PRAKASH Krishna, J. - (1.) This appeal is under Section 82 of Employees' State Insurance Act, 1948 against the judgment and order dated 1st of September, 1992 passed by the Judge, Employees Insurance Court, Kanpur in appeal No. 141 of 1992 holding that there is loss of 20 per cent capacity of the workman who is respondent herein. The respondent, a workman, covered under the provisions of U. P. State Employees Insurance Act received employment injury in his left elbow on January 14, 1992 and was examined by the Medical Board. The Medical Board, after examining the respondent found in its report dated 28th of August, 1992 that the respondent has sustained injury in left elbow but there is no loss of earning capacity. Feeling aggrieved against the decision of the Medical Board, the respondent preferred an appeal under Section 54-A of the said Act before the Employees Insurance Court and challenged the finding of the Medical Board that there is no loss of earning capacity and claimed 30 per cent loss of earning capacity which has been allowed in part in appeal by the Judge, Employees Insurance Court. The appeal was filed with delay of 175 days. The delay in filing the appeal has been condoned by the order dated November 2, 2004.
(2.) THE learned Counsel for the appellant submitted that the Judge Employees Insurance Court has committed illegality in taking a decision contrary to one taken by the Medical Board and determining the loss of earning capacity arbitrary at 20 per cent, on the basis of report of private doctor. Reliance has been placed on a decision of this Court in First Appeal From Order No. 3065 of 2003, Employees State Insurance Corporation v. Lallan, wherein it was held that no report of private medical practitioner is admissible under the Employees State Insurance Act. In contra, the learned Counsel appearing for the respondents referred a Division Bench judgment of this Court in New India Insurance Company Ltd. v. Mohd. Aslam, 2003 A. C. J. 938, a case under the Workmen's Compensation Act wherein it was held that it is for the Workmen's Compensation Commissioner to accept or not to accept the report of a Medical Practitioner. I have given careful consideration to the respective submission of the learned Counsel for the parties. Before the Employees Insurance Court, the employee filed a medical report of an Orthopedic Surgeon which shows that due to injury the left elbow has resulted in restriction of movement. The employee is a carpenter in M/s. Elgin Mill and therefore Employees State Insurance Court concluded that restriction in movement in elbow joint must be hampering adversely his working. It is difficult to approve the said approach of the Employees State Insurance Court. It may be recalled that the employee was examined by a Medical Board who opined that due to injury in left elbow there was no loss of earning capacity. The said report was given by a body of experts and in such matters the Courts do not interfere generally and/or in routine manner. Even the report which has been relied upon by the employee of is of an Orthopedic Surgeon certifying that injury in left elbow has resulted in the movement, does not necessarily follow that there is loss of earning capacity permanently. To put it otherwise, there is no iota of evidence to show that on account of injury in the left elbow there is loss of earning capacity permanently of the employee. Except the report of the Orthopedic Surgeon there is no other evidence to substantiate or support the version of the employee with regard to the loss of earning capacity permanently. Therefore, it is difficult to sustain the order of the Employees State Insurance Court and the same is hereby set aside with the direction that the benefit which has already been availed by the employee shall not be recovered from him. With the aforesaid observations, the appeal is allowed and the judgment and order of the Court below dated 1st of September, 1992 passed in appeal No. 141 of 1992 is hereby set aside. No order as to costs. Appeal allowed. .;