Gujarat High Court
Vijaykumar Subhashbhai ... vs Regional Director on 1 February, 2022
Bench: A.G.Uraizee
C/FA/3808/2021 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3808 of 2021
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VIJAYKUMAR SUBHASHBHAI BALDANIYA
Versus
REGIONAL DIRECTOR
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Appearance:
AAKASH D MODI(7449) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 01/02/2022
ORAL ORDER
1. Heard Mr. Aakash D. Modi, learned advocate for the
appellant and Ms. Dimple A. Thaker, learned advocate for
the respondent.
2. Present appeal under Section 82 of the Employee's
State Insurance Act, 1948 ("Act" for short) is preferred to
assail the judgment and order dated 19.5.2018 passed by
the E.S.I. Court, Ahmedabad in E.S.I. Second Appeal No.
05 of 2018.
3. The short facts giving rise to the present appeal are
that the appellant was working with M/s. Atlas Foram, as
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operator in Chemical Plant. He met with an accident on
10.10.2015 during his duty. He sustained injury in his
right eye in the accident. He had taken indoor treatment
from 10.10.2015 to 27.1.2016 in hospital managed by the
respondent corporation. Because of the injury suffered by
him, he has lost vision in his right eye. He, therefore,
filled a form as required under Section 72 of the
Employees State Insurance (General Regulation, 1915
("Regulation" for short). He was examined by the Medical
Board on 1.3.2017 and by order dated 20.3.2017 his
disability was assessed at 7 %. He was not happy with the
assessment of his disability. He, therefore, preferred an
Appeal under Section 54-A of the Act before the Medical
Appellate Tribunal, Ahmedabad being Appeal (MAT) No.
77 of 2017. By the judgment dated 28.6.2017, the
Tribunal assessed his disability at 10%. The appellant was
still not happy with the assessment of his disability. He
therefore, preferred Second Appeal under Section 54(A)
(2) of the Act and Rule 20-B of the Central Rules being
E.S.I. Second Appeal No. 5 of 2018 before the E.S.I.
Court Ahmedabad. By the impugned judgment dated
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19.5.2018 the E.S.I. Court set aside the disability of 10%
assessed by the Appellate Tribunal and assessed the
disability of the appellant at 15%. The appellant is not
happy with the assessment of the disability by the E,S,I,
Court and therefore he has preferred present First
Appeal.
4. Mr. Modi, learned advocate for the appellant
vehemently submits that because of the loss of vision in
the right eye, the earning capacity of the appellant is
reduced. He submits that the appellant is unable to do
work as he was doing before the injury. He submits that
the disablement suffered by the appellant is permanent in
nature as per section 15-A of the Act, as the earning
capacity of the appellant is reduced. He further submits
that as per item No. 32 of schedule part II, the loss of
vision of one eye without complications or disfigurement
of eye ball, the other being normal the percentage of loss
of earning capacity is to be assessed at 30%.
5. Relying upon the decision in case of Employees
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State Insurance Corporation vs. Ramesh Mafatlal
Parmar reported in 2017 (3) GLR 2478 he submits
that the E.S.I. Court ought to have assessed disability of
the appellant at 30%. He therefore, urges that the appeal
requires consideration.
6. Ms. Dimple Thaker, learned advocate for the
respondent has supported the judgment of the E.S.I.
Court. According to her submission an appeal under
Section 82 of the Act is maintainable only for
consideration of substantial question of law. According to
her submission, no substantial question of law is involved
in the appeal. She submits that the E.S.I. Court has given
reasons for assessing the disability at 15% and this
reasons are based on factual position. She, therefore,
urges that the appeal does not warrant consideration.
7. I have given my thoughtful consideration to the
submissions canvassed at the bar on either side.
8. It appears from the memo of the appeal and the
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orders of the lower authorities that the appellant has
suffered injury on his right eye while working as
operation with M/s Atlas Foram. It further appears that
the vision of the appellant in the right eye is affected by
6/18. The respondent had assessed his disability at 7%
which was enhanced to 10% in Appeal under Section 54-A
of the Act by the Medical Appellate Tribunal, Ahmedabad.
