Gujarat High Court
Employees State Insurance Corporation vs Vasantbhai Bhudarbhai Parmar on 10 February, 2025
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C/FA/4441/2006 JUDGMENT DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4441 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
VASANTBHAI BHUDARBHAI PARMAR
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
MR YOGEN N PANDYA(5766) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/02/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant- Employees
State Insurance Corporation being aggrieved and dissatisfied
with the judgment and order dated 28.04.2006 passed by the
Employees State Insurance Court, Ahmedabad (hereinafter
referred to as the "ESI Court") in ESI Second Appeal No.20 of
2004 under Section 82 of the Employees State Insurance Act,
1948 (hereinafter referred to as "the Act").
2. The case of the respondent - original claimant employee
before the Tribunal was that he is an insured person and
covered under the Act. On 12.4.2003, the respondent was
working in the Factory and during the night hours in the third
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ship which starts from 12 am to 7 am. While he was attending
his work, he met with an accident and sustained injury in his
left ear resulting into deafness. He remained under medical
observation from 13.04.2000 to 18.04.2000. During the
aforesaid period, he was extended all temporary benefits
which includes medical benefits, temporary disablement
benefits etc. as provided under the Act. When he resumed his
duty, he was not comfortable inasmuch as he had developed
deafness in his left ear. He, therefore, approached to the
medical board complaining about his deafness.
2.1. The medical board physically examined him and his
hearing capacity and noticed 10% of disability in hearing
capacity. After examining the overall evidence on record, the
medical board again assessed the respondent employee and
finally assessed 28% of permanent disability.
2.2. Being aggrieved and dissatisfied with the aforesaid order
of the Medical Board, respondent Employee preferred appeal
before the Medical Appellate Tribunal, which was registered
as MAT Appeal No.26 of 2003. The Tribunal after appreciating
the evidence on record and nature of job with which the
employee was associated and the extent of reduction in his
working efficiency approved and accepted 28% of permanent
disability as opined by the Medical Board. While confirming
the aforesaid disability, the respondent employee was
thoroughly examined by the Medical Expert and had arrived
at a conclusion confirming 28% of the disability.
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2.3. The respondent employee, therefore, preferred appeal
before the ESI Court which was registered as ESI Second
Appeal No.20 of 2004. The ESI Court upon overall
appreciation or record, by impugned judgment and order
dated 20.04.2006 enhanced the disability of the respondent
employee to the extent of 40% and accordingly directed the
appellant Corporation to pay revised amount of compensation
with cost of Rs.5000/-. Hence, the present appeal at the
instance of the appellant Corporation.
3. At the stage of admission hearing, this Court by order
dated 4.12.2006 considering the scope of the appeal had
admitted the appeal noticing the substantial question of law
proposed by the learned advocate for the appellant
Corporation. The following substantial question of law had
been raised by the appellant Corporation:
"a. In facts of present case and in view of ESI Act,
Rules and Regulations, whether the ESI Court is
right and justified not upholding the order /
judgment of the MAT ? AND can the opponent be
given the 40% of the permanent disability, wrongly
taking recourse of the Section 2(15A) & 2(15B) and
without leading any evidences, reduction in earning
efficiency and without considering the nature of
work and only on assumption and presumption ?
b. Whether the ESI Court is right and justified in not
upholding the views of the MAT as well as Medical
Board and wrongly interpreted the provisions of the
Act and enhanced the % of the disabilities without
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reading and referring the evidences and report of
Medical Referee and passed the order without
appreciating evidences on record and without
examining the real aspect of the case ?
c. Whether the diverse findings and conclusion 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 view of the MAT as well as Medical Board,
both are experts body, which are based on
evidences and the provisions of the Act ?
d. In facts of present case and in view of the ESI
Act, Rules and Regulations, WHETHER the ESI
Court is right and justified not upholding the order /
judgment of the MAT as well as Medial Board ? AND
can the opponent be given the 40% of the
permanent disability despite the fact that the
opponent has not become deaf and / or receive
deafness in his right ear ?"
3.1. The Court has further directed to hear the present
appeal along with First Appeal No.2077 of 2005. The interim
application for stay was preferred by the appellant
Corporation being Civil Application No.13000 of 2006,
whereby, after hearing the respective parties, this Court by
order dated 23.01.2007 was pleased to stay execution and
operation of the impugned order only to the extent clarifying
that respondent workman shall be entitled to withdraw the
amount deposited in the trial Court on the basis of 28%
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disability. So far as rest of the amount was concerned, it was
directed to be invested in the Fixed Deposit in any
nationalized Bank initially for a period of three years and in
case if the appeal is not decided, it was directed to be
renewed from time to time. The respondent employee was
permitted to withdraw the periodical interest which may
accrue on such deposit from time to time.
