IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 13TH APRIL 2007 / 23RD CHAITHRA 1929 Ins.APP.No. 12 of 2005(A) ------------------------- ICA.3/2003 of ESI COURT, PALAKKAD .................... APPELLANT/RESPONDENT ------------------------------------- E.S.I. CORPORATION, PANCHADEEP BHAVAN, ROUND NORTH, THRISSUR-20. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENTS: APELLANT --------------------- R. RAMAKRISHNAN, AJI NIVAS, AVANAVU ROAD, PERMAMANGALAM POST, THRISSUR. BY ADV. SRI.P.RAMAKRISHNAN THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 13/04/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 'C.R' K.HEMA, J. -------------------------------------------------- Insurance Appeal. No.12 of 2005 -------------------------------------------------- Dated this the 13th April, 2007 JUDGMENT Can the Medical Board constituted under the Act (`the Statutory Board', for short) determine, as a `disablement question', as to what was the `employment injury' caused to an insured employee in the relevant accident, on a reference under section 54A of the Employees State Insurance Act (`the Act for short)? Can the Employees Insurance Court (`Insurance Court', for short) determine by itself, disputed questions relating to `employment injury' and `permanent disablement' caused to the employee ? Is there any difference between `employment injury' and `permanent disablement'? Is the Statutory Board, the sole authority which can determine `employment injury' and `permanent disablement' of an insured employee ? Can the Insurance Court refer the employee to any medical board other than the Statutory Board for assessing `permanent disablement' ? These are the main questions which arise for consideration in this case. Ins.A.12/05 2 FACTS BRIEFLY: 2. The respondent herein was a watchman in a cotton mill. He is an employee as defined under the Act. On the crucial night, while he was on duty, he accidentally fell down from the stair case and sustained certain injuries. He was removed to the hospital and thereafter, referred from hospital to hospital. He was also referred by the Corporation to the Statutory Board, to assess the disability, if any. On the first reference, a provisional assessment of 6% loss of earning capacity was made, as per Exhibit B6. On a second reference, it was reported that the `earning capacity was reduced to 2% on a permanent basis'. FIRST ROUND OF LITIGATION: 3. The decision on the second reference was challenged by the employee in an appeal filed before the Insurance Court. The court found that the claim made by respondent is unsustainable, since the loss of earning capacity is not affected, as the employee was continuing in service and was receiving the monthly salary with periodical enhancements. The court also held that if respondent had lost employment or there is reduction in his salary, on account of the disability, he would be at liberty to approach the Corporation for a fresh reference to the Statutory Board, in which case, the Board will determine the quantum of disability, with reference to the Ins.A.12/05 3 loss of earning capacity. The said decision was challenged before this court in an appeal filed by employee. This court upheld the decision of the Insurance Court in Ramakrishnan v. ESI Corporation (2000(2) KLT 538) and dismissed the appeal. It was also held that employee was not entitled to any benefit, since he was getting salary and he continued in employment. SECOND ROUND: 4. The employee, thereafter, retired from service on medical ground, since he was alleged to be totally incapacitated as a result of the injury. He also got his case again referred to the Statutory Board, in the light of the decision of the Insurance Court and as permitted by the court. The Statutory Board, on examination of the injured, found that `IVDP' (Intra vertebral disc prolapse) which allegedly led to the disablement was unlikely due to `employment injury'. As per Exhibits B11 and B12, the Board reported that disability of respondent is `NIL' (vide Exhibit B11). 5. The above decision of the Board was challenged by the employee before the Insurance court. According to him, he is entitled to the benefit of total permanent disablement, i.e., 100% permanent disability, since he is forced to confine to the bed because of the employment injury. He is alleged to be totally incapacitated to do any kind of job which was capable of Ins.A.12/05 4 performing at the time of accident. The respondent was out of employment also, due to the employment injury. The employee got himself examined by the Medical Board constituted by the District Medical Officer and also the Medical Board for the Physically Handicapped, at Medical College Hospital, Thrissur. Certificates issued by the above Boards were also marked as Exhibit A74 and Exhibit A90. As per ExhibitA90, the employee has `moderate disability of 60%'. The employee claimed 100% disablement and to support the claim, he placed reliance upon mainly, the above certificates. 6. The Corporation filed a detailed written statement and denied the entitlement of the respondent to get any disablement benefit under any count. It was contended that no reliance can be placed on Exhibit A74 and Exhibit A90, since those are not issued by the Board constituted as per the provisions of the statute. According to Corporation, the Board constituted under the Act alone can determine the `disablement question' and hence, the claim made by respondent based on Exhibit A74 and Exhibit A90 is to be rejected. EVIDENCE AND FINDINGS: 7. Witnesses were examined on both sides. Documents were also marked. The evidence in this case consists of oral testimony of AW1 and Exhibits A1 to A99 on the respondent's side. The Ins.A.12/05 5 Corporation-appellant did not let in any oral evidence, but marked Exhibits B1 to B13 Insurance Court found that the present ailment of the employee-respondent, including `IVDP' was directly connected with the `employment injury' sustained by him on 15.12.1987. The Insurance Court set aside the decisions of the Statutory Board to the effect, “`IVDP' is very unlikely due to the employment injury” which was reported as per Exhibits B11 and B12. 