KAMBLI,J. - (1.) THE Employees State Insurance Corporation (hereinafter referred to as 'the Corporation') by this appeal challenges the order of the Employees Insurance Court, Bombay, (hereinafter referred to as 'the Insurance Court') whereby the Insurance Court declared that the respondent -employee had suffered permanent total disablement due to the employment injury sustained by him on February 25, 1974, and whereby it further declared that due to employment injury there was total loss in the earning capacity of the employee.
(2.) THE respondent -employee was in the employment of M/s. Dinshaw Iron Works as a fitter. He was an insured person under the Employees* State Insurance Act. 1948 (hereinafter referred to as the 'Insurance Act'). It is not disputed that the employee sustained an employment injury on February 25, 1974 while he was working with the machine in the factory of the employer. After the injury the employee was removed to Mahatma Gandhi Memorial Hospital (for brevity M.G.M. Hospital). The employee was first referred to the Medical Board constituted under the Insurance Act, on July 27, 1974. Dr. Ashtaputre who was a member of the Medical Board was examined for the Corporation. Dr. Jhunjunwala, Orthopaedic Surgeon was one of the members of the Board. 'The Medical Board's report, exh. 20, reveals that the Board found the extent of loss of earning capacity provisionally assessed at 10 per cent. The employee was found to have a fracture of right heel bone called calcanium. Above the heel bone there is one other bone called talus. When the employee was examined by the Board on August 20, 1974, the joint between calcaniuni and talus was markedly stiff and painful. The employee had pain on walking on right foot. There was swelling at the heel. The disability was provisionally assessed at 10 per cent. The employee was again sent to the Medical Board and was examined on September 11, 1975. The findings of the Medical Board in that examination were as follows: Healed - Right calcanium with markedly stiff and painful sub fluid joint right foot pain on walking - right foot local swelling. The Medical Board on this examination had assessed the loss of earning capacity at 7 per cent. finally. The employee being aggrieved preferred an appeal to the Insurance Court, Bombay. It appears that on August 28, 1974 the employee had a paralytic attack on the right side of the body and he was treated in M.G.M. Hospital. The certificate of the Hospital at exhs. 17 and 18 disclose that the employee was admitted for treatment of paralysis on August 28, 1974 and he was discharged on September 11, 1974. His ailment was diagnosed as hyper tension -Heamifligia. He was discharged on September 11, 1974 as he was found to have improved. It will thus be seen that within about six months of the injury sustained by the employed he had a paralytic attack on August 28, 1974. As stated above, the Medical Board on examining the employee on September 11, 1975 assessed the physical disability of the employee at 7 per cent. finally.
(3.) IT appears that the employee had been to one Dr. Pandit on December 11, 1975. Dr. Pandit was examined on behalf of the employee before the Insurance Court. Dr. Pandit is an Orthopaedic Surgeon and at the time when he gave his evidence he was attached to Sion Hospital and Bombay Port Trust Hospital. He is M,S. and F.R.C.S. He is also on the panel of doctors under the Workmen's Compensation Act. After examining the employee he gave him certificate as per exh. '11'. He had taken the X -Ray photo of the injury on December 11, 1975. Dr. Pandit found that the employee had a fracture on the bone. He opined that due to the injury the employee would not be able to walk properly as while walking he limped. Dr. Pandit found the injury at the weight -bearing joint. He also found that the fracture in question had involved the joint of the foot. When cross -examined before the Insurance Court Dr. Pandit stated that it will be difficult for the employee to work as a fitter; that the moment the employee tries to stand, he will have pain in the right leg. So, he will not be able to stand for more than 5/10 minutes; that he will not be able to do any standing work. Dr, Pandit opined that the employee could do only sitting work. Dr. Pandit assessed the permanent partial disablement at 20 per cent. When it was put to Dr. Pandit in the cross -examination whether paralysis suffered by the employee had any bearing on the disability found by him, Dr. Pandit replied in the negative. Dr. Pandit stated in the cross -examination that the attack of paralysis might have been minor, as the employee was required to stay in the hospital for 13/14 days only.;