E.S.I. Corporation vs Dhanni Bai and Another

V.D. Gyani, J.—This appeal u/s 82 of the Employees'' State Insurance Act, 1948 (hereinafter referred to as ''the Act'') is preferred against the order dated 30.1.1978; passed by the E.S.I. Court, Ujjain, in E.S.I. Case No. 3 of 1977.

The brief facts are that the Respondent Dhanni Bai was serving in the Bharat Commerce and Industries, Birlagram, Nagda and her registration number was 18/559074. On 15.9.1975 she met with an injury during the course of her employment and as a result of the injury she could not perform the same amount of work which she had been performing prior to the injury. She was examined by the Medical Board. The Appellant denied her claim and the Insurance Court on trial assessed the disablement at 9% and directed payment of benefit in accordance there to. It is against this order that the E.S.I. Corporation has come up in appeal before this Court.

Mr. Bahel, learned Counsel appearing for the Appellant formulated and submitted the following substantial question of law, which according to him arises in this appeal:

Whether the Insurance Court was right in ignoring the decision of the experts of Medical Board in proceeding u/s 75 of the Act.

It is contended by the learned Counsel that as no appeal was ever preferred to the Insurance Court against the decision of the Medical Board, the Board''s decision became final in view of Section 75(2A) of the Act. Learned Counsel was specifically asked whether this question was raised before the Insurance Court, he submitted that the question was not specifically raised before the Insurance Court. The perusal of the reply filed by the Insurance Corporation before the Insurance Court does not even remotely suggest that such a plea was raised before the Insurance Court. Learned Counsel with reference to paragraphs 5 and 6 of the written statement, submitted that the averments contained in these paragraphs imply and indicate that such a plea was raised before the Insurance Court. Paragraph 4 reads as follows:

It is stated that the case of the Applicant was referred to the Medical Board for examination and assessment of loss of earning capacity. Medical Board examined the Applicant thoroughly and carefully and held that there is no deformity or disability of the injured part hence no compensation. It is denied that the application has been filed within limitation, whereas the same is barred by limitation as the same should have been filed within three months from the date of communication of the decision of the Medical Board. The contents of grounds stated in sub-paras A, B and C are not admitted being incorrect.

A bare reading of this paragraph would show that by no stretch of imagination it can be inferred that it was contended before the Insurance Court that the decision of the Board became final in view of Section 75(2A) of the Act. Similarly, paragraph 6 of the return, which is reproduced herein below also does not suggest having been raised such plea by the Appellant:

Being formal needs no reply. It is denied that any cause of action was arisen to the Applicant for filing the present application as the decision of the Medical Board is legal, correct, proper and based on medical data.

Needless to say that a ground which has not been raised before the trial court cannot be allowed to be taken in an appeal, which lies only on substantial questions of law, particularly under the Employees'' State Insurance Act wherein it is sought to be raised against the employee. When the ground itself is not raised, it cannot be said that a substantial question of law arises out of the order passed by the Insurance Court. On this short ground alone, this appeal deserves to be dismissed. However, on further inquiry it comes to light that Section 75(2A) of the Act itself provides that when an appeal is preferred in terms of Sub-section (2) of Section 54A, which in the instant case has been in fact preferred, bar of Section 75(2A) does not operate. It is contended by the learned Counsel that the application purports to have been made u/s 75 of the Employees'' State Insurance Act. Wrong mention of a particular provision or section of law does not and should not be allowed to deny the relief to a person if on facts the relief can be granted. Section 54A(2) provides that if the insured person is not satisfied with the decision of the Medical Board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to the Medical Appeal Tribunal or the E.S.I. Court. This section reads as follows:

(2) If the insured person or the Corporation is not satisfied with the decision of the Medical Board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to

(i) the Medical Appeal Tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees'' Insurance Court, or

(ii) the Employees'' Insurance Court directly.

Simply because the application is captioned u/s 75 of the Act it cannot be said or reading the application as a whole, that it was not an appeal against the decision of the Medical Board. In such matters it is neither intended by law nor desirable to raise such hypertechnical pleas and what is more unfortunate to be regretted is that such pleas are advanced by a statutory body like the E.S.I. Corporation whose very existence is for the purpose of conferring certain benefits to the employee.

The record of the E.S.I. Court goes to show that even pleas regarding limitation have been raised by the E.S.I. Corporation before the Insurance Court so as to defeat the Respondent''s claim, even on such technical grounds. Suffice it to say that such pleas, even if available, should not be raised by such bodies like the Appellant while dealing with social security measure. The contention raised by the Appellant, therefore, fails not only in law but also on facts. It is palpably wrong to contend that no appeal was preferred against the decision of the Medical Board and therefore, the same became final.

Section 82 of the Employees'' State Insurance Act, 1948 is in pari materia with Section 100 of the CPC and even if the finding of the Insurance Court be an erroneous finding arrived at on facts based on miss-appreciation of evidence, it could not be said that any substantial question of law is involved in appeal from such finding. Where the Insurance Court on a consideration of the evidence on record arrived at a finding that the claimant was entitled to certain amount as benefit from the Corporation and this finding itself is based on appreciation of evidence, the finding cannot be legally challenged u/s 82(2), as it does not involve any question of law, not to speak of substantial question of law. As such, an appeal against such order of the Insurance Court is not maintainable. This Court had occasion to consider the similar matter and the order passed thereon has already been reported in E.S.I. Corporation, Indore v. Shantilal Nemichand Jain 1985 ACJ 590 (MP), the relevant parts thereof are extracted herein below, as they apply with equal force in the present appeal as well:

The Employees'' State Insurance Act, 1948 is a social security legislation and is required to be interpreted liberally for the benefit of the employees. It is a welfare legislation and should receive liberal construction to promote its objects, keeping in view the directive principles of Articles 41 and 42 of the Constitution of India... A paltry sum of a few hundred rupees, which may ultimately be liable to be altered, modified or curtailed on some meticulous mathematical precision or on hyper-technical view of the matter is neither intended by the legislature nor desirable for the High Court to entertain appeal u/s 82(2) of the Act.

Litigative attitude of the Corporation to defeat the just and honest claim of an employee and its approach in going against a small benefit awarded to an employee, deserves to be condemned.

A perusal of the order under appeal shows that the Insurance Court on proper appreciation of the evidence has come to a right conclusion, which cannot be assailed on any count.

For the reasons aforesaid, this appeal deserves to be dismissed and is accordingly dismissed with costs. Counsel''s fee Rs. 100/- if certified.