4. Learned advocate for Mr. Sachin Vasavada has appeared
on behalf of the appellant and Mr. Yogen Pandya, learned
advocate has appeared on behalf of respondent workman.
5. At the outset, learned advocate Mr. Vasavada for the
appellant Corporation by inviting attention of this Court to the
aforesaid facts has vehemently submitted that on perusal of
the impugned judgment of the ESI Court rendered in Second
Appeal no cogent and convincing reasons have been assigned
to arrive at a conclusion for enhancing percentage of
disability as assessed by the Medical Board and the Medial
Tribunal from 28% to 40%. According to learned advocate, the
reasons assigned by the ESI Court are purely on conjectures
and surmises based without taking into consideration in
evidence. He has also submitted that even if ESI Court was of
the view to enhance the percentage of disability from 28% to
40% at the most ESI Court ought to have remanded the
matter back to the Tribunal to give detailed reasons while
confirming the opinion of the Medical Board of assessing 28%
of disability of respondent employees. By making aforesaid
submissions, learned advocate has placed reliance upon the
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order dated 28.08.2023 passed by the Coordinate Bench in
First Appeal No.4076 of 2021. According to learned advocate,
in similar set of facts, the Court having noticed absence of any
cogent and convincing reasons for enhancing percentage of
disability of the ESI Court, the matter was remitted back for
fresh consideration, after affording opportunity of hearing to
the parties for deciding in accordance with law. He has
therefore, prayed to quash and set aside the judgment and
order passed by the ESI Court to remit back the matter to the
ESI Court. The reliance was also placed on the order dated
25.11.2013 passed by this Court in First Appeal No.1957 of
2005 and allied matters, whereby, the Court had quashed and
set aside the order passed by the ESI Court enhancing the
partial permanent functional disability from 18% to 20% on
the ground that ESI Court in absence of evidence could not
have enhanced the partial permanent disablement. The
aforesaid ground was treated as substantial question of law
questioning the very authority or jurisdiction of the ESI Court
for the reasons recorded therein. Reliance was placed on oral
judgment dated 31.1.2014 passed in First Appeal No.2641 of
2003 passed by this Court, whereby This Court had observed
that in absence of any evidence being brought on record and
the Courts in asbence of medical expertise had wrongly
enhanced the disability. Apart from the aforesaid decision,
learned advocate has placed reliance upon the judgment of
the Hon'ble Supreme Court in the case of Union of India
and Others vs. Jujhar Singh reported in (2011) 7 SCC
735, it was pointed out that in the instant case, the Medical
Board which is considered as specialized authority composed
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of expert medical doctors and final authority to give
information regarding attributability and aggravation of
disability to military service and condition of service resulting
in disablement of individual, specifically recorded a finding
that disability suffered by respondent was neither attributable
to nor aggravated by military service, the order of the learned
Single Judge of the High Court as well as of the Hon'ble
Division Bench was set aside by holding that the respondent
workman was entitled to "full normal pension" which he is
getting as per Regulation and was not entitled to "disability
pension". Lastly, learned advocate has placed reliance upon
the judgment of the Hon'ble Supreme Court in the case of
National Insurance Company Limited vs. Mubasir
Ahmed and Another reported in AIR 2007 SC 1208,
whereby, the Hon'ble Supreme Court had set aside the order
of the High Court enhancing the disability by considering loss
of earning capacity as 100%. The Hon'ble Supreme Court held
that Medical Expert had taken note of the relevant factors
relating to loss of earning capacity whereas on the other hand
High Court without indicating any reasons or bases has held
that there was 100% loss of earning capacity and therefore,
such conclusion drawn by the High Court was found not
sustainable. By referring to the aforesaid authorities, learned
advocate has urged this Court to quash and set aside the
impugned judgment and award enhancing disability of the
respondent employee.
6. Mr. Pandya, learned advocate for the respondent
Employee has placed reliance upon the findings and reasons
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assigned by the ESI Court. According to him, the ESI Court
has taken into consideration the medical case papers, more
particularly, the audiogram report which suggest that the
respondent employee has developed permanent disability of
100% loss of left ear. It was further submitted that such
medical condition is treated as severe Sensorinearal loss. It
was also pointed out that such kind of injuries is defined
under the category of schedule injury under the ESI Act. He
has therefore, submitted that the judgment relied upon by the
learned advocate for the appellant shall not be applicable in
the facts of the case inasmuch as after considering the
medical case papers and upon evaluation of the opinion
formed by the Medical Board and the Tribunal, the ESI Court
has arrived at a conclusion that the case of enhancement of
the disability to the extent of 40% is made out. He has
therefore, urged this Court to not to entertain the present
appeal in absence of any substantial question of law being
raised by the appellant Corporation and has urged this Court
to issue appropriate direction with regard to release of the
amount lying in Fixed Deposit pending this Appeal.