8. The Insurance court acted upon Exhibit A74 and Exhibit A90 certificates issued by Medical Boards other than the Statutory Boards, certifying 60% disability, and it was held that respondent is entitled to get `disablement benefit' for 60% of loss of earning capacity, with effect from 28.9.1999 ie., from the very next day on which the employee voluntarily retired from service due to his disability. The court, however, found that respondent cannot claim disablement benefit for the period during which he was in employment and when he earned wages, in the light of the findings of this Court in the earlier appeal. It was also found that he was on loss of pay from 1.7.1997 to 27.9.1999, as per Exhibit A98 certificate issued by the employer and that he was relieved from duty on medical grounds under voluntary retirement scheme with effect from 27.9.1999. Hence, the Corporation was directed to consider the eligibility for sickness benefit or disablement benefit for the period Ins.A.12/05 6 from 1.7.1997 to 27.9.1999, if no such benefit was given to him for that period. CHALLENGE BY CORPORATION : 9. The above order and the findings of the Insurance Court are challenged in this appeal by the Corporation. Learned counsel appearing for Corporation-appellant strongly contended that as per the reports of the Statutory Board, respondent did not suffer `IVDP' but, he had only “sprain right ankle joint”, which is reported to be, “simple” by the doctors. Hence, respondent did not have 'IVDP' or any permanent disability, as a result of the accident and respondent is not entitled to get any benefit under the Act. As per Exhibit B11 report issued by the Statutory Board, the nature of incapacity of respondent which resulted from the accident is only "sprain right leg" which gave rise only to a claim for temporary benefit. It was also contended that as per Exhibit B12, the Statutory Board formed an unanimous opinion that “`IVDP', with all the treatment records available is very unlikely due to the employment injury” and the court which is not technically equipped to assess the disputed fact cannot over-rule the said decision of the Statutory Board. 10. The respondent on the other hand would contend that the injury which was caused in the relevant accident is `IVDP' and he is totally incapacitated by `IVDP' which is caused as a result of the Ins.A.12/05 7 accident and hence he is entitled to 100% benefit. NATURE OF INJURY, THE CORE ISSUE: 11. From the contentions raised by both sides, I find that the crucial issue in this case is, the nature of injury sustained in the accident. In other words, the disputed question to be resolved is whether the `employment injury' caused by the accident is only a “sprain on the right ankle joint” or whether it is `IVDP'. No doubt, burden is upon the employee to prove that he sustained a particular injury in the relevant accident. If he is claiming any permanent disablement benefit, he has further to prove that he sustained an `employment injury' which led to the alleged disablement. 12. The fact that respondent sustained an `employment injury' is not under dispute. To prove the nature of employment injury caused to respondent, he examined himself as AW1 and produced various medical records. He deposed in court that he sustained `IVDP' in the accident and that he was hospitalised for the said problem. Exhibit A1 is a document issued from the E.S.I. Hospital, as early as on 14.1.1988 ie., within one month from the date of alleged accident. It is specifically stated therein that there was a history of fall and the diagnosis was “IVDP with sciatica”. 13. Exhibit A2 is yet another medical certificate from the ESI Ins.A.12/05 8 dispensary, Ponkunnam. As per date seal, it is issued on 27.12.1987 ie., on the 12th day of the accident (the accident was on 15.12.1987). It was issued to the Ortho Surgeon, District Hospital, Thrissur. It is stated therein that the patient fell down in a pit and fractured his right leg and injured his low back. The said document also reveals that the patient complained of severe low back pain and he had been treated. The patient was also referred to the District Hospital for expert management as per Exhibit A2. 14. Exhibit A42 is another certificate issued by the Insurance Medical Officer at E.S.I. dispensary, Ponkunnam, referring respondent with `IVDP' etc. It is also certified thereby that he is eligible for all E.S.I. benefits. This letter was issued to the Superintendent, E.S.I. Hospital. Though no date is seen in the letter, on overleaf, a date is mentioned as 6.5.1996 by the Superintendent, E.S.I. Hospital, Olalikara. A discharge summary issued from the Apollo Hospital, Madras is marked as Exhibit B52 and as per this document, the date of admission in the spinal surgery unit is on 4.8.1997 and the history shows that the patient fell down in a pit and fractured his right leg and injured his low back. He had also complaints of pain in low back, radiating to left lower limb, since past 3 to 4 years. It also shows that he has undergone a surgery. Several other medical records from various other hospitals Ins.A.12/05 9 have also referred to 'IVDP' as a complaint, following the accident. 