IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 58 of 2005()
1. A. IRUDAYARAJ, T.C.45/780,
... Petitioner
Vs
1. THE REGIONAL DIRECTOR,
... Respondent
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.T.V.AJAYAKUMAR, SC, ESI CORPN.
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :10/12/2008
O R D E R
M.N.KRISHNAN, J
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INAP No.58 OF 2005
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Dated this the 10th day of December 2008
JUDGMENT
This appeal is preferred against the order of the Employees’ Insurance
Court, Palakkad in I.C. A.No.2/2004. It was a case where the applicant
therein had approached the court with a grievance that the special medical
board did not consider his case properly. It is his case that he was suffering
from byssinosis, CAD, IHP, AWMI, etc. The E.I.Court in the light of the
decision reported in Ramakrishnan v. E.S.I.Corporation (2000(2) KLT 538)
held that since he continues to be in employment and is getting higher
wages he is not entitled to the relief prayed for by him. The EI Court also
made it clear that the question of LEC of appellant as a result of which
byssinosis is left open with liberty to him to take up the matter afresh at
appropriate time.
2. Heard the counsel for the appellant as well as the counsel for the
insurance corporation. In the decision reported in Ramakrishnan’s case a
Division Bench of this Court held that “but if the permanent disability by
itself does not result in reduction of salary, the legislative intent, according
INAP 58/2005 -:2:-
to us, is that the disablement benefit cannot be granted so long as such
disability did not affect his employment. If the employment injury did not
affect the loss of earning capacity in view of the continued employment of
the insured person with usual pay and allowances and periodical increments,
the intention of the legislature is that disablement benefit cannot be granted
to such a person”. In the light of this decision and applying the dictum laid
down in that decision to the facts of the present case it is crystal clear that
the applicant/appellant herein continues to be in employment and is getting
more wages as remuneration and therefore the principle laid down in the
said decision will squarely apply and he will not be entitled to any benefit at
this stage as observed by the E.I.Court.
3. Learned counsel for the appellant had cited before me the decision
of a Division Bench of this Court in Vasudevan Nair v. Regl.Director, ESIC
1992(LLJ) 359. It was a case where the Division Bench was considering
the question regarding the correctness of the determination of the disability
by the medical board and the competency of the E.I. court to decide the
question of disability. In paragraph 10 there is a reference to the fact that
“why he was able to get a higher remuneration and what are the
circumstances which made it possible for the insured worker to get a higher
remuneration were not adverted to by the Employees’ Insurance Court”.
INAP 58/2005 -:3:-
First of all the subject matter in that case or the point that arose for
determination was not the question that has been considered by the
Division Bench of this Court in 2000(2) KLT 538. As far as that case was
concerned, it was regarding the mode of deciding the question of disability
that was considered by the Division Bench. The said decision does not in
any way help to substantiate the contention of the appellant.
Therefore in the light of the decision of the Division Bench in 2000
(2) KLT 538 I hold that the finding of the EI court is perfectly in order and
does not call for any interference. I also make it very clear that the
observation made by the EI Court on any subsequent development is left to
be decided at appropriate stage in appropriate proceedings.
INAP is disposed of accordingly.
M.N.KRISHNAN, JUDGE
Cdp/-