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2023 Supreme(Mad) 533
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
A. Jabamalaimani - Appellant
Versus
The Branch Manager Employees State Insurance Corporation Thoothukudi & Another - Respondents
C.M.A(MD)No. 1028 of 2017
Decided On : 28-03-2023
For the Appellant:T. Murugan, Advocate. For the Respondent:R1, R. Ravindran, R2, M.E. Ilango, Advocates.
Sustainability of a petition for permanent disability benefit under the E.S.I. Act without challenging the Medical Board's decision.
Headnote:
Employees State Insurance Act - Disability Pension - Section 54-A(2) - The court dismissed the appeal challenging the rejection of disability pension. The employee sustained injuries in an industrial accident and was paid temporary disablement benefits. The Medical Board concluded that there was no permanent disablement. The employee continued working for 5 years after the accident and resigned voluntarily. The court found that the petition for permanent disability benefit, filed 12 years after resignation, without challenging the Medical Board's decision, was not sustainable.
Fact of the Case:
The employee sustained injuries in an industrial accident and was paid temporary disablement benefits. The Medical Board concluded that there was no permanent disablement. The employee continued working for 5 years after the accident and resigned voluntarily.
Finding of the Court:
The court found that the petition for permanent disability benefit, filed 12 years after resignation, without challenging the Medical Board's decision, was not sustainable.
Issues: Sustainability of the petition for permanent disability benefit under the E.S.I. Act
Ratio Decidendi: The petition for permanent disability benefit, filed 12 years after resignation, without challenging the Medical Board's decision, was not sustainable.
Final Decision: The Civil Miscellaneous Appeal stands dismissed. No costs.
JUDGMENT
(Prayer: Civil Miscellaneous Appeal filed under Section 82 of the Employees State Insurance Act, to set aside the order passed by the learned Employees State Insurance Court (Labour Court), Tirunelveli in ESI OP.No.21/2015 on 14.09.2017 and to direct the first respondent to issue full sick earn leave amount of Rs.1,54,753.60 and disabled pension.)
1. The present appeal has been filed challenging the order of E.S.I. Court, Tirunelvlei wherein the prayer of the appellant for declaring his disability at 100% and for consequential permanent pension was rejected.
Factual Matrix:
2. The appellant/employee was working in the second respondent Mill as an Electrician and on 01.08.1998, he sustained injuries in his head and neck due to an industrial accident. In view of the said industrial accident, the employee was paid temporary disablement benefit for a period of 230 days between 02.08.1998 and 20.03.1999 to a sum of Rs.33,166/-. Thereafter, at the request of the employee, he was referred to Medical Board for examination to find out whether there is any permanent disablement as a result of the industrial accident or not. The Medical Board by way of their report dated 27.05.1999, concluded that there is no permanent disablement. The Board further found that the symptom will not cause any incapacity for his work. Based upon the said Medical Board report, cash benefit was not extended to the employee. The decision of the Medical Board was communicated to the employee by the Regional Office of E.S.I. Corporation, Madurai on 11.08.1999.
3. The employee had rejoined the second respondent industry. Thereafter, he resigned with effect from 6.11.2003. In the year 2015, the employee has chosen to file E.S.I.O.P.No.21 of 2015 to declare that he has sustained 100% disability and he is entitled for pension.
4. The E.S.I.Court found that the employee had continued in his service for nearly 5 years after the industrial accident and there is no allegation that he was paid lesser wages due to his disablement. The E.S.I Court further found that the petition has been filed after a period of 16 years from the date of accident. His resignation application has been accepted by the employer and the retirement benefits have been disbursed. Therefore, there is no record to establish that there was any disability at any point of time. The E.S.I. Court further found that there is no reason whatsoever to interfere in the report of the Medical Board dated 27.05.1999 and to set aside the same. Based upon the said findings, the E.S.I.Court has dismissed the petition. Challenging the same, the present second appeal has been filed.
5. According to the learned counsel appearing for the appellant/employee, there are sufficient evidences to prove that the appellant has suffered 100% disability and hence, he is entitled to pension from the E.S.I.Corporation.
6. The learned counsel had further contended that in view of injury to the cervical bone, he could not stand or work before heavy machines and therefore, he is entitled to receive full compensation amount. He had further contended that the E.S.I.Hospital which had referred the employee to the Medical Board before have found that the appellant had not yet cured from the injury.
7. The learned counsel for the appellant had further contended that the appellant had resigned from service even 7 years before attaining superannuation only due to his poor health condition that arose out of the industrial accident. The learned counsel had further contended that the Labour Court has not properly appreciated the certificates issued by the Doctor of the Government Medical College Hospital, Tirunelveli in which he has specifically mentioned that he is unfit to work near machinery. The concerned Doctor who had given certificate has also been examined and he has clearly expressed that the appellant has not recovered from the accident disablement.
8. The learned counsel for the appellant had further contended that the injury sustain
