Kerala High Court
The Deputy Director vs Rajendran K.P on 17 October, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
INS.APP NO. 17 OF 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
INS.APP NO. 17 OF 2018
AGAINST THE JUDGMENT DATED 12.03.2018 IN MP NO.1 OF 2014 IN
ICA NO.1/2011 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA
APPELLANT/RESPONDENT:
THE DEPUTY DIRECTOR,
EMPLOYEES STATE INSURANCE CORPORATION, KOLLAM.
BY ADVS.
SRI.ADARSH KUMAR
SRI.SHASHANK DEVAN
RESPONDENT/APPLICANT:
RAJENDRAN K.P.
S/O.PALANI, KIZHAKKEVELI, SOUTH ARYAD,
AVALOOKKUNNU.P.O., ALAPPUZHA, PIN-688 006.
BY ADVS.
SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.ASHWIN SETHUMADHAVAN
THIS INSURANCE APPEAL HAVING COME UP FOR HEARING ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
INS.APP NO. 17 OF 2018
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T.R.RAVI.J
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Insurance Appeal No.17 of 2018
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Dated this the 17th day of October, 2024
JUDGMENT
The appeal has been filed by the respondent in
M.P.No.1/2014 in ICA No.1/2011 of Employees'
Insurance Court, Alappuzha. As per the order, the
employee was found to have 100% loss of earning
capacity and respondent was directed to grant 100%
disability following the said loss of earning capacity. The
short facts of the case are as follows;
2. The respondent who is a toddy tapper met
with an accident. He had initially filed ICA No.1/2011
wherein the Insurance Court directed examination of the
respondent by another Medical Board for ascertaining the
loss of earning capacity on account of various
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employment injuries afresh and ascertain whether the
appellant can pursue the job of toddy tapper any longer
and in which case, he shall be granted loss of earning
capacity of 100%. The Court had taken into account the
fact that the respondent had met with an accident on
29.11.2001 and sustained injuries and the ESI Medical
Board examined him on 20.11.2003 and assessed his loss
of earning capacity at 20% on account of the
employment injuries and he was receiving PDB
accordingly. About 8 years later on 11.07.2009, he met
with another accident while climbing up the tree for
doing the tapping works. He sustained fracture of the
neck of humorous and his loss of earning capacity in
that regard was assessed at 10%. The appellant
contended that cumulative effect of the two employment
injuries sustained by him on 29.11.2001 and 11.07.2009,
was that he was totally disabled and he cannot pursue
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the job of toddy tapper at present. He was treated at
Karuna Medial College Hospital, Palakkad and from
there, he was taken to the Medical College Hospital,
Alappuzha. After treatment, the respondent was referred
to ESI Medical Board and the ESI Medical Board
examined him on 16.09.2010 and assessed his loss of
earning capacity at 10%. The respondent had also
obtained the disability certificate from Dr.V.A.Bindulal,
Assistant Professor in Orthopedics, Medical College, who
was examined as PW2 before the Court.
3. After elaborate consideration of the evidence
on record and the medical condition, the Court found
that the finding of the Medical Board that the disability
was 10% cannot be accepted. The Court relied on the
judgments of the Hon'ble Supreme Court in Prathap
Narain Singh vs. Srinivas [AIR 1976 SC 222] and
Janardhanan K vs. United Insurance Company Ltd [2008
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II LLJ 960] and held that the ESI Medial Board's
decision is unsustainable. It is thereafter the respondent
has directed to undergo examination by another Medical
Board.
4. The appellant did not challenge the above
said order, whereby the ESI Medical Board's decision
was upset by the ESI Board. After the order dated
29.10.2013 in ICA No.1/2011, the respondent was
examined by another Medical Board constituted by the
appellant. The said Medical Board reported that the
injury on the shoulder results in only 2 cm shortening
and limitation of terminal 10 degree section and
extension may not make him incapable of toddy tapping.
After finding the disabilities, the Medical Board opined
that the respondent can perform his duties as a toddy
tapper with the said disabilities. The respondent filed
MP.No.1/2014 being aggrieved by the findings of the
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Medical Board and requested to be examined by a
Medical Board of the Government Medical College,
Alappuzha.
