REGIONAL DIRECTOR Vs. ARUNKUMAR BRAHMDEV

JUDGEMENT

(1.) THE ESI Court has filed this first appeal under Section 82(2) of the ESI Act, 1948 by which the Corporation has challenged the judgment and order passed of the ESI Court, Ahmedabad dated 28.10.2005 by which the ESI Court has allowed the appeal preferred by the respondent and set aside the order of the Medical Appellate Tribunal by which the Medical Tribunal assessed the disability of the deceased at 55%. The ESI Court had modified the same and fixed the disability at 60% considering the injury to be falling at item No.10 in Part -II of Second Schedule.

(2.) IT is not in dispute that the concerned workman while in employment received employment injury with the result that four fingers of his left hand were cut off and he sustained fracture also. The Medical Board assessed the permanent disability at 42% but the Medical Appellate Tribunal assessed the same at 55%. Since it is not in dispute that the employee received the injury during the course of employment, the only question which is required to be considered is only whether the ESI Court is justified in substituting the same with 60% disability. The present appeal is filed on the said limited ground only.

(3.) LEARNED advocate for the appellant, Mr H.S.Shah, submitted that the ESI Court could not have interfered with the order of the Medical Appellate Tribunal by assessing the disability of the injured workman at 60% instead of 55%. In this connection, he has relied upon the decision of the learned Single Single of this Court in the case of Mohamed Abdulla v. Employees' State Insurance Corporation, 1984 LAB I.C. 1773 wherein the learned Single Judge has held that if the finding of the Medical Board and the Medical Appeal Tribunal are not satisfactory and rationally based, he should on his own accord remand the matter for further elucidation. Mr Shah has also relied upon the observations of the learned Single Judge of this Court in First Appeal No.2660 of 1996 wherein the learned Single Judge has made some incidental observations in paragraph 6 of the order that the ESI Court, on the facts and evidence on record, could not have raised the extent of disability on mere ipsi dixit when there was an expert medical finding recorded by the Medical Appellate Tribunal. So far as the facts of the present case are concerned, it is required to be noted that it is not in dispute that four fingers of the left hand of the employee were cut off in the accident. The ESI Court has found that even the Medical Board found in paragraph 5 of its order regarding the injury as under: -