# Employee's State Insurance Corp., Alld v. Jagdish Prasad

- **Citation:** (2022) 5 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** First Appeal From Order No. 103 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/employee-s-state-insurance-corp-alld-v-jagdish-prasad-48567
- **Pages:** 9

## Headnote

Employees' State Insurance Act, 1948 -
Uttar
Pradesh
Employees'
Insurance
Courts Rules, 1952 - Rule 47 - Civil
Procedure 1908 (V of 1908), Order 13
Rule 4 CPC - Indian Evidence Act, 1872 -
Sections 62 & 63 - Secondary Evidence -
Manner of proof - objection as to the
mode of proof of a document - Sole
respondent sustained an injury to his left
eye during the course of employment -
Before E.S.I. Court employee relied upon
photostat copies of medical certificates &
treatment papers to establish that the
employment injury had led a permanent
dimming of vision in the left eye -
originals
of
those
certificates
and
treatment papers have not been filed - No
objection raised before the E.S.I. Court
about the admissibility of photostat copies
of medical certificates - Held
- an
objection about admissibility of secondary
evidence must be taken before the Court
of first instance, where the secondary
evidence is filed without foundation - If
that objection is not taken before the
Court, where the evidence is filed on
behalf of a party, it cannot be later on
urged in appeal - If no objection as to
admissibility of photostat copy of the
prescription slips showing treatment of
the employee to substantiate the claim of
permanent disablement, is raised before
the E.S.I. Court, same cannot be permitted
to be raised before High Court on ground
that primary evidence ought to have been
filed (Para 9, 15, 21)
employee
produced
not
only
just
prescription slips about his treatment, but
also medical certificates from the eye
specialist
signed
by
the
Medical
Superintendent,
Employees
State
Insurance Hospital and treatment papers
to establish that employment injury had
led to a permanent dimming of vision in
the left eye - treatment was undergone by
the employee at the E.S.I. Hospital,
Lucknow and is contemporaneous in time
to the injury. There is a further report by
642 INDIAN LAW REPORTS ALLAHABAD SERIES
an eye specialist from the Lala Lajpat Rai
Medical College and Hospital, Kanpur
dated 15.07.1996, which opines in clear
terms that loss of vision is one on account
of the injury - with the employee adducing
so much of evidence from which the E.S.I.
Court has drawn a reasonable conclusion
about the existence of a scheduled injury,
it cannot be said that the burden has not
been discharged by the employee - said
finding is a pure finding of fact, based on
consideration
of
relevant
evidence
-
Nothing shown that finding is beset by a
flagrant and manifest error of law (Para
22)
Employees' State Insurance Act, 1948 -
Burden of proof - Sole respondent
sustained an injury to his left eye during
the course of employment - Held - The
Second Schedule, Part II List Of Injuries
Deemed To Result In Permanent Partial
Disablement, S. no. 32A. Partial loss of
vision of one eye. Percentage of loss of
earning capacity 10 % - the injury being
a scheduled injury under Serial No. 32-A
of Schedule-I appended to the Act, the
percentage loss of earning capacity is
provided by the Statute itself, not
requiring
any
further
evidence
to
establish
it
-
with
the
employee
adducing so much of evidence from
which the E.S.I. Court has drawn a
reasonable
conclusion
about
the
existence of a scheduled injury, it
cannot be said that the burden has not
been discharged by the employee (Para
23, 24)
Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Employee's State Insurance Corp., Alld. Vs. Jagdish Prasad
641

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

12. Interim relief, if any, shall stand
vacated forthwith.

13. This court records the absence of
learned counsels for the respondents. The
penalty if not deposited be deposited
forthwith.

