Allowed

K.T.George, v. Employees State Insurance Corporation

Kerala HC19 Feb 2024Ins.APP/1/2019

Case brief

AI extract

What is this about?

This Insurance Appeal challenged an order dismissing a claim for permanent disability benefit. The High Court held that the Medical Board failed to consider the relevant 2004 injury as directed, rendering the dismissal unsustainable. The appeal was allowed and the matter remitted.

What did the court decide?

Set aside the impugned order dated 23.10.2018 and remitted ICA No.18/2016 to the Employees Insurance Court, Thrissur for reconsideration.

K.T.George, Vs Employees State Insurance… — Pension and Retirement Benefits | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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MONDAY, THE 19^TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945

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INS.APP NO. 1 OF 2019

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ICA. NO.18/2016 OF EI COURT, THRISSUR

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APPELLANT:

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K.T.GEORGE, S/O LATE THOMAS, KALLUKARAN HOUSE, OLLUR.P.O, PIN-680306,TRICHUR DISTRICT.

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BY ADVS. A.V.XAVIER SRI.RINOY JOSEPH

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RESPONDENT:

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EMPLOYEES STATE INSURANCE CORPORATION, PANCHDEEP BHAVAN,TRICHUR-680020. REPRESENTED BY REGIONAL DIRECTOR.

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BY ADVS. SRI.T.V.AJAYAKUMAR, SC, EMPLOYEES STATE INSURANCE CORPORATION RIMJU P.H.

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THIS INSURANCE APPEAL HAVING COME UP FOR FINAL HEARING ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

Dated this the 19^th day of February, 2024

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The appellant, who was an insured employee under the ESI Scheme of a small tile manufacturing factory, has filed this Insurance Appeal aggrieved by the order in ICA No.18/2016 (Old No.ICA-1/2013) of the Employees Insurance Court, Thrissur. The appellant submits that on 09.01.2004 in the course of his employment, he met with an employment injury. The appellant was taken to ESI Hospital, Ollur as outpatient. However, he had to be treated as an inpatient at ESI Hospital, Olari from 16.01.2004 to 05.02.2004. Even after discharge, the appellant continued treatment.

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The injury was admittedly an employment injury and the respondent-ESI Corporation granted Temporary Disablement Benefit for the days he remained sick due to the injury. The appellant's case is that due to the injury, the appellant has been disabled to do the work he was doing prior to the accident.

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In IC No.72/2006 of the EI Court, Palakkad, the Court directed the respondent to refer the appellant's case to a Medical Board. A medical examination was conducted in a cursory manner on 02.04.2009. By Annexure-A3 report, the appellant was found “No loss of earning capacity”. Aggrieved by Annexure-A3, the appellant filed ICA No.4/2009. By Annexure-A4 order, the EI Court directed the respondent to refer the case of the appellant to a Medical Board constituted with Orthopedic Specialist. In AnnexureA4, there is a reference to an accident happened to the appellant on 27.11.2007. The injury sustained in that accident was to the neck and ear. It was an independent case processed and settled the permanent disability benefit

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claim of the appellant. It had nothing to do with the employment injury on 09.01.2004.

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Pursuant to Annexure-A4, a new Medical Board examined the appellant on 03.04.2013. The appellant states that after a perfunctory examination, the Medical Board, as per Ext.P2, made an erroneous decision with reference to the injury to the neck happened five years back. In Annexure-A2, there is no reference of any sort to the injury sustained by the appellant due to the accident on 09.01.2004. Aggrieved, the appellant filed ICA No.1/2013 which was re-registered as ICA No.18/2016. The Court held that the appellant could not discharge the initial burden to establish that the findings of the Medical Board are not correct.

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The appellant states that Annexure-A1 order is illegal and unsustainable. The EI Court failed to find that the respondent did not constitute a new Medical Board to consider the employment injury sustained by the appellant on 09.01.2004. In the circumstances, Annexure-A1 order is

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liable to be set aside. The respondent is compellable to grant permanent disability benefit to the appellant as per Annexure-A5. At any rate, the matter should be remitted back to the EI Court, Thrissur for fresh consideration and disposal.

