High Court of Judicature at Allahabad
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E.S.I.C. v. Shiv Moorat - FIRST APPEAL FROM ORDER No. - 2054 of 2002  RD-AH 14909 (3 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 1
First Appeal From Order No. 2054 of 2002
Employees State Insurance
Shiv Moorat ......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 26.5.1988 passed in appeal No. 142 of 1988 Shiv Moorat Vs. Employees State Insurance Corporation, Kanpur.
The claimant respondent was an employee of the M/S Lohia Machines. It is said that he suffered injury in his left elbow while on duty on 7.10.1987. Admittedly, the said injury is non-schedule injury. The Medical Board disallowed the claim of the claimant-respondent vide order dated 17.2.1988. 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 7%.
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 7% loss of earning capacity without there being any medical evidence in support of the same. This has been done by the EI court on his own accord and observation of the left elbow joint of the claimant respondent. 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 left elbow joint.
In view of the above, the impugned order of the EI court dated 26.5.1988 can not be sustained. The appeal is allowed. The order under appeal dated 26.5.1988 passed by EI court Kanpur in appeal No. 142/1988 Shiv Moorat 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.
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