14. This Court is thankful to learned
counsel for the appellant for getting this
very old matter disposed off.

15. The record be transmitted to the
Workmen Commissioner.

16. The amount lying in the fixed
deposits will be disbursed to the claimants
immediately as more than 30 years have
elapsed since the appeal was preferred. As
none represent respondent, no litigation
expenses are awarded.
----------
(2022)05ILR A641
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 103 of 2001

Employee's State Insurance Corp., Alld.
 ...Appellant
Versus
Jagdish Prasad ...Respondent

Counsel for the Appellant:
Sri A.K. Srivastava, Sri Vipul Kumar
Counsel for the Respondent:
Sri M. jain, Sri Mritujaya

Employees' State Insurance Act, 1948 -
Uttar
Pradesh
Employees'
Insurance
Courts Rules, 1952 - Rule 47 - Civil
Procedure 1908 (V of 1908), Order 13
Rule 4 CPC - Indian Evidence Act, 1872 -
Sections 62 & 63 - Secondary Evidence -
Manner of proof - objection as to the
mode of proof of a document - Sole
respondent sustained an injury to his left
eye during the course of employment -
Before E.S.I. Court employee relied upon
photostat copies of medical certificates &
treatment papers to establish that the
employment injury had led a permanent
dimming of vision in the left eye -
originals
of
those
certificates
and
treatment papers have not been filed - No
objection raised before the E.S.I. Court
about the admissibility of photostat copies
of medical certificates - Held
- an
objection about admissibility of secondary
evidence must be taken before the Court
of first instance, where the secondary
evidence is filed without foundation - If
that objection is not taken before the
Court, where the evidence is filed on
behalf of a party, it cannot be later on
urged in appeal - If no objection as to
admissibility of photostat copy of the
prescription slips showing treatment of
the employee to substantiate the claim of
permanent disablement, is raised before
the E.S.I. Court, same cannot be permitted
to be raised before High Court on ground
that primary evidence ought to have been
filed (Para 9, 15, 21)
employee
produced
not
only
just
prescription slips about his treatment, but
also medical certificates from the eye
specialist
signed
by
the
Medical
Superintendent,
Employees
State
Insurance Hospital and treatment papers
to establish that employment injury had
led to a permanent dimming of vision in
the left eye - treatment was undergone by
the employee at the E.S.I. Hospital,
Lucknow and is contemporaneous in time
to the injury. There is a further report by
642 INDIAN LAW REPORTS ALLAHABAD SERIES
an eye specialist from the Lala Lajpat Rai
Medical College and Hospital, Kanpur
dated 15.07.1996, which opines in clear
terms that loss of vision is one on account
of the injury - with the employee adducing
so much of evidence from which the E.S.I.
Court has drawn a reasonable conclusion
about the existence of a scheduled injury,
it cannot be said that the burden has not
been discharged by the employee - said
finding is a pure finding of fact, based on
consideration
of
relevant
evidence
-
Nothing shown that finding is beset by a
flagrant and manifest error of law (Para
22)
Employees' State Insurance Act, 1948 -
Burden of proof - Sole respondent
sustained an injury to his left eye during
the course of employment - Held - The
Second Schedule, Part II List Of Injuries
Deemed To Result In Permanent Partial
Disablement, S. no. 32A. Partial loss of
vision of one eye. Percentage of loss of
earning capacity 10 % - the injury being
a scheduled injury under Serial No. 32-A
of Schedule-I appended to the Act, the
percentage loss of earning capacity is
provided by the Statute itself, not
requiring
any
further
evidence
to
establish
it
-
with
the
employee
adducing so much of evidence from
which the E.S.I. Court has drawn a
reasonable
conclusion
about
the
existence of a scheduled injury, it
cannot be said that the burden has not
been discharged by the employee (Para
23, 24)
Dismissed. (E-5)

List of Cases cited:

1. Padman Vs Hanwanta, 1915 (17) BomLR
609

2. Ajjarapu Subbarao Vs Pulla Venkata Rama
Rao & ors., AIR 1964 AP 53

3. The Land Acquisition Officer, Vijayawada
Thermal Station Vs Nutalapati Venkata Rao, AIR
1991 AP 31

4. R.VsE. Venkatachala Gounder Vs Arulmigu
Viswesaraswami & Vs P. Temple & another,
(2003) 8 SCC 752

5. Sudha Agarwal Vs VII Additional District
Judge,2006 (4) ALJ 545

6.
Employees
State
Insurance
Corp.
Vs
Sarfuddin, 2005 (4) AWC 3289 All

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Employees
State
Insurance
Corporation
from
a
judgment and order of Mr. Rangnath
Pandey,
the
then
Judge,
Employees
Insurance Court, Kanpur Nagar, allowing
the respondent's appeal and accepting his
claim of 10%

