M. Krishna Dikshitulu vs The Medical Appeal Tribunal and Others

B.K. Somasekhara, J.—The order of the Employees Insurance Court, Hyderabad in E.I.A. No. 5/88 dated 30-9-1989 is challenged. The appellant is the claimant before the second respondent Medical Board, ESI Hospital, Visakhapatnarn. It was pleaded by the claimant before the second respondent that while on duty he suffered an accident on 10-1-1987 and as a result of which he sustained injuries on the five fingers of left hand and that he had suffered loss of 80% of earning capacity. The matter was considered by the Medical Board which assessed it at 5%. In the appeal before the Medical Appeal Tribunal the loss of earning capacity had been enhanced to 11 %. The learned Presiding Officer of the ESI Court based on the testimony of appellant and the Schedule II in the Employees State Insurance Act came to the conclusion that with the materials on record, the percentage of loss of earning capacity could not be fixed at the percentage more than what was decided by the Medical Appeal Tribunal.

The learned Advocate for the appellant has contended that having due regard to the nature of the injuries and the disability suffered by the appellant the loss of earning capacity ought to be cent per cent although 80% was claimed since the claimant had to perform his functions by employing the two hands and due to the loss of utility of left limb due to the injuries and the disability, he will be totally out of employment. It is also his contention that neither the Medical Board nor the Medical Appeal Tribunal nor the ESI Court considered this question nor gave a finding.

The learned Advocate for the respondent contends that in the nature of the materials on record produced by the appellant himself and in the absence of any other materials, the Tribunal or the E.S.I. Court could not have taken any opinion in the matter.

On going through the reports of the Medical Board and the decision of the Medical Appeal Tribunal and also the impugned order, this Court is of the firm view that just compensation is not rendered to the appellant. The report of the Medical Board reads as follows:

"There is a scar over the dersum of the left hand extending obliquely over the metacarpal bones limitation of flexion of all the four fingers."

The diagnosis based on that recorded thus:

"Healed fracture of the metacarpal bones of the left hand with stiffness of the metacarpal phalangeal joints and limitation of flexion."

It was also opined by the Medical Board that such a condition was in the nature of permanent disablement but still the loss of earning capacity was fixed a 15% which was enhanced to 11% by the Medical Appeal Tribunal. The reference to schedules of the E.S.I. Act or elsewhere will not actually provide the loss of percentage of the earning capacity unless the medical experts enter the witness box and support their findings with the authorities in the field. If the E.S.I. Court felt difficulty in examining correctness of such a finding it was possible to refer to any other authority of the experts in the field. If the question whether such a disability in the percentage was sufficient or not sufficient to disable the appellant to perform the particular function which he was performing at the relevant time was neither considered nor decided. There is an Academy of Orthopaedic Surgeons called "American Academy of Orthopaedic Surgeons" in Chicago, Illinois, U.S.A. They have issued a Manual for Orthopaedic Surgeons in evaluating permanent physical impairment which is normally being used by the Orthopaedic Surgeons and experts. After having considered the expertise in the field, the Academy has assessed permanent physical impairments and their physical loss of function, however approximately, as each case has to be determined on its own facts. In regard to the disability to the fingers, Item No. 11(A) of the Manual assesses the percentage of physical impairment and loss of physical function to individual finger ranging from 25% up to 100%. Particularly for total Ankylosis, loss of flexion, mal-position etc., the percentage of loss of impairment ranges from 25%, 35% and up to 100% (pp 16-17 of the Manual). The order of the E.S.I. Court suffers from the lacuna as above in not fixing disability and the impairment by independently examining the report of the Medical Board inasmuch as the appellate authority of the Medical Board. It is also possible that the appellant had no opportunity to produce his own material. In that situation it was necessary for the E.S.I. Court to examine the doctors who recorded the report so as to fix the percentage of disability. However, this Court cannot give any relief in this appeal. Thus the matter should go back for reconsideration. The appeal is allowed. The order of the E.S.I. Court is set aside and the matter is remitted back to the E.S.I. Court for disposal afresh in accordance with law in the light of the observations made above after giving opportunity to the parties to adduce evidence if any. Before rendering the final decision the E.S.I. Court shall particularly examine the doctors who have rendered the medical report and fixed the percentage of disablement of the claimant. The matter being an old one requires to be expedited, if possible, it shall be disposed of within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.