Regional Director, E. S. I. Corporation, Hyderabad v. K. Eswar Rao
2008-07-18
A.GOPAL REDDY, G.BHAVANI PRASAD
body2008
DigiLaw.ai
G. BRAVANI PRASAD, J :- These three appeals present almost an identical fact situation and a common legal question, due to which they are being heard and decided together. The learned Counsel for both parties advanced their arguments extensively. 2. In all the three appeals, the appellant is the Employees' State Insurance Corporation represented by its Regional Director, while the respondents are the employee, Medical Appeal Tribunal and Medical Board represented respectively by their Chairmen, and the Management of Nellimarla Jute Mills. In each of these cases, the employee working in Nellimarla Jute Mills covered by the Employees' State Insurance Act, 1948 (for brevity "the Act"), sustained an injury during the course of his employment. After treatment at E.S.I. Dispensary at Nellimarla and thereafter at E.S.I. Hospital at Visakhapatnam, the employee was assessed by the Medical Board, E.S.I. Hospital, Sanathnagar, Hyderabad to have sustained the specified percentage of loss of earning capacity in the light of the recommendation of the doctors of E.N.T. Hospital, Koti. The employee preferred an appeal to the Medical Appeal Tribunal, which directed the employee to go to E.N.T. Hospital, Koti on 26.7.2001 for expert examination along with about 100 others for assessment of his deformity. The Medical Appeal Tribunal ultimately concluded the loss of earning capacity to be 'nil' without intimation to and in the absence of the employee, contrary to the principles of natural justice. 3. The employee preferred an appeal before the Employees' Insurance Court at Hyderabad against the decision of the Medical Appeal Tribunal, which was contested by the Employees' State Insurance Corporation, which stated that the benefits were, in fact, paid in accordance with the original assessment of the Medical Board and it was on the appeal of the employee that he was examined by the experts at E.N.T. Hospital, Koti, who opined that with the user of hearing aid, the employee would get normal communication skills, due to which there was no loss of earning capacity. The Medical Appeal Tribunal took into consideration all the facts and circumstances including the experts' opinion and came to its conclusion about the absence of any loss of earning capacity. The employee neither lost his employment nor his earnings reduced due to the injury and is not entitled to any relief. 4.
The Medical Appeal Tribunal took into consideration all the facts and circumstances including the experts' opinion and came to its conclusion about the absence of any loss of earning capacity. The employee neither lost his employment nor his earnings reduced due to the injury and is not entitled to any relief. 4. Oral and documentary evidence was placed before the trial Court and on consideration of the sustainability of the decision of the Medical Appeal Tribunal and the loss of earning capacity of the employee, the Court came to the conclusion that the reports of the experts at the E.N.T. Hospital, Koti evidently show the employee to have sustained loss of hearing due to employment injury. The Court also noted that Dr. V. U. Nandur, Audiologist examined the employee on both the occasions when referred by the Medical Board and the Medical Appeal Tribunal. Then the Court went on to note that the certificate issued by the District Medical Board, Vizianagaram subsequent to the decision of the Medical Appeal Tribunal after examination of the employee by the Medical Board and the Audiologist, shows that the loss of hearing of the employee was not considered by the Medical Appeal Tribunal with reference to the entire material on record. The Court came to the conclusion that the decision of the Medical Appeal Tribunal without giving any reason for deviating from the decision of the Medical Board given earlier, was incorrect and invalid. Then the Court on the strength of the evidence placed before it, assessed the loss of earning capacity at 20 per cent and gave consequential directions, setting aside the decision of the Medical Appeal Tribunal fixing the loss of earning capacity at 20 per cent and directing payment of disablement benefits at the percentage fixed by the Medical Board from the date of its decision and at 20 per cent from the date of the Court's order. 5. Aggrieved by the same, the Employees' State Insurance Corporation filed the appeals contending that the certificates issued by the outside agencies could not have been relied on by the Court for assessment of loss of earning capacity, which raises a substantial question of law.
