Madras High Court
The Regional Director vs B. Sampath on 16 April, 2019
Author: M.Govindaraj
Bench: M.Govindaraj
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:16.04.2019
Coram
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
C.M.A.No.306 of 2015
The Regional Director,
Employees State Insurance Corporation,
Chennai. ... Appellant
vs.
1. B. Sampath
2. The General Manager,
Swadeshi Cotton Mills,
Puducherry .. Respondents
Prayer in CMA.No.2949 of 2018: Civil Miscellaneous Appeal filed
under Section 82(2) of the ESI Act, praying to set aside the order
dated 13.06.2014 passed in ESI.OP.No.11 of 2010 on the file of the
ESI Court, Puducherry.
For Appellant : Mr. S.Ravindran
For Respondents : Mr. P.R.Thiruneelakandan
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the order passed by the Presiding Officer, ESI Court, Puducherry in ESI.OP.No.11 of 2010 allowing 100% permanent disability, thereby http://www.judis.nic.in 2 awarding 100% permanent disability as per the ESI Act.
The brief facts leading to the filing of the present Civil Miscellaneous Appeal is as follows;
(i) The 1st respondent/claimant joined the service of the 2 nd respondent Mill as a Jobber on 18.10.1984 as Simplex Reliever. The petitioner is entitled to the benefits under the Employees State Insurance Act, as he has been paying his contributions to the ESI Fund under the Insurance No.2916247.
(ii) During the course of his employment, on 27.12.1999, the 1st respondent met with an accident when he was engaged in the discharge of his normal duties, cotton waste from simplex machine fell on his left eye, as a result of which, he lost his left eye-sight. Subsequently his right eye also got damaged as a result of the injury caused to the left eye-sight.
(iii) Medical examination has revealed that the damage to the eyes of the petitioner has been the direct result of the fall of cotton waste and the resultant injury, as such there is an accident arising out of and in the course of employment, for which, the 1 st respondent is entitled to get benefits from the ESI Fund.
(iii) Though the accident has been brought to the knowledge of he 2nd respondent within two days by a written communication on http://www.judis.nic.in 3 22.3.2001 as per the advice of Labour Officer incorporating only the request for sanctioning leave on account of damage to the eyes without mentioning that the injury has occurred during the course of his employment.
(iv) As a result of the accident, the 1 st respondent has become permanently disabled from discharging his duties consequent to loss of vision in both his eyes. The permanent disability has been assessed as 100% by the Government Hosptial, Villupuram.
(v) As the 2nd respondent failed to do the needful for the 1st respondent's getting the ESI benefits from the ESI Corporation, the first respondent sent notice dated 25.7.2001 calling upon the 2nd respondent employer to take expeditious steps for granting the ESI benefits through ESI Corporation by send accident report to ESI local office, for which, the 2nd respondent employer gave reply dated 4.8.2001 containing false allegations.
(vi) Though the petitioner is entitled to claim ESI benefits, he has not been granted those benefits as he is unable to avail the same since the officials of the 2nd respondent employer refused to prepare accident report and the send the same to the ESI Corporation. Hence the 2nd respondent employer has committed violation of the provisions of the Employees' State Insurance Act 1948.Thus the 1st http://www.judis.nic.in 4 respondent/claimant filed claim in ESIOP.No.11 of 2000 before the Employees Insurance Court (II ADJ) , Puducherry praying for the following reliefs;
(a) to direct the 2nd respondent/Employer to prepare accident report in respect of the employment injury sustained by the petitioner on 27.12.1999 and send it to the ESI Corporation;
(b) to direct the ESI Corporation to grant permanent disability benefits to the 1st respondent/claimant for the employment injury sustained by him on 27.12.1999 in accordance with law and for costs of the claim petition.
(vii)Resisting the claim petition, a counter was filed by the employer/appellant denying the averments.
