IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 Ins.APP.No. 3 of 2009() ----------------------- IC.87/2006 of ESI COURT, PALAKKAD .................... APPELLANTS/OPP.PARTIES 1 & 2 ------------------------------------------------- 1. ESI CORPORATION, REGIONAL OFFICE (KERALA), PANCHADEEP BHAVAN, ROUND NORTH, THRISSUR REP. BY ITS REGIONAL DIRECTOR. 2. BRANCH MANAGER, BRANCH OFFICE, ESI, CORPORATION, LAKSHMI BUILDINGS KOKKALI, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT(S): APPLICANT & 3RD OPPPARTY ----------------------------------------------------- 1. V.V.KUMARAN, ATTAPPULLY HOUSE MANNINKARA, CHETTUPUZHA, THRISSUR. 2. TONY JOHN ALAPPAT, MANAGING PARTNER, M/S.HINDUSTAN FOUNDARY PRODUCTS, POOTHOLE, THRISSUR-4. ADV. SRI.ARUN.B.VARGHESE FOR R1 SRI.SREEJITH S.NAIR FOR R2 THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.93/2009 IN INS.APPEAL NO.3/2009 1.4.2009 DISMISSED Sd/-M.SASIDHARAN NAMBIAR JUDGE /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== INS.APPEAL NO. 3 OF 2009 =========================== Dated this the 1stday of April,2009 JUDGMENT ESI Corporation has filed the appeal challenging the order of Employees Insurance Court, Palakkad in I.C 87/2006 upholding the claim of the first respondent challenging Ext.A3 notice issued for refund of Rs.27,300/- paid to the first respondent towards temporary disablement benefit. On the facts there was no dispute before the Employees Insurance Corporation. The accident occurred on 26.7.2003 in the course of his employment. First respondent sustained injury. He was paid Rs.27,300/- towards temporary disablement benefit for 156 days at the rate of Rs.175/- per day for the period from 27.7.2003 to 24.12.2003 and from 26.12.2003 to 30.12.2003. Subsequently appellant issued Ext.A3 notice INSA.3/2009 2 dated 25.1.2006 requiring him to refund Rs.27,300/- for the reason that he was not an employee as defined under section 2(9) of the ESI Act on the date of the accident and therefore he was not eligible for the temporary disablement benefit and hence he is liable to refund the same. It was challenged before the E.I Court contending that he was a covered employee and his wages never exceeded the limit of 6500/- per month and therefore he is not liable to refund the benefit already received. 2. E.I. Court as per the impugned order found that as per Ext.B4 return of contributions first respondent had received Rs.700/- for two days during the contribution period from 1.4.2003 to 30.9.2003 and as per Ext.P5 return of contribution his total earnings during the contribution period from 1.10.2002 to 31.3.2003 is only Rs.1050/- and he had not earned wages above the limit of 6500/- and therefore he was a covered employee as provided under section 2(9) of the ESI Act on the date of INSA.3/2009 3 the accident and therefore he is not liable to refund the amount. The order is challenged in this appeal. 3. Learned counsel appearing for the appellant and first respondent were heard. 4. The argument of learned counsel appearing for the appellant relying on the decision of the Apex Court in Krishnankutty Nair v. E.S.I. Corporation (2008(2) KLT 639) is that eventhough first respondent was a covered employee earlier, when he ceased to be a covered employee as his wages crossed the wage limit provided under the Act, he is not entitled to get the benefit and therefore he is liable to refund the same and the order of the E.I.Court is illegal and is to be set aside. 5. Learned counsel appearing for first respondent pointed out that the facts of the case considered by the Apex Court is entirely different and the materials produced before the E.I. Court INSA.3/2009 4 establish that the total wages earned by the first respondent during the period was only Rs.1050/- and therefore as rightly found by the E.I.Court he was a covered employee on the date of the accident and therefore he is entitled to get temporary disablement benefit and is not liable to refund the same and there is no substantial question of law involved in the appeal. 6. On hearing the learned counsel and going through the order passed by the E.I.Court and on the admitted facts, I find no substantial question of law involved in the appeal. In the case considered by the Apex Court the accident was on 15.6.1990. The employee was originally covered for the period. But he ceased to be a covered employee due to the wage increase as on 30.9.1989. As the accident was subsequent to that date and on the date of accident he was not a covered employee, it was found that he is not entitled to the benefit. That case cannot be made applicable to INSA.3/2009 5 the present case. The materials relied on by the E.I. Court establish that during the coverage period first respondent had earned only a wages of Rs.1050/-. There is no material to substantiate the contention of the appellant that on the date of accident the monthly wages of the first respondent was more than Rs.6500/-. When first respondent has no right to get wages for the whole month or on all days of the month and instead could claim wages only on the days he was employed, for the purpose of deciding whether he is a covered employee can be decided only after taking the actual wages received by him during the contribution period. It is less than Rs.1500/-. In such circumstance, I find no reason to interfere with the order. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006