IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 14 of 2006()
1. THE REGIONAL DIRECTOR,
... Petitioner
Vs
1. V. CHANDRASENAN, SARASWATHY MANDIRAM,
... Respondent
For Petitioner :SMT.T.D.RAJALAKSHMY, SC, ESI CORPN.
For Respondent :SRI.A.JAYASANKAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/10/2008
O R D E R
M.N. KRISHNAN, J.
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INS.APPEAL NO. 14 OF 2006
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Dated this the 3rd day of October, 2008.
J U D G M E N T
This appeal is preferred against the judgment of the
Employees Insurance Court, Alappuzha in I.C.142/03. As a
result of an employment injury, the applicant before the
Court below sustained traumatic amputation of terminal
phalanx of 5th and 3rd finger, terminal and middle phalanx of
4th finger of left hand and other burn injuries. He had
undergone treatment in various hospitals including Medical
College Hospital, Alappuzha and his disability has been
assessed at 23%. The said finding by the Medical Board is
under challenge in I.C.A.5/03. The grievance of the
applicant is that he was to be on certified leave from 25.1.01
to 11.6.03 as he was not declared fit by any of the concerned
Medical Officers. In spite of the same he had not been
extended with the temporary disablement benefit on the
INS.APPEAL NO. 14 OF 2006
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ground that the question of disability was finally decided by
the Medical Board. The E.I. Court on an exhaustive
consideration of the materials held that if there is no
evidence to show that he can resume work he must be
entitled to the temporary disablement benefit for the period
for which he was on certified leave in connection with the
employment injury.
2. Learned counsel for the Corporation strongly
contends and placed before me the manual, especially
paragraph 5.63 which reads as follows.
“In case where the Medical Board has
decided that the disablement of the insured
person is of a permanent nature and has
accordingly assessed the extent of loss of
earning capacity, the decision of the
Medical Board if accepted at Regional Office
will be followed. If the IMO/IMP continues
to issue a certificate after the Medical
Board decision, the incapacity from the
date of examination by the Medical Board
should be treated as a fresh spell of
INS.APPEAL NO. 14 OF 2006
-:3:-sickness. Sickness benefit, if due and
admissible may be paid and, where
required under the law, after deduction of 2
waiting days. However, permanent
disablement benefit, if admissible, will also
be payable for the period of incapacity
treated as spell of sickness.”
3. Learned counsel would submit when the
permanent disablement is assessed in view of this clause
there cannot be any further extension of any other benefit
and so the E.I. Court has gone wrong in coming to the
conclusion that he is entitled to the temporary disablement
benefit. It is true that such clause dealt with the fixation of
permanent disablement and the entitlement as well as
prevention of any benefit thereafter. The fundamental
underlying principle behind all these factors is that when the
temporary disablement assumes the character of a
permanent disablement to certain extend after a certain
period it is that permanent disablement that will have to be
calculated. For example when one person suffers a very
INS.APPEAL NO. 14 OF 2006
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serious injury his incapacity to do any work will be there for
a definite period of time and thereafter in the process of time
it will get changed and ultimately a stage will come where he
will have a certain specific percentage of permanent disability
which means that his capacity to do the work is limited only
to a certain percentage. So far as this case is concerned
though the Medical Board has assessed the permanent
disability, none of the Medical Officers attached to the
institution has certified that he is fit to resume work. Unless
he is certified to be fit to resume work one cannot deprive
him of the temporary disablement benefit which is otherwise
entitled to. So in a case of this nature where permanent
disablement is assessed but there is nothing to prove that
his temporary disablement of 100% has ceased to exist then
it may not be proper to deprive him of a benefit which he is
legally entitled to.
4. What I mean to say is that unless the employee is
declared to be fit to do some sort of work in connection with
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his employment injury, he cannot be deprived of the
temporary disablement benefits. One should not read the
office manual to arrive at a contra decision to deprive a
person of the benefits which he is entitled to. So far as this
case is concerned the applicant has to continue on medical
leave from 25.1.01 to 11.6.03 and he has not been declared
to be fit by any of the concerned Medical Officers. Therefore
I find the approach made by the E.I. Court appears to be
only proper which does not call for any interference. Hence
the appeal lacks merit and therefore is dismissed.
M.N. KRISHNAN, JUDGE.
ul/-