IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Ins.APP.No. 14 of 2006() ------------------------ IC.142/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/OPP.PARTY: ---------------------------------------- THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPN., NORTH SWARAJ ROUDN, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT(S): APPLICANT: ----------------------------------- V. CHANDRASENAN, SARASWATHY MANDIRAM, NORTH ARYAD POST, ALAPPUZHA. ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 14 OF 2006 = = = = = = = = = = = = = = = 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 -:2:- 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 -:4:- 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 INS.APPEAL NO. 14 OF 2006 -:5:- 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/-