The Regional Director vs P.V. Prakasan

B. Kemal Pasha, J.—Aggrieved by judgment dated 24.10.2011 of the Employees'' Insurance Court, Alappuzha, the Employees State Insurance Corporation (''ESI Corporation'' for short) has come up in appeal.

The respondent herein was an employee of the Quilon Spinning Mill, Chathannoor in Kollam District. He developed an occupational illness on account of Bysinosis due to dust from the spinning mill, which resulted in acute Bronchitis and Asthma. Ultimately, he had to resign from his job on 20.8.1998. He had forwarded a request before the ESI Corporation for referring him to a Medical Board for assessing his permanent disablement. His request was declined. As his request fell in deaf ears, he approached the court below through I.C.No.19/2001, which was ultimately allowed on 4.8.2003. Dissatisfied with the said order, the ESI Corporation had preferred Insurance Appeal No. 16/2004 before this Court. Finding that there is no merit in this appeal, this Court vide judgment dated 1.2.2007 dismissed the appeal.

Thereafter, the ESI Corporation has referred the respondent herein to the Medical Board. The Medical Board on careful examination has reported that the respondent is suffering from a permanent disablement of 20%. As the ESI Corporation has denied the Permanent Disablement Benefit to the respondent by resorting to some untenable contentions, the respondent had to approach the court below through I.C.No.10/2010. What was claimed before the court below was Permanent Disablement Benefit from 20.9.1994 onwards with interest at the rate of 12% per annum. It seems that the court below has chosen to pass the impugned judgment by limiting the Permanent Disablement Benefit by treating 20% loss of earning capacity from 20.9.1994 to 20.8.1998 subject to a condition that he shall be paid temporary disablement benefit for the broken spells between 20.9.1994 to 5.10.1997. The ESI Corporation has come up in appeal.

Heard the learned Standing Counsel for the ESI Corporation Sri.T.V.Ajayakumar and the learned counsel for the respondent Sri.A. Jayasankar.

Learned Standing Counsel for the appellant has pointed out that the court below has transgressed into other areas which were not to be dealt with in considering the case of the respondent herein. It has been pointed out that when the respondent herein had claimed a relief of Permanent Disablement Benefit for the period from 20.9.1994 onwards, the court below has chosen to grant it for the period up to 20.8.1998 for the reasons best known to the court below only, and by extending a Temporary Disablement Benefit for the broken spells between 20.9.1994 to 5.10.1997, which were not claimed. Based on the decision in Ramakrishnan v. ESI Corporation [2000 (2) KLT 538], the learned Standing Counsel for the ESI Corporation has argued that the provisions relating to Sec. 63 of the Employee''s State Insurance Act can be extended to the cases wherein Permanent Disablement Benefit has been sought for.

Per contra, the learned counsel for the respondent has pointed out that the court below has not even cared to grant the relief claimed by the respondent herein and therefore, the respondent is also aggrieved, which necessitates the intervention of this Court. Learned counsel for the respondent has conceded that the respondent has not claimed any Temporary Disablement Benefit in the case as the respondent is entitled to Permanent Disablement Benefit at 20% from 20.9.1994 onwards.

As per Sec. 63, on which the learned Standing Counsel for the ESI Corporation has placed reliance, "no person shall be entitled to sickness benefit or disablement benefit for ''temporary disablement'' on any day on which he works or remains on leave...........". It is evident that the said provision is confined to the question of temporary disablement alone and it has no impact on a question of permanent disablement benefit. When the respondent was constrained even to resign his job on account of his permanent disablement of 20% which in fact, assessed after a decade, it cannot be said that the respondent is entitled to Permanent Disablement Benefit at 20% for the period from 20.9.1994 onwards.

On going through the decision in Ramakrishnan''s case (supra) it can be seen that apart from some passing remarks and observations, the dictum is mainly confined to temporary disablement benefit alone. It seems that it was observed in Ramakrishnan''s case supra that if the permanent disablement by itself resulted in reduction of salary, the legislative intent is that the disablement benefit cannot be granted so long as such disability did not affect employment. Therefore, it is evident that the same is with regard to the loss of earning capacity. When a person had strived hard to do his normal work with his permanent disability, it cannot be said that he is not entitled to compensation by way of Permanent Disablement Benefit. In this particular case, the employee had to abandon his job at all as he could not pull on. No doubt, in this case, the respondent is entitled to Permanent Disablement Benefit at 20% from 20.9.1994 onwards. The relief seems to be granted by the court below with regard to temporary disablement benefit does not arise at all, as the respondent is entitled to Permanent Disablement Benefit from 20.9.1994 onwards. Therefore, the impugned order requires modification to that effect.

In the result, this appeal is allowed in part by modifying and substituting reliefs 1 to 3 in the following lines :-

It is declared that the applicant is entitled to Permanent Disablement Benefit at 20% from 20.9.1994 onwards with interest at the rate of 12% per annum. No order as to costs.