(viii) The Presiding Officer, Labour Court, Employees Insurance Court, Pondicherry, on considering the the witnesses on both sides as well as by Court, viz., PW1 to PW3, RW1, RW2 and CW1 and exhibits marked on both sides viz., Ex.P1 to Ex.P.34 and Ex.R1 to Ex.R21 and Ex.C1, came to a conclusion that the claimant/1st respondent could not be deprived of claiming permanent disablement benefit due to the negligence on the part of the employer/2nd respondent, thereby fixed the 100% disability and the claimant is entitled for 100% percent disability as per ESI Act. The petition is dismissed with regard to the http://www.judis.nic.in 5 prayer seeking a direction to the 2nd respondent Mill to prepare accident report.
2. Aggrieved over the order passed by the Presiding Officer, ESI Court, Puducherry in ESI.OP.No.11 of 2010 allowing 100% permanent disability, the present Civil Miscellaneous Appeal is filed on the following grounds;
1. there is no proof to establish that the claimant had lost his eyes due to an accident alleged to have occurred on 27.12.1999, but ESI court erred in awarding permanent disablement benefit.
2. The claimant has not proved the loss of vision was due to employment injury and the ESI Court erred in coming to the conclusion that the accident is due to occupational disease without any basis. Further no document is filed to establish that he had lost his vision due to employment injury.
3. There is no nexus between the loss of vision sustained by the claimant and the alleged injury sustained on 27.12.1999
4. ESI Court failed to see that the claimant is entitled to permanent disability only if the injury is out of employment or it is occupational disease as contemplated under section 2(8) of the Act.
http://www.judis.nic.in 6
3. According to the learned Senior Counsel appearing for the appellant, the ESI Court has found that the claimant has not filed any document to show that he has sustained any injury on the eyes while he was doing work, so, in the absence of any convincing material evidence, the disability cannot be termed as an 'Employment Injury'. The tribunal, having found that the claimant has not clearly proved that the loss of vision is due to employment injury, but it is due to occupational disease and the claimant is entitled to disability benefit for the occupational disease, such finding is contrary to law.
4. According to him, Section 52A of ESI Act defines the occupational disease as follows;
' 52-A. Occupational disease.-(1) If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee employed in the employment specified in part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each http://www.judis.nic.in 7 such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an 'employment injury' arising out of and in the course of employment.
(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in Schedule III to the Workmen's Compensation Act, 1923 (8 of 1923), by virtue of the powers vested in it under sub-section (3) of section 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.
(ii) Without prejudice to the provisions of clause
(i), the Corporation after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by http://www.judis.nic.in 8 this Act to be occupational diseases peculiar to those employments.
(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(4) The provisions of section 51-A shall not apply to the cases to which this section applies)' As per Section 52-A of the ESI Act, if an employee employed in any employment specified in part 'A' of the Third Schedule, contracts any disease specified therein as an occupational disease peculiar to that employment is deemed to be an employment injury arising out of and in the course of employment.
5. He would further refer to part C of the Third Schedule, wherein, Serial No.3 specifies peculiarly to a cotton industry. According to him, occupational disease is mentioned as ' Bronchopulmonary diseases caused by cotton, flax, hemp and sisal dust' Part C of the Third schedule does not specify loss of vision or any ailment of eyes as an occupational disease. When the loss of vision is not an occupational disease, in respect of cotton industry, the finding of the ESI court is erroneous and illegal. http://www.judis.nic.in 9
6. The learned Senior Counsel also would contend that according to the Social Security Officer of the appellant ESI Corporation, the claim for the benefit shall be filed by the insured person within a period of 12 months after the claim became due. Since no claim was made within the aforesaid time period, the same cannot be entertained at this point of time. In fact, the claimant was taking treatment for three months and availed ESI benefits for a period of three months to the full extent. He has not brought to the notice of the respondent Corporation that he met with an accident during the course of employment and that only after the lapse of 10 years, the claimant has chosen to file claim petition before the ESI Act.
