Niranjan Ganpat Samantrai vs The Deputy Director
2025 Latest Caselaw 8393 Bom

Bombay High Court

Niranjan Ganpat Samantrai vs The Deputy Director on 2 December, 2025

2025:BHC-AS:52450


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       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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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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