The Director General vs S. Arul
2021 Latest Caselaw 6211 Mad

                                                                              C.M.A.No. 3409 of 2014


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 09.03.2021

                                                           CORAM

                                   THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No. 3409 of 2014


                     1.The Director General,
                       ESI Corporation, New Delhi.

                     2.The Regional Director,
                       ESI Corporation, Chennai – 34.                             ..Appellants

                                                            Vs

                     1.S. Arul

                     2.The Managing Director of TANPAC
                       SIPCOT Complex, Cuddalore

                     3.K.Elango                                                   ..Respondents



                                   Appeal filed under Section 82 (2) of the Employees State

                     Insurance Act, 1982 against the order of the Employees State

                     Insurance Court, Cuddalore dated 20.05.2013 made in ESIOP No. 2

                     of 2002.


                                      For Appellants   :         Mr.G.Bharadwaj

                                      For Respondents :          Mr.N.Balasubramanian for R1
                                                                 R2 & R3 – exparte




https://www.mhc.tn.gov.in/judis/
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                                                                              C.M.A.No. 3409 of 2014




                                                       JUDGMENT

The order dated 20.05.2013 passed in ESIOP No. 02 of 2002

is under challenge in the present civil miscellaneous appeal.

2. The ESI Corporation is the appellant and the substantial

questions of law raised are as under:

“a. Whether the ESI Court is correct in holding that the disability of the first respondent is 100% when the opinion of the Medical Board of ESI Hospital is only 80%?

b. Whether the ESI Court is correct in relying upon the evidence of private Doctor examined as PW2 when the Doctors of the ESI Hospital have submitted their opinion with regard to disability of the first respondent?

c. Whether the finding of the ESI Court in fixing the salary of the first respondent at Rs.150/- per month based upon the oral evidence of PW1 when the appellants have filed Exs.R1 to R2 to establish that the salary of the first respondent is Rs.90/- only?”

3. The substantial questions of law raised are relatable to the

facts of the case which were already adjudicated both by the

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C.M.A.No. 3409 of 2014

appellate Court as well as the ESI Court elaborately. The claim

petition was filed seeking compensation on the ground that the

employee was suffering from mental illness due to the accident. The

facts and circumstances were not disputed between the parties.

Thus, this Court need not consider those admitted facts with

reference to the accident as well as the treatment undergone and

the nature of injuries suffered by the claimant.

4. The only dispute raised in the present appeal is that the

competent medical board assessed the permanent disability at 80%

and the ESI calculated the loss of earning capacity as 100%.

Therefore, the ESI Court has committed an error in granting 100%

disability over and above the disability fixed by the competent

medical board.

5. Learned counsel for the appellants reiterated that the suo

motu enhancement of disability by the ESI Court is improper and

the loss of earning capacity assessed as 100% is also not in

accordance with law.

6. This Court is of the considered opinion that the Courts are

bound to grant 'just compensation'. To arrive a just compensation,

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C.M.A.No. 3409 of 2014

the principles established are to be followed. It is not as if that each

case is to be granted merely on the basis of certain arithmetic

calculation. The loss of earning capacity in reality must be assessed

in a pragmatic manner so as to compensate the victims in a rightful

manner. Therefore, the Courts are expected to apply its mind while

calculating the compensation to be awarded.

7. Learned counsel for the appellants reiterated that when the

competent medical board assessed the permanent disability as

80%, there is no reason to assess the loss of earning capacity as

100% by the ESI Court. Such an argument deserves no merit,

considering the fact that the petitioner sustained grievous injuries

and suffered mental illness. The learned counsel further submitted

that he is unable to do any manual work as his earning capacity has

totally gone and cannot contribute anything to his family when the

medical board assessed the mental illnesses as 80%. Thus, it is to

be construed that he is not fit for earning and therefore he cannot

contribute any means to the family members. This being the

practical aspect of the matter, the ESI Court rightly considered that

the loss of earning capacity is to be assessed as 100%. Permanent

disability may be 80%. 80% permanent disability resulted in 100%

loss of earning capacity. Thus, the loss of earning capacity as 100%

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C.M.A.No. 3409 of 2014

assessed by the ESI Court is in accordance with the established

principles and there is no infirmity as such.

8. Thus, the order dated 20.05.2013 passed in E.I.S.O.P.No. 2

of 2002 stands confirmed and the civil miscellaneous appeal is

dismissed. No costs. Connected M.P.No. 1 of 2014 is closed.

09.03.2021

Index: Yes ssm

To

The Presiding Officer, Employees State Insurance Court, Cuddalore.

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C.M.A.No. 3409 of 2014

S.M.SUBRAMANIAM, J.

(ssm)

C.M.A.No. 3409 of 2014

09.03.2021

https://www.mhc.tn.gov.in/judis/