REGIONAL DIRECTOR Vs. YASHWANT PURSHOTTAM GOSWAMI

JUDGEMENT

(1.) THIS appeal is preferred by the appellant under section 82 of the Employees State Insurance Act, 1948 [hereinafter referred to as the ESI Act] against the judgment and order dated 30.08.2002 passed by ESI Court in Second Appeal No. 15 of 1999 whereby the appeal of the appellant was partly allowed and the assessment of disability was fixed at 30%. Aggrieved by the aforesaid judgment and order, the ESI Corporation has preferred the present appeal contending interalia that the judgment and order passed by the ESI Court is erroneous and not in accordance with the provisions of law.

(2.) LEARNED advocate for the appellant, Mr. Bhatt, submitted that initially the Medical Board assessed the disability at 10%. Aggrieved by the said decision, the workman preferred appeal before the Medical Appeal Tribunal at Ahmedabad by preferring Appeal (MAT) No. 14 of 1999 and the Medical Appeal Tribunal assessed the disability at 16%, which though on the higher side, the ESI Corporation accepted on humanitarian grounds. Mr. Bhatt submitted that the learned ESI Court ought to have held that the assessment of disability at 16% by the Medical Appeal Tribunal is just and proper and should not have increased the disability to 30%. He submitted that the assessment of disability at 30% is unjust as there is no loss of earning capacity.

(3.) AS against the aforesaid submissions, learned advocate Ms. Asha Gupta submitted that the assessment of disability of the workman to the extent of 16% is on the lower side. The workman had suffered fracture of Tibia and Fibula and encounter serious problems in performing his day to day work. The workman was employed as a Fitter and he is not able to perform his duties because of the fracture sustained by him. The trial Court ought to have held that the disability suffered by the workman has resulted into loss of earning capacity of the workman and, therefore, the disability has been rightly assessed by the ESI Court at 30% and no interference is required in the present appeal preferred by the ESI Corporation and the same is required to be dismissed.