IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Ins.APP.No. 58 of 2005() --------------------------------- ICA. NO.02/2004 of ESI COURT, PALAKKAD .................... APPELLANT(APPLICANT) ------------------------------------ A. IRUDAYARAJ, T.C.45/780, KUNNATH HOUSE, SANTHINAGAR, PULLAZHY P.O., THRISSUR. BY ADV. SRI.P.RAMAKRISHNAN SMT.A.K.PREETA RESPONDENT(OPPOSITE-PARTY): ------------------------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-20. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== INAP No.58 OF 2005 ===================== 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/-