First Appeal No. 4872 of 1995. Case: Employees State Insurance Corporation Vs Rameshbhai Becharbhai Nai. Gujarat High Court

Case Number:First Appeal No. 4872 of 1995
Party Name:Employees State Insurance Corporation Vs Rameshbhai Becharbhai Nai
Counsel:For Appellant: Hina Desai, Advocate and For Respondents: Asha H. Gupta, Advocate
Judges:Rajesh H. Shukla, J.
Issue:Employees' State Insurance Act, 1948 - Sections 82, 82(2)
Judgement Date:March 23, 2017
Court:Gujarat High Court
 
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Judgment:

Rajesh H. Shukla, J.

  1. The present first appeal is filed by the appellant Employees State Insurance Corporation, Ahmedabad, under sec. 82 of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') challenging the impugned judgment and order in First Appeal No. 13/94 by the ESI Court dated 9.12.1994 allowing the appeal filed by the respondent workman.

  2. The facts of the case as narrated, briefly summarized, are as follows:

    "2.1 The respondent suffered employment injury on 22.1.1992. The Medical Board after examining the respondent workman observed that there was permanent disability to the extent of 6%. The Medical Board opined that there was stiffness of the right forearm, wrist and the fingers and therefore it resulted in permanent disability to the extent of 6%. The appellant preferred first appeal before the appellate court contending that it was final disability and he was unable to perform his day to day activities. It was contended that the disability should be considered to be permanent disability as per Item 10 in Sch. 2 of the ESI Act. The ESI Court on the basis of material and evidence allowed the appeal holding the disability upto the tune of 60% as it has affected his earning capacity. It is in these circumstances the present appellant ESI Corporation preferred the present appeal under sec. 82 of the ESI Act."

  3. Heard learned advocate Ms. Hina Desai for the appellant Corporation and learned advocate Ms. Asha Gupta for the respondent workman.

  4. Learned advocate Ms. Desai submitted that there is no evidence that the respondent was out of job or his earning capacity has been affected or reduced. Therefore, she submitted that the ESI Corporation has assessed the disability to the tune of 60% which is only a guess work. It was strenuously submitted that there is no evidence of loss of earning capacity and as the respondent had recovered and there was mere stiffness it could not lead to disability. It was submitted that assuming that there was disability, the Medical Board having given the expert opinion for disability to the extent of 6% which has been raised by the ESI Court to the extent of 60% is not plausible. It was submitted that such an assessment or enhancement of disability without any evidence is only a conjuncture and surmise and therefore the present appeal may be allowed.

  5. Learned advocate Ms. Gupta referred to the papers including the paper-book and submitted that it cannot be...

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