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E.S.I.Corp., Kanpur Nagar v. Namdar Hussain Insurance - FIRST APPEAL FROM ORDER No. 1868 of 2000 [2004] RD-AH 1532 (29 November 2004)


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First Appeal From Order No. 1868    of 2000

Employees State Insurance Corporation


Namdar Hussain

Hon.Sanjay Misra.J.

This instant appeal is being preferred under section 82 of the Employees State Insurance Act 1948 against the judgment and order dated 23.10.2000 passed by the Employees Insurance Court Kanpur Nagar in Appeal No. 79 of 1994 (Namdar Hussain  Versus Employees State Insurance Corporation ).

The brief facts giving rise of the present case are that the respondent workman received the employment injury on 2.2.1993 on the right elbow  . He was referred to the Medical Board which gave its report dated 22.3.1994. Aggrieved against the aforesaid report refusing to grant any benefit to the respondent workman, he preferred an appeal before the Employees Insurance Court . The grounds upon which the respondent workman challenged the report of the Medical Board were that the Medical Board did not consider the report of the specialist, although the same was submitted before the corporation. He has further stated that due to the injury he suffers constant pain in the right elbow  joint and there is restriction in movement  as such he claimed 50% disability benefit . The appellant here in contested the claim of the respondent workman and  denied the compensation claimed by the workman due to the said injury. The appellant corporation pleaded that the finding of the medical board  was a detailed finding to the effect that the  right elbow of the workman  had  no partial functional incapacitation and there is no loss of earning capacity . It pleaded that the medical board consists of experts and they are competent to decide the question.

The Employees Insurance Court considered the said objections of the corporation and recorded that the injury received by the workman during the course of his employment on 2.2.1993 is admitted between the parties.  The court below confined itself to the question  as to whether the decision of the Medical Board was correct or incorrect. It was the case of the respondent workman that the corporation had given him notice regarding date for examination by medical Board and asked the workmen to bring along with him the X.ray report specialist report etc.  The workman contended that  he submitted expert report of doctor of Lala Lajpar Rai Hospital  but the corporation intentionally  did not file the same before the Medical Board A copy of the said medical report was filed before the Employees Insurance Court by the workman.  The report of the specialist indicates that the right elbow  of the workman has become stiff due to which it  has restricted movement.  The Employees Insurance Court has concluded that the Employees Insurance Act is basically a beneficial piece of legislation for the benefit of workman.  On the aforesaid reasoning the court below has set aside the report dated 22.3.1994 of the medical board and awarded 10% disability benefit   to the respondent workman.

Heard learned counsel for the appellant and the learned counsel appearing on behalf of respondent workman.

Learned counsel for the appellant has contended that the findings of court below are not justified in as much as the report of the specialist of Lala Laj Pat Rai Hospital  were not filed in original before the medical board. Learned counsel appearing on behalf of respondent workman has submitted that when the workman was given notice by the corporation for appearing before the medical board , the corporation had also directed the respondent workman  to produce in original his X.ray report, specialist report, and other documents in support of his claim. It is contended by the learned counsel for the  respondent workman that the workman presented himself before the corporation and submitted the  original  X.ray report and specialist report of Doctor of Lala Lajpat Rai Hospital . It is the contention of the respondent that the corporation intentionally did not submit the report before the Medical Board .Before the Employees Insurance Court  copy of the said specialist report was filed as Paper No.22/2 . Employees Insurance Court has taken into consideration the said specialist report a copy of which was filed by the workman . Learned counsel for the respondent submits  that the workman    had filed the original specialist report with the corporation and it was the corporation that  withheld the same from the Medical Board ,hence  a copy of the said specialist report was produced by the workman before the Employees Insurance Court. The corporation was duty bound to file the original report. Moreover, it is contended that the copy of specialist report filed by the workman before Employees Insurance Court  has not been disputed by the corporation even before that court. As such the grounds of appeal taken by the appellant is not involved in the present case. Learned counsel for the appellant has on the other hand contended that the finding of the medical board is based upon the material  brought before it and the specialist report of Lala Lajpat Rai Hospital was never placed  by the workman before the medical board . He has also contended that the workman has nowhere pleaded before the Employees Insurance Court that the alleged original report was ever  filed before the Medical Board. A counter affidavit has been filed by the respondent workman in this appeal wherein in para 3 and 5 he has categorically stated as under :-

