Gujarat High Court
Employees State Insurance Corporation vs Mashrubhai Jeevabhai on 14 August, 2025
NEUTRAL CITATION
C/FA/1061/2011 JUDGMENT DATED: 14/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1061 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
Yes
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
MASHRUBHAI JEEVABHAI
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
ADVOCATE NOTICE UNSERVED for the Defendant(s) No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 14/08/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - Employees
State Insurance Corporation against the judgment and
order dated 27.10.2010 passed by the Employees State
Insurance Court, Ahmedabad (hereinafter referred to as
'the E.S.I. Court") in Second Appeal (E.S.I.) No. 23 of
2006, whereby, the appeal filed by the respondent herein
was allowed by assessing the disability of the respondent
at 50% and set aside the order of Medical Appeal
Tribunal in appeal (MAT) No.34 of 2005 assessing the
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disability of the respondent at 2% and also directed the
appellant to pay compensation accordingly.
2. The short facts giving rise to the present appeal are
that on 01.06.2001, while the respondent was on duty, he
sustained serious injuries on his right leg which resulted
in an operation of the right hip (THR), due to which he
was unable to perform his routine work. He was
thereafter referred to the Medical Board, which, upon
examination, assessed his disability at 0%. Being
dissatisfied, the respondent preferred an appeal before
the Medical Appeal Tribunal, Ahmedabad, which
enhanced the disability from 0% to 2%. As the respondent
was still not satisfied, he filed Second Appeal before the
E.S.I. Court, Ahmedabad, wherein the E.S.I. Court, by
judgment and order dated 27.10.2010 passed in Second
Appeal (E.S.I.) No. 23 of 2006, quashed and set aside the
order of the Tribunal and enhanced the disability from 2%
to 50%.
2.1 Being aggrieved and dissatisfied with the aforesaid
judgment and order passed by the E.S.I. Court, the
appellant E.S.I. Corporation has filed the present First
Appeal under Section 82(2) of the Employees State
Insurance Act, 1948.
3. Heard Mr.Sachin Vasavada, learned counsel appearing
for the appellant. Though served, the respondent has
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chosen not to appear before this Court.
4. Learned counsel Mr. Vasavada has submitted that the
impugned judgment and order passed by the E.S.I. Court
is contrary to law and on facts. He has submitted that the
substantial question of law framed that whether the E.S.I.
Court has passed legal and justified order by enhancing
the disability @ 50% without any medical evidence in
respect of the order of Medical Appeal Tribunal @ 2%
disability whereas, the Medical Board has passed the
order of 0% disability. He has submitted that on perusal
of the record and the impugned order passed by the E.S.I.
Court, the substantial question of law raised by the
appellant is considered to be a need question that without
there being any expert medical opinion or without there
being any cogent and material evidence, whether the
E.S.I. Court has right and justified in enhancing he
disability from 2% to 50%. Over and above the grounds
agitated in the memo of appeal, learned counsel Mr.
Vasavada has urged that the present appeal be allowed
and the impugned judgment and order passed by the
E.S.I. court be quashed and set aside.
5. I have perused the material and relevant documents
placed on record. I have also gone through the record and
proceedings as well as the impugned judgment and order
passed by the E.S.I. Court.
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6. The issue involved in the present appeal is only to the
effect that whether the disability considered by the E.S.I.
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 0% disability against which,
the Medical Appeal Tribunal has considered 2% disability
permanent in nature.
7. This Court has carefully examined the findings
recorded by the E.S.I. Court as well as the assessment
made by the Medical Board and the Medical Appellate
Tribunal. It is not in dispute that the appellant-insured
employee sustained an employment injury on 01.06.2001
resulting in an operation of the right hip (THR). Owing to
such injury, the claimant experiences difficulty in
squatting, sitting cross-legged and climbing stairs, which
certainly causes some degree of permanent functional
disability. The Medical Board, however, assessed the
disability at 0%, and the Medical Appellate Tribunal, upon
appeal, assessed it at only 2%. The E.S.I. Court, placing
reliance on certain provisions of the E.S.I. Act, the
Workmen's Compensation Act and medical literature,
came to the conclusion that the claimant suffers from
50% permanent disability.
8. On a close scrutiny of the material, this Court finds
that the E.S.I. Court has placed undue reliance on the
principle equating "loss of use" with "loss of limb"
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without fully appreciating the extent of actual medical
impairment as reflected in the medical reports. The
reports clearly note restriction of movement and some
difficulty in performing particular postures; however,
they do not justify the conclusion that the claimant has
suffered such a substantial loss of earning capacity as to
warrant 50% disability. Functional disability has to be
assessed realistically with reference to the degree of
efficiency lost in work and day-to-day life. In the present
case, though there is evidence of limitation, the claimant
still retains significant ability to perform work and lead a
reasonably normal life.
9. In these circumstances, this Court is of the considered
view that the assessment of 50% disability by the E.S.I.
Court is excessive and not supported by cogent medical
evidence. A fair and reasonable assessment, having
regard to the nature of injury, the operative procedure
and the permanent restrictions suffered, would be 15%
permanent disability.
10. Accordingly, the judgment of the E.S.I. Court is
modified, the finding of 50% permanent disability is set
aside, and it is held that the claimant shall be entitled to
compensation on the basis of 15% permanent disability.
11. In the result, the present appeal is partly allowed. The
impugned judgment and order dated 27.10.2010 passed
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by the Employees State Insurance Court, Ahmedabad in
Second Appeal (E.S.I.) No. 23 of 2006 is modified to the
extent that the disability of 50% is reduced to 15% and on
the basis of that, the amount of compensation is to be
calculated by the appellant Corporation and to be paid to
the respondent herein, after proper verification and after
following due procedure through RTGS/NEFT. Rest of the
order shall remain intact. No order as to costs.
12. Record & Proceedings, if any, be sent back to the
concerned Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