It need to be noted herein that the Medical Appellate
Tribunal consists of judicial officers who is a Chairman of
tribunal, a doctor (Medical Assessor), and two Trade
Union Assessors. Upon appeal under Section 54 A of the
Act, the appellant was examined by the Medical Assessor
and he assessed his disability at 10% instead of 7% as
assessed by the respondent corporation. The disability so
assessed was accepted by the union assessor and
therefore, the Medical Appellate Tribunal assessed
disability at 10%. However, upon further appeal the E.S.I
Court in Second Appeal has enhanced the disability to
15% on the premise that the functional disability should
be considered instead of physical disability and
considering the nature of work, the appellant was doing
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before he suffered the injury, the E.S.I. Court was of the
opinion that the disability ought to be assessed at 15%. In
my considered view, the findings recorded by the E.S.I.
Court are findings of facts and by stretch of no
imagination these findings can be dubbed as substantial
question of law.
9. The decision of this Court in the case of Employee
State Insurance Corporation (Supra) relied upon by
the learned advocate for the appellant is of no avail. The
observations of this Court in paragraph Nos. 18 and 19
are relevant, which are extracted as under:-
"18. Therefore, the moot question is whether the
contentions and the submissions which have been
raised questioning about the assessment of disability
can be said to be a substantial question of law.
Though the submissions have been made by learned
advocate Shri Vasavada with much emphasis that
when the legislature has provided in the schedule
referring to different injuries and the assessment of
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the percentage of disability qua each injury the
court could not have assessed the disability is
misconceived inasmuch as the Schedule refers to
the nature of injuries or the type of injury qua part
of the body with reference to the percentage of
disability which the law presumes. Schedule 2 Part
II refer to the list of injuries deemed to result in
permanent partial disablement, meaning thereby,
the law presumes about permanent partial
disablement if such injuries have occurred.
However, the extent of injuries and the loss of
earning capacity have to be considered on a case to
case basis depending upon the facts and
circumstances as such a Schedule is only laying
down broad guidelines. The list of injuries which
result in permanent partial disablement as provided
in the Schedule refers to presumption by the
Legislature that such an injury would result in a
kind of disability or permanent partial disablement.
However, it is referring to the percentage of earning
capacity which is normally to be believed, but again,
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as stated above, has to be considered with other
factors like the nature of occupation or vocation in
which the person is employed. For example, an
injury on the finger on right or left hand and the
percentage of disability has been provided but the
vocation of the carpenter will have a different
context for the purpose of his earning capacity.
19. Therefore, the percentage of disability which the
law presumes is one thing and the effect of such
disability or percentage of disability on the earning
capacity is a different thing. It may have a bearing
on his earning capacity depending on his vocation,
profession or the nature of work and the same injury
may have a different effect on the earning capacity
of 2 different persons engaged in different vocations.
Therefore, the Schedule cannot be said to be a rule
of thumb but rather a broad guideline. Again, as
stated above, the assumption of disability could be
considered on overall appreciation of the material
and evidence by the court and there is no
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jurisdictional error which can be said to be giving
rise to a substantial question of law. It is not a
substantial question of law which can be said to
have been involved as provided under sec. 82(2) of
the ESI Act. A useful reference can be made to the
percentage of disability and the loss of earning
capacity for the purpose of damages considered by
the courts and the tribunals day in and day out in
case of vehicular accidents or medical negligence. It
is well-accepted that on the basis of the percentage
of disability assessed ultimately the earning capacity
is considered by the courts for the purpose of
assessment."
10. It is thus, this Court has held in the aforesaid
decision that assessment of the disability cannot be said
to be a substantial question of law moreover this Court
has gone to the extent of saying that the percentage of
disability given in Item No. 32 of Schedule II lay-down
broad guidelines and the extent of injury and the loss of
earning capacity have to be considered on a case to case
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basis depending upon the facts and circumstance of each
case.
11. The E.S.I. Court has considered various parameters,
such as functional loss, market value of the appellant and
loss of earning capacity to determine 15% disability
instead of 10% as assessed by the Appellate Board. The
reasons recorded by the E.S.I. Court are on the basis of
the facts of the case and by stretch of no imagination, it
can be said that any substantial question of law is
involved.
12. In view of the above, I am of the considered view
that no substantial question of law is involved in this first
appeal warranting admission.
13. Accordingly present First Appeal is dismissed at
threshold.
(A.G.URAIZEE, J)
SURESH SOLANKI