7. As per Section 77 (1A) of ESI Act, every application before the Court shall be made within a period of three years from the date of which the cause of action arose. Therefore, on any account, the claim of the petitioner is not genuine and it is made with an ulterior motive to get wrongful gain from the respondent Corporation. Therefore in the absence of any material evidence, to show that the injury was caused by an accident due to occupational disease, arising out of and in the course of his employment, he is not entitled to any benefit. Therefore, the appellant seeks to set aside the order passed http://www.judis.nic.in 10 by the ESI Court.
8. Controverting the contentions of the learned counsel for the appellant, learned counsel appearing for the respondent/claimant would contend that as per Section 2(8) of the ESI Act, 'employment injury' means a personal injury caused by an accident or occupational disease arising out of and in the course of his employment. In the circumstances of the case, the claimant while he was discharging his duties, cotton dust fell into his left eye and immediately he was taken for treatment. Though the initial treatment was taken in a private clinic, he has taken treatment, admittedly from the appellant ESI Corporation.
9. In his Chief Examination, he has categorically deposed before the Court that during last week of December 1999 on 27.12.1999, during the first shift at about 1 p.m., when he was engaged in discharging of his normal duties, cotton waste from simplex machine fell on his eye and as there was no symptom of external injury, it did not cause much pain at that time, so he took it very lightly and did not complain the same to the management, but subsequently, he developed symptoms of damage of his left eye and situation was http://www.judis.nic.in 11 worsening day by day and ultimately, he lost his left eye sight and as a result of the injury to his left eye sight, his right eye also got damaged. Therefore he is entitled to benefits of ESI Corporation. Hence, he has made a request to the 2nd respondent Mill to register the accident for grant of ESI Medical facilities, but his request was rejected.
10. The 2nd respondent Mill had failed to discharge the statutory obligation of registering the accident occurred to the claimant and communicate the same to the appellant/ESI Corporation. For the fault of the employer, the claimant shall not be deprived of the ESI medical benefits. His evidence was supported by his wife viz., Shanthi who was examined as PW2 and also by a co-worker Ramamurthi who was examined as PW3. In his evidence, PW3 would substantiate that on the date of accident, i.e. on 27.12.1999, the claimant was working in the 2nd respondent company and that a cotton waste fell in his left eye and he suffered pain at a later point of time and had taken treatment. He would also depose that the claimant had informed about the accident to his higher authorities. Thereafter, he lost his vision completely on his left eye and he was given leave for treatment for the employment injury caused. When the happening of the http://www.judis.nic.in 12 incident and its consequences was clearly spoken by the witnesses, it cannot be said that the claimant has not suffered any employment injury.
11. Infact, the respondent filed an application for referring his case to medical board. The Medical Board has fixed disability at 100% which has not given the cause of the loss of vision. Therefore, when there are two views possible, in case of a beneficial legislation, the view in favour of the employee shall prevail.
12. Learned counsel for the respondent would also rely on the following judgments reported in;
1. AIR 1970 SC 1906 (Mackinnon Mackenzie and Co. Private Ltd Vs. Ibrahim Mohammed Issak)
2. AIR 1986 SC 1686 (Regional Director Employees' State Insurance Corporation, Madras Vs. South India Flour Mills (P) Ltd;
3. CDJ 1998 MHD 364 (Management of Pannimedu Estate, Tata Tea Limited P.O. Valparai Vs. Chandra
4. 2001(6) SCC 767 (Birendra Kumar Dubey and another Vs. Girja Nandan Dubey and others) http://www.judis.nic.in 13
5. 2007 1 LW 249 ( Management of Pachamalai Estate, Valparai P.O. Vs. Smt. Mani)
6. 2009 1 LW 293 (C.Indira Vs. M/s.Senthil and Co.)