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The respondent resisted the Insurance Appeal. The respondent submitted that the appellant was requested to a medical referee for assessment of loss of earning capacity. But, the appellant failed to attend the examination. A second opportunity was given to him. The medical referee who examined the appellant held that injury sustained by the appellant is not likely to result in permanent disablement. The appeal is therefore without any merit and is liable to be dismissed.

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I have heard the learned counsel for the appellant and the learned Standing Counsel representing the respondent.

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The EI Court, after examining the evidence on record, noted that on 09.01.2004 the appellant had slipped

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and fell down resulting in post traumatic servical myalgra and duralgra and he was incapacitated to work from 10.01.2004 to 22.02.2004.

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The appellate court noted that as per Ext.A2 certificate, the Medical Practitioner has found that the appellant has suffered a permanent whole body disability of 15% and a permanent loss of earning capacity of 30% as a tile factory worker and supervisor.

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The EI Court found that the appellant did not examine the author of Ext.A2 and since the appellant failed to discharge the initial burden cast upon him, the appeal fails. The EI Court accordingly dismissed the appeal as per order dated 23.10.2018.

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The accident which is subject matter of this Insurance Appeal occurred on 09.01.2004. It was treated as employment injury and the appellant was granted Temporary Disablement Benefit. At the instance of the appellant, he was referred to a Medical Board. A medical examination was conducted on 02.04.2009. By Annexure-A3 decision of

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Medical Board, the Medical Board found no loss of earning capacity. The appellant was dissatisfied. The appellant filed ICA No.4/2009. The EI Court, Palakkad ordered that the case of the appellant has to be referred to another Medical Board for a third opinion. The Court in Annexure-A4 order noted another accident of the appellant occurred on 27.11.2007. However, in Annexure-A4, the direction given by the EI Court was that the new Medical Board shall consider the employment injury sustained by the appellant on 09.01.2004.

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It is pursuant to that order, a new Medical Board examined the appellant on 03.04.2013. The said Medical Board noted that the appellant had suffered injury to neck five years ago. Annexure-A2 decision dated 03.04.2013 refers to only the injury sustained five years ago. Obviously, the Medical Board has examined the appellant with reference to the injury suffered by the appellant on 27.11.2007. Annexure-A2 does not anywhere refers to the injury sustained by the appellant in the accident occurred on

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09.01.2004. This is in spite of the fact that the EI Court as per Annexure-A4 order dated 20.06.2011 in ICA No.4/2009 directed that the new Medical Board shall consider the employment injury sustained by the appellant on 09.01.2004. The EI Court, Thrissur in Annexure-A1 order omitted to take note of this aspect. In the circumstances, Annexure-A1 order cannot be sustained.

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Annexure-A1 order dated 23.10.2018 in ICA

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No.18/2016 of the Employees Insurance Court, Thrissur is therefore set aside. ICA No.18/2016 is remitted back to the Employees Insurance Court, Thrissur for reconsideration.

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Sd/-

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N. NAGARESH, JUDGE

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aks/15.02.2024

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APPENDIX OF INS.APP 1/2019

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APPELLANT'S ANNEXURES

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ANNEXURE.A6 TRUE	COPY	OF THE COMMUNICATION DATED
21/05 ADDRE	/201 SSED	3 REGARDING DECISION OF PDB TO THE APPELLANT.
ANNEXURE A1 CERTI	FIED	COPY OF THE ORDER DATED
23.10 E.I.C NO.I. ANNEXURE A2 COPY DATED	.201 OURT C.A. OF 03.	8 IN I.C.A.NO.18/2016 OF ,TRICHUR.(OLD 1/2013) DECISION OF MEDICAL BOARD 04.2013
ANNEXURE A3 COPY DATED	OF 02.	DECISION OF MEDICAL BOARD 04.2009
ANNEXURE A4 COPY	OF	ORDER DATED 20.06.2011 IN
I.C.A	.4/2	009 OF E.I.COURT,PALAKKAD.
ANNEXURE A5 COPY	OF	THE DISABILITY CERTIFICATE
ISSUE PROFE COLLE THE E	D SSOR GE H MPLO	BY DR.K.BALAGOPAL,ASSOCIATE OF ORTHOPEDICS MEDICAL OSPITAL, TRICHUR RELATED TO YMENT INJURY ON 09.01.2004.

K.T.George, v. Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

K.T.George, v. Employees State Insurance Corporation

Case brief

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