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:
-
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
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
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
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
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
(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
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