5. Aggrieved by the same, the Employees' State Insurance Corporation filed the appeals contending that the certificates issued by the outside agencies could not have been relied on by the Court for assessment of loss of earning capacity, which raises a substantial question of law. The substantial question of law allegedly involved in these appeals was also stated to be whether it is proper for the Employees' Insurance Court to determine the percentage of disablement overriding the decision of the Medical Appeal Tribunal in the absence of any specific provision as to the manner in which the Court has to examine the correctness or otherwise of the report of the Medical Appeal Tribunal when the Court is not technically equipped. The appellant also contended that there was no basis for the assessment of the loss of earning capacity at 20 per cent or the direction to pay the benefits at different percentages from different dates. 6. The employee/1st respondent in CMA No.3663 of 2003 filed cross-objections contending that the loss of his earning capacity should have been fixed at 90 per cent instead of 7 per cent with effect from the date of accident 13.12.1994 itself. The employee pleaded that the jurisdiction of the Employees' Insurance Court to ignore the certificate of the District Hospital, Vizianagaram, dated 28.10.2002 and to fix different percentages of loss of earning capacity and to take the dates other than the accident date, is the substantial question of law involved. The employee also contended that the Medical Appeal Tribunal in question was not properly constituted as per Regulation No.76 of the Employees' State Insurance (General) Regulations, 1950. 7. The question, therefore, is whether there is a substantial question of law involved in these appeals, which requires to be decided and whether the impugned judgments are vitiated for the reasons specified in the grounds of appeal or the cross-objections. Section 54A(2) of the Act provides that: "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 (it) the Employees' Insurance Court directly." 8.
Rule 20B(1) of the Employees' State Insurance (Central) Rules, 1950 (for brevity "the Rules") provides that: "The Insured person or the Corporation may appeal to the Employees' Insurance Court by presenting an application within three months of the date of communication of the decision of the Medical Board or the Medical Appeal Tribunal to the insured person or the Corporation, as the case may be." 9. These statutory provisions make clear the legislative intent and policy to empower the Employees' Insurance Court to sit in appeal against the decision of the Medical Appeal Tribunal. While Section 54A(2) of the Act prescribes the further right of appeal to the Employees' Insurance Court from the Medical Appeal Tribunal to be in the prescribed manner and within the prescribed time, Rule 20B of the Rules provides for the manner and time of such appeal. A reference is sought to be made to Section 55 of the Act which provides for review of decisions by Medical Board or Medical Appeal Tribunal as if the said provision signifies that a review of a decision of the Medical Board or the Medical Appeal Tribunal can only be by the said Board or the Tribunal alone and by no other person or authority, but such an interpretation is beyond the plain and unambiguous language of the provision itself. The review of the decisions by the Board or the Tribunal themselves is sought to be provided as a corrective mechanism for the Board or the Tribunal themselves, while the right of the aggrieved to appeal against the decisions of the Board or the Tribunal, as the case may be, was specifically provided by Section 54A(2) of the Act. To read Section 55 otherwise will be to make Section 54A redundant, which is impermissible.
To read Section 55 otherwise will be to make Section 54A redundant, which is impermissible. If the statutory provision read with the statutory rule specifically provides for an appeal to the Employees' Insurance Court from any decision of the Medical Appeal Tribunal or the Medical Board, the jurisdiction so conferred on the Employees' Insurance Court necessarily and inherently implies the existence of jurisdiction and power for the Employees' Insurance Court to confirm, set aside, vary, modify, alter or otherwise interfere with the decision of the Medical Appeal Tribunal or the Medical Board in exercise of its judicial discretion in accordance with the fundamental principles of judicial procedure and in compliance with the principles of natural justice or justice, equity and good conscience and further in tune with the specific provisions, object and policy of the Act and the Rules made thereunder. To import any requirements of technical expertise or scientific equipment to be mandatory for the exercise of the said jurisdiction by the Employees' Insurance Court will be reading something into the statute, which it did not provide and the Judge duly presiding over the Employees' Insurance Court is obviously presumed by the statute to be endowed with such judicial wisdom, legal acumen, analytical capacity, practical experience, scientific insight and , mature thought as to come to an appropriate conclusion about the correctness or otherwise of the decision of the Medical Board or the Medical Appeal Tribunal. 10. It also runs as a natural concomitant and consequence to the exercise of such power of appeal that the Employees' Insurance Court can mould and grant appropriate relief to the insured person or the Corporation, as the case may be, in accordance with the provisions of the Act and the Rules made thereunder. 11. In fact, this question was dealt with in Regional Director, ESI Corporation, Hyderabad v. J. Krishna and others, 2008 (1) ALD 499 , by a learned Single Judge of this Court on almost identical facts (including the identity of speech pathologist and audiologist). Repelling identical contentions, the learned Single Judge observed that the Employees' Insurance Court may have to decide each matter depending upon the facts and circumstances of a particular given case and no proposition can be laid down that under no circumstances the Employees' Insurance Court can differ from the view expressed by the Medical Appeal Tribunal.
