JUDGMENT
S.K. Dubey, J.
1. Insured person, an employee, Chhotelal has preferred this appeal under Section 82 of the Employees’ State Insurance Act, 1948 (for short, “the Act”), against the judgment dated 30.3.83 passed by Shri R.S. Nagar, Employees’ Insurance Court, Indore (for short, “E.I. Court”) in case No. 15 of 1978, whereby the application of the appellant for award of permanent disablement benefit was dismissed.
2. Short facts leading to this appeal are as under:
The appellant was employed as a weaver in the Indore-Malwa United Mills at Indore. Admittedly, on 8.10.1977, when he was on duty, during the course of his employment, he received an employment injury, i.e. a punctured wound of cubital fessa in trachea. He was treated by the E.S.I hospital and thereafter the appellant was sent before the Medical Board, who after his examination, vide its opinion Ex. D-1, dated 3.8.1978, recommended that there is no permanent disability and/or loss of earning capacity. Because of the injury, the appellant developed cervical spondylitis between the 5th-6th and 6th-7th vertebrae, as a result of which, he was not able to perform his duties though a fitness certificate was issued by the E.S.I. doctor. The management compelled him to work on the looms and did not provide him any alternate job, which he could perform because of the alleged disablement caused to him. Ultimately, the employee tendered his resignation, which was accepted by the employer. The appellant presented an application under Section 54 read with Section 75 of the Act before the E.I. Court and sought for a declaration that the recommendations of the Medical Board are not binding and he has suffered a permanent disablement and the loss of earning capacity. The application was opposed by the E.S.I. Corporation. After framing of issues, evidence was recorded. The appellant examined P7-1 Dr. Jinendra Bakliwal, who proved the certificate and the disability. The appellant also examined himself as PW-2 and Dr. C.L. Bichchoo as PW-3, who was a member of the Medical Board. E.I. Court dismissed the claim holding that permanent partial disablement or permanent/total disablement, as defined under Section 2 (15A) and (15B) have not been proved. The E.I. Court observed in para 9 of its judgment that it is possible that because of the injury, the appellant might not be in a position to turn his neck. Dr. Bakliwal (PW-1) has proved by his statement that because of this deformity as a result of the injury, how much loss of earning capacity the appellant has suffered cannot be said. In para 10, the E.I. Court considered the statement of Dr. Bichchoo, a member of the Medical Board, who stated that it cannot be said that the disablement in the neck is as a result of the accident. The E.I. Court also observed that the appellant did not produce his resignation letter or has not examined any other witness to show that because of the disablement in the neck, he has suffered 100% total disablement. In the same para, the E.I. Court observed that at the most, it can be said that the appellant suffered a disablement but it cannot be held that the appellant disablement suffered permanent because except the neck, all other limbs of the appellant are in working order. Hence, the claim of the appellant was dismissed.
3. Shri P.K. Sharma, learned counsel for the appellant, contended that the approach of the learned E.I. Court was erroneous. The E.I Court was mainly impressed with the recommendations of the Medical Board. Alternatively, the learned counsel contended that when the E.I. Court held that there was a permanent disablement, the Court ought to have assessed the disability and the percentage of loss of earning capacity, as defined under Section 2(15A) of the Act even though the injury was not specified in Part-II of the second Schedule. The recommendations of the Medical Board were not binding. He pressed into service the cases of this Court in Factory Manager, J.C Mills v. E.S.I. Corporation 1987 J.L.J. 281 and Sureshchandra Agarwal v. Kacharabai 1985 M.P.W.N; N.No. 201. He also placed reliance on Ghanshyam and Ors. v. Nathu and Ors. 1987 A.C.J. 717 and a decision of the Gujarat High Court in Punambhai Khedabhai Patel v. G. Kenel Construction and Anr. 1984 A.C.J. 739.
4. Shri Behal, learned counsel appearing for the respondent Corporation, contended that the findings arrived at by the E.I. Court are findings of fact; the scope under Section 82(2) of the Act is that the appeal can only be considered on substantial question of law; and as no substantial question of law has been made out, the appeal deserves to be dismissed. He pressed into service a Division Bench decision of this Court in M.P. Electricity Board and Ors. v. E.S.I. Corpn., Indore and Anr. 1981 J.L.J. 738 and a case of this Court in E.S.I. Corpn., Indore v. Babulal and Ors. 1982 L.I.C. 468.
5. After hearing the learned counsel for the parties, I am of the opinion that this case deserves to be remitted back for deciding the matter afresh. As this Court in the case of Factory Manager, J.C. Mills v. E.S.J. Corpn. (supra) has held that the recommendations, which are embodied in the opinion of the Medical Board, are not binding and the E.I. Court was not bound by the ipse dixit of the Medical Board and not abdicate its essential duty and responsibility, it was the dutv of E.I. Court to consider whether the claim for permanent disablement was covered or not. A specific finding has to be arrived at by the E.I. Court that the cervical spondylitis was not because of the injury received by the insured person during the course of his employment and also that because of the spondylitis, a person working on looms cannot work. A permanent total disablement is to be judged from the nature of the job, which the workman was doing and if the disablement so caused, renders him unfit to do that job, it will be deemed to be total and not partial disablement. See the case of the Apex Court in Pratap Narain Deo v. Shriniwas Sabta 1976 A.C.J. 141 and the Division Bench decision of the Gujarat High Court in Punambhai Khedabhai Patel v. G. Kenel Construction and Anr. supra and also a case of this Court in Factory Manager, J.C. Mills v. E.S.I. Corpn. supra. The findings of the E.I. Court on the points stated above are essential for determination for allowing or refusing the benefit under the scheme of the Act to an employee.
6. As the case is being remitted, the parties may lead further or additional evidence, if they so desire, to support their respective claims. The E.I. Court shall decide the dispute within six months from the receipt of the record. The parties shall appear before the said Court on 18.11.1988. The record of the E.I. Court be sent back immediately so as to reach before the said Court on or before 17.11.1988. No fresh notices shall be issued to the parties.
7. In the result, this appeal is allowed. The judgment and order of the learned E.I. Court is set aside and the case is remitted back to the said Court for deciding the claim afresh, in accordance with the directions contained hereinabove, after giving an opportunity to the parties to lead further additional evidence, if any, if they so desire. In the circumstances of the case, parties shall bear their own costs of this appeal.