5. After considering the objections of the
respondent and hearing the counsel on either side, the
Court permitted the respondent to be examined by a
Medical Board constituted by a third party that is
Government Medical College, Alappuzha. The Medical
Board examined the respondent and found that he was
having 32% permanent disability and 100% loss of
earning capacity as toddy tapper. The Assistant Professor
(Physical Medicine and rehabilitation) of the Medical
College Hospital, who was a member of the Medical
Board, was examined as PW3 before the Court. PW3
deposed that it is impossible for the respondent to
continue his job as a toddy tapper. Even though PW3
was cross examined in detail by the counsel for the ESI
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Corporation, nothing has been brought out to discredit
his evidence. The order of the Insurance Court directing
examination of the respondent by a third party Medical
Board constituted by the Government Medical College,
Alappuzha was not challenged by the appellant.
6. After considering the report of the Medical
Board and the evidence on record, the Insurance Court
found that the shoulder abduction of the respondent was
only 120 degree as against 180 degree as of a normal
human. The Court found that there is a fracture of hip
with a persistent pain and stiffness of the shoulder. The
above disabilities together caused the loss of earning
capacity to the extend of 100%. The Insurance Court
accepted the report of the Medical Board of the
Government Medical College, Alappuzha and directed
grant of benefits to the respondent treating his loss of
earning capacity as 100%.
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7. The main ground on which the above order is
assailed by the counsel for the appellant is that as per
the provisions of the Employees State Insurance Act, the
disability has to be ascertained by a Medical Board
constituted in accordance with the regulations. It is
hence submitted that the Insurance Court could not
relegate the said function to the Medical Board
constituted by a third party that is the Government
Medical College, Alappuzha. It is submitted that if there
was any grievance regarding the Medical Board findings,
that can be subjected to appeal and instead of following
the said procedure, the Court should not have ordered
examination by another Medical Board. The counsel
relied on the judgments of this Court in ESIC vs.
KK.Pushkaran [ILR 1993 (3) Kerala 773], Insurance
Appeal No.93/2012 and the judgment of the Hon'ble
Supreme Court in Arvind Kumar Jaiswal vs. Devendra
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Prasad Jaiswal Varun [2023 LiveLaw (SC) 112] . The
contention is that going by the provisions, what is
required to be looked into is not whether the employee
was able to perform the very same job which he was
performed. It is submitted that what should be
considered is whether the employee was capable to do
any job without restricting it with a job which he was
done earlier. The counsel also relied on the judgment of
a Full Bench of this Court in Vanajakshan vs. Joseph
[2003 (2) KLT 462]. It is submitted that the above said
decisions are all decisions which are rendered under the
ESI Act and hence the Insurance Court was bound to
follow the said decisions.
8. I do not find any reason to interfere with the
order of the Insurance Court. It is not as if the Insurance
Court had not considered the contentions of the
appellant. The Medical Board constituted by the ESI
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Corporation had rendered a report which on evidence
was found to be bad. This resulted in the direction to
constitute another Medical Board. The said Medical
Board also rendered the very same findings which was
rendered earlier. It was in the above circumstances that
the Insurance Court had directed examination by a
Medical Board constituted by the Government Medical
College, Alappuzha. The appellant did not have any
grievance regarding the above said direction. The order
was complied with and a report was also obtained.
Based on the said report, the proceedings before the
Insurance Court continued. The appellant did not have
any grievance at that point of time also. The appellant
participated in the trial and the Doctor who was part of
the Medical Board constituted by the Government
Medical College, Alappuzha was cross examined in detail.
It is thereafter that the Court accepted the Medical
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Board's report and passed the impugned order. The said
findings of facts regarding the disablement and loss of
earning capacity cannot be set aside by this Court merely
for the reason that the Board was not constituted by the
ESI Corporation. As per Section 78 of the ESI Act, the
Employees' Insurance Court shall have all the powers of
a Civil Court for the purposes of summoning and
enforcing the attendance of witnesses, compelling the
discovery and production of documents and material
objects, administering oath and recording evidence and
the Court shall be deemed to be a Civil Court within the
meaning of Section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973. As such, it cannot be said that
the direction to have the respondent examined by a
Medical Board constituted by the Government Medical
College, Alappuzha was beyond the powers of the
Insurance Court. The definition of permanent partial
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disablement and permanent total disablement are relied
on to submit that the disablement should be with regard
to performance of any job need not be gone into in this
case since there is a report of the Medical Board
available in this case. The Medical Board was constituted
on directions of the Insurance Court. Section 54 of the
Act only says that the disablement shall be determined
by the Medical Board constituted in accordance with the
provisions of the Act, which does not in any way negate
the power of the Court to direct constitution of a
Medical Board if the situation warrants. I do not find
any reason to interfere with the judgment of the
Insurance Court.
The appeal fails and is dismissed.
Sd/-
T.R.RAVI
JUDGE
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