2. Jagdish Prasad, the sole respondent
to this appeal, was employed as a Piecer
with the U.P. State Spinning Mills,
Raibareli. On 13.12.1995 at about 09:00
p.m., Jagdish Prasad (hereinafter referred to
as "the employee") sustained an injury to
his
left
eye
during
the
course
of
employment. Upon an application made for
reference of the employee's case to the
Medical Board to assess the loss of earning
capacity due to the accident, the employee's
case was referred to the Medical Board.
The employee was examined by the
Medical Board, which was of opinion that
the loss of vision was not related to the
employment injury and, therefore, did not
award anything for the loss of earning
capacity. The decision of the Medical
Board, that was rendered on 10.10.1996 as
aforesaid, was appealed to the E.S.I. Court
by the employee under Section 54A(2)(ii)
of the Employees Insurance State Insurance
Act, 1948 (for short "the Act"). The appeal
was registered on the file of the Judge,
Employees Insurance Court, Kanpur on
10.12.1996 as Appeal No. 50 of 1996. The
5 All. Employee's State Insurance Corp., Alld. Vs. Jagdish Prasad
643
appeal came up for determination before
the Judge, Employees Insurance Court on
30.11.2000. It was allowed and the decision
of the Medical Board dated 10.10.1996 was
set
aside,
granting
benefit
of
10%
permanent disability to the employee for
sustaining a scheduled injury.

3. Aggrieved, the Employees State
Insurance Corporation has appealed this
decision.

4. This appeal was admitted to
hearing
on
the
following
substantial
questions of law:

(1) A mere photocopy of some
prescription slip showing the treatment of
the
respondent
is
not
enough
to
substantiate
the
claim
of
permanent
disablement or permanent loss of earning
capacity?

(2) The burden of proof lay upon
the respondent-employee to prove the
existence of permanent disability arising
out of the accident or at least some
evidence which would prove that that he
has been placed at a job drawing lesser
benefits or that he is not being given the
periodical increments which his colleagues
are getting and in absence of any such
evidence on record, whether the court
below has erred in passing the impugned
judgment/order?

5. Heard Mr. Vipul Kumar, learned
counsel for the appellant. No one appears
on behalf of the respondent.

6. So far as the first substantial question
of law is concerned, it must be remarked that
it has not been disputed for a fact that the
employee has sustained employment injury to
his left eye on 13.12.1995. Now, as to the
proof of the consequential loss, the Medical
Board, that was convened on 10.10.1996,
have rendered opinion to the effect that the
loss of vision found to be 6/60 in the left eye
is not on account of the employment injury.

7. It is submitted by the learned
Counsel for the appellant that before the
E.S.I. Court, the employee has relied upon
photostat copies of medical certificates and
treatment papers to establish that the
employment injury had led a permanent
dimming of vision in the left eye. The
originals of those certificates and treatment
papers have not been filed. It is pointed out
that in view of the provisions of Rule 47 of
the Uttar Pradesh Employees Insurance Court
Rules, 1982 (for short "the Rules"), the
provisions of the Indian Evidence Act, 1872
(for short "the Act of 1872") would apply to
proceedings before the E.S.I. Court 'in respect
of matters relating to procedure or admission
of evidence, for which no specific provision
is made in the Rules.' He submits, therefore,
that the provisions of Sections 64 and 65 of
the Act of 1872 would apply, forbidding the
E.S.I Court from looking into photostat
copies of documents relied upon by the
employee in support of his case, unless
foundation was laid for the reception of
secondary evidence.

8. It must be remarked here that a
perusal of the record does not show that
there was any objection raised before the
E.S.I. Court about the admissibility of these
documents. No objection has been recorded
by the E.S.I. Court, or one that is endorsed
on the photostat copies of the documents,
that have been taken into consideration by
the E.S.I. Court.

