Gujarat High Court
Regional Director vs Shukla Hardaynarayn Devisahay on 28 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/539/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 539 of 2014
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REGIONAL DIRECTOR
Versus
SHUKLA HARDAYNARAYN DEVISAHAY
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Appearance:
MR SHASHIKANT S GADE(1706) for the PETITIONER(s) No. 1
MS ASHA H GUPTA(1025) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/08/2018
ORAL ORDER
1. This appeal under section 82(2) of the Employees' State Insurance Act, 1948 ( for short "the Act") is at the instance of the original respondent before the ESI Court and is directed against the judgment and order dated 13th December, 2013 passed by the ESI Court, Ahmedabad in the Second Appeal (E.S.I) No.99 of 2012.
2. It appears from the materials on record that the respondent herein is designated as a helper in the CDR Department of the Arvind Mills. On 25th February, 2008, while working in the second shift, he met with an accident.
3. The department of Radio Diagnosis & Imaging, Civil Hospital, Ahmedabad, issued a certificate, which reads as under;
"DEPARTMENT OF RADIO DIAGNOSIS AND IMAGING CIVIL HOSPITAL, AHMEDABAD.Page 1 of 20 C/FA/539/2014 ORDER
Name: HRADAYNARAYAN S/B. Dr. P.A. Amin
Age/Sex: 52Y/M (Sr. Prof and HOD,
Radiology)
Regd. NO. 2009/4/09 Dr. I.D. Desai
VIMA NO. 1138216 (Prof. Radiology)
Ref. By DR ESIS Dr. R.N. Solanki
DATE: 1.4.09 (Asso. Prof. Radiology)
Dr. D.C. Shah
(Asso. Prof. Radiology)
Dr. N.Y. Makwana
(A.P. Radiology)
MRI LUMBO-SACRAL SPINE (PLAIN)
MRI study of lumbar spine has been performed using a dedicated spine quadrature coil Spin echo and fast spin echo and fast field echo sequences were used to obtain T1W & T2W images in axial and sagittal planes.
* Orthopedic implant noted in L3 & L4 vertebral bodies & L3-L4 intervertebral bodies.
* Adjacent end plates of L3 & L4 vertebral bodies are irregular.
* Degenerative water loss noted in L2-L3 & L4-L5 intervertebral disc on T2W images.
* Diffuse disc bulge at L4-L5 intervertebral disc causes compression over bilaterally.
* There is normal alignment and curvature of lumbosacral spine.
* No e/o ligamentum flevum on facetal joint hypertrophy noted.
* Spinal cord reveals normal signal intensity. No e/o any focal or diffuse areas of altered spinal intensity seen.
* Pre and Para vertebral soft tissues appear normal.
* MR myelogram shows anterior extradural impression.Page 2 of 20 C/FA/539/2014 ORDER
AP diameters of spinal canal Mm
L1-2 16.5
L2-3 16
L3-4 14.7
L4-5 14.6
L5-S1 15.4
IMPRESSION
* Orthopedic implant noted in L3 & L4 vertebral
bodies & L3-L4 intervertebral bodies.
* Degenerative water loss in L2-L3 & L4-L5
intervertebral disc on T2W images.
* Diffuse disc bulge at L4-L5 intervertebral disc
causes compression over bilaterally."
4. The respondent herein was referred to the Medical Board for assessment of his permanent disability. The Medical Board assessed the disability to the extent of 15% non-scheduled injuries. The respondent workman, being dissatisfied with the assessment undertaken by the Medical Board as regards the extent of disability, preferred an appeal before the Medical Appellate Tribunal at Ahmedabad. The Appellate Tribunal passed the following order;
"[6] Heard the advocate for the appellant and the Insurance Superintendent for the respondent. Present appeal has been filed against the assessment of the disability of the appellant by the medical board under Section-54(a) of the Employees State Insurance Act, 1948. Ld. Advocate / Representative for the appellant has made oral arguments as per the facts mentioned in the appeal memo produced at Exhibit-1 and requested to grant the relief as prayed in appeal memo. Whereas, the Insurance Superintendent has made his oral arguments as per the facts mentioned in the statement produced by E.S.I. Corporation at Exhibit-5 and prayed to quash the Page 3 of 20 C/FA/539/2014 ORDER appeal of the appellant with cost. Perused the record of the case.
