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E.S.I versus AKHTAR

High Court of Judicature at Allahabad

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E.S.I v. Akhtar - FIRST APPEAL FROM ORDER No. - 2053 of 2002 [2007] RD-AH 14908 (3 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 1

A.F.R

First Appeal From Order No. 2053 of 2002

Employees State Insurance

Corporation ....Appellant-respondent

Vs.

Akhtar .... Respondent/appellant

****************

Hon. Pankaj Mithal,J.

Heard Sri P.K. Asthana, learned counsel for the appellant. No one has put in appearance on behalf of the claimant-respondent despite the service of notice being sufficient upon him.

The appeal is directed against the order of the Employees Insurance Court dated 29.4.1988 passed in appeal No. 65 of 1988 Akhtar Vs. Employees State Insurance Corporation, Kanpur.

The claimant respondent was an employee of the Elgin Mill. It is said that he suffered injury in his right knee while on duty on 29.6.1987. Admittedly, the said injury is non-schedule injury. The Medical Board disallowed the claim of the claimant-respondent vide order dated 16.12.1987. The said order was impugned in the appeal. The appellate court has allowed the appeal partly and has determined the loss of earning capacity of the claimant- respondent to the extent of 5%.

Learned counsel for the appellant has raised a substantial question of law as to whether the appellate court was justified in superseding the decision of the medical board without there being any evidence to substantiate the loss of earning capacity of the claimant respondent?.

I have perused the order of the Employees Insurance Court. The Employees Insurance court had allowed the appeal without discussing any evidence and has awarded 5% loss of earning capacity without there being any documentary evidence in support of the same. This has been done by the Employees Insurance court on his own accord and his personal observation of the right knee joint of the claimant respondent. The Employees Insurance court records that there is pain in the right knee of the claimant-respondent. In my opinion the pain in the knee can not be ascertained on mere observation of the knee. Moreover the opinion of the medical board which consists experts can not be over-ruled on mere personal observation without there being any evidence in support thereof. Admittedly there is no medical report of any private doctor or any certificate of medical expert certifying loss of earning capacity of the claimant-respondent on account of pain or injury in the right knee joint.

In view of the above, the impugned order of the EI court dated 29.4.1988 can not be sustained. The appeal is allowed. The order under appeal dated 29.4.1988 passed by EI court Kanpur in appeal No. 65/1988 Akhtar Vs. Employees State Insurance Corporation Kanpur is set aside. However it is made clear that any benefit which may have been given to the claimant-respondent shall not be recovered from him.

No order is passed as to costs.

3.9.2007

SKS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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