Prem Kumari vs Employees State Insurance Corp.
2004 Latest Caselaw 1156 Del

JUDGMENT

R.S. Sodhi, J.

1. FAO 170/2003 is directed against the judgment of the Senior Civil Judge ESIC in ESIC petition No.1/2000 whereby the learned Judge vide his judgment dated 19th July, 2002 has dismissed the claim of the workman on the ground that the disability has not been certified by the Medical Board and that the Certificate obtained by her from the ESI hospital cannot be taken to be the basis for awarding any compensation.

2. It is contended by counsel for the appellant that this is a case where the accident took place on 15.7.1988 and the workman suffered an injury which was certified by the ESI hospital to be 75% permanent. The same should be taken as the basis of calculation of award rather than insisting on formalities which are beyond the control of the workman.

3. Counsel for the respondent submits that the trial court is absolutely right in arriving at a conclusion that no award can be made in the absence of a certificate by the Medical Board.

4. Heard counsel for the parties and have gone through the material on record as also the judgment under challenge. It appears to me that the learned judge has overlooked the provision of Section 54A of the Employees State Insurance Act, 1948 which makes it incumbant upon the Corporation to have the Board examine the injured. In the absence of the Corporation having exercised its right to have the injured examined by a Medical Board, there is no reason why the workman should suffer.

5. In the present case, since the injuries have been certified by the ESI hospital itself to be permanent injury of 75%, I see no reason why this should not be taken as the basis for compensation. In the facts and circumstances of this case, the injury certified by the hospital should form the basis of calculating the compensation due to the workman. Consequently, I hold that the injury suffered by the workman is 75% and permanent in nature. In that view of the matter, I set aside the order under challenge and direct the trial court to re-calculate the compensation based on my findings above. FAO 170/2003 is allowed to this extent. The same stands disposed of. CMs 378, 425/2003 also stand disposed of. Parties to appear before the ESIC Court on 27th October, 2004.

6. It is needless to say that the court shall award all benefits which the workman is entitled as per law. dusty.