[7] The said disability and injury of the appellant were examined and verified by the medical assessor before the tribunal at the time of hearing the present appeal on 22/12/2011. The appellant has not stated about any past injury or inter-current decease. During examining the injury of the appellant, it is found that the zero (0) percent assessment for disability is made for the appellant by the medical board which is not just and appropriate. Looking to the physical disability of the appellant, assessment made by the medical board doesn't appear appropriate or sufficient. Because of the injury sustained to the appellant, he has scar of operation on his back. He has back-ache and swelling on his back. It is difficult for him to bend from waist. Considering the type of his work, the 50 percent assessment made by the medical assessor and the union assessor at Exhibit-6 deems reasonable, proper and just. I am of the opinion that the appellant can get sufficient, reasonable and just compensation if assessment of his physical disability is made at 50 (Fifty) percent. Therefore, it is proper and reasonable in the interest of justice to agree with the assessment of the physical disability of the appellant made by the medical assessor and union assessor and to order for the assessment of the physical disability of the appellant accordingly. Therefore, in these circumstances, decision of the issue no.1 is given in partly affirmation and final order about issue no.2 is passed as under.
|| ORDER || [8] The present appeal of the appellant is partly allowed.
[9] The assessment for 15 percent physical disability of the appellant made by the medical board is quashed and assessment for the physical disability of the appellant is held as 50 (Fifty) Percent.
[10] No order as to costs."Page 4 of 20 C/FA/539/2014 ORDER
5. Thus, the Medical Appeal Tribunal assessed the disability to the extent of 50%.
6. Against the order passed by the Medical Appeal Tribunal, two appeals came to be filed before the E.S.I Court, one by the workman, i.e. the respondent herein and another by the Corporation. The appeal filed by the Corporation came to be dismissed by the E.S.I Court, whereas the appeal filed by the workman came to be allowed. While allowing the appeal filed by the workman, the E.S.I Court assessed the disability of the workman to the extent of 100%. Being dissatisfied with the judgment and order passed by the E.S.I Court, dismissing the second appeal, the Corporation is here before this Court with this appeal under section 82(2) of the Act, 1948.
7. Only one question has been formulated as the substantial question of law in the memorandum of the second appeal. The same is as under;
'Whether the E.I. Court has any jurisdiction and power to enhance % of disability @ of 100% passed by Medical Board & M.A.T in absence of medical evidence?"
8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any substantial question of law is involved in this appeal filed by the Corporation.
9. The findings recorded by the ESI Court are as under;
Page 5 of 20 C/FA/539/2014 ORDER"(7) Looking to the facts of appeals of both parties, it is undisputed that the employee met with an accident while working as a helper in Arvind Mill and vertebrae have been fractured and injuries have been sustained on the right hand. As stated by the employee, presently, he has not been able to perform his duty which he had been able to perform earlier. Therefore, as per section 2(15)(b) of the E.S.I. Act, he is entitled to the assessment for 100% permanent disability. As stated by the employee, L-4 vertebra has been fractured and L-5 and S-1 have been seriously damaged. The bending down forth and back and right and left side has remarkably become restricted. He is not able to carry weight. The corporation has stated that the assessment made by Medical Board is appropriate and lawful because injury is non-schedule injury, and considering swelling and pain, 15% permanent disability has been assessed.
(8) The record of Medical Appeal Tribunal has been produced in this case. The employee had stated the facts before the Medical Appeal Tribunal, which were stated by him in the second appeal before E.S.I. The employee has produced copy of BI-3 form. The corporation has produced copy of BI-3 form vide exhibit no. 3 in the second appeal. But, looking to the whole BI-2 form, the writing has been made by pen at the place marked with printing in the BI-2 printed form. The employee was advised to take physiotherapy treatment for the first three months. First of all, 20% permanent disability was provisionally determined and thereafter, 15% permanent disability has been assessed. He has been advised to take physiotherapy treatment for first three months and thereafter, for two months. When the employee was examined twice, it has been recorded that employee has sustained disability and thereafter, employee was referred to the expert doctors of Civil Hospital for their opinion, and after considering the said report, 15% permanent disability was finally assessed. It does not become clear as to what diagnosis was done in BI-2 form dated 05/08/11 and thereafter, it has been determined that 15% permanent disability has been sustained. The said decision has been challenged before Medical Appeal Tribunal.
