Cataract surgery does not qualify as an employment injury under the Employees’ State Insurance Act, and claims for medical negligence must be addressed in consumer courts.

JUDGMENT :

1. Leave to amend as sought for, is granted.

2. Permission, as sought for, to bring the heirs on record is granted. Necessary amendment to be carried out forthwith.

3. The present First Appeal is filed under Section 82(2) of the Employees’ State Insurance Act, 1948 (for short hereinafter referred to as ‘the ESI Act’) challenging the judgment and order dated 25.10.2001 passed by the Employees State Insurance Court, Vadodara in Application No.4 of 1988.

4. Heard learned advocate Ms. Dimple Thakkar for the appellant.

5. The brief facts of the case are that the employee- Bhikhabhai Bhurabhai Rana filed an application under Section 76 of the Employees’ State Insurance Compensation Act claiming Rs.1,23,640/- as compensation with 12% interest from the date of 13th August 1954 from the original opponents. The employee was insured with the appellant with Insurance No.37/3022690. The employee underwent a cataract surgery on right eye at the SSG Hospital in Vadodara on 13th August 1984. It is the case of the original claimant that the employee lost his right eye vision and also lost job because of the negligent and careless surgery performed by the Dr. N.H. Patel-Respondent No.3. The original opponent No.1 filed Written Statement at Exhibit-23 and denied the claim of the employee. It is contended inter alia that there was no negligence on the part of the original opponent No.2, Dr. N.H. Patel in performing the cataract surgery. It was also denied that the employee was removed from the Mill. ESI-Corporation was subsequently joined in the proceedings. Issues were framed. During the pendency of the proceedings, deceased-Bhikhabhai Bhurabhai Rana passed away on 08.07.1992. Heirs of deceased- Bhikhabhai Bhurabhai Rana were brought on record. The widow of deceased- Bhikhabhai Bhurabhai Rana deposed at Exhibit-26. Vide Exhibits-39 and Exh.40, original opponent No.1 and ESI-Corporation respectively filed their examination-in-chief. After considering the evidence and the submissions, learned Employees’ State Insurance Court, Vadodara allowed the Claim Application on 25.10.2001 directing opponent No.1 to give all benefits to claimants from August 1984 till death of employee.

6. Being aggrieved and dissatisfied with the impugned judgment and order, the appellant is before this Court.

7. Learned advocate for the appellant has submitted that the judgment and order passed by the learned Employees’ State Insurance Court is against the settled principles of law and also against the provisions of the ESI Act. It is further submitted that the case does not fall within the definition of “employment injury” as defined under Sub-section 8 of Section 2 of the Employees State Insurance Act, 1948. It is further submitted that cataract problem is not falling within the definition of “employment injury” and learned ESI Court has committed an error by ignoring the basic principle of law. It is further submitted that there was no negligence on the part of Dr. N.H. Patel i.e. respondent No.3 herein, who performed the cataract surgery. It is found from the Hospital record that on 25.09.1984, the condition of right eye of employee was found proper and after examining the employee, spectacles were also provided. This fact clearly demonstrates that there was no negligence on the part of Dr. N.H. Patel in performing the cataract surgery of the employee. It is further submitted that there is no expert evidence on record to establish the negligence on the part of Dr. N.H. Patel.

7.1. Learned advocate for the appellant has further submitted that since the case of the employee does not fall within the purview of “employment injury”, the ESI Court had no jurisdiction to try and decide the claim application. The employee ought to have approached the Consumer Court under the Consumer Protection Act for redressal of the dispute.

7.2. Learned advocate for the appellant has placed reliance upon the decision in the of Kishore Lal Versus Chairman, Employees State Insurance Corpora