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1997 DIGILAW 286 (CAL)

Employees State Insurance Corporation v. Ram Lal

1997-07-25

SIDHESWAR NARAYAN, Tarun Chatterjee

body1997
JUDGMENT S. Narayan, J. : This is an appeal against the judgment and order dated April 4, 1990 passed by the Learned Judge, Employees' Insurance Court, West Bengal in Appeal No. 62 of 1988, whereby the respondent-claimant was granted permanent/partial disablement benefit to the extent of 30% (thirty per cent) loss of earning capacity throughout his life with effect from the date, he became entitled to the same under the Employees' State Insurance Act, 1948 and the Regulations framed thereunder. 2. The facts giving rise to the instant appeal may be placed as hereunder. The respondent-claimant being an employee as a permanent workman in the factory of M/s. Howrah Jute and Industrial Company Ltd. was protected under the Insurance cover bearing No. 412155 of the present appellant i.e. Employees' State Insurance Corporation under the Scheme of Employees' State Insurance Act, 1948 (for short referred to as the Act). On April 19, 1986 at about 4 p.m. when the respondent-claimant was engaged in his usual duties in the factory and was cleaning the jam of the Beaming machine, the wooden shaft with which he was working suddenly slipped and struck him in his LEFT EYE as a result of which he received injuries in the said eye. He was treated by the specialist of the Howrah Central Hospital and, subsequently, in Calcutta Medical College Hospital. In due course, the respondent was examined by the Medical Board constituted under the Scheme of the Employees' State Insurance Act. The Medical Board submitted a report dated 15.4.85 recommending the extent of loss of earning capacity as 5% due to certain disablement in the left eye of the Claimant. The appellant-corporation while accepting the report of the Medical Board issued letter bearing No. 41/R-12/14/4121155/V-34/23/88/Bft. II dated 23.6.88 conveying its decision in terms of the assessment made by the Medical Board. Being aggrieved with this decision of the appellant-corporation, the respondent-claimant preferred an appeal before the Learned Judge of the Employees' Insurance Court, West Bengal, Calcutta, which was numbered as Appeal No. 62 of 1988. The appeal was allowed and the claimant was granted disablement benefit to the extent of 30% loss of earning capacity through out his life in terms of serial No. 32 of the SECOND SCHEDULE under s. 2(15A) and (15B) of the Act. The respondent-corporation has, therefore, come up with the present appeal. 3. The appeal was allowed and the claimant was granted disablement benefit to the extent of 30% loss of earning capacity through out his life in terms of serial No. 32 of the SECOND SCHEDULE under s. 2(15A) and (15B) of the Act. The respondent-corporation has, therefore, come up with the present appeal. 3. The main thrust in the instant appeal was obviously with regard to the extent of loss of earning capacity as assessed by the Learned Judge of the Employees' Insurance Court. As against the assessment made by the Medical Board to the extent of 5%, the learned Court below has assessed it at 30% on the simple ground that the injury sustained by the respondent-claimant squarely falls within serial no. 32 of Scheduled injuries as narrated in the SECOND SCHEDULE of the Act. 4. The controversy between the parties, therefore, hinges over the facts to be gathered from the report of the Medical Board. It would be, therefore much relevant to gather as to what was the report with regard to the nature of injuries sustained by the respondent-claimant. The report speaks in no uncertain terms that the respondent had sustained permanent disablement in the left eye. The nature of injury as mentioned in the report was macular scar in the left eye. The vision of the said eye was recorded by the Medical Board as 6/18 with glass, whereas the vision of the right eye has been mentioned as 6/6 with glass. Obviously, therefore, there was a loss of vision in the left eye. Emphasis may put as to the extent of vision mentioned in the report as 6/18 with glass in left eye as compared to 6/6 with glass in the right eye. This would certainly mean that even after the use of glass, the vision of the left eye could not be corrected so as to record it as 6/6. It may be mentioned here that the recording of vision as 6/6 speaks of a normal eye sight, whereas the recording of 6/18 even after rectification with glass would certainly indicate that there was partial loss of the eye sight with the result that the respondent, even after using the glass, was not able to have his normal vision being 