(9) The Medical Assessor had examined the employee before Medical Appeal Tribunal. The Chairman of Medical Page 6 of 20 C/FA/539/2014 ORDER Appeal Tribunal is a Judge of Labour Court. In addition to him, representatives of Trade Union and Medical Assessors are also members. The Medical Assessor has noted in his report of physical examination that marks of operation is found on the waist, and he feels pain in the waist and is not able to bend and waist is swollen.
Considering the nature of the work, 50% i.e. 15+35 % permanent disability has been assessed. Taking into account opinion of expert doctors of Civil Hospital and all other documents produced before Medical Appeal Tribunal, Medical Appeal Tribunal has assessed 50% permanent disability. Thus, Medical Appeal Tribunal has noted as to what disabilities the employee still has and finally recorded that considering nature of the work, 50% permanent disability has been assessed. Thus, assessment for 50% disability has been done, but no reasons have been assigned as to why assessment for 100% disability has not been done. The expert doctor is also present before the Medical Appeal Tribunal. Under such circumstances, he should record in detail that employee faces difficulty in bending and to what extent, he faces difficulty and as to how he is not able to move. It is not sufficient to record that he faces difficulty in bending from the waist because bending from the waist can be from 1% to 100%. He should mention in his report that he faces difficulty in bending back and forth and moving right and left side and assess the same. The employee has to face injustice if assessment is done by writing general diagnosis only.
(10) It is clearly submitted for employee that employee is not able to bend back and forth due to vertebra injury in the waist. He is also not able to bend left or right side and to carry weight. As a result, he is not able to perform any duty. Therefore, assessment for 100% disability should be done as per section 2(15)(b). Thus, Medical Board and Medical Appeal Tribunal have not taken into account permanent disabilities caused due to the said injuries and have not noted them sufficiently. The employee was referred to expert doctor of Civil Hospital, where expert doctor examined him on 19/01/11 and submitted his report to E.S.I. Corporation. Even though entire report is not taken into account, the final diagnosis made by him is as under.
Pt. recommended continuations of physiotherapy at Page 7 of 20 C/FA/539/2014 ORDER home, light duty jobs (is view if operated spine twice not to bear weight) / heavy work / physical activities avoided), usual activities of daily living at home, medicines according to pain and food and nutritional + calcium supplemental as per his age for long time well being from his physical and neurological problems despite good spinal fusion at & levels and on going spinal steno sis problems.
The expert doctor has clearly stated in this diagnosis that, two operations have been performed on the vertebra and due to that the employee can not lift the weight. He should refrain from heavy physical activity. He can do routine work. Thus, the expert doctor clearly advised that, the employee should be assigned light work. But, simultaneously he also noted that, the employee should not lift any heavy weight, should not do any heavy work and refrain from physical activity. Thus, all the physical activities of the employee have been limited. The employee was kept present in this second appeal. This E.S.I. court is not any expert doctor but, it clearly appears that, the employee can not bend his body forward or backward. He can not bend his body sufficiently to the left hand side. Thus, the movement of the employee from the waist has been limited to some extent, and due to that, he is not able to perform any work.