15. The genuineness of these documents is not under dispute. There is also no reason to doubt the authenticity of any of the documents produced by the respondent, most of which were all issued from the E.S.I. Dispensary itself. There is no case for the Corporation that those documents are fabricated for the purpose of this case. The documents which are issued as early as within 12 days of the injury reveal that the respondent had `IVDP', consequent to the accident. There is no reason to reject the facts disclosed by the relevant documents. The Corporation was not able to establish that those are false or unacceptable due to any reason. 16. There is nothing in evidence to show that respondent developed `IVDP' at the the early stage of 38 years of age, due to any reason other than the accident. (The petitioner is stated to be aged 38 years, as on 27.12.1987, as per the medical record. The Corporation did not specifically challenge respondent's age). If at all the respondent sustained `IVDP' due to some other reason, there would be some evidence or indications to infer that, but there is absolutely nothing on record to reveal that `IVDP' occurred due to any other reason than the accident. On going through the documents and evidence of respondent, it can be easily concluded that respondent developed `IVDP' with sciatica, consequent to the fall on Ins.A.12/05 10 15.12.1987, as noted by the doctors attached to the E.S.I dispensary itself. 17. In this connection, it is also pertinent to go through the pleadings in the written statement also. As per the pleadings in the written statement, the employee-respondent was paid extended sickness benefit for 730 days amounting to Rs.62,000/- for `IVDP' during 1997-99. It is also stated therein that the Government of Kerala had also sanctioned Rs.50,000/- for corrective surgery of spine at Cochin Spine Hospital. If `IVDP' is not an employment injury, there was absolutely no justification for the Corporation to grant any benefit for `IVDP', as stated in the written statement. That apart, it is pertinent to note that the Statutory Board itself had treated the 'employment injury' as 'IVDP' and the extent of loss of earning capacity, on account of the above problem was assessed on different dates at 6% and 2%. The later decision was challenged before the Insurance Court and this Court also, but the Corporation had no case at that time that respondent did not have 'IVDP' as an 'employment injury'. 18.Taking all these facts into consideration, I find that respondent has succeeded in proving that the `employment injury' caused to him in the relevant accident is `IVDP'. The unanimous opinion of the Board in Exhibit B11 and ExhibitB12 that the injury is Ins.A.12/05 11 only “sprain right ankle joint” and that “`IVDP' with all the treatment records available is very unlikely due to the ”employment injury” cannot be accepted, especially since the treatment records reveal facts to the contrary. Any medical expert or even a lay-man who has occasion to go through the medical records, cannot ignore the facts disclosed from them that the patient had `IVDP' as a consequence of the accident. From the tell-tale medical records and the evidence of AW1 the respondent, it is clear that `IVDP' was caused, as a result of the relevant accident and it is an `employment injury'. The Insurance Court has therefore, rightly held that such an opinion cannot be expressed on the basis of the medical records and treatment given to the respondent. 19. But, learned counsel for appellant raised a serious question of law that once Statutory Board determines the disputed question and gives a report on a scientific matter, the court cannot over-rule the decision of the Board, as per law. It was also argued that the Statutory Board is the sole authority which can determine the disputed question under the provisions of the Act and hence legally, the report of the Board cannot be rejected. I shall now proceed to consider the merit of this contention. IS STATUTORY BOARD, THE SOLE AUTHORITY TO DECIDE THE DISPUTED QUESTION ? Ins.A.12/05 12 20. As already held by me, the core issue in this case is the dispute relating to nature of 'employment injury'. The Statutory Board unanimously opined that 'IVDP' is very unlikely due to 'employment injury'. According to the Board, 'employment injury' is only “sprain”. Can this court over-rule the above decision ? Is the Statutory Board the sole authority which can determine the nature of 'employment injury' under the Act ? 21. To resolve this issue, a reading of sections 54, 54A and 2(8) of the Act is absolutely essential. Section 54A reads as follows: “Section 54-A: References to medical boards and appeals to medical appeal tribunals and Employees’ Insurance Courts -(1) The case of any insured person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment. (2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to- (i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees’ Insurance Court, or Ins.A.12/05 13 (ii) the Employees’ Insurance Court directly: provided that no appeal by an insured person shall lie under this sub-section if such person has applied for commutation of disablement benefit on the basis of the decision of the medical board and received the commuted value of such benefit: Provided further that no appeal by the Corporation shall lie under this sub-section if the Corporation paid the commuted value of the disablement benefit on the basis of the decision of the medical board”. 22. A reading of section 54A of the Act reveals that the case of any insured person for `permanent disablement benefit' shall be referred by the Corporation to the Statutory Board for determination of the `disablement question', the extent of loss of earning capacity etc. But, what is a `disablement question' ? It is dealt with under section 54 of the Act. Section 54 of the Act is extracted as hereunder: “Section 54. Determination of question of disablement.