Dismissed

E.S.I.C. Ltd. v. Neeraj

Allahabad HC21 Feb 2022FAFO/575/1992

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging an E.I. Court's award of earning capacity loss. The Court held the appeal was time-barred and that factual findings regarding scheduled injuries were binding absent perversity, being questions of fact within the Commissioner's jurisdiction.

What did the court decide?

The appeal is dismissed; show cause questions are answered against the appellant; interim relief vacated.

E.S.I.C. Ltd. Vs Neeraj — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 2

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Case :- FIRST APPEAL FROM ORDER No. - 575 of 1992

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Appellant :- E.S.I.C. Ltd. Respondent :- Neeraj Counsel for Appellant :- Rajesh Tiwari Counsel for Respondent :- Neeraj Agarwal

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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Heard Sri Rajesh Tiwari, learned counsel for the appellant and perused the judgment and order impugned. None appeared on behalf of sole respondent though notices were issued.

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The respondent had suffered employment injuries on 18.9.1987. The Medical Board ascertained his loss of earning capacity which was awarded as nil. The respondent herein preferred an appeal i.e. Appeal Nos. 41 of 1991 and 65 of 1991 before the E.I.Court, Kanpur. On 16.11.1991, the E.I. Court awarded 40% loss of earning capacity. The said award of the E.I. Court is under challenge.

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It is submitted by the counsel for the appellant that the judgment and order passed by the E.I. Court, Kanpur cannot be sustained as there is a manifest error of law as the appeal was beyond time. The E.I. Court should not have reassessed the injuries on the basis of report of private eye surgeon. The interpretation of Section 54 A read with Regulation 72 of the Employees State Insurance (General) Regulations, 1950 is bad.

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While issuing notice, this Court had called for the record of the Court below. While perusing the judgment, the learned Court below has held that employment injury was fractured in right hand at lower part of right radius and medical board after examining the insured person awarded 11% loss of earning capacity and medical appellate tribunal vide its decision inhanced 4% loss of earning capacity. The Court below held that there was diminution of vision caused due to employment injury and held that it was a scheduled injury covered under serial No. 32 of the II Schedule of E.S.I. Act.

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While going through the factual scenario, this Court finds that there was loss of vision of right eye which was a Scheduled injury as held by the learned E.I. Court. The said finding is a plausible finding of fact.

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The apex Court recently has held that unless this Court finds perversity in the finding of fact, it should not easily interfere. The Medical Board examined the patient awrded 11% loss of earning capacity and medical appellate tribunall vide its decision inhanced 4% loss of earning capacity and not

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improvement have taken place which was due to the employment injuries. This fact cannot be said to be perverse so as to call for any interference of this Court.I am supported in my view Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) . The finding of fact is that the injured was an employee who had sustained employment injury and was incapacitated to the tune of 10%. 7. I am supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:

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"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.

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16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.

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17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."

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This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:

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"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis."

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In view of the above, the appeal fails and is dismissed . The show called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are the questions of fact.

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Interim relief, if any, shall stand vacated forthwith.

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This Court is thankful to the counsel for the appellant for getting this very old matter disposed of. Order Date :- 21.2.2022 A.N. Mishra

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Digitally signed by AMARNATH MISHRA Date: 2022.02.23 17:41:42 IST Reason: Location: High Court of Judicature at Allahabad

E.S.I.C. Ltd. v. Neeraj

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E.S.I.C. Ltd. v. Neeraj

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