(11) In support of their arguments on behalf of the employee, the judgments of the apex courts have been produced. The Judgment of Hon'ble Gujarat High Court in the case of Vinodbhai Shivabhai and E.S.I.Corporation reported in 2001 (L.L.J.) page No.56 has been produced. This judgment was passed under section-2 (15-A), section-2 (15-B) of E.S.I. Act and the provisions of first and second schedule of the act. In the above case, the E.S.I. court had assessed 90% of permanent disability and against it, Hon'ble Gujarat High Court had assessed 100% of permanent disability. In the above case, at the time of accident, the employee was working as cotton feeder. One hand of the employee got severed in the accident. Hon'ble High Court held that, according to the provisions of section-2 (15-B), it is the fit case of complete disability. Hon'ble court observed that, there is no dispute regarding the fact that, the employee lost the job due to disability. The employee is not able to work as Page 8 of 20 C/FA/539/2014 ORDER cotton feeder due to his injury. There is no evidence that, the employee can work after losing one hand. In the above case, the advocate of the employee demonstrated the injury and work of the employee and it appeared that, for such type of work, the two hands are essentially required.
The judgment of Hon'ble Bombay High Court in the case of Jitu Yadav and E.S.I.Corporation reported in 2002(1) L.L.N. Page No.933, has been produced. In the above case, the employee was working on grilling machine and due to injury, he lost the thumb and fingers. The medical board assessed 60% of disability and E.S.I. court had confirmed it. Hon'ble High Court held that, due to injury, the employee has completely lost the usage of his right hand. Medical Board had also observed that, the employee has lost the practical usage of fingers and thumb, and the wrist is normal. Medical Board has also come to the conclusion that, the employee has lost his hand. The employee was working on grilling machine and he was working as helper. The employer had assigned him the work of watchman on the ground of mercy. But it is not important that, this can not be called complete disablement. The hand of the employee is completely turned into disfigurement, and he can not do any work by his right hand. The employee did not remain capable to do the work which he could do at the time of accident. Therefore, considering the provisions of section-2 (15-A) and section-2 (15-B), the court had determined the assessment of 100% of disability.
(12) It has been contended on behalf of the employee that, the employee is not able to do any type of work due to his injury. The doctors had advised to assign the light work to the employee. But, despite making request, he was not assigned the light work in the company where he was working. The employee has produced the letter dated: 02/10/2011 before Medial Appeal Tribunal which was written to his employer. Thereafter, on 17/10/2011, the employee had requested to assign him light work through his advocate. In this regard, the employee had produced his affidavit before the Medical Appeal Tribunal. It is submitted for the Corporation that the said documents have been produced to concoct evidence. But, looking to the produced evidence and findings of expert orthopedic surgeon of Civil hospital, it is clearly Page 9 of 20 C/FA/539/2014 ORDER stated that two operations were performed on spinal cord. The employee cannot lift weight; the employee should not lift any kind of weight and avoid physical activity; the employee should be assigned only light work; the employee should not lift weight. Thus, the employee has been rendered disabled to perform work due to the injury. The employee used to perform duty as a helper in CDR department of the organization and the employee has to climb up and down the stairs and heavy carboys are to be carried and emptied. The employee has to do frequent movement and has to bend down and lift weight. The employee has been rendered disabled to perform such tasks due to the injury. Thus, the employee is unable to perform the tasks he used to perform at the time of accident due to the injury. Section - 2 (15-B) of ESI Act is as following:
Permanent Total Disablement: 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.
Thus, it is clearly stated in Section-2 (15-B) that when an employee was capable to do all nature of work at the time of accident and he becomes incapable permanently, it is called permanent total disablement. Thus, due to employment injury caused to the employee, he has become disabled to perform the work which he performed at the time of accident. When nature of injury is such that the employee has not remained capable to perform any other work, the injury caused to the employee is permanent total disablement. Therefore, he is liable to get assessment of 100% disability. The Medical Board mechanically examined the employee and assessed 15% permanent disability. Whereas, when the Judge of Labour Court is the chairman before in Medical Appeal Tribunal along with two medical assessors and two representatives of trade union, their responsibility Page 10 of 20 C/FA/539/2014 ORDER becomes more important in such cases. All the evidence have been produced before Medical Appeal Tribunal. 50% total permanent disability has been assessed without proper interpretation of provisions of ESI Act and without heeding physical condition of the employee. The said assessment is not just, legal or reasonable in any manner. Judgment of Medical Appeal Tribunal has to be judicial and speaking order and the same should be passed after discussing all evidence and considering provisions of law. Instead of doing the same, mechanical acceptance after noting down the injuries and its assessment made by medical assessor, is not just and legal. Considering aforesaid facts, the order passed by the Medical Appeal Tribunal is not just and legal and as the employee is entitled to get 100% permanent disability assessment, following order is passed. "
10. In my view, no error, not to speak of any error of law, could be said to have been committed by the E.S.I Court in assessing the disability to the extent of 100% on account of the injuries suffered by the respondent-workman herein.