6/6. Moreover, the appellant-corporation, on its own showing, has banked upon the report of the Medical Report so as to accept the loss of earning of course only to the extent of 5% because of the permanent disablement in the left eye. 5. Therefore, what we derive from the medical report is that there was partial permanent loss of vision in the left eye. Now, the question arises what would be the extent of loss of earning capacity with regard to the loss of vision as aforesaid. The Medical Board has determined it at 5%. The determination as such was based on the assessment of the Board of its own. There was, however, a Schedule appended to the Act giving certain categories of the injuries resulting into permanent total or partial disablement as defined in Ss. 2(15A) and 2(15B) of the Act. The said Schedule prescribes the percentage of loss of earning capacity separately for each category of injury. Therefore, it was pertinent to first determine if the injury sustained by the respondent actually fell in any category of the said Schedule. 6. At Sl.No.32 of the aforesaid Schedule there is a mention as noted below:- "SL.No.32–– Loss of vision of one eye without complications or disfigurement of eye ball, the other being normal-percentage of loss of earning capacity 30%" 7. In the instant case, we have noticed above that there was loss of vision in Left Eye reducing it to 6/18 even after correction with glass and, further, it was in the nature of permanent, obviously also being partial. Thus, it squarely falls in the category as described at Sl.No.32 above. It may be mentioned here that the extent of loss of vision of one eye as mentioned at serial no.32 was irrespective of partial or complete loss of vision. Serial No.32, therefore, only refers to loss of vision of one eye. Loss of vision of one eye may be either total or partial. 8. It was only when there was an event of any disablement not falling within the Scheduled injuries that it becomes a matter of fact to be determined whether on the basis of the report of the Medical Board or otherwise. Loss of vision of one eye may be either total or partial. 8. It was only when there was an event of any disablement not falling within the Scheduled injuries that it becomes a matter of fact to be determined whether on the basis of the report of the Medical Board or otherwise. Since in the instant case we have been able to determine the nature of the disablement falling squarely within that of the injury described in Serial no.32 of the SECOND SCHEDULE, there was no scope of further enquiry or any fact finding investigation in the matter. It may be added that the report of the Medical Board, in fact, has not been challenged by the appellant-corporation. From the very tenor of the written statement of the appellant filed before the Ld. Judge of Employees' Insurance Court (vide para 5 of the written statement) as also ground No. VII of the memo of appeal, it would be gathered that the appellant insisted upon accepting the Medical report in toto. The material aspect of the report was with regard to the expert opinion about the nature of the injury or the disablement and not the assessment of loss of earning capacity. It would be relevant to refer to the decisions of a Division Bench of this Court in the case of M/s. Calcutta Electrical Corporation Limited vs. Habul Ch. Das reported in AIR 1968 Cal 278 as also the decision of the Single Bench of this Court in the Employees' State Insurance Corporation vs. Hari Hazra reported in 1989(1) CHN 250 , wherein it has been held in principle that the opinion of the Medical Board in case of a scheduled injury can not over-ride the statutory provision of the Schedule of the Act and that only when the injury is not a scheduled injury, the question of earning capacity will have to be determined as a matter of fact. 9. In our considered opinion, therefore, there was no escape for the appellant from the mandate of the percentage of loss of earning capacity as prescribed at serial no.32 of the SECOND SCHEDULE of the Act. 10. This appeal has, therefore, no merit and, accordingly, it is dismissed. There would be, however, no order as to costs. The appellant-corporation is directed to make payment to the respondent-claimant at the rate, determined above. 10. This appeal has, therefore, no merit and, accordingly, it is dismissed. There would be, however, no order as to costs. The appellant-corporation is directed to make payment to the respondent-claimant at the rate, determined above. The arrears, if any, be cleared after necessary adjustment of the amount already paid, within three months of this date. Tarun Chatterjee, J.: I agree. Appeal dismissed.