Gujarat High Court
Regional Director vs Minbahadur Tejbahadur on 11 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1772 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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REGIONAL DIRECTOR
Versus
MINBAHADUR TEJBAHADUR
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Appearance:
MR.KRUTARTH K PANDYA(7092) for the Appellant(s) No. 1
MR AJAY L PANDAV(3660) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 11/11/2025
ORAL JUDGMENT
1. This Appeal is filed under Section 82(2) of
the Employees' State Insurance Act, 1948 challenging
the judgment and order dated 19.01.2007 passed by
Employees' State Insurance Court, Ahmedabad in E.S.I.
(IInd) Appeal No.7 of 2005.
2. Heard learned advocate Mr.K.K.Pandya for
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the appellant - original respondent. Learned advocate
for respondent remained absent.
3. Brief facts are as under:-
3.1 The present respondent original appellant
before the learned Employees' State Insurance Court
had challenged the decision of the Medical Appeal
Tribunal dated 10.02.2005 in Appeal No.63 of 2004,
whereby the decision of the Medical Board assessing
disability at 26% was affirmed by learned Medical
Appeal Tribunal.
3.2 It is the case of original applicant -
respondent herein that, during the course employment,
he sustained injuries to the index, middle and ring
finger of his left hand. After examining him, the
Medical Board assessed his disability at 26%.
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3.3 Respondent appeared and filed Written
Statement at Ex.7 and denied the claim of appellant.
After considering the evidence on record, learned
Employees' State Insurance Court set aside the
assessment of disability of appellant at 26% and
assessed disability of appellant at 29%.
3.4 Being aggrieved and dissatisfied with the said
decision, present appellant - original respondent has
filed present First Appeal.
4. Learned advocate for appellant contended
that the claimant, who sustained injuries during the
employment, was referred to the Medical Board. The
Board after examining the claimant, assessed the
disability at 26%. The Medical Board observed that the
injury is a Schedule injury and by considering
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Schedule II, Part II of the Employees' State Insurance
Act, opined that the claimant had suffered 9%
disability to the left hand index of one phalanx, 12%
to the middle finger, and 5% to the ring finger of one
phalanx. Thus, the Medical Board assessed the total
disability at 26% which was affirmed by learned
Medical Appeal Tribunal.
4.1 It is further contended that the learned
Tribunal has observed that there is no functional loss
sustained to the injured. The Medical Appeal Tribunal,
after examining the appellant, also found that there is
no functional loss and consequently affirmed the
disability assessed by the Medical Board. However, the
learned Employees' State Insurance Court, not being
consisting of Medical Team, disturbed the finding of
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Medical Board and Medical Appeal Tribunal and
increased disability from 26% to 29%. It is contended
that it is not within the function of learned Employees'
State Insurance Court to interfere in the finding of
Medical experts, who had examined the injured. The
learned Employees' State Insurance Court has also
misread II Schedule, Part II of the Act.
4.2. Learned advocate for the appellant has
proposed the following substantial question of law for
consideration.
"Whether ESI Court has passed legal and justified
order by contradicting the order passed by the
Medical Appeal Tribunal by assessing the disability
of the respondent at 26% and by reversing and not
upholding the assessment given by the expert
Medical Board at 9%."
4.3 It is further contended that, in the substantial
question of law, due to typographical error, the
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disability percentage assessed by the Medical Board
has been mentioned as 9%, whereas, in fact, the
Medical Board had assessed the disability at 26%.
4.3 In support of his submissions, learned
advocate for the appellant has placed reliance upon the
following decisions:-
(i) Ram Awadh Vs. Employees State Insurance
reported in 1995 ACJ 996 dated 16.11.1994 passed
by Allahabad High Court;
(ii) Kiran Tulsibhai Vs. Regional Director E.S.I.
Corporation passed by this Court in First Appeal
No.3644 of 2018 on 09.10.2018.
4.4 By relying upon the aforesaid two decisions,
it is submitted by learned advocate for the appellant
that when the injury is a Schedule injury and the
Medical Board as well as the Medical Appeal Tribunal,
consisting of a team of medical experts, have assessed
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the disability, should not be disturbed by learned
Employees' State Insurance Court as the learned
Employees' State Insurance Court had no occasion to
examine the injured.