11. It cannot be said that the findings recorded by the ESI Court are perverse or based on no evidence.
12. In considering the correctness of the view taken by the E.I. Court, regard must be had to the fact that this is an Appeal under Section 82(2) of the Act which stipulates that an Appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law. At the outset, it must be noticed that the Employees' State Insurance Act, 1948 is "an Act to provide for certain benefits to employees in case of sickness, maternity and employment injury". Clause (15-A) of Section 2 defines the expression "permanent partial disablement" in the following words:
Page 11 of 20 C/FA/539/2014 ORDER"Permanent partial disablement" means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:
Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement; "
13. Similarly the expression ''permanent total disablement" is defined by Clause (15-B) of Section 2 as follows:
"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 whose injuries, amounts to one hundred per cent or more."
14. The Act constitutes an Employees' State Insurance Fund under Section 26 into which all contributions paid under the Act and all other moneys received on behalf of the Corporation shall be paid. Under Section 28 the amounts lying to the credit of the fund are to be expended, inter alia, for the payment of benefits to insured persons. Section 46(1)(c) of the Act provides for the payment of periodical sums of money to an injured person who suffers from a disablement as a result of an employment injury. Section 51 similarly provides for the grant of disablement benefit, inter alia, to an employee who sustains a permanent disablement, whether total or partial. The material provisions of Section 46(1)(c) and Section 51-B are as follows:
Page 12 of 20 C/FA/539/2014 ORDER"46. Benefits (1) Subject to the provisions of this Act, the insured persons, their dependents or the persons hereinafter mentioned, as the case may be, shall be entitled to the following benefits, namely:
(a) xx xx
(b) xx xx
(c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the Regulations hereinafter referred to as disablement benefit.
"51. Disablement benefit: Subject to the provisions of this Act -
(a) xx x
(b) a person who sustains permanent disablement, whether total or partial shall be entitled to periodical payment at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government."
Rule 57 of the Employees' State Insurance (Central) Rules, 1950 provides for the payment of disablement benefit in pursuance of the provisions contained in the Act which have been adverted to earlier.
15. In interpreting the provisions of the Employees' State Insurance Act, 1948, the basic premise has to be that this is an enactment of Parliament designed with an emphasis on bringing into being a measure that would provide for social welfare to workmen who suffer, inter alia, sickness and employment injuries. The work place is a source of livelihood for those who work there. Parliament was conscious of the fact that an injury sustained in the workplace may, in certain situations, affect the earning capacity of the employee and, in more serious situations incapacitate an employee from rendering work which would enable him to earn his livelihood. The Act is a measure of social welfare aimed at providing some Page 13 of 20 C/FA/539/2014 ORDER monetary recompense to those whose livelihood has been jeopardised by employment injury.
