency etc., confirmed order passed by the Medical Board. Being aggrieved by the order of the Tribunal, the respondent herein also preferred Second Appeal No. 40 of 2003 against the order of the Tribunal seeking enhancement of his claim. However, with utter surprise to the appellant herein, the ESI Court, without applying its mind, without leading any kind of evidence and without any kind of inquiry and conveniently ignored the Page 2 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined provisions of the law and clear and unambiguous language of Section 2(15A) and (15B) of the Act, enhanced the disabilities from 9% to 12% vide its judgment and order dated 28.12.2004.
3. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the ESI Court, the appellant - Corporation has filed the present appeal.
4. The appellant has, while filing the present appeal, raised the following substantial question of law.
(a) In light of the facts of present case and in view of the provisions contained the ESI Act, WHETHER the ESI Court right and justified ignoring the provisions of limitation as specified under section 77(1-A) of the Act and WHETHER the ESI Court right and justified not drawing the issue qua limitation in the impugned judgment and order and is ESI Court right and justified while entertaining the second appeal preferred by the respondent herein?
(b) In facts of present case and in view of the ESI Act, Rules and Regulations, WHETHER the ESI Court is right and justified not confirming the orders / judgments of the MAT and Medical board? AND can the opponent be given the 12% of the permanent disability ignoring the provisions of the section 2(15A) & 2(15B) and schedule thereon and without leading any evidences and only on assumption and presumption?
(c) WHETHER the ESI Court is right and justified in not Page 3 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined upholding the concurrent view of the Medical Board and MAT and rejecting the correct and genuine views / orders of Medical Board and MAT?
(d) WHETHER the diverse findings and conclusions of the ESI Court are right and justified and based on without leading evidences or they are contrary to the weight of evidence on record AND WHETHER the ESI Court is right and justified in ignoring the genuine views of the Medical Board and MAT, which are based on evidences and the provisions of the Act?
5. Heard Mr.Sachin Vasavada, learned counsel for the appellant and Mr.Bharat Shah, learned counsel for the respondent at length. Perused the material placed on record.
6. Mr.Vasavada, learned counsel has submitted the same facts which are narrated in the memo of appeal and has submitted that the ESI Court, while exercising the power under Section 54A of the ESI Act, has extended jurisdiction which is not vested with it. He has submitted that the injury on the right leg feet because of which the toe was imputed and he has taken the treatment and for the injury, the doctor has issued certificate for permanent partial disablement. He has submitted that the respondent was referred to the Medical Board and the Medical Board has, after examining the respondent, considered permanent partial disablement and issued the certificate assessing 9% permanent partial disablement. He has submitted that being aggrieved the order of the Medical Board, the respondent filed an appeal before the Tribunal and the Tribunal confirmed the order passed by the Page 4 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined Medical Board and against the such order, the respondent preferred the Second appeal before the ESI Court whereby the ESI Court has, without considering all these facts, enhanced the permanent partial disablement to 12% from 9%. He has submitted that though sufficient and cogent material before the ESI Court, however, without considering the same, the ESI Court has exercised the power under Section 54 of the ESI Act and passed the impugned judgment and award and enhanced the permanent partial disablement, which came to be considered by the Medical Board and confirmed by the Tribunal and, therefore, the trial Court has no reason to interfere with the findings recorded by the authorities while exercising the power under Section 54 of the ESI Act in second appeal and normally, in second appeal, the Court cannot interfere with the finding recorded by the trial Court. He has submitted that in the present case, Medical Board and the Tribunal unless and until there is any substantial questions of law involved, the impugned judgment and award passed by the ESI Court is illegal, unjust and erroneous and the same deserves to be quashed and set aside. He has submitted that the injury sustained by the respondent is not fallen under the schedule and it is non-schedule injury and, therefore, without considering the said aspect, the trial Court has assessed the disability at 12%, which is not just and proper. He has submitted that the injury sustained by the respondent was not schedule injury and because of that disablement, the workman can certainly work and, therefore, the decision taken by the Medical Board and confirmed by the Tribunal and, thereafter, the ESI Court has acceded jurisdiction is not vested with it and Page 5 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined the interference with the finding recorded by the authorities normally is not permissible under the law. He has submitted that the appeal deserves to be allowed and the impugned judgment and award deserves to be quashed and set aside.
7. As against that, Mr.Shah, learned counsel has submitted that the respondent had received injury on feet of right leg toe when he was on duty, for which he had taken treatment, which fact was not considered by the Medical Board while assessing the disability at 9% and therefore, the respondent had approached the Medical Appellate Tribunal by way of filing appeal. He has submitted that the Appellate Tribunal had further referred the respondent for medical examination to Bapunagar General Hospital and after considering the report, the Tribunal has assessed disability at 9%, which was not proper and therefore, the respondent has filed Second Appeal before the ESI Court. He has submitted that the ESI Court has rightly enhanced the disability from 9% to 12% looking to the injuries sustained by the respondent and therefore, no interference is required to be called for in the present appeal and the present appeal be dismissed.
7.1 Mr.Shah, learned counsel has submitted that initially he was taken to Bapunagar General Hospital for treatment where he was admitted as an indoor patient from 04.05.2000 to 01.06.2000 and again he has taken the treatment from 22.06.2000 to 17.07.2000 and on 26.06.2000, he was operated for the injury and his right leg toe was imputed and he was discharged from the hospital on 18.07.2000 and was likely to be taken treatment in ESI Hospital.
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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 case or not. On perusal of the Record and Proceedings, it appears that Medical Board has assessed 9% disability against which, the Medical Appellate Tribunal has considered disability permanent in nature as assessed by the Medical Board. It also appears that when the respondent was on duty, the cloth roll was fallen down on the right leg, due to which he was given treatment at the hospital administered by the appellant Corporation and the Medical Board had also examined the respondent and after going through the report, had assessed the disability at 9%, which was challenged by the respondent before the Medical Appellate Tribunal by way of filing appeal. The Medical Appellate Tribunal had also sent the respondent for medical examination to Bapunagar Hospital, wherein, the respondent was examined by expert doctor and after considering the report of the doctor, the Appellate Tribunal has considered disability partial in nature as assessed by the Medical Board. It also emerges from the record that the ESI Court after considering the pleadings of both the sides has enhanced the disability from 9% to 12% though there was sufficient evidence recorded by the Medical Board and Appellate Tribunal, however, without considering the same and without examining the doctor, the ESI Court has passed the impugned judgment and award recording the contentions that the workman was unable to stand and/or walk properly on account of the injury Page 7 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025 NEUTRAL CITATION C/FA/2077/2005 JUDGMENT DATED: 08/10/2025 undefined sustained by him and without recording any reasons, the ESI Court, after considering the submissions of the respondent, has enhanced the disability from 9% to 12%, which is the subject matter in the present appeal. The appellant may calculate the amount of medical benefit as per 10% permanent partial disablement as it is non-schedule injury and, therefore, the appeal to be allowed in part to that extent. Considering the facts of the case and considering the evidence produced on record, I am of the opinion that instead of 12%, if I considers 10% disability permanent in nature in the present case, 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 award dated 28.12.2004 passed by the Employees' State Insurance Court, Ahmedabad in ESI Second Appeal No. 40 of 2003 is modified to the extent that the disability of 12% is reduced to 10% and on the same basis, the amount of compensation is to be calculated by the appellant - Corporation and to be paid to the respondent, after proper verification and after following due procedure through RTGS/NEFT, within a period of four 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.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 8 of 8 Uploaded by V.R. PANCHAL(HC00171) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:37:09 IST 2025