REGIONAL DIRECTOR, EMPLOYEES STATE Vs. NILESHKUMAR JASUBHAI

JUDGEMENT

(1.) THE present First Appeal has been filed by the appellant -Corporation (original opponent) being aggrieved and dissatisfied with the impugned judgment and order passed by the ESI Court in Second Appeal No.24/2009 dated 8.12.2011 assessing the disability at 40% on the grounds stated in the memo of Appeal contending inter alia that the lower court has erred in not considering the disability assessed by the penal doctors in Medical Appellate Tribunal, which is acceptable by corporation. It is also contended that if the decision was not acceptable then it has to remand to the Tribunal for reassessment but the Court has no jurisdiction to enhance the disability.

(2.) HEARD learned counsel, Mr. Hemant S. Shah for the Appellant -Corporation and learned counsel, Ms. Asha Gupta for the respondent.

(3.) LEARNED counsel, Mr. Hemant Shah has referred to the papers as well as details of evidence and submitted that the Medical Board had assessed to 10% and the appellate tribunal consisting of the medical doctors; has increased it to 18%. However, learned counsel, Mr. Shah submitted that ESI Court has assessed the disability at 40% without any basis or justification. He submitted that the medical evidence on assessment of the disability by the doctor or the tribunal would be justified and the Court cannot substitute its findings. He strenuously submitted that it ought to have been remanded to the Board or the Tribunal for reassessment. Learned counsel, Mr. Shah has also referred to and relied upon the judgment of this Court reported in case of Mohamed Abdulla v. Employees' State Insurance Corporation, Ahmedabad reported in 1986 ACJ 681 and submitted that as observed, the substantial question of law is involved in appreciation of evidence, which has not been properly appreciated. He, therefore, submitted that the present Appeal may be allowed and at the most, it may be remanded back for the assessment of the disability.