Employees State Insurance Corporation vs Md. Kabeer and Another

The appellant is the Employees'' State Insurance Corporation (ESI) which is challenging the judgment and order of the Employees Insurance Court, Hyderabad in E.I. Appeal No.8 of 1989 dated 11-10-1991 enhancing the percentage of loss of earning capacity from 5 to 30 in regard to Respondent No. 1 Md. Kabeer, an employee in Sirpur Paper Mills who suffered an employment injury and who moved the ESI Court to award the compensation. Originally, the Medical Board of the E.S.I. Hospital assessed the per centage of loss of earning capacity at 5 and the matter was taken up before the Medical Appeal Tribunal under the ESI Regulations in Appeal No. 51 of 1989 in File No.D5/12731/89 and it came to be dismissed on 13-6-89 confirming the loss of earning capacity fixed by the Medical Board. The matter came up before the ESI Court, Respondent No.2 in E.I. Appeal No.8 of 1979 wherein by the impugned judgment the percentage of loss of earning capacity of the employee was enhanced to 30. Aggrieved by that, this appeal is filed.

Mr. Ravindra Reddy, the learned advocate for the appellant has contended that, in the first place, the 2nd respondent had no powers to reassess the opinion of the expert authority viz., the Medical Board and the Medical Appeal Tribunal in regard to loss of earning capacity and the 2nd respondent substituted itself to the opinion of the expert to raise the per percentage of loss of earning capacity arbitrarily without application of mind and without any basis. He has also contended that the certificate of the M.G.H. Hospital, Warangal, said to have been attested by a Civil Surgeon depended upon by the 2nd respondent for fixing the percentage of loss of earning capacity at 60% was conflicting with the consistent view of the Medical Board and the Medical Appeal Tribunal and to fix at 30 per cent had no basis at all. He also submits that the two consistent considered opinions as above regarding the loss of earning capacity to be at 5 per cent is correct and does not require to be reassessed or reviewed.

The Employees'' State Insurance Act, 1948 (Act No.34 of 1948) (in short ''the Act'') is very clear in its contents and stipulations. In regard to the permanent disablement, under sub-section (1) of Section 54A, the matter will be referred to by the Corporation to the Medical Board for determination of the extent of the loss of earning capacity of the insured person, which shall be provisionally assessed and it shall be referred to The Medical Board. Sub-section (2) of Section 54A says that if the insured person or Corporation is not satisfied with the decision of the Medical Board, the insured person or the Corporation may appeal in the prescribed manner to the Medical Appeal Tribunal constituted in accordance with the provisions of the regulations with a further right of appeal is the prescribed manner and within the prescribed time to the Employees'' Insurance Court or the Employees'' Insurance Court directly. It is sub-section (2) of Section 54A which has happened in this case. On the face of it, when the matter came up in appeal before the Medical Appeal Tribunal in regard to such disablement or in regard to such loss of earning capacity, the appeal was rejected and the matter was further taken upto the 2nd respondent, the Employees'' Insurance Court as a second appeal and, therefore, the question whether the Respondent No.1 had suffered the disability to the extent of loss of earning capacity at 5% or more was directly and substantially in issue before the 2nd respondent. Therefore, the jurisdiction and the powers of the 2nd respondent in that regard is vested in it by virtue of Section 54A of the Act and there is no doubt about it. Rightly or wrongly, the 2nd respondent has increased such a disablement or loss of earning capacity from 5 to 30 per cent. Therefore, this part of the contention of the learned advocate for the appellant cannot be accepted.

