Syed Arshad vs Esi Corporation And 3 Ors

Aggrieved by the order dated 18.03.2005, passed in EIA.No.34 of 2002, on the file of Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad (for short, the Tribunal), the present Appeal is filed.

For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.

The brief facts of the case are that the Appellant is an Employee in the Sirpur Paper Mills Limited, which is a factory covered under ESI Act, 1948 and during the course of his employment, he met with an accident inside the factory premises on 26.03.1999 while driving Truck bearing No.APIJ 8399 and transporting wood from wagons to chipper house. The appellant sustained a serious injury to his left elbow. Immediately, he was shifted to ESI Hospital, Sirpur, Kaghaznagar and from there, he was shifted to ESI Sanathnagar. As the injury did not heal and there is a dislocation of elbow, he was referred to Medical Board at Ramachandrapuram who fixed the disability as 30% after taking X-ray. Subsequently, Respondent No.1-ESI Corporation, preferred an Appeal and the Medical Appellate Tribunal, on examination of the injured person, Dr.V.R.K.Sastry, Medical Expert and Sri T.Kishtaiah, Non-technical Assessor, assessed the loss of earning capacity as 5%. The learned Tribunal, after considering the entire records and nature of job of the petitioner, came to a conclusion that the appellant sustained dislocation of left elbow which is a partial permanent disability and fixed the loss of earning capacity as 10%. Aggrieved by the same, the appellant preferred the present appeal.

Heard the submission of the learned counsel for the appellant as well as the learned counsel for the respondents.

The first ground urged by the learned counsel for appellant is that the Tribunal ought to have confirmed the loss of disability and earning capacity at 30% as fixed by the Medical Board instead of 10%. The second ground urged by the learned counsel for appellant is that the Medical Tribunal was not properly constituted as per the notification issued under Regulation No.76 of Employees State Insurance (General) Regulations, 1950 and the opinion expressed by the said Tribunal caused prejudice to the Tribunal and therefore prayed to fix the disability of the appellant as 30% as fixed by the Medical Board dated 14.12.1999.

On the other hand, learned counsel for the respondents stated that after examining the appellant and after verifying the entire case records, the learned Industrial Tribunal has come to a correct conclusion by fixing the loss of disability and loss of earning capacity as 10% .

Now the point that emerge for consideration is:-

Whether the applicant is eligible for 30% disability?

Point:-

It is pertinent to note that there is no dispute with regard to the employment of the appellant in Sirpur Kagaznagar Paper Mills which is an industry covered under ESI Act and there is also no dispute regarding the accident that occurred on 26.03.1999 during the course of his employment i.e., while driving Truck No.APIJ 8399 for transporting wood from wagons to chipper house and sustained serious injury to his left elbow. The only dispute is with regard to the percentage of disability he sustained for dislocation of left elbow. The Medical Appellate Tribunal examined the appellant in the presence of Medical Expert and a Non-Technical Assessor and on examination of the appellant, the Medical Expert expressed his opinion which is as follows:-

“Patient complaining of pain left elbow joint for which he had treatment for posterior dislocation of elbow joint presently full range of movement present no neuro vascular deficit. The percentage of disability is 5%. Hence, the loss of earning capacity be reduced from 30% to 5%”.”

The learned Medical Appellate Tribunal arrived to the said conclusion as there is a full range of movement of the left elbow of the appellant and there is also no neuro vascular deficit and therefore, the percentage of disability is reduced from 30% to 5%. A perusal of the record discloses that there is no evidence placed before this Court that on what basis the Medical Appellate Tribunal has reduced the percentage of disability from 30% to 5%. Furthermore, the learned Industrial Tribunal came to the conclusion that the appellate sustained a non-schedule injury. Even as per the ESI hospital report, the applicant has received injury to his left elbow and it is grievous in nature and was referred to Medical Board who fixed the disability at 30%. As the medical record is not available with this Court, this court cannot come to a conclusion that for how many days the applicant has undergone treatment as inpatient. It is also pertinent to state that the applicant being a driver, has suffered grievous injury to his left elbow. Therefore, definitely, he would be facing inconvenience while driving a vehicle as he need to control the steering of the vehicle. Also, there is no convincing and cogent evidence to reduce the disability from 30% to 5%.

This Court, upon considering the entire record which is available and also considering the nature of duties discharged by him, is of the considered opinion that the applicant suffered serious injury to his left elbow which resulted in dislocation and as such, the disability sustained by him can be taken as 20% instead of 10% as awarded by the learned Industrial Tribunal.

With the above observation, the Civil Miscellaneous Appeal is allowed-in-part. There shall be no order as to costs.

12 Miscellaneous petitions pending, if any, shall stand closed.