Employees State Insurance Corporation vs Mohd. Asfaq

Barkat Ali Zaidi, J.—Respondent-worker Mohd. Asfaq at Kanpur sustained an employment injury in his left hand on 10.7.1978. He was referred under the provisions of the Employees'' State Insurance Act, 1948 to the Medical Board for determination of his disablement, in consequence thereof the Medical Board after examining him found 3% permanent loss of his earning capacity awardable to the worker. The said loss was calculated at Rs. 2,066.25 which the relevant office of the Corporation paid to respondent-worker as loss of his earning capacity after sending the respondent-worker a letter of information dated 7.10.1980.

The respondent-worker, thereafter, preferred an Appeal No. 81 of 1980, Mohd Asfaq v. E.S.I. Corporation, u/s 54A of the afore noted Act on 23.10.1980 before the Employees'' Insurance Court, Kanpur, which the Judge allowed partly and thereby modified the decision of the Medical Board to the extent that the worker Mohd. Asfaq will be awarded 5% loss of his earning capacity instead of 3%.

That is how the Employees'' State Insurance Corporation has come up by filing this appeal before this Court.

Heard Mr. B.N. Agarwal, learned Counsel for the appellant and Mr. A.C. Pandey learned Counsel for the worker-respondent.

The contention from the side of the appellant is that since the worker- respondent has accepted the commuted value of disablement benefit, determined by the Board u/s 54 of the aforenoted Act, his right to file an appeal u/s 54A of the Act before the Employees Insurance Court does not survive in view of the Proviso of Sub-clause (ii) of Clause II of Section 54 of the Employees'' State Insurance Act, 1948 which is as follows:

Provided that no appeal by an insured person shall lie under this subsection if such person has applied for commutation of disablement benefit on the basis of the decision of the Medical Board and received the commuted value of such benefit.

The Counsel for the respondent-worker meets this contention with the argument that since the appellant-corporation did not raise this objection before the Employees Insurance Court, it should be deemed to have been waived the same, and the principle of waiver will obliterate this contention.

It is settled law that there could be no waiver against law and the Counsel for the appellant has no answer to this proposition, and, could have none. The argument from the side of the respondent-worker is, therefore, not acceptable and the appeal is, therefore, to be allowed.

The appeal is allowed and the findings and the judgment of the Employees Insurance Court, Kanpur passed in First Appeal No. 81 of 1980 is set aside.