"That the contents of paragraph no.4,5, and 6 are matter of record thus need no comments. It is however, submitted that there was the direction of the medical boards to the appellant vide information dated 22nd March 1995 to furnish the X.ray report plate and other documents which the deponent had already filed before him but the appellant failed to comply the order and concealed it from the knowledge of the Medical Board under the circumstances the Medical Board without rightly considering the entire evidence and facts of the circumstances of the case illegally refused to award any compensation to the deponent. Under the circumstances the deponent had no option other than to file appeal No. 79 of 1994 before E.S.I.Court.

That the contents of paragraph no.8 of the affidavit are not admitted. In reply it is submitted that the deponent has already furnished all the relevant papers including the report of Orthopedic specialist of Lala Lajpat Rai Hospital before the appellant for filing before the medical board but the appellant illegally withhold it."

In reply to the contents of para 3 and 5 of the counter affidavit , the appellant has filed his rejoinder affidavit , the averments made in para 5 and 7 of the said rejoinder affidavit are quoted here to below :

"That the contents of paragraph no.3 of the counter affidavit are not  admitted  as stated hence denied. In reply it is submitted that the contents of paragraphs no. 4,5, and 6 of the affidavit filed in support of the stay application are re/iterated.  It is denied that respondent has filed any document or affidavit before the appellant. It is denied that the appellant has concealed any fact from the knowledge of the Medical Board.It is submitted  that the medical Board has rightly considering the entire facts and circumstances and thoroughly examining the respondent awarded nill loss earning capacity as the respondent has not suffered any disability on account of injury suffered by him.

That the contents of paragraph no.5 of the counter affidavit are denied and in reply the contents of paragraph no.8 of the affidavit filed in support of stay application are re/iterated. It is submitted that the respondent has not furnished any document as alleged in para under reply to the appellant for furnishing before the Medical Board."

From the above pleading of the appellant, a vague denial has been made without replying to the specific averment of the workman to the effect that it was the appellant corporation that  did not place the report of orthopedic doctor before the medical board.  On the other hand , the appellant corporation has taken the technical objection that a copy of the specialist report cannot be read by the Employees Insurance Court as evidence unless the same is proved. It is therefore, quite apparent that averments made by the respondent workman before the Employees Insurance Court as also before this court in this appeal to the effect that the respondent workman in compliance of corporation's letter no. ESI-134 had filed latest report of orthopedic of Lalalajpat Rai hospital but the appellant corporation did not place  the same before the medical board. The respondent workman therefore, filed photo copy (paper No. 32/2) before the Employees Insurance Court. Having considered the contention of the learned counsel for the parties,  and perused the affidavit ,this court finds that the report of the specialist which showed the extent of disability suffered by the workman due to accident was not considered by the medical board . The Employees Insurance Court  would not normally interfere in the finding of the medical board . However, if the finding of the medical Board  are not based on valid grounds and evidence or the findings are vitiated for any other reason , then the Employees Insurance Court in its appellate jurisdiction has the power to defer  from the finding arrived at by the medical board.

From the facts and circumstances of the present case  it is fully established that the medical board did not consider the report of orthopedic Specialist of Lala Lajpat Rai Hospital which was submitted by the respondent workman to the corporation and the corporation failed to file the same before the medical board.  In view of this fact, the respondent workman    appears to have been deprived of just and proper decision from the medical board.  

In view of the above, there is no force in this appeal. It is accordingly dismissed.

Dt.   /11/2004


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