Employees'' State Insurance Corporation vs Hasmukhbhai Motilal Parmar and Another

G.R. Udhwani, J.—These appeals are preferred under Sec. 82(2) of the Employees'' State Insurance Act, 1948 (for short ''the Act'') according to which the appeal is entertainable only if the substantial question of law crops up. As they raise common ground, by consent of the parties, common judgment is delivered. The appellant in each of the case is aggrieved by judgment and order dated 26-4-2005 passed by Employees'' State Insurance Court (for short ''E.S.I. Court'') enhancing the partial permanent functional disablement of the respondents'' right eye which received accidental injury, while on duty, from 10% to 20% in E.S.I. Second Appeal Nos. 1 and 2 of 2004 respectively.

Learned Counsel for the appellant, while heavily relying upon Entry 32-A in the Second Schedule read with Sec. 2(15A) of the Act, contended that once the deeming fiction of 10% partial permanent functional disablement was provided in the Schedule, the Courts or authorities functioning under the Act had no jurisdiction to award anything more than the rate so provided. It was also contended that without any evidence, E.S.I. Court raised the percentage to 20. In the submission of the learned Counsel, at the most E.S.I. Court could have remanded the matter for reconsideration and evaluation of the evidence.

As against that, the learned Counsel for the respondents would support the impugned judgment and order.

Having considered the arguments advanced and the legal provisions, both the contentions of the learned Counsel are misconceived. As to first contention, the definition in Sec. 2(15A) which has been pressed into service reads as under:

2(15A) "Permanent partial disablement" means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:

Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in "permanent partial disablement".

As is evident, permanent partial disablement means reduction of the earning capacity of an employee. Therefore, to establish the case of permanent partial disablement, the evidence showing reduction of the earning capacity has to be tendered. On the basis of such an evidence, the Courts under the Act are competent to make awards. The proviso to the said sub-section is merely a deeming fiction dispensing with the evidence of loss of earning capacity on proof of nature of injuries specified in Part-II of the Second Schedule to the Act. That would not disentitle the claimant to the benefit more than specified in Part-II of the Second Schedule on tendering of the proof justifying such higher claim. The interpretation of Sec. 2(15A) of the Act, as canvassed by the learned Counsel for the appellant, if accepted, would make rest part of the sub-section, except proviso, redundant. In other words, only proviso would be effective and will apply in all cases irrespective of the proof of reduction of earning capacity. That could not have been legislative intent.

Secondly, the E.S.I. Court rightly found the absence of the evidence with the M.A.T. (Medical Appellate Tribunal) justifying reduction of the partial permanent functional disablement from 18% to 10%, as assessed by a Medical Board consisting of experts. True it is that, given the material, M.A.T. can set right the wrong committed by Medical Board, it also being a Body consisting of medical experts. However, in absence of the proof establishing reduction in the earning capacity of the respondent on account of injury sustained otherwise than the course of employment, preceding the injury sustained during the course of employment, it was not permissible for M.A.T. to scale down earning capacity to the extent of 10%. Such an approach of M.A.T. was rightly found as illegal by E.S.I. Court.

At the same time, however, E.S.I. Court in absence of evidence, could not have enhanced the partial permanent functional disablement to 20% instead of 18% assessed by medical experts. To that extent, the impugned judgment and order is required to be corrected, inasmuch as in absence of evidence, it can be said that the substantial question of law questioning authority or jurisdiction of E.S.I. Court as discussed herein is involved.

Consequently, the appeals partly succeed. The assessment as made by Medical Board is confirmed. The appellant shall accordingly make the payment to the respondents. There shall be no order as to costs. Interim relief shall stand vacated.