9. This Court is of opinion that an
objection about admissibility of secondary
evidence must be taken before the Court of
644 INDIAN LAW REPORTS ALLAHABAD SERIES
first
instance,
where
the
secondary
evidence is filed without foundation. If that
objection is not taken before the Court,
where the evidence is filed on behalf of a
party, it cannot be later on urged in appeal.
For this principle, reference may be made
to the decision of the Privy Council in
Padman v. Hanwanta, 1915 (17) BomLR
609, where in the context of an objection as
to the admissibility of a certified copy of
the will, the original not being filed before
the Trial Court nor any objection being
taken to it before that Court, it was held:

"11. The defendants have now
appealed to His Majesty in Council, and the
case has been argued on their behalf in
great detail. It was urged in the course of
the argument that a registered copy of the
will of 1898 was admitted in evidence
without sufficient foundation being laid for
its admission. No objection, however,
appears to have been taken in the first
Court against the copy obtained from the
Registrar's office being put in evidence.
Had such objection been made at the time,
the District Judge, who tried the case in the
first instance, would probably have seen
that the deficiency was supplied. Their
Lordships think that there is no substance
in the present contention."

10. The question fell for consideration
before a Division Bench of the Andhra
Pradesh High Court in Ajjarapu Subbarao
vs Pulla Venkata Rama Rao and others,
AIR 1964 AP 53. The point was raised and
decided in very clear terms by their
Lordships thus:

"15. Now, one legal aspect
deserves to be pointed out at some length.
The learned single Judge has, in respect
of the majority of documents mentioned
above, stated that they are inadmissible
on account of the provisions of Section
65 of the Evidence Act. This view does
not appear to us to be tenable. The rule in
Section 65 excluding secondary evidence
is not so rigid as to be enforced even if no
objection was taken at the trial by the
party
against
whom
the
secondary
evidence was offered. When a party has
waived proof of circumstances justifying
the giving of secondary evidence, he
cannot raise the objection in appeal, vide
Bacharbhai Mohanlal, AIR 1956 Bom
196. A document can be treated as duly
admitted where, its admission without
being proved is not objected to by the
party affected, vide Latchayya Subudhi v.
Seetharamayya, 84 Ind Cas 921 : (AIR
1925 Mad 257). Where the objection to
be taken h not that the document is in
itself inadmissible, but that the mode of
proof
put
forward
is
irregular
or
insufficient, it is essential that the
objection should be taken at the trial
before it is marked as exhibit and
admitted. A party cannot lie by until the
case comes in appeal. A strictly formal
proof might have been forthcoming had it
been insisted on at the trial. The question
of proof of a document is a question of
procedure and can be waived. On the
other hand, questions of relevancy of
documents are questions of law and can
be raised at the appellate stage as well.
There was thus no justification for the
learned Judge to have rejected the
documents on the mere ground that they
are certified copies and not the originals
when, as a matter of fact, no such
objection was ever taken in the trial Court
or even in the memorandum of appeal
before the learned Judge."

11 . To similar effect is the holding of
the Full Bench of the Andhra Pradesh High
Court in The Land Acquisition Officer,
5 All. Employee's State Insurance Corp., Alld. Vs. Jagdish Prasad
645
Vijayawada
Thermal
Station
v.
Nutalapati Venkata Rao, AIR 1991 AP
31, where it is held:

"14. Summarising the position,
we hold that any objection as to the mode
of proof of a document has to be taken at
the stage of marking of a document at the
trial under O. 13, R. 4, C.P.C. If no
objection is raised at that stage, it cannot be
permitted to be raised at any stage
subsequently in the same Court or in the
Court of appeal. If, for example, the
original sale deed or a certified copy
thereof is marked as an exhibit without
objection, it cannot be contended later that
it cannot be looked into as none connected
with it has been called as a witness. Point
No. I is held accordingly."

12. It was further on remarked in The
Land Acquisition Officer, Vijayawada
Thermal Station v. Nutalapati Venkata
Rao (supra):

"30. Summarising the position,
we hold firstly that if secondary evidence is
allowed to be marked for one party without
objection at the trial, no objection can be
permitted to be raised by the opposite party
at any later stage in the same Court or in
appeal
that
conditions
foradducing
secondary evidence have not been made
out initially. ............"

13.

The
question
was
most
wholesomely considered by their Lordships
of
the
Supreme
Court
in
R.V.E.
Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple and
another, (2003) 8 SCC 752, thus:

"17. The other document is the
rent note executed by Defendant 2 in
favour of the plaintiff. Here also the
photocopy of the rent note was produced.
Defendant 2 when in the witness box was
confronted with this document and he
admitted to have executed this document in
favour of the plaintiff and also admitted the
existence of his signature on the document.
It is nobody's case that the original rent
note was not admissible in evidence.
However, secondary evidence was allowed
to be adduced without any objection and
even in the absence of a foundation for
admitting secondary evidence having been
laid by the plaintiff.

