Gujarat High Court
Employees State Insurance ... vs Divyesh Valjibhai on 21 July, 2022
Bench: Aniruddha P. Mayee
C/FA/1985/2012 ORDER DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1985 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2012
In R/FIRST APPEAL NO. 1985 of 2012
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
DIVYESH VALJIBHAI
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Appearance:
MS HINA DESAI(1023) for the Appellant(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 21/07/2022
ORAL ORDER
The present First Appeal arises from the judgment and
order dated 30.8.2011 passed by the learned Judge, ESI Court,
Ahmedabad in Appeal (MAT) No.46 of 2009 whereby the learned
Court has assessed the disability at 30%.
2. The brief facts leading to filing the present First Appeal are
as follow:
2.1 The respondent employee met with an accident on
23.12.2007 during his services and sustained injury in his left
eye. After treatment, he was examined by the Medical Board and
his disability was assessed at 15%. Dissatisfied with the decision
of the Medical Board, the respondent employee preferred appeal
before the Medical Appellate Tribunal, Ahmedabad. Vide Appeal
(MAT) No. 46 of 2009, the Medical Appellate Tribunal assessed
the disability at 30%.
2.2 Aggrieved by the assessment by the Medical Appellate
C/FA/1985/2012 ORDER DATED: 21/07/2022
Tribunal, the appellant herein has preferred Second Appeal
before the learned ESI Court, Ahmedabad. The ESI Court,
Ahmedabad by impugned judgment and order was pleased to
confirm the judgment of the Medical Appellate Tribunal,
Ahmedabad.
2.3 Aggrieved by the said decision of the learned ESI Court,
the present First Appeal is filed by the appellant.
3. Ms. Hina Desai, learned advocate for the appellant,
submits that when the respondent employee was examined and
assessed by the Medical Board. An Ophthalmic Surgeon was
present in the said Medical Board and the disability was
assessed at 15%. However, before the Medical Appellate
Tribunal, there was no Ophthalmic Surgeon on the Board and
the disability was assessed at 30%. She would submit that since
the Ophthalmic Surgeon, who is an eye specialist, was present
when the respondent employee was examined by the Medical
Board, primacy should be given to such an assessment and that
the disability should be held to be at 15% only. She submits that
the Medical Appellate Tribunal did not have a benefit of
Ophthalmic Surgeon and in absence of such expert, the
disability was assessed at higher side of 30%. She, therefore,
submits that the impugned judgment and order upholding the
assessment made by the Medical Appellate Tribunal be held to
be erroneous, quashed and set aside.
3.1 She further submits that at the time when the respondent
employee had sustained injuries, temporary disability benefit
was immediately paid to the respondent employee.
C/FA/1985/2012 ORDER DATED: 21/07/2022
4. Per contra, Mr. Akash Modi, learned advocate appearing on
behalf of Mr. Prabhakar Upadyaya, learned advocate for the
respondent employee, submits that though the Medical Board
had assessed the disability at 15%, the Medical Appellate
Tribunal is supposed to sit and re-assess the disability, it would
make no difference if the Ophthalmic Surgeon is present or not,
since the injury is not disputed and the disability aspect is
assessed. He would submit that the Medical Appellate Tribunal
was duly constituted which was not challenged by the appellant
and therefore, the assessment given by the Medical Appellate
Tribunal ought to be upheld. He would support the impugned
judgment and order. He would submit that cogent reasons have
been given for upholding the disability assessed by the Medical
Appellate Tribunal by the learned ESI Court. He would submit
that the First Appeal be dismissed.
5. Heard learned advocates for the parties.
6. This Court has perused the documents on record and
considered the averments of the parties. The learned ESI Court
while taking into consideration various factors and the injuries
suffered by the respondent employee, has come to a conclusion
that the disability should be assessed at 30%. It is further seen
that the right eye of the respondent employee has normal vision
whereas the left eye has no vision at all. Therefore, in the
accident, it is seen that the respondent employee has suffered
loss of vision in the left eye. The Medical Board has also
concluded that the left eye has lost complete vision and
therefore, the Civil Surgeon has held the vision disability to be at
C/FA/1985/2012 ORDER DATED: 21/07/2022
30%. It is further seen that the respondent employee was again
assessed by the another Ophthalmic Surgeon who was also of
the opinion that the disability was to the extent of 30%. In view
of the cogent evidence on record with respect to the total loss of
vision in respect of the injured left eye and the medical opinion
presented in evidence on record, this Court is of the opinion that
no interference is called for. Accordingly, the disability assessed
at 30% by the Medical Appellate Tribunal and the learned ESI
Court is upheld. The First Appeal is accordingly dismissed. No
order as to costs.
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
