MUNSHIGIRI Vs. EMPLOYEES STATE INSURANCE CORPORATION

JUDGEMENT

(1.) The quantum of disablement benefit' determined payable to the Appellant under the Employees' State Insurance Act, 1948, (for short, 'the Act'), by the E.I. Court is challenged in this appeal. Counsel's submission shortly is that the law laid down by this Court in the decision rendered in the case of Factory Manager, J.C. Mills v. Employees' State Insurance Corporation 1987 Jab LJ 281, decides the fate of this appeal. This position is disputed by Respondent's counsel, Mr. Johri, but I am of the view that the submission of Mr. Aneja, Appellant's counsel, is not without merit.

(2.) However, few admitted facts first. The Appellant suffered 'employment injury' on 15.4.1977 while working in the Cimmco Steel Foundry, Gwalior. That he was under treatment for that injury from 16.4.1977 to 31.7.1977 and on that account he was prevented from attending to his duties are also admitted facts manifested by Exh. D-l. In part II of the said report of the Medical Board is recorded claimant's statement that after the accident, his right hand had become useless and he was not able to do anything with that hand. Part III of the report contains findings, opinion and recommendations of the Medical Board. In col. No. 5 are 'recommendations' and in Clause (1) the fact stated is that there was an 'appreciable disablement' of the claimant Clause (2) (b) unambiguously suggests that the disablement was declared to be of a permanent nature. In the remarks column (6) is stated "Operated for II head redius Rt. (Excession done). Analgesic of Rt. elbow with appreciable disablement and hence loss to earning capacity equal to 10 (ten) per cent.

(3.) In the E.I. Court, two doctors gave evidence. CW 2, Dr. K.V. Sharma, was a medical practitioner who had then twelve years' practice to his credit and indeed he was qualified as M.B.B.S. and M.D. He deposed of the operation referred in the Medical Board's report and stated that the movement in the elbow-joint of the Appellant remained negligible even after the operation. It is also in his evidence that the injury also affected his shoulder-joint as a result of which he was unable to lift his hand completely. His opinion was also that the claimant had suffered a permanent disability which was incurable. He categorically opined that the right hand of the claimant had become useless and it was as good as amputated. The witness examined by the Respondent (E.S.I. Corporation) is Dr. B.L. Jain. He deposed that he was Member of the Medical Board of E.S.I. Corporation besides being Reader in Surgery in JA Group of Hospitals. He deposed that when the claimant was examined by the Medical Board, he was also on the Board and he had examined the claimant. I have no doubt that the evidence of this witness, whatever worth it is, cannot be accepted without reservations inasmuch as he was naturally bound to support the view which he had already expressed. It is true that he has deposed to the extent that the shoulder-joint of the claimant had not been affected and that there was only 5 to 7 per cent loss in movement in the elbow-joint Indeed, he also deposed further that the claimant was able to lift his hand completely. Unfortunately in the report Exh. D-l signed by all the members of the Medical Board these facts being not mentioned and no record being proved by the witnesses for his findings, it is difficult to accept his opinion given in court on pure guesswork.