7. CDJ 2009 Ker HC 554 (Employees State Insurance Corporation Vs. Leela)
13. I heard the rival submissions of learned Senior Counsel Mr.S.Revindren appearing for Mr.G.Bharadwaj and Mr.P.R.Thiruneelakandan, learned counsel appearing for 1st respondent and perused the materials available on record.
14. The admitted fact is that the 1st respondent/claimant was an employee of the 2nd respondent Mill. He was taking treatment for some ailments in his eyes on 30.12.1999 and from the appellant ESI Corporation w.e.f 5.1.2000. Therefore the factum is that the claimant was suffering with some ailment during the last week of December 1999 and first week of January 2000 stands proved by Ex.P.1 to Ex.P.7. Therefore, it is clear that the 1st respondent claimant had an eye injury. It has to be seen that as to whether it will fall under section 2(8) of the ESI Act.
Section 2(8) of the ESI Act, reads as follows; http://www.judis.nic.in 14
2. Definitions.-
.......
(8) “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.'
15. According to the 1st respondent/claimant, he has let in evidence before the Employment Insurance Court that he had requested the General Manager (Personal Officer) to register the accident and communicate the same to the appellant corporation. The request was not considered, but the same was rejected. Even his co- workers also orally requested the officials for the same within two days of occurrence of the accident. Since the employer failed to register the accident, a written communication was sent by the claimant on 23.2.2001 requesting the Mill to register the accident and take steps for granting ESI medical facilities. On receiving the communication, the Labour Officer of the Mill, advised the claimant that he would be sanctioned leave if simple request was made for granting leave and if request for registering the accident was made, sanctioning of leave would be rejected. This evidence of the claimant was substantiated by the evidence of co-worker who was deposed as PW3 and in his evidence, he has deposed as follows; http://www.judis.nic.in 15 'ehDk; kDjhuh; rk;gj; mth;fSk; ,uz;lhtJ vjph;kDjhuh; epWtdj;jpy; gzpg[hpe;J te;njhk;/ eh';fs; nkw;go bjhHpw;rhiyapy; Spinning Department?y; gzpg[hpe;njhk;/ kDjhuh; rk;gj; mth;fs; fle;j 27/12/1999 md;W kjpak; czt[ ,ilntisf;F gpwF ,uz;lhtJ vjph;kDjhuh; epWtdj;jpy; gzp bra;J bfhz;oUe;jntisapy; g; R bghjp mtuJ ,lJ fz;zpy; tpGe;J ;mtuJ ,lJ fz; rpte;Jtpl;lJ/ mUfpy; ,Ue;j ehd; mtiu mUfpy; ,Ue;j jz;zPh;
FHha;fF ; miHj;jJr; brd;W mth; jdJ fz;iz
fGtpf; bfhs;s cjtpndd;/ mg;nghJ mjid
rhjhuzkhf epidj;J mth; tPL jpUk;gptp;;l;lhh;/ gpwF
mtuJ ,lJ fz; cWj;jy; kwWk; typ fhuzkhf
mtjpgl;L mLj;j ehl;fspy; uF fpsPdpf; fz; lhf;lh; jpU/ rR%y;ghzp mth;fsplk; fhz;gpj;J kUj;Jtk; ghh;j;jhh;/ nkYk; g[Jit mhpah';Fg;gk; ESI M!;gjjjphpapYk; fhz;gpj;J mtUf;F Vw;gl;l nkw;goahd tpgj;J kw;Wk; ghjpg;g[ Fwpj;J kUj;Jtk; ghh;j;jhh;/ vdnt kDjhuh; nkw;go tpgj;ij mtuJ caujpfhhpfSf;F bjhptpj;Jtpl;llhh;/ mjd;nghpy; ESI M!;gj;jphp ghpe;Jiuf;f mtUf;F tpLg;g[k; mt;tg;nghJ mspf;fg;gl;lJ/ mJbjhlh;ghd ESI foj';fis vd; K:ykhfj;jjhd; bjhHpw;rhiyf;F mwpf;fg;gl;lJ/ bjhlh;r;rpahf kUj;jJtk; ghh;j;Jk; kDjhuh;
rk;gk;jJf;F nkw;go tpgj;jpjdhy; ,lJ fz;
Kw;wpYkhf ghh;it ,Hg;g[ Vw;gl;lLtpl;lJ/ gpd;dh;
bjhlh;r;rpahf mtuJ kw;bwhU fz;Qqk; ghh;it ,He;J kDjhuh; Kw;pwpYk; ghh;itaw;wtuhfptpl;lhh;/ mtuJ ,e;j epiyf;F mth; nkw;go ehspy;
