Employees State Insurance Corporation and Employees State Insurance vs A. Saroja

T. Mathivanan, J.—This Civil Miscellaneous Appeal is directed against the order dated 18.12.2008 and made in ESIOP. No. 45 of 2005

on the file of the Labour Court, Madurai.

The facts which are absolutely necessary for the disposal of this appeal may be summarised briefly as follows ;

The Respondent herein was working in Nataraj Oil Mills Pvt. Ltd., situated at Uthankudi Village at Madurai North Taluk. The said oil mill is

covered under ES I scheme. The Respondent being the worker of the said mill was also covered under the Employees State Insurance Scheme

and her Insurance Number is 813031.

That on 01.09.2004, while she was engaged in nigh shift, she had sustained fracture over her left wrist, when she was about to put gingelly over

the funnel of the machineries. The supervisor of the mill did not even come forward to take the Respondent to the ESI Hospital. She was not even

provided with any work from 02.09.2004 and she was not even paid the salary and when she demanded compensation for the injuries sustained

by her she was instructed to get the compensation from Employees State Insurance Company. Thereafter, she had taken treatment from the

Employees State Insurance Hospital at K.K. Nagar, Madurai. However she was not recovered fully and suffered with permanent disability. Since

she was not paid monthly pension and compensation for the injuries sustained by her, she had filed a petition before the Labour Court Madurai, for

the following reliefs;

The disability suffered by the Petitioner is permanent in nature.

To direct the Appellant/Respondent to pay a sum ofRs.1 lakh towards the compensation.

To direct the Appellant/Respondent to pay a sum ofRs.1,000/-per mensum towards pension as the Petitioner is not able to work.

The Appellants/Respondents had resisted the petition on the following grounds;

The allegations made in the petition could be decided only after the decision of the Medical Board and could not be decided at the initial stage.

The Petitioner had sustained only simple injuries likes mall hair crack over her left hand radius lower end and it has been completely cured and

she is not suffered with any disability.

Till date the Petitioner is working and earning income and hence no question of loss of income will arise.

As per the report of the Medical Referee, the injuries sustained by the Respondent/Petitioner is not permanent. The Medical Referee has also

opined that the stiffness of the left wrist can be improved by active physiotherapy.

The Respondent/Petitioner has no locus standi to file the petition before the Labour Court, as she had failed to take proper physiotherapy

treatment as suggested by the Medical Referee.

After receiving a letter dated 08.03.2005, from the Petitioner, the Respondent/Petitioner was informed to produce all the relevant records of

treatment and O Ptickets etc., but she had not turned back till date.

In order to substantiate their respective cases, the Respondent/Petitioner was examined as PW 1. One Dr. Chidambaram was examined as PW

2 and during the course of their examination Exs.P1 to P11 were marked. On the other hand, three witnesses were examined on behalf of the

Appellants/Respondents and during the course of their examination Exs.R1 to R6 were marked. On evaluating the evidences both oral and

documentary, the Labour Court, Madurai had assessed the disability of the Respondent/Petitioner as permanent in nature and estimated at 35%.

Therefore, the Appellants/Respondents were directed to pay compensation in proportionate to the percentage of disability. Being aggrieved by the

impugned order the Appellants/Respondents in the ESIOP being the Manager and the Joint Director of the Employees State Insurance

Corporation, have approached this Court by way of this appeal, after invoking the proviso to Section 82 of ESI Act, 1948.

Heard both sides.

The appeal has been admitted on the following two substantial questions of law.

Whether the lower court is justified in fixing the extent of loss of earning capacity of the Respondent employee without referring the questions for

the determination of the Medical Board u/s 54 of the ESI Act ?

Whether the determination of permanent disablement of the Respondent at 35% by the Lower Court is tenable in law ?

The Appellants/Respondents have not denied the fact that the Petitioner/Respondent was working in the mill under the name and style of

Nataraj Oil Mills Pvt. Ltd. It is also not disputed that the mill is covered under the ESI Act. It is pertinent to note here that the Respondent is a

member of ESI Insurance Scheme and her number is 813031. The injuries sustained by the Respondent/Petitioner over her left wrist, while she

was under employment is also not disputed. But it was contended on behalf of the Appellants/Respondents that the injuries sustained by the

Respondent/Petitioner was only simple in nature and that if she had undergone proper physiotherapy treatment, the stiffness over her left wrist

could have been reduced considerably.

The learned Counsel for the Appellant would submit that the question regarding the disablement of the insured employee, its nature; temporary

or permanent and the extent of loss of earning capacity etc., are the questions to be determined by the Medical Board constituted u/s 54 of the

E.S.I. Act. He has also contended that the Lower Court has failed to note that the ESI Corporation had directed the Petitioner to produce the

relevant records through letter dated 14.10.2005 (Ex.R6) so as to enable her to be referred to the Medical Board for the determination of the

physical disablement. But she had flouted down there quest made by the Appellants/Respondents and that the Petitioner is not having any locus

standi to maintain any such petition much less the petition which was filed before

the Labour Court. He has also contended that the Labour Court ought to have directed the matter to be referred to the Medical Board u/s 54 of

the ESI Act 1948.