Mr. Ravindra Reddy, the learned advocate for the appellant has, however, pointed out that the method in which the loss of earning capacity was increased from 5 per cent to 30 per cent is not correct. This Court, on going through the reasoning of the 2nd respondent is totally satisfied that the reasons are not only adequate but also sound. The Medical Board, without giving any reasons, simply fixed the loss of earning capacity to be 5%. The Medical Appeal Tribunal also committed the same error without giving further reasons in the matter. Therefore, the decision of the Medical Board and the Medical Appeal Tribunal in regard to the loss of percentage of earning capacity arrived at is arbitrary and not according to law. The loss of earning capacity and the disability although may be within the reasons of the expertise of the experts, as per the settled law and the rule of evidence under the Evidence Act, it must be supported by reasons or otherwise the Court will have no basis to test the correctness of the same. It is also the settled law that it is for the Court to test the correctness or otherwise of the expert''s opinion as it will ultimately the opinion evidence. Therefore, to that extent, the Employees'' Insurance Court was totally justified in re-assessing the whole opinion and giving a finding for enhancement of the loss of percentage of earning capacity. But, the only wrong appears to have committed by it is that there is no reference to the opinion of the orthopaedic expert or the report or opinion of any medical expert in regard to such matters.

The report of the Medical Board shows that Respondent No.1 had suffered the following injury:

"Blunt injury lower back:

Restriction of the movement of the spine and painful flexion and rotatory movements, tenderness on the lower lumbar spine. Seen by Orthopaedic Surgeon, Lumbar Disc Syndrome. Advised spine support."

In column No.6 of the report, the loss of earning capacity is noted as 5%, as already pointed out without any reasons. The injury affected the spinal vertebral column restricting the movement of the spine and painful flexion and also affecting the rotatory movements. Tenderness on the lower lumbar spine is also there. There is a clear note that there is the existence of lumbar disc syndrome. On the face of it, it was not a simple injury and definitely it left a clear disability of a known degree. Broadly classifying the anatomy of the human body with the fundamentals of the medical science as Head, Trunk and Limbs, the spinal injury in the lumbar region as above comes within the one third portion of the broad classification of the anatomical body. The vertebral column of which the lumbar spinal region forms part of should be atleast more than 15% of the trunk. Therefore, if the whole human body is considered to be 100% for the purpose of ability as a notional method, the trunk which is one third could be 33 1/3%. If out of that the vertebral column and lumbar region which is popularly called as back bone is taken into consideration it would be less than 50%. Therefore, 50% of 33 1/3 would be atleast 16 to 17%. This is arrived at with the common sense and the general knowledge of the human anatomy and also the human science. The American Academy of Orthopaedic Surgeons, U.S.A. have issued a manual for Orthopaedic Surgeons in evaluating permanent physical impairment for guidance in clear and elaborate method. At pages 28 and 29 of the said manual, we have got the data in regard to the ''per cent whole body permanent physical impairment and loss of physical function to whole body''. Regarding thoracic and dorso-lumbar spine with low lumbar, it deals with the items A and B as follows:

"Per cent whole body permanent physical impairment and loss of physical function to whole body.

Low Lumbar

Healed sprain, contusion

A. No involuntary muscle spasm, subjective symptoms of pain and not substantiated by demonstrable structural pathology.

0

B. Persistent muscle spasm, rigidity and pain substantiated by demonstrable degenerative changes, moderate osteoarthritis lipping revealed by X-ray, combined trauma and pre-existing factors.

10"

Further more, relating to the disabilities of the back dealing with cervical spine at items b Band C at pages 26 and 27 of the above manual, the following is mentioned for the purpose of disability.

"Percent whole body permanent physical impairment and loss of physical Junction.

Cervical Spine.

Healed sprain, contusion.

A. xx xx B. Persistent muscle spasm, rigidity and pain substantiated by loss of interior curve revealed by X-ray, although no demonstrable structural pathology, moderate referred shoulder- arm pain.

10

C. Same as (b) with gross degenerative changes consisting of narrowing of intervertebral spaces and osteoarthritic lipping of vertebral margins.

20

Since the disc is also involved, such a disability should extend to 20%. Therefore, both from the experts view as above and also the fundamental as above, the disability in this case should be between 10 to 20 percent. Therefore, this Court on a reassessment of the whole matter fixes the loss of earning capacity of the 1st respondent at 20 per cent.

In the result, the appeal is allowed partly and the order of the Employees Insurance Court is modified to the effect that the loss of earning capacity of the 1st respondent in regard to the disability suffered by him due to the employment injury shall be 20 per cent. The award shall be modified accordingly. No costs.