gzpbra;Jbfhz;oUe;jnghJ Vw;gl;ll tpgj;jJjhd fhuzk;/ kDjhuh; ESI fhg;g[ bgw;wjth;/ vdnt kDjhuhh jf;f ,Hgg;gPL bgwntz;oath; Mth;/ ESI o!;gd;rhpapYk; ,e;j tpgj;Jgw;wp Twp mjw;F tpLg;g[k; bgw;Ws;shh;/ Since the procedural aspects of registering the accident and communicating the same to appellant Insurance Corporation was not followed, as per Section 77 of the ESI Act, the employment Insurance Company Court has held that the employment injury was not proved . However, it is held that the loss of vision is an occupational decease, http://www.judis.nic.in 16 but a reading of Section 2(8) of the ESI will clearly show that any personal injury of an employee caused by an employer or occupation arising out of from the course of his employment is an employment injury.
16. Section 51-A of ESI Act and Section 52-A of the Act are equally applicable.
17. The Hon'ble Apex Court, in the case of AIR 1970 SC 1906 (Mackinnon Mackenzie and Co. Private Ltd Vs. Ibrahim Mohammed Issak), held as follows;
'The words “arising out of employment” are understood to mean that “during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered” There must be a casual relationship between the accident and the employment. If the accident had occurred on account of a risk which is an incident of the employment,t he claim for compensation must succeed, unless of course the workman has exposed http://www.judis.nic.in 17 himself to an added peril by his own imprudent act.”
18. In the instant case, the employee/claimant has categorically deposed that during his employment as a jobber in the 2nd respondent Mill, a cotton waste from the simplex machinery fell into his left eye, which he was handling. This evidence was substantiated by a co- worker who was deposed as PW3. Only because, no physical injury or external injury caused due to fall of cotton waste in his eye, it cannot be denied that it is not an accident. Consequent to dust falling in his eye, the claimant left the office and he developed symptoms of damage to his left eye only after his duty hours are over. Therefore, there is every possibility that the fall of cotton waste has casual relationship between the accident and the employment and also it is reasonable to believe the workmen would not have otherwise suffers the same.
19. It is also to be noted that the claimant has taken treatment from 27.12.1999 particularly with the appellant ESI Corporation between 5.1.2000 to April 2000 throughout three months period. That means when he suffered some ailment in the eyes, which according to him, was consequent to an accident that had taken place on 27.12.1999 is probable. There is no whisper about the cause of http://www.judis.nic.in 18 accident or cause of the ailment. The treatment period was proximate to the date of incident. Only because the employer has not prepared the Accident Register and forwarded the same to the appellant, the victim shall not be deprived of the benefits. It is not the case of the appellant that there is no chance for such accidents, but it is their case that the claimant has not proved it.
20. It is held by the Honourable Supreme Court in calculating whenever any two constructions are possible, then, one in favour of the person for whose benefit, the Act has been enacted should be given effect to. The object of the Corporation is to secure compensation and not to find reasons to reject the benefits to the workers. The officials of the corporation shall be conscious of the purpose of the Corporation, which is beneficial in nature and shall not act against the very objects.