Section 54 of The Employees'' State Insurance Act, 1948 reads as under;

Section 54. Determination of question of disablement - Any question-

(a) whether the relevant accident has resulted in permanent disablement; or

(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or

(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or

(d) in the case of provisional assessment, as to the period for which such assessment shall hold good, shall be determined by a Medical Board

constituted in accordance with the provisions of the regulations and any such question shall hereinafter be referred to as the ""disablement question.

It may also be relevant to refer the proviso to Section 54(A);

Section 54(A). References to Medical Boards and appeals to Medical Appeal Tribunals and Employees'' Insurance Courts - (1) The case of any

insured person for permanent disablement benefit shall be referred by the Corporation to a Medical Board for determination of the disablement

question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall

again be so referred to the Medical Board not later than the end of the period taken into account by the provisional assessment.

(2) If the insured person or the Corporation is not satisfied with the decision of the Medical Board, the insured person or the Corporation may

appeal in the prescribed manner and within the prescribed time to-

(i)the Medical Appeal Tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed

manner and within the prescribed time to the Employees'' Insurance Court, or

(ii)the Employees'' Insurance Court directly; Provided that no appeal by an insured person shall lie under this Sub-section if such person has

applied for commutation of disablement benefit on the basis of the decision of the Medical Board and received the commuted value of such benefit;

Provided further that no appeal by the Corporation shall lie under this Sub-section if the Corporation paid the commuted value of the disablement

benefit on the basis of the decision of the Medical Board.

On coming to the instant case on hand it is manifest that the Respondent/Petitioner had not appeared before the Medical Board. It was argued

on behalf of the Appellant/Respondent that the Respondent/Petitioner was treated in the Appellants hospital and that the Respondent/Petitioner

was examined clinically in the Appellant ESI Hospital and accordingly, a certificate underEx.R2 was issued with an opinion stating that the stiffness

over the left wrist might be improved by the active physiotherapy and that it need not be referred to Medical Board. Ex.R2 is a certificate issued

by a Medical Referee, ESI Corporation, Madurai in which it is stated that the Respondent/Petitioner being the insured had requested for a

reference to a Medical Board for assessment of permanent disablement. In this certificate the Doctor has stated that the Respondent/Petitioner had

permanent disability of mal union of radius at the lower end. It is also stated that the mal union is not grossly interrupting the work of the individual

and that the stiffness over the left wrist might improve by active radio therapy and hence, the Respondent/Petitioner need not be referred to the

Medical Board.

It was also argued by the learned Counsel for the Appellant that on the request made by the Respondent/Petitioner to refer her to the Medical

Board, a letter dated 12.10.2004 was written, to the Branch Manager, ESI, Madurai to refer the Respondent before the Medical Board, to assess

the loss of earning capacity as the compensation has to be issued in accordance with the determination of the Medical Board. But before receiving

are ply from the Medical Board, the Respondent/Petitioner had approached the Labour Court. The learned Counsel has also argued that under

Ex.R2, the Medical Referee has stated that the individual need not be referred to Medical Board as the stiffness of left wrist might be improved by

active physiotherapy.

Ex.P10 is the disability certificate issued by PW2, Dr. M. Chidambaram. PW 2, had been working as a Professor in Orthopedic Department

in Government Rajaji Hospital. He had examined the Respondent/Petitioner for the purpose of estimating he disability and ultimately assessed her

disability at 35% and to that effect a certificate was also issued under Ex.P10. On careful appreciation of his evidence it is obvious to note here

that PW 2, is in no way connected with the ESI Hospital. As rightly argued by the learned Counsel for the Appellant u/s 54 of ESI Act the

disability either it is partial or permanent which is suffered by the employee, shall be determined by the Medical Board constituted in accordance

with the provisions and with the regulations, and it is also contemplated that any such question relating to disablement shall be only determined by

Medical Board.

On the other hand the learned Counsel for the Respondent would submit that the percentage of disability estimated by PW 2 would be

sufficient and the Appellant/Respondents may be directed to pay the amount of compensation in proportionate to the disability assessed by PW 2

i.e., at the rate of 35%.

In so far as this case is concerned the injury sustained by the Petitioner is not disputed. If at all any question relating to disablement to be

determined, that must be determined by Medical Board, constituted u/s 54 of ESI Act, and that the Labour Court is not having jurisdiction to

determine the question of disablement. The procedure envisaged u/s 54 of the Act cannot be bypassed or subverted. Though the Medical Referee

has stated in Ex.R2 that the Respondent/Petitioner need not be referred to Medical Board as the stiffness over her left wrist might be improved by

active physiotherapy, still it requires u/s 54 of the Act, that the Respondent/Petitioner must be referred to Medical Board as PW 2 has assessed

disability at 35%. In order to ascertain her disability and its percentage for the purpose of assessing the loss of earning capacity, it has become

necessary to refer the Respondent/Petitioner before the Medical Board as contemplated u/s 54 of The Employees Insurance Act, 1948.

Accordingly the appeal is allowed. The order dated 18.12.2008 and made in ESIOP No. 45 of 2005 on the file of the Labour Court Madurai,

is set aside and the Appellants/Respondents are directed to refer the Respondent/Petitioner to the Medical Board to estimate the extent of loss of

earning capacity for the purpose of making compensation. No order as to costs.