IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Ins.APP.No. 57 of 2007(F) ------------------------------ (AGAINST THE ORDER IN I.C.A. 17/05 OF THE E.I.COURT, ALAPPUZHA.) ............................ APPELLANTS/RESPONDENTS ------------------------------------ 1. THE DEPUTY DIRECTOR, EMPLOYEES' STATE INSURANCE CORPN., REGIONAL OFFICE, PANCHADEEP BHAVAN, N.S.ROUND, P.B.NO.2, THRISSUR-20. 2. CHAIRMAN, SPECIAL MEDICAL BOARD, ESIC HOSPITAL, K.K.NAGAR, CHENNAI. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT(S): APPELLANT ------------------------------------- SHRI. P.T.MOHANDAS, S/O. G.THANKAPPAN PILLAI, MOHANA MANDIRAM, POST ASHOKAPURAM, ALUVA. ADV. SRI.A.V.XAVIER FOR R1 SRI.R.RAJAT FOR R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 57 OF 2007 = = = = = = = = = = = = = = = Dated this the 10th day of November, 2009. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Alappuzha in I.C.17/05. The applicant before the court had filed the case seeking a declaration that the decision of the Special Medical Board fixing the loss of earnings capacity of the appellant at 10% is incorrect and is entitled to get loss of earning capacity fixing at 100%. The applicant therein is a worker of M/s Asoka Textiles Ltd., Asokapuram, Aluva. In the year 1999 the appellant developed breathing difficulty, chest congestion deprivation of sleep and thereafter he had undergone treatment and it is found to be occupational asthma. Thereafter he had appeared before various forums constituted under the Act including the Special Medical Board and the Special Medical Board fixed the permanent disability at 20% and the ESI Corporation agreed to pay the appellant on that basis. Subsequently he was advised to take rest and INS.APPEAL NO. 57 OF 2007 -:2:- after taking rest for six months when he came back he is referred to a Medical Board where the disability was found to be 10% and the order passed revised accordingly. It is against that decision the applicant moved the application before the E.S.I.Court. There cannot be any dispute that the applicant is suffering from a disease known as Byssinosis which is an occupational respiratory disease characterized by shortness of breath, cough, and wheezing. The condition is an allergic reaction to dust or fungi in cotton, flax, and hemp fibers. The symptoms are typically more pronounced on Mondays when the workers return after a weekend break and are reversible in the early stages. Prolonged exposure of many years results in chronic airway obstruction, bronchitis, and emphysema with fibrosis, leading to respiratory failure, pulmonary hypertension, and cor pulmonale. The present applicant had the symptoms of this ailment from 1999 onwards and still he is in the veranda of the hospital and authorities for a cure of the disease which cannot be totally possible for the reason that his disease is connected with the avocation which he is making. Therefore it has to be stated that his disability will only go on increasing day by day INS.APPEAL NO. 57 OF 2007 -:3:- ultimately culminating in serious problems. The question has been posed to the Doctor who has been examined in this case is none other than a member of a Special Medical Board namely Dr.V.S. Anandan. The Doctor has given clear evidence that if he is further exposed to cotton dust the lungs problem will be worse and disability will be increased. He has also deposed that if the appellant is exposed to cotton dust he will not be able to do the work of a doffing man and he is not medically fit to do the job that he was doing. Therefore it was stated that the appellant is not a person fit to work in an atmosphere where there is cotton dust. So it is in this back ground the E.I.Court found that his loss of earning capacity has to be assessed at 100%. 2. The learned counsel for the ESI Corporations strongly contends before me that there is no provision or scheme whereby an alternative employment can be granted by the Corporation and therefore it may not be correct to give such a direction. She also contended that the medical board having found the disability at only 20% the E.S.I. Court should not have jumped to the conclusion of 100% disability. On the other hand the learned counsel for the INS.APPEAL NO. 57 OF 2007 -:4:- respondent has pointed out to me a decision of this court in a similar case in Ins.Appeal 59/04 where the disability was fixed at 20% and the Insurance court accepted the contention and took it as 100%. So it has to be stated that the E.I.Court had considered the matter in a broader perspective and arrived at a decision on that point. I feel that in a case of this nature where a person who was hail and healthy and on account of exposure to a particular job which he was forced to do work to make his both ends meet is suffering from a very serious problem which may result only in disastrous consequences. When his nearness to the cotton dust is really apprehensive which will create health problem and there is no other way out suggested to him to ventilate his grievance it has to be stated that if he is asked to attend the work for 10 days he may have to be away from work for 10 months due to the reaction of the cotton dust on his lungs. Therefore it is a case where the whole sympathy has to be placed and it is a real disease which has resulted from the avocation one has and therefore I do not find any ground to interfere with the leniency which is not only leniency but also really legal for the reason that the man has to be put to INS.APPEAL NO. 57 OF 2007 -:5:- peril at the cost of his life if he is compelled to do the work under such circumstances. Therefore I do not propose to interfere with the well considered order of the learned E.S.I.Court and I do not interfere with the said finding. It is for the Corporation to think in such cases whether it can make any alternative arrangements. It may also consider whether this person can be given vocational rehabilitation training so as to provide and equip him for some job mentioned in 12.B.5 of the approved scheme of 1994 for vocational rehabilitation of permanently disabled insured persons. Of course it will depend upon the medical fitness for doing such jobs. With these observations the Ins. Appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/-