21. The Division Bench of this Court in the case reported in Employees State Insurance Vs. S.Savithri and others [(2003) III LLJ 250] has observed as under;
'The object of the appellant corporation is to secure compensation to the victims and provide a speedy remedy. Therefore, it shall be construed as an http://www.judis.nic.in 19 injury which has casual connection to the employment and happened during the course of employment and was arising out of the employment.
'12. In our case, we have already held that the materials placed by the petitioners show that the insured person had paid contribution from October, 1990 to March, 1991, for which corresponding benefit period is July, 1991 to December, 1991 and the date of accident and death fall within the benefit period. In the light of the decision of the Supreme Court and in view of the factual details, we are in agreement with the conclusion arrived at by the Court below. Further, the Scheme of the Act, Rules and the Regulations spelled out that the insurance covered under the Act is distinct and differ from the contract of insurance in general. Under the Act, the contributions go into a fund under section 26 for disbursal benefits, in case of accident, displacement, sickness, maternity etc., the contribution required to be made is not paid back even if an employee does not avail any benefit. It is also relevant to note that the Employees State Insurance Act, 1948 is a piece of social welfare legislation enacted primarily with the object of providing certain benefits to employees in a case of sickness, maternity and employment injury and also to make provisions for certain other matters incidental thereto. The Act in fact tries to attain the goal of socio-economic justice enshrined in the Directive Principles of State Policy http://www.judis.nic.in 20 under Part IV of the Constitution, in particular articles, 41, 42 and 43 which enjoin the State to make effective provision for securing the right to work, to education and public assitance in case of unemployment, old age, sickness and disablement, and in other cases of any under served want to make provision for securing just and human conditions of work and maternity relief and to secure by suitable legislation or economic organization or in any other way, to all workers, work, a living wage, decent standard of life and full enjoyment of leizure and social and cultural activities. This Act covers a wider spectrum than the Factories Act. Extensive Regulations have been framed under the Act to identify the employees who would be entitled to the benefits. An elaborate machinery is provided for the effective administration of the Act, the Apex body being the ESI Corporation, subordinate to which are the Standing Committee and Medical Benefit Council. The Corporation is a public corporation controlled and subsidized by the Government for the benefit of the employees, its object being rendering service to a weaker section of the public.”
22. In the instant case, the victim has proved that the disability wa sdue to the injury suffered during the course of employment and that has some casual connection to the nature of his job by sufficient evidence. There is no contra evidence to reject the probability. At http://www.judis.nic.in 21 the request of the claimant, he was referred to Medical Board and the Medical Board also not opined contrary to his claim. Only because of occupational disease is not mentioned in part 'C' of the schedule, it cannot be held that it is not an occupational disease at all. The schedule given in the statute is only illustrative and it is not exhaustive. The Honourable High Court of Karnataka, in the case of Puttathayamma Vs. ESI Corporation reported in CDJ 2000 Kar HC 163 observed as under;
'4. THE popular concept is that an employment injury can be only a physical hurt sustained in the course of employment and can be only the result of an accident. This may not be the correct perception in these days of development of science and expanding of industrial activities. A person can sustain injury to various parts of his person even without involving in a physical accident but by mere exposure to the advanced manner of working at the work place and employing of developed equipments and machineries. There can be a situation whereby continued exposure to chemicals, radiation etc at the workplace, chemical change can take place in the blood cell composition of a worker and he be victim of terminal illness. This is a form of injury. Working at high altitude may generate vertigo in a worker, this can also be an injury correlated to the work. Exposure to high decibel of noise impairs the capacity of hearing. This may also http://www.judis.nic.in 22 be an employment injury. Illustration thus of injury suffered due to occupational hazards are infinite and to interpret the expression “employment injury' to means confining it only to bodily harm sustained by the worker in the course of employment is shutting out the advances made by science. Therefore, the meaning of: the expression 'injury' in these circumstances cannot be static and it has to take colour, depending on the advance made in the nature of work, its correlation with the worker, its impact on his health and such other relevant and material considerations. Unless more futuristic meaning is ascribed to the expression 'employment injury' in the present changing scenario due to the development in science and other allied factors, the very object of the constitution of employees' State Insurance would be rendered otiose.'