7. Heard the learned advocates for the respective parties
and considered their submissions in light of the legal
principles as laid down in the various decisions relied upon by
the learned advocate for the appellant. It is an undisputed fact
that the respondent employee has sustained injuries on the
backside of his head because of the accident which occurred
on 12.04.2003 while he was in his night duty at the
establishment. The respondent employee has thus sustained
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injuries during the course of his employment. It is also an
undisputed fact that though the respondent has resumed his
duty and has started his work in efficient manner, however he
had developed deafness in his left ear. He has therefore,
approached the Medical Board complaining about his
deafness. It is also an undisputed fact that the Medical Board
which consists of team of medical officers who are expert in
their fields, have examined him and his hearing capacity and
had arrived at a conclusion that respondent employee has
sustained permanent disability. The respondent employee was
re-examined whereby the medical board has enhanced the
disability from 10% to 28%. The aforesaid opinion of the
Medical Board was based on the evaluation of medical case
papers which was further approved by the Medical Appellate
Tribunal. The aforesaid orders have not been challenged by
the Corporation at relevant stage. Thus, the fact that the
respondent employee has sustained permanent disability to
the extent of 28% is not controverted.
8. Even otherwise, as rightly pointed out by learned
advocate for the respondent employee the aforesaid disability
falls in the category of schedule injury as provided under
schedule II of the ESI Court. The core contention advanced by
the appellant Corporation disputing the assessment of
disability by the ESI Court from 28% to 40%, is on the ground
that no cogent material or evidence has been taken into
consideration by the ESI Court and without assigning any
reasons the conclusion is erroneously drawn enhancing
percentage of disability from 28% to 40%. This contention of
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the learned advocate for the appellant Corporation has led me
to closely examine the findings and reasons assigned by the
ESI Court in the impugned judgment and order. From the
impugned order, it has clearly transpired that the ESI Court
after, taking note of the undisputed facts as recorded by this
Court, has taken into consideration the documentary evidence
produced by the appellant Corporation at Exh.8 in the appeal,
more particularly, audiogram report dated 12.11.2001
produced at mark 8/1. Audiogram report dated 12.111.2001
indicates that there is complete loss of hearing of right ear
whereas in left ear there is severe Sensorineural loss,
however the Medical Board has assessed disability without
giving any valid reason as 28% as a body as whole. In the
report, the opinion is formed that the respondent employee
has sustained total loss of hearing of his left ear which is
considered as a medical condition viz. severe Sensorineural
loss and has assessed 28% disability accordingly. Thus, the
ESI Court has upon evaluation of aforesaid report has
recorded finding that the respondent employee has completely
loss hearing of his right ear. The ESI Court has further
noticed that under Schedule II of the Act, at item no.6,
complete deafness is treated as 100% loss of hearing capacity.
At one stage, even the medical board has noted that such kind
of disability results into 100% loss of hearing capacity.
Considering the fact that the respondent employee has loss
hearing of his left ear has assessed 50% permanent disability,
which is finally considered 40% disability. The ESI Court has
therefore, concluded that both the Medical Board as well as
the Medical Appellate Tribunal have failed to appreciate the
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B-I.1(A) form in its right perspective and has committed error
in assessing 28% disability as against the disability sustained.
9. Noticing the aforesaid findings and reasons assigned by
the learned ESI Court, in the opinion of the Court, the
documentary evidence, more particularly, audiogram report
has appeal to the ESI Court in light of the injury as defined
under Schedule II having. Thus, valid findings and reasons
have been assigned by the ESI Court by assessing the
disability to the extent of 40%. Looking to the scope of the
present appeal preferred under Section 82 of the ESI Act,
1948 which is circumscribed only to the extent of substantial
question of law being raised, I have examine the impugned
judgment and order in light of the substantial question of law
as proposed by the appellant Corporation. In my view, this
Court does not find any illegality in the order of ESI Court as
the same is based on evidence on record and on the medial
report. Even otherwise, no substantial question arises for
consideration as the ESI Court has acted within its jurisdiction
conferred under sub-section (2) of Section 54 A read with sub-
section 2(A) of Section 75 of the ESI Act.
10. For the reasons stated above, when this Court is
convinced that valid and cogent reasons has been assigned by
the ESI Court, the decisions relied upon by the learned
advocate for the appellant would not be applicable in the facts
of the case.
11. For the foregoing reasons, the impugned judgment and
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order passed by the ESI Court does not call for any
interference. Hence, present appeal fails. Registry is directed
to send back the record and proceedings to the concerned
Court forthwith.
12. With regard to prayer made by the learned advocate for
the respondent employees, the ESI Court is directed to
forthwith release the amount lying in the fixed deposit
receipts in favour of respondent employee after due
verification preferably within a period of four weeks from the
date of receipt of the copy of the present order. With these
observations, present First Appeal stands dismissed.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
