REGIONAL DIRECTOR Vs. PARMAR KAMLESHBHAI CHIMANLAL

JUDGEMENT

(1.) The present appeal is filed by the appellant ESI Corporation under Sec. 82 of the employee State insurance Corporation act, 1948, challenging the judgement and order dated 12th of April 2024 passed by the employee state insurance got Ahmedabad in ESI Second Appeal No. 48 of 2023, by which the Learned Judge, ESI court has rejected the second appeal of the appellant Corporation and has thereby confirmed the assessment and order of Medical Appellate Tribunal assessing the permanent disability of the respondent at 7%.

(2.) It was the case of the respondent workman before the tribunal that :

(3.) I have heard learned advocate Ms. Dimple A. Thaker, who has appeared for the applicant insurance Corporation. At the outset, the learned advocate has invited my attention to the impugned judgement and order passed by the learned Judge ESI Court. Learned advocate for the appellant. Corporation has contended that the appellate tribunal failed to appreciate that the medical board consist of medical experts, including an orthopedic surgeon who had examined the respondent workman and noticing no physical injury marks as well as disability, the board has rightly arrived at assessment of 0% disability. She had therefore submitted that in absence of any functional or permanent disability sustained by the respondent workman, the tribunal in the second appeal should not have interfered with the assessment. She had further pointed out that the medical board had noted in detail about the lower limbs of the respondent workman And found that the workman had normal mobility component and normal stability component with regard to the three joints of the limb, which includes hip, knee, and ankle joints. She had further pointed out that even the range of movement and strength of muscles of each lower joint was found to be normal. The medical board, after examining the respondent workman in detail had also arrived at the conclusion that the fracture had healed without any complications. The reliance was placed on the definition of the term permanent partial disablement provided under para 15 A of Sec. 2A of ESI Act, 1948. According to her, a person is said to have suffered permanent partial disablement only when such disablement is of a permanent nature and reduces the earning capacity of an employee in his employment, more particularly the nature of work he was expected to undertake at the time of the accident. She had therefore submitted that Looking to the facts that specific finding was given by the medical board about the fracture being healed without any complications, the tribunal committed serious error in arriving at a conclusion that the workman had suffered permanent partial disablement. The attention of this court was invited to the relevant provisions and the schedule appended to the Act of 1948 to contend that where the legislation has provided assessment of injuries under the schedule appended under the Act, the Appellate tribunal as well ESI court ought not to have treated a healed fracture which is a non scheduled injury for the purpose of compensation. Even otherwise, according to the learned advocate no evidence has been brought on record to suggest that there was financial loss being sustained.