18. The abovesaid facts have
been stated by us in somewhat such detail
as would have been otherwise unnecessary,
only for the purpose of demonstrating that
the objection raised by the defendantappellant before the High Court related not
to the admissibility of the documentary
evidence but to the mode and method of
proof thereof.

19. Order 13 Rule 4 CPC
provides for every document admitted in
evidence in the suit being endorsed by or
on behalf of the court, which endorsement
signed or initialled by the Judge amounts to
admission of the document in evidence. An
objection to the admissibility of the
document should be raised before such
endorsement is made and the court is
obliged to form its opinion on the question
of admissibility and express the same on
which opinion would depend the document
being endorsed as admitted or not admitted
in evidence. In the latter case, the document
may be returned by the court to the person
from whose custody it was produced.

20. The learned counsel for the
defendant-respondent has relied on Roman
Catholic Mission v. State of Madras [AIR
1966 SC 1457] in support of his submission
that a document not admissible in evidence,
646 INDIAN LAW REPORTS ALLAHABAD SERIES
though brought on record, has to be
excluded from consideration. We do not
have any dispute with the proposition of
law so laid down in the abovesaid case.
However, the present one is a case which
calls for the correct position of law being
made precise. Ordinarily, an objection to
the admissibility of evidence should be
taken when it is tendered and not
subsequently.
The
objections
as
to
admissibility of documents in evidence
may be classified into two classes: (i) an
objection that the document which is
sought to be proved is itself inadmissible in
evidence; and (ii) where the objection does
not dispute the admissibility of the
document in evidence but is directed
towards the mode of proof alleging the
same to be irregular or insufficient. In the
first case, merely because a document has
been marked as "an exhibit", an objection
as to its admissibility is not excluded and is
available to be raised even at a later stage
or even in appeal or revision. In the latter
case, the objection should be taken when
the evidence is tendered and once the
document has been admitted in evidence
and marked as an exhibit, the objection that
it should not have been admitted in
evidence or that the mode adopted for
proving the document is irregular cannot be
allowed to be raised at any stage
subsequent to the marking of the document
as an exhibit. The latter proposition is a
rule of fair play. The crucial test is whether
an objection, if taken at the appropriate
point of time, would have enabled the party
tendering the evidence to cure the defect
and resort to such mode of proof as would
be regular. The omission to object becomes
fatal because by his failure the party
entitled to object allows the party tendering
the evidence to act on an assumption that
the opposite party is not serious about the
mode of proof. On the other hand, a prompt
objection does not prejudice the party
tendering the evidence, for two reasons:
firstly, it enables the court to apply its mind
and pronounce its decision on the question
of admissibility then and there; and
secondly, in the event of finding of the
court on the mode of proof sought to be
adopted going against the party tendering
the evidence, the opportunity of seeking
indulgence of the court for permitting a
regular mode or method of proof and
thereby removing the objection raised by
the opposite party, is available to the party
leading the evidence. Such practice and
procedure is fair to both the parties. Out of
the two types of objections, referred to
hereinabove, in the latter case, failure to
raise a prompt and timely objection
amounts to waiver of the necessity for
insisting on formal proof of a document,
the document itself which is sought to be
proved being admissible in evidence. In the
first case, acquiescence would be no bar to
raising the objection in a superior court.

23. Since documents Exts. A-30
and A-34 were admitted in evidence
without any objection, the High Court erred
in holding that these documents were
inadmissible
being
photocopies,
the
originals of which were not produced."

There is a reference in this
decision of their Lordships to the holding
of the Privy Council in Padman v.
Hanwanta (supra).

14. The decision of the Supreme Court
was followed by this Court in Sudha
Agarwal v. VII Additional District
Judge,2006 (4) ALJ 545.

15. In view of this position of the law,
there is no doubt that unless an objection
about the admissibility of evidence is taken
5 All. Employee's State Insurance Corp., Alld. Vs. Jagdish Prasad
647
in the Court of first instance, where the
evidence is led, it cannot be raised in
appeal for the first time.

