Telangana High Court
S.Sudershan Reddy vs The Esi Corporation And 2 Ors on 26 June, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
1
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.187 of 2014
JUDGMENT:
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This appeal is filed by the appellant/claimant aggrieved by the order dated 13.04.2005 in EIA No.07 of 2004 on the file of ESI court cum, Chairman, Industrial Tribunal-I, Hyderabad.
2. The brief facts of the case are that the appellant was working as an operator in the respondent No.3-Organization and met with an employment injury to his right hand wrist and was admitted in ESI Hospital, Sanathnagar. Thereafter, he was referred to NIMS Hospital. He was admitted as inpatient in NIMS Hospital also. After his discharge from the said hospital, he returned to duty. Earlier to the accident he was working as lathe machine operator. After his discharge he was shifted to Bruching machine a light work and his chances of promotion had weakened. He was treated by a medical referee who assessed the loss of earning capacity as 20%. Against the said decision, the ESI Corporation referred the matter to the respondent No.2-Medical Board. The medical board had given 'nil' disability. His contention was that the medical board without properly examining him gave that report. Due to the said injury, his wrist along 2 with four fingers were not working and prayed to set aside the said order.
3. The respondent Nos.1 and 2 filed counter admitting the avocation of the applicant, the accident occurred to him and that he was having insurance but they contended that the appellant sustained only temporary disablement and as there was no loss of earning capacity, the opinion of the medical board was justified. The appellant had not sustained any crush injury and made false plea and prayed to dismiss the application.
4. The appellant produced the insurance card, letter from ESI Corporation and the report of the medical referee, discharge card and treatment slip of NIMS on his behalf. On behalf of the respondents, the accident report, letter from the insured person and other reports were produced. The ESI court on considering the documentary evidence filed by both the parties held that the appellant sustained an employment injury on 02.02.2002 to his right hand wrist but the same was not a crush injury. As per the discharge card of NIMS, it was a grievous injury. No surgery was conducted on him either at ESI hospital or NIMS hospital. As per the medical referee, it was a case of Carpal Trammel Syndrome Right Wrist and assessed loss of earning capacity as 20% but on his advice, the applicant was referred to the Medical Board but the Medical Board observed that the applicant was 3 continuing in the same job and observed the disability as nil. The ESI court considering that there was a restricted movement due to pain to the right wrist, considered it not a case of permanent disability but that the appellant sustained a non schedule injury. As the appellant had to work with both the hands and the wrist of right hand was vital to discharge his services, opined that the applicant sustained 10% of loss of earning capacity but confirmed it at 5% partial and permanent disability.
5. Aggrieved by the said order passed by the ESI court, the applicant preferred this appeal.
6. Heard Sri L Prabhakar Reddy, learned counsel for the appellant and Sri B G Ravinder Reddy, learned Standing Counsel for the respondents.
7. Learned counsel for the appellant contended that the ESI court failed to exercise jurisdiction vested in it in a proper and reasonable manner under the provisions of the ESI Act which was a beneficial piece of legislation. In the absence of any rebuttal evidence adduced by the respondent Corporation and without subjecting the appellant to independent Medical Officer or authority, ESI court ought not to have reduced the loss of earning capacity.
8. As per the medical referee, the applicant sustained loss of earning capacity at 20% but the ESI court opined it as 10% but 4 confirmed it at 5%. The applicant also got examined himself before the Medical Board of Gandhi Hospital, Secunderabad. The said board also assessed the disability of the appellant as 20% partial and permanent and prayed to allow the petition.
9. Learned Standing Counsel for the ESI on the other hand contended that no substantial question of law arises for consideration by this Court in this appeal. As per the ESI court, the appellant sustained only a temporary disability but not a permanent disability, he was continuing in the same job and not sustained any loss of earning capacity and prayed to dismiss the appeal.
10. Under Section 82(2) ESI Act, an appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law.
The substantial questions of law raised in the grounds of appeal by the applicant are:
i) Whether the ESI court by misreading the medical board decision which assessed loss of earning capacity at 20% gave different conclusion on the basis of assumption that the loss of earning capacity of the appellant is not permanent in nature inspite of grievous injury sustained by the appellant?
ii) Whether without sending the appellant to an independent medical expert, calling for report with regard to percentage 5 of disability, the ESI court is justified in reducing the loss of earning capacity on mere surmises and conjunctures?
iii) Whether the 1st respondent in the absence of properly constituted appellate Tribunal as required under Regulation no.76 of ESI (General) Regulations, 1950, whether the Tribunal is validly constituted Tribunal and the decision thereof is illegal, void abienitio and consequent decision of ESI court is improper and vitiated in law?
11. As per Section 54(A) of employees State Insurance Act, 1948- 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 to 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 6
(ii) the Employees Insurance Court directly.
12. The above procedure was followed by the respondents.
The appellant while working as an operator with the respondent No.3 met with an accident on 01.02.2002 and sustained an injury to his right hand alleging that it got crushed in the machine. He was admitted in ESI Hospital, Sanathnagar and taken treatment on 02.02.2002. Thereafter, he was referred to NIMS hospital. He was admitted in NIMS on 17.02.2002 and was discharged on 26.02.2002. The ESI Corporation referred the applicant to a medical referee. The medical referee assessed the loss of earning capacity of the applicant as 20% on 15.07.2003.
13. The ESI Corporation aggrieved by the same referred the matter to the respondent No.2 - Medical Board. The medical board assessed the loss of earning capacity of the applicant as nil. The contention of the learned counsel for the appellant was that the medical board did not examine the appellant thoroughly on 06.09.2003. Due to the said injury, the wrist of the appellant along with his four (04) fingers were not working.
14. The ESI court considered the report of a Neurologist in NIMS Hospital who stated that the general condition of the patient was fair. There was swelling of the right wrist of the hand with severe tenderness 7 but there were no sensory/motor deficits and only movements were restricted due to pain in the right hand and referred the insured back to orthopedician and physiotherapist. The ESI court observing that there was no crush injury and that the appellant was doing the same job in the same factory, considered that it was only a temporary disability but not a permanent disability.
15. This court does not find any illegality in the order of the ESI court as the same was based on the evidence on record and basing on the report of a medical expert. This court does not find any substantial questions of law arising in this matter but however, when the ESI court came to the conclusion assessing the loss of earning capacity of the appellant as 10%, confirming it at 5% is considered as improper. As such, it is considered fit to modify the said order confirming the loss of earning capacity of the appellant as 10%.
16. With the said modification, this Civil Miscellaneous Appeal is allowed. No costs.
Miscellaneous petitions, if any pending shall stand closed.
_____________________ Dr. G.RADHA RANI, J Dt.:26.06.2024 dsv