—Any question— (a) whether the relevant accident has resulted in permanent disablement; or (b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or (c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or (d) in the case of provisional assessment, as to the period for which such assessment shall hold good; Ins.A.12/05 14 shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereinafter be referred to as the “disablement question”. 23. It is clear from a reading of sections 54 and 54A of the Act that `disablement questions' which can be determined by the Statutory Board on reference of the case, as per the provisions of the Act are only such questions which are specified in clauses (a) to (d) of section 54 of the Act and nothing more. As per clause (a) of section 54 of the Act, the Board can determine whether the relevant accident resulted in `permanent disablement' or not. In other words, it can determine whether the employee suffered any disability of a permanent nature, as a result of the accident. 24. But, it is pertinent to note and emphasise here that in none of the sub-clauses of section 54 of the Act, it is specifically laid down that the Statutory Board can determine what was the 'employment injury' caused in the accident. Therefore, the Statutory Board cannot determine, as a `disablement question' under section 54 of the Act, as to what was the `employment injury' caused in the accident. Though Statutory Board may have to ascertain as to what exactly was the 'employment injury' caused in the accident, for determining the 'disablement question' under section 54(a) of the Act Ins.A.12/05 15 (ie., whether the accident resulted in any permanent disablement or not), the said provision does not specifically lay down that the Statutory Board can determine as a 'disablement question', what the employment injury is. What can be determined by Statutory Board under section 54(a) of the Act is not as to what the `employment injury' is, but it is whether the relevant accident resulted in `permanent disablement' or not. 25. The question relating to nature of `employment injury' or the existence of a particular employment injury, strictly speaking, is thus not a `disablement question' coming under section 54 of the Act. But, what can be determined as a 'disablement question' under Section 54(a) of the Act is whether the accident resulted in any 'permanent disablement'. Hence, it cannot be said that the Statutory Board is the sole competent authority which can determine the disputed question arising in this case relating to the nature of 'employment injury', as a 'disablement question', under the Act. 26. It is also pertinent to note at this juncture that the Insurance Court permitted a reference not for determination of 'employment injury' but it is to decide quantum of disability, extent of loss of earning capacity etc. Hence, the Statutory Board ought not to have decided nature of the 'employment injury' on a reference under Section 54A of the Act. The nature of injury sustained in the relevant Ins.A.12/05 16 accident had been decided by the Statutory Board as 'IVDP' on earlier references and the Corporation had not challenged the said decision. On the other hand, in the earlier proceedings before courts, the Corporation did not dispute nature of 'employment injury'. Taking all these facts into consideration, I find that the Statutory Board ought not to have decided the nature of 'employment injury', which it cannot determine as a disablement question. `EMPLOYMENT INJURY' & `PERMANENT DISABLEMENT': 27. But there cannot be any dispute that the Statutory Board can determine whether the accident resulted in any 'permanent disablement'. So, another interesting question arises now. What is the difference between 'permanent disablement' and “employment injury”? Apparently, it may appear that there is no much difference between the two. But a close look at the relevant expressions will reveal that there is evidently a difference. “Employment injury” is defined under section 2(8) of the Act as follows: “Employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India; 28. What is permanent total disablement ? It is defined under Section 2(15-B) of the Act, as follows: Ins.A.12/05 17 “Section 2(15-B):“permanent total disablement” means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement; Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;” 29. A reading of section 2(8) of the Act reveals that `employment injury' is a `personal injury' to an employee caused by accident etc., but, it has no specific reference to the `disablement' caused in the accident. `Injury' means, harm done to a person’s body, for example, in an accident (vide The Concise Oxford Dictionary). “Disablement” is not defined under the Act, but going by the dictionary, it means the state of being disabled or the process of becoming disabled to do any particular act which a person was able to perform, prior to the accident. 'Disable' means, `to injure or affect somebody permanently so that, for example, they cannot walk or cannot use a part of their body'. (vide The Concise Oxford Dictionary). 30. Thus, while injury is the harm caused to the body of a person, `disablement' is the consequence or affect of such Ins.A.12/05 18 injury/harm on the person because of which, he is unable to use a part of the body permanently. `Disablement' is not the 'nature of injury' caused in the accident but, it is the ' consequence of the injury'. An injury caused in