16. A copy of the certificate from the
eye specialist, that is signed by the Medical
Superintendent, Employees State Insurance
Hospital, Sarojini Nagar, Lucknow certifies
with a reasoned opinion that the dimmed
vision is due to the injury in the left eye.
There was no objection raised to this
report, wherein a photostat copy was filed
before the E.S.I. Court, that the original
ought to be filed. The appellant ought to
have taken it, whereafter the employee
could have produced the original. In the
absence of an objection taken by the
appellant, the specialist's report opining the
dimming of vision as one caused due to
injury, cannot be held to be inadmissible.
The treatment papers, xerox copies whereof
have been filed, relate to the E.S.I.
Hospital,
Lucknow
and
are
contemporaneous in time to the injury. If
the appellants had any objection to the
photostat copy of the treatment card, they
ought to have objected, which they did not,
as the record would show. There is a
further report by an eye specialist from the
Lala Lajpat Rai Medical College and
Hospital, Kanpur dated 15.07.1996, which
too opines the loss of vision as one on
account of injury. Here also, a photostat
copy of the treatment card from the Lala
Lajpat Rai Hospital has been filed before
the E.S.I. Court. About this document also,
no objection was raised as to admissibility
before the Judge. There being no such
objection, as already remarked on behalf of
the appellant before the E.S.I. Court, the
objection as to admissibility cannot raised
before this Court.

17. At this stage, the decision of a
learned Single Judge of this Court in
Employees State Insurance Corporation
v. Sarfuddin, 2005 (4) AWC 3289 All,
where, in very similar circumstances,
reliance on photostat copies by the E.S.I.
Court in an appeal from the Medical
Board's decision was not favoured by this
Court on the strength of Rule 47 of the
Rules, has been pressed in aid of the
appellant's case. In Employees State
Insurance Corporation v. Sarfuddin
(supra), it was held:

"14. In the present case no oral
evidence of any of the parties was
recorded. According to Rule 47 of the
Rules, 1952 "in respect of matters relating
to procedure or admission of evidence for
which no specific provision is made in this
rule, the provisions of the Code of Civil
Procedure 1908 (V of 1908) including the
Rules made thereunder and the Indian
Evidence Act, 1872 (1 of 1872) shall so far
as may be, apply to proceedings under the
Act." There is no evidentiary value of
photostat document unless the original is
produced and proved by the author of the
same in the manner laid down by the Indian
Evidence Act. But in the instant case,
neither
the
original
was
produced/summoned nor the doctor (ENT
expert) was examined."

18. It must be remarked in this
connection that in the decision of this Court
in
Employees
State
Insurance
Corporation v. Sarfuddin, the point was
neither raised nor considered, though
involved, whether the failure to raise an
objection before the Court of first instance
about the admissibility of secondary
evidence would disentitle the party from
raising it and questioning its admissibility
in appeal. The entire principle, that
objection as to admissibility about the
mode of proof must be taken before the
648 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of first instance, was not at all
considered by the learned Judge rendering
the
decision
in
Employees
State
Insurance Corporation v. Sarfuddin.

19. This issue was never raised,
argued or considered by the learned Judge
in
Employee
State
Insurance
Corporation v. Sarfuddin. Thus, the said
point or issue passed sub silentio and the
decision in the aforesaid case is not a
binding precedent on the question involved
and decided here. The said decision was
concerned only with the principle that the
Act of 1872 applies to proceedings before
the E.S.I. Court and, therefore, primary
evidence has to be led and secondary
evidence is not admissible, except in
accordance with the provisions of the Act
of 1872. It is not a binding precedent at all
on the principle about the effect of nonraising of the plea of admissibility of
secondary evidence in the Court of first
instance and the consequent bar of raising it
for the first time in appeal before this
Court. The said decision does not at all,
therefore, come to the appellant's aid here.