16. Clause (15-A) of Section 3 defines "permanent partial disablement" with reference to the impact of the disablement on the earning capacity of the employee. The disablement though permanent, is partial because it reduces the earning capacity of the employee, in every employment which he was capable of undertaking at the time of the accident which resulted in his disablement. In contradistinction to a permanent partial disablement, a "permanent total disablement" is defined with reference to the incapacity of the employee to render the work which he was capable of performing at the time of the accident. In other words, the emphasis in the concept of partial and total disablement is different. In the case of a partial disablement, the emphasis in the statute is on a reduction of the earning capacity of the employee while in the case of a total disablement, the statute places emphasis on the incapacity of the employee to perform all work which he was capable of performing at the time of accident. Both Clauses (15-A) and (15-B) have each, a proviso. The proviso to Clause (15-A) provides that every injury specified in Part II of the Second Schedule shall be deemed to result in a permanent partial disablement. Similarly a deeming definition is provided in the proviso to Clause (15-B) as to when a disablement is to be regarded as a permanent total disablement. The two provisos to Clauses (15-A) and (15-B) lay down a deeming definition of when a disablement is to be regarded as partial or total The point to be noted, however, is that the deeming definitions which are created by the two Page 14 of 20 C/FA/539/2014 ORDER provisos to Clauses (15-A) and (15-B) are not exhaustive of the circumstances in which the disablement is regarded as partial or, as the case may be, total. The first part of each of the two clauses defines when, in the generality of circumstances, a disablement would be regarded as partial or total, as the case may be. The provisos expand upon the ambit of the main provision by creating a statutory fiction as regards the circumstances in which the disablement is regarded by law as partial or, as the case may be, total. Consequently, the fact that an injury is not specified either in Part I of the Schedule is not conclusive of whether the disablement is or is not permanent. If a person sustains an injury specified in Part I of the Second Schedule, the disablement sustained thereby is treated by fiction of the law as permanent and total. However, even if an injury is not specified in Part I of the Second Schedule, the employment injury may be still such as would fall for classification as a permanent total disablement if it is of such a character as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement. In other words, if the conditions to the proviso toCclause (15-B) are fullfilled, the injury is deemed to be a permanent total disablement. However, even if the injury is not of a class or nature specified by the proviso it may still constitute a permanent total disablement if the first part of the definition in Clause (15-B) is satisfied.
17. The next important aspect of Clause (15-B) which has to be noticed is that a permanent total disablement is defined as one which "incapacitates an employee for all work he was capable of performing at the time of the accident resulting in Page 15 of 20 C/FA/539/2014 ORDER such disablement." The meaning and import of Clause (15-B) is not that an employee should be incapacitated from rendering all work whatsoever, but work of the kind and character which he was capable of performing at the time of the accident. In a sense, an employee who, sustains an employment injury may in a large number of cases, be capable of performing some work, however, lowly placed but that would not be an appropriate test to determine whether or not the disablement which he had sustained constitutes a permanent total disablement. If the injury he has sustained precludes an employee from performing the work which he was capable of performing at the time of accident, meaning thereby, of the nature that he was performing at the time of the accident, the disablement constitutes a permanent total disablement.
18. This position in law is now well-settled in view of several judgments commencing with the judgment of the Supreme Court in Pratap Narain Singh Deo v. Sriniwas Sabata, . In the case which was decided by the Supreme Court, the workman there was working as a. carpenter. The workman fell down while performing some work in a cinema hall and had to undergo an amputation of his left arm from the elbow as a result of the injury which he sustained. The Commissioner for compensation came to the conclusion that by the loss of his left hand above the elbow, the employee had evidently been rendered unfit for the work of a carpenter since that work could not be done by one hand. The claim for compensation was assessed at 100 per cent of the earning capacity. The Supreme Court affirmed the judgment of the Commissioner with the following observations:
Page 16 of 20 C/FA/539/2014 ORDER"It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
"The injured workman in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding."
19. A similar view has been taken in several judgments of the High Courts in our country. A Division Bench of the Kerala High Court considered the question in E.S.I. Corporation v. Gopi, reported in 1995 I CLR 880. Justice K.T. THOMAS (as the Learned Judge then was) speaking for the Division Bench placed the principle in the following words:
"The legal position, according to us, is that it is not necessary that the employment injury should render the employee totally unfit to do any work whatsoever for holding that he is suffering permanent total disablement as understood in the E. S. I. Act, it is enough that he was incapacitated from doing the work which he was capable of doing at the time of accident. In other words it is not the look out of the Insurance Court to find out whether he can be trained to do some other work. If he can do the work which he was performing just before the accident in a reduced form the result is only permanent partial disablement. If he cannot do that work at all then the consequence is total permanent disablement."
20. The same view has earlier been taken by another Bench of the Kerala High Court in E.S.I. Corporation v. Raju, reported in 1995-I-LLJ-21 (Ker-DB). The learned counsel appearing on behalf of the Appellant relied upon this judgment of the Page 17 of 20 C/FA/539/2014 ORDER Division Bench, since it disapproves of the view taken by that Court in an earlier judgment in E. S. I. Corporation v. Pushkaran, 1993 II CLR 501 which was sought to be relied upon in para 6 of the judgment of the Insurance Court in the present case.