Repelling identical contentions, the learned Single Judge observed that the Employees' Insurance Court may have to decide each matter depending upon the facts and circumstances of a particular given case and no proposition can be laid down that under no circumstances the Employees' Insurance Court can differ from the view expressed by the Medical Appeal Tribunal. The learned Judge also noted that just, reasonable and convincing reasons based on the appreciation of evidence placed before the Employees' Insurance Court provided justification for the decision of the said Court and observed that the Medical Appeal Tribunal did not follow proper procedure by negativing the relief of the worker while deciding a matter of this nature. The learned Judge also kept the object of the Act in view and notwithstanding Ram Awadh v. Employees State Insurance Corporation, 1995 (2) LLJ 869 , cited before him, dismissed the civil miscellaneous appeal. 12. What has been laid down in Ram Awadh's case (supra), was only that the Employees' Insurance Court while exercising the appellate powers under Section 54A(2) of the Act, has to attach due value to the conclusions arrived at by the Medical Appeal Tribunal on the question of the extent of disability, and should not norn1ally interfere a with the conclusions of the Appeal Tribunal except where the Court finds that the conclusions are based on no valid material or they are perverse or otherwise vitiated by reason of any mistake of law or of fact. 1 That the opinion of the Medical Appeal Tribunal deserves to be given the value it deserves, can never be in dispute, but the same cannot be considered as so sacrosanct as to compel the Employees' Insurance Court never to deviate from the same. If it were so, the entertainment of and decision in an appeal under Section 54A(2) of the Act becomes an empty formality and an unnecessary ritual. While due weight has to be always given to the decision of the Medical Appeal Tribunal on matters within its jurisdiction under the statute, the Employees' Insurance Court should unhesitatingly exercise its appellate jurisdiction and power, if it finds such decision of the Medical Appeal Tribunal under appeal before it, to be vitiated by any valid, legal reason and each case depends on its own facts and circumstances. Thus, we are in respectful agreement with the learned Single Judge. 13.
Thus, we are in respectful agreement with the learned Single Judge. 13. Further, Section 75 of the Act which enumerates the matters to be decided by the Employees' Insurance Court, states, among other things, that if any question or dispute arises as to the right of any person to any benefit ......, or any other matter required to be or which may be decided by the Employees' Insurance Court under the Act, such a question or dispute shall be decided by such Court in accordance, with the Act subject to sub-section (2A) thereof. Sub-section (2A) specifically provides about obtaining the decision of a Medical Board or Medical Appeal Tribunal, as the case may be, when it was not obtained on a disablement question earlier except in respect of an appeal before such Court under Section 54A(2) of the Act, in which case the Court itself determines all the issues arising before it. While sub-section (1) of Section 75 gives an omnibus jurisdiction to the Employees' Insurance Court to decide the correctness or otherwise of the decision of the Medical Board or Medical Appeal Tribunal, sub-section (2A) thereof specifically and unambiguously makes it clear that in an appeal under Section 54A(2) against the decision of a Medical Board or Medical Appeal Tribunal, the Employees' Insurance Court itself should determine all the issues arising before it. 14. Section 78 of the Act equates the Employees' Insurance Court with a civil Court for the purposes specified in subsection (1) and makes its order enforceable as a civil Court's decree under subsection (4) and provides for its procedure to be such as prescribed by Rules made by the State Government. Therefore, in the absence of any other procedure prescribed by the State Government in this behalf, the procedure and powers of the Employees' Insurance Court can probably be taken as similar to those of a civil Court under the Code of Civil Procedure, 1908, including in respect of exercise of its appellate jurisdiction under Section 54A(2) of the Act.