5. I have considered the submissions and
perused record and proceedings. It appears that the
challenge in the present appeal is limited to increase in
the assessment of disability from 26% to 29%. The
respondent herein admittedly, suffered injuries during
the course of employment. It is also an admitted fact
that the respondent sustained injuries to the index,
middle and right fingers of the left hand. Due to the
said injuries, the index finger of left hand is amputated
from the first phalanx and second phalanx had suffered
fracture. The whole middle finger is amputated and the
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ring finger is also amputated.
It appears from the submissions canvassed by
learned advocate for the appellant that there is no
dispute regarding assessment of 12% disability in
respect of the middle finger. The only question for
consideration is for assessment of disability of the
index finger and ring finger of left hand. As per
Second Schedule, Part II of the Act, the assessment of
disablement of index finger of one phalanx is assessed
at 9%, whereas in the cases of two phalanx, disability
is assessed at 11%. So far as ring finger is concerned,
disability is assessed at 5% for one phalanx and 6% for
two phalanx.
6. In the present case, it appears that the
appellant has not placed on record the decision of
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Medical Board, though the decision of learned Medical
Appeal Tribunal is placed on record by way of paper
book. On perusal of the order of learned Medical
Appeal Tribunal, it is observed that the physical
examination of the appellant was carried out by
medical assessors; however no examination report of
employee is placed on record. There is no discussion
with regard to functional loss sustained by appellant.
The learned Employees' State Insurance Court had
occasioned to consider Form No.7. However, no such
Form No.7 is placed on record of this Court. The
learned Employees' State Insurance Court has observed
that, in Form No.7, there were no notes or calculations
recorded to justify the assessment of disability at 26%
and all columns of Form No.7 are blank. The Medical
Board has also opined that there is stiffness PIP joint
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which has been affirmed by learned Medical Appeal
Tribunal. It is the case of respondent herein that he is
suffering from stiffness in injured fingers. Therefore,
appellant as well as respondent are on the same page
with regard to the stiffness sustained the respondents.
6. The substantial question of law which has
been formulated by appellant is nothing but an attempt
to reassess the evidence on fact. The assessment of
disability is on the basis of evidence produced on
record. The decision which has been relied upon by
learned advocate for the appellant in the case of Ram
Awadh (supra), the Medical Appeal Tribunal gave
adequate valid reasons for accepting the report
submitted by doctor in preference to the opinion of
Medical Board and there was evidence in the form of
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opinion of medical experts and considering the opinion
of medical experts which was placed on record the
assessment of disability was arrived at. The Medical
Appeal Tribunal determined the loss of earning
capacity on the basis of valid material placed on
record. In the present case, however, the Medical
Appeal Tribunal has not considered any aspect with
regard to the loss of earning capacity and has merely
recorded that the Tribunal has examined the injured
and affirmed the assessment of disability. The
examination report of respondent herein by the team of
experts is not placed on record, and therefore, in
absence of any material evidence, learned Employees'
State Insurance Court, in the present case, has rightly
increased the assessment by considering II Schedule,
Part II of the Act. In my view, therefore, the decision
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in the case of Ram Awadh (supra) is not helpful to the
appellant. In the case of Kiran Tulsibhai (supra), the fact
on which the disability was increased from 3% to 5%
are not found. The Co-ordinate Bench of this Court in
the decision held that once there is an expert's opinion
with regard to the extent of disability, the Court
ordinarily should not interfere unless the decision
arrived at by the Board as well as by the Appellate
Board is found to be absolutely erroneous in law.
In the present case the findings of Medical Appeal
Tribunal are erroneous to the extent that there is no
finding on functional loss. Further, no evidence in the
form of report is placed on record. Therefore, the said
decision is not helpful to the appellant.
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7. As observed above, in Form No.7, all
columns pertaining to assessment of disability were left
blank. Therefore, it appears that the learned Tribunal
failed to appreciate the lacuna in Form No.7.
8. Considering the aforesaid facts, appellant has
failed to point out any contrary material whereby this
Court can entertain the First Appeal and disturb the
findings of fact. In the totality of facts, I am of the
view that there is no question of law, much less,
substantial questions of law, involved in the present
First Appeal.
9. In light of the above discussions, present First
Appeal lacks merit and deserves dismissal. Accordingly,
the same is dismissed. No order as to costs.
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10. Record and proceedings, if any, be
transmitted back to the concerned learned Court
forthwith.
(D. M. DESAI,J)
MANOJ
