REGIONAL DIRECTOR Vs. RADHA KRISHNA

JUDGEMENT

(1.) The present First Appeal has been filed by the appellant-Regional Director, Employees State Insurance (original respondent) being aggrieved with the impugned judgment and order passed by the ESI Court in E.S.I. Second Appeal No.05/2011 dated 11.04.2012 quashing and setting aside the order of the Medical Tribunal assessing permanent disability at Zero percent (0%) and instead of, it has accepted 10% for the purpose of compensation.

(2.) Heard learned counsel, Shri Shashikant Gade for the appellant.

(3.) Learned counsel, Shri Gade has referred to the record of ESI Second Appeal, which has been called for from the ESI Court and submitted that as observed by the Medical Appellate Tribunal in Appeal (MAT) NO.54/2006, the finding has been given that there was no functional loss sustained by the applicant and, therefore, the Medical Appellate Tribunal has confirmed the assessment of the Medical Assessor regarding the injury on the right eye sustained by the applicant. However, learned counsel, Shri Gade submitted that the Court below has failed to consider this aspect. He pointedly referred to the written statement filed by the appellant in Second Appeal No.5/2011 filed by the applicant before the ESI Court. Learned counsel, Shri Gade submitted that two medical authorities i.e. the Medical Board and Medical Appeal Tribunal examined the applicant and awarded Zero percent (0%) disability holding that there is no functional loss. Therefore, learned counsel, Shri Gade submitted that the opinion of the expert could not have been set aside by the ESI Court as two expert bodies have after examining the applicant assessed the disability at Zero percent (0%) that there is no functional loss, which could not have been disturbed by the ESI Court without any basis. He referred to the provisions of Section 54 of the Employees State Insurance Act, 1948, which provides for determination of question of disablement. He also referred to Section 55 of the said Act, which provides Review of decisions by medical board or medical appeal tribunal. Therefore he submitted that ESI Court had no jurisdiction to reverse the finding and come to a conclusion about the disability contrary to the opinion of two medical authorities i.e. Medical Board and Medical Appeal Tribunal, which is an expert body for the purpose of assessment of such disability.