Therefore, in the absence of any other procedure prescribed by the State Government in this behalf, the procedure and powers of the Employees' Insurance Court can probably be taken as similar to those of a civil Court under the Code of Civil Procedure, 1908, including in respect of exercise of its appellate jurisdiction under Section 54A(2) of the Act. Consequently, the question of the presence or absence of any provision as to the manner in which the Employees' Insurance Court has to examine the correctness or otherwise of the report of the Medical Appeal Tribunal, is irrelevant and it is pre-eminently appropriate for the Employees' Insurance Court not only to decide the correctness or otherwise of the decision of the Medical Board or the Medical Appeal Tribunal but also to come to consequential conclusions about the entitlement of tile employee to the benefits under the Act in consequence of the disablement suffered due to an employment injury arising out of and in the course of employment. It, therefore, undoubtedly, had the jurisdiction to assess the extent of loss of earning capacity on the evidence and material made available to it in this behalf. 15. On facts involved in these three appeals, they present an identical scenario as covered by Regional Director, ESI Corporation, Hyderabad v. J. Krishna and others (supra) and for the same reasons, such as the Medical Appeal Tribunal not seeing or examining or hearing the employee concerned before deviating from the earlier decision of the Medical Board, thus violating the principles of natural justice and further due to even the appellant admitting the material before the Medical Appeal Tribunal to be disclosing the possibility of the employee getting normal communication skills only with the user of hearing aid but not otherwise and further due to the Medical Appeal Tribunal not specifying even remotely any reason for differing with the assessment of the disability by the Medical Board, the Employees' Insurance Court setting aside the Medical Appeal Tribunal's decision is but proper. Whether the Medical Appeal Tribunal in question was or was not properly constituted as per Regulation No.76 of the Employees' State Insurance (General) Regulations, 1950, therefore, becomes redundant and superfluous. 16. The next question raised was that of the propriety of the Employees' Insurance Court relying on the certificate issued by District Medical Board, Vizianagaram subsequent to the Medical Appeal Tribunal.
16. The next question raised was that of the propriety of the Employees' Insurance Court relying on the certificate issued by District Medical Board, Vizianagaram subsequent to the Medical Appeal Tribunal. A careful perusal and consideration of the judgments under appeal show that the Employees' Insurance Court relied on such certification by District Medical Board, Vizianagaram only for the purposes of enabling it to assess the loss of earning capacity of the employee concerned to enable it to give consequential directions regarding the disablement benefits to which the employee is entitled, but not for the purpose of assessing the correctness or otherwise of the decision of the Medical Appeal Tribunal. As the decision of the Medical Board earlier showed the entitlement of the employee concerned to disablement benefits at a certain percentage, the logical consequence of reversing the decision of the Medical Appeal Tribunal would be to award appropriate disablement benefits to the employee concerned, only for which purpose the Employees' Insurance Court referred to the certificate of District Medical Board, Vizianagaram, which cannot be considered illegal or irregular though not specifically provided by the Act or the Rules made thereunder, as the Employees' Insurance Court was exercising a jurisdiction akin and identical to that of a civil Court. The certificate of the District Medical Board, Vizianagaram was relied on in each case to corroborate and substantiate the assessment of percentage of disablement and the consequential loss of earning capacity made by the Employees' Insurance Court, but not as the prime basis on which its conclusions are based. 17. The assessment of loss of earning capacity by the Employees' Insurance Court and its consequential directions to pay the benefit at different percentages at different dates are based on the facts, circumstances and evidence placed before the Court in each case, in arriving at which, no perversity or unreasonableness can even be remotely traced. The cross-objector in C.M.A. No.3663 of 2003 tries to question the percentages and dates adopted by the Employees' Insurance Court, but what has been assessed by the Employees' Insurance Court is the percentage of disability arising out of the employment injury and the consequential loss of earning capacity.
The cross-objector in C.M.A. No.3663 of 2003 tries to question the percentages and dates adopted by the Employees' Insurance Court, but what has been assessed by the Employees' Insurance Court is the percentage of disability arising out of the employment injury and the consequential loss of earning capacity. If the hearing impairment due to employment injury was at any percentage including upto 90 per cent of one ear or both the ears, the same by itself is not equal to the loss of earning capacity and if the Court assessed the hearing disability to have resulted only in a lesser percentage of earning capacity, the same cannot be found fault with on facts. 18. Therefore, it is clear that there is neither a substantial question of law nor a substantial question of fact involved in these appeals to bring the appeals within the scope of Section 82 of the Act. Section 82 sub-section (2) provides the scope for an appeal to the High Court only if it involves a substantial question of law and hence, an appeal does not lie in any of these cases. Even otherwise the impugned judgments are not such as to capacitate the High Court to interfere. As held in Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi, AIR 1959 SC 492 , in a matter, of course, arising under Section 115 of the Code of Civil Procedure, if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. The principle squarely applies to the facts of the present appeals and the appeals and the cross-objections should, therefore, fail. 19. Accordingly, all the three appeals and the cross-objections in CMA No.3663 of 2003 are dismissed. No costs.