21. In Employees' State Insurance Corporation v. B. V. Balanarasaraju, 1985 LIC 216, a learned single Judge of the Andhra Pradesh High Court held that when an employee working in a rubber manufacturing unit lost four of the fingers of his right hand while feeding rubber into the machine, the disablement was a permanent total disablement. In para 3 of his judgment, the Learned single Judge held as follows:
".... Common sense tells us that total loss of four fingers of a workman's right hand including the cutting-off of the three of those fingers could never be held to have resulted only in permanent partial disablement of the workman whose daily work duty consists in feeding rubber into the machine. His daily duty requires the use of those fingers which are now cut off his hand. Many a thing man may or may not do without the aid and employment of his hands. Certainly the feeding of rubber into the machine is almost utterly impossible to be done by an employee without the aid and employment of his hands. ..... For the purpose of such a task, the employee does require the use of his fingers. The total loss of four out of his five fingers cannot but therefore be regarded as total permanent disablement."
22. A Learned single Judge of the Madhya Pradesh High Court has formulated the test in Chhotelal v. Regional Director, Employees State Insurance Corporation, reported in 1995-III- LLJ (Suppl)-31 as follows at p. 33 :
"A permanent total disablement is to be judged from the nature of the job, which the workman was doing and if Page 18 of 20 C/FA/539/2014 ORDER the disablement so caused, renders him unfit to do that job, it will be deemed to be total and not partial disablement."
23. The provisions of the Workmen's Compensation Act, 1923 which are pari materia with those of the E.S.I. Act noticed earlier have been interpreted by a Division Bench of the Kerala High Court in Rukiya Bai v. George D 'Cruz , and by a learned single Judge of this Court in Ahmed Abdul v. H.K. Sehgal, AIR 1965 Bombay 62.
24. A Division Bench of this Court construing the provisions of the Workmen's Compensation Act, 1923, held in Punambhai Khodhabha Parmar v. G. Kenel Construction, reported in 1985- I-LLJ-98 that the concept of permanent total disablement has to be judged from the stand point of the job which the workman was doing. In that case, the workman was engaged as a driver, a job he was unable to perform on account of the permanent disability suffered by him. The Division Bench held that since the employee had become unfit for the work of a driver, being unable to do so with only the left arm, the disablement was total and not partial.
25 A Learned single Judge of the Rajasthan High Court in Executive Engineer, Udaipur v. Narain Lal reported in 1977 LIC 1827 held that the mere fact that the workman had been provided some employment by the employer as a matter of grace or mercy could not be decisive in computing compensation under the Workmen's Compensation Act, 1923. The same view was taken by a Division Bench of the Calcutta Page 19 of 20 C/FA/539/2014 ORDER High Court which held in Sarat Chatterjee & Cot. (P) Ltd. v. Md. Khalil reported in 1979 LIC 401 that the mere fact that there was no loss of earning capacity by virtue of the fact that the workman had been given some or even a better job under the same employer was not decisive and the material question was whether there was a substantial or real risk that the workman will lose his present job some time before the end of his working life or would be thrown in the labour market more than once because of his disability.
26. A very serious injury could be said to have been suffered by the respondent-workman in his spinal cord. It has not been disputed that the respondent would not be in a position to attend to the work as a helper. It is also not in dispute that the respondent has lost the job on account of the aforesaid disability.
27. In these circumstances, this appeal fails and is hereby dismissed. The appellant-Corporation shall compute the benefits payable to the respondent herein under the provisions of the Act, 1948 on the basis that as a result of the employment injury, which was suffered by him, the respondent has suffered a permanent total disablement within the meaning of clause-15(B) of section 2 of the Act. I am informed that the respondent has not been paid any benefits till this date. Let the entire exercise be undertaken at the earliest and completed within one month from the date of the receipt of the writ of this order.
(J.B.PARDIWALA, J) Vahid Page 20 of 20