23. In similar circumstances, the High Court of Bombay in the case of Jitu Yadav, Thane Vs. Employees' State Insurance Corporation, Mumbai reported in CDJ 2001 BHC 372 has held as under;
' ....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 http://www.judis.nic.in 23 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 to clause 15-B are fulfilled, 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.'
24. Further the High Court of Andhrapradesh in the case of ESI Corporation, represented by its Regional Director Vs. P.Srinivasa Reddy and another in CDJ 2006 APHC 1147 held as under;
' It hardly any emphasis that the E.S.I. Act is enacted for the benefit and welfare of the employees. The benefits contemplated under the Act are of various categories, ranging from extending immediate medical facility to providing continuous monetary benefit, almost akin to pension.
Chapter V of the Act defines different kinds of the benefits http://www.judis.nic.in 24 that can be extended to the employees and the procedure to be followed in this regard. The nature and extent of disability suffered by an employee becomes an important fact in the matter of determination of the benefit, to be extended to him. Sub-sections (15-A) and (15-B) of Section 2 of the Act define the terms 'permanent partial disablement' and 'total disablement'. Schedule II of the Act contains a list of various injuries that are per se treated as those resulting in permanent total disablement and permanent partial disablement. However, if one looks at the purport of the definitions, it becomes clear that the list contained in schedule II is not exhaustive, but, illustrative in nature. The Medical Board, which examined the petitioner, found that the disability suffered by the petitioner is 10% and the same was virtually wiped out, by the Medical Appeal Tribunal. The first respondent, in turn, knocked the doors of the E.S.I. Court.
25. Even the schedule does not specify loss of vision as an occupational decease, it is not exhaustive as held by the judgments stated above, it can be construed as an occupational disease;
26. The contention of the appellants that since it is not reported in time and that the claim was belated are all pertaining to the procedural aspects. The object of the legislating the above Act is only to secure medical and other benefits to the industrial workers. It is a http://www.judis.nic.in 25 Social Welfare Legislation constituted for the welfare of the workers. Therefore taking shelter under procedural aspects which are curable, the statutory corporation formed for the purpose of providing benefits to the employees shall not find ways and means to reject the claim. The perusal of the report given by the medical board as well as the evidence of the Doctor does not rule out the possibility of the cause of injury to the claimant during the course of employment and has nexus to his nature of job. The report only says that the disability is permanent disability and it is 100% disability. Employment injury includes occupational disease also. In the present case, it is well established that claimant is entitled to the benefits claimed by him.
27. In the absence of any evidence to the contrary, it has to be construed that the injury caused to the claimant and his loss of vision is an employment injury, whether it is by an accident or an occupational disease. Therefore, the appeal filed by the ESI Corporation merits no consideration and the finding of the ESI Court giving the benefit to the 1st respondent cannot be set side.
28. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
http://www.judis.nic.in 26 16.04.2019 msr Index:Yes/No Internet:yes/No Speaking order/non-speaking order M.GOVINDARAJ, J.
msr http://www.judis.nic.in 27 Pre-delivery Judgment in C.M.A.No.306 of 2015 16.04.2019 PRE-DELIVERY ORDER IN CMA.NO.306 OF 2015 TO THE HONOURABLE MR.JUSTICE M.GOVINDARAJ http://www.judis.nic.in 28 FROM M.Sasirekha, PA to Hon'ble Judges THE HON'BLE MR.JUSTICE M.GOVINDARAJ MOST RESPECTFULLY SUBMITTED M.Sasirekha, P.A. http://www.judis.nic.in 29 .03.2019 http://www.judis.nic.in