20. The other limb of the substantial
question of law is centered around the issue
whether on the basis of some prescription
slips showing treatment of the employee, a
claim about permanent disablement or
permanent loss of earning capacity can be
inferred. Indeed, the evidence here shows
that it is just not prescription slips that the
employee has relied upon to substantiate
his claim. It includes a certificate from the
eye specialist that is signed by Medical
Superintendent, E.S.I. Hospital, Sarojini
Nagar, Lucknow, which certifies with a
reasoned opinion that the dimmed vision
suffered by the employee is on account of
the employment injury in the left eye.
There is a further report by an eye
specialist from Lala Lajpat Rai Medical
College and Hospital dated 15.07.1996,
which opines in clear terms that loss of
vision suffered by the employee is on
account of an employment injury. This part
of the present substantial question overlaps
with the subject matter of Substantial
Question of Law No. 2 and would be
answered in greater detail while dealing
with the second question. It is for this
reason that the present question was urged
by the appellant more with regard to the
issue of secondary evidence, the other part
being spared for consideration, while
addressing on the Substantial Question of
Law No. 2. Suffice it to say here that it is
not on the basis of prescription slips alone
that inference about permanent disablement
has been drawn in favour of the employee.

21. Substantial Question of Law No.
(1) is, accordingly, decided in terms that a
photostat copy of the prescription slips
showing treatment of the employee, if not
raised
about
their
admissibility
to
substantiate
the
claim
of
permanent
disablement before the E.S.I. Court, cannot
be permitted to be raised before this Court
on ground that primary evidence ought to
have been filed. Also, the employee's claim
to permanent disability is not based on
mere prescription slips, but on better and
relevant evidence.

22. So far as the second substantial
question of law is concerned, the employee
has produced not only just prescription
slips about his treatment, but also medical
certificates
and
treatment
papers
to
establish that the employment injury had
led to a permanent dimming of vision in the
left eye. There is a copy of the certificate
from the eye specialist that is signed by the
Medical Superintendent, Employees State
Insurance
Hospital,
Sarojini
Nagar,
5 All. Smt. Resha Gupta & Ors. Vs. Sayeed Ahmad & Ors.
649
Lucknow, which certifies with a reasoned
opinion that dimmed vision is due to the
employment injury in the left eye. The
treatment too was undergone by the
employee at the E.S.I. Hospital, Lucknow
and is contemporaneous in time to the
injury. There is a further report by an eye
specialist from the Lala Lajpat Rai Medical
College
and
Hospital,
Kanpur
dated
15.07.1996, which opines in clear terms
that loss of vision is one on account of the
injury. Now, from all these documents filed
before the E.S.I. Court, a well reasoned
inference
has
been
drawn
about
a
permanent damage to vision in the left eye,
which is a scheduled injury under the Act.
The said finding is a pure finding of fact,
based
on
consideration
of
relevant
evidence. Nothing has been shown to this
Court by the learned Counsel for the
appellant as to how that finding is beset by
a flagrant and manifest error of law.

23. So far as the question of burden of
proof is concerned, with the employee
adducing so much of evidence from which
the E.S.I. Court has drawn a reasonable
conclusion about the existence of a scheduled
injury, it cannot be said that the burden has
not been discharged by the employee.

24. Insofar as the loss of benefits in
consequence of the injury is concerned, the
injury being a scheduled injury under Serial
No. 32-A of Schedule-I appended to the Act,
the percentage loss of earning capacity is
provided by the Statute itself, not requiring
any further evidence to establish it.

25. Substantial Question of Law No.
(2) is, accordingly, answered in the
negative in the aforesaid terms.

26. In the result, the appeal fails and
stands dismissed.

27. There shall, however, be no order
as to costs.
----------
(2022)05ILR A649
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 146 of 2017

Smt. Resha Gupta & Ors. ...Appellants
Versus
Sayeed Ahmad & Ors. ...Respondents

Counsel for the Appellants:
Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Pawan Kumar Singh

Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
accident
occurred
on
16.12.2014,
deceased was 32 years of age at the time
of accident and was in self business
having his business -his income was
considered
by
the
Tribunal
to
be
Rs.2,89,850/- per annum, which is just -
deceased was in the age bracket of 31-
35, therefore 40% of the income will have
to be added as future loss of income -
deduction
of
1/3rd
granted
by
the
Tribunal
is
just
and
proper
as the
dependents on deceased were widow,
mother and a six year old minor daughter.
The multiplier of 17 granted by the
Tribunal would be recalculated as 16 -
amount
under
non-pecuniary
heads
should be at least Rs.1,00,000 - deceased
was driving car which is a smaller vehicle
compared to truck - driver of the truck did
not step into the witness box though he is
best witness - charge sheet laid was
against the driver of truck - finding of
Tribunal upheld that the deceased was