G. Sivarajan, J. 1. The scope of Section 46 read with Section 51-B and Section 2(15-A) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act') arises for consideration in this case.
2. The appellant has been employed as a Security Guard in the Sitaram Textiles Ltd. Punkunnam, Trichur. He was an insured employee under the Act. He sustained an employment injury on December 15, 1987 due to an accidental fall in a pit causing fracture to his right ankle. According to him, due to the injury sustained it is not possible for him to work as a Security Guard though he is continuing in employment due to the magnanimity of the employer. On June 8, 1988 the appellant was referred to the Medical Board for assessing his loss of earning capacity. The Board initially fixed his loss of earning capacity at 6% on a provisional basis for a period of one year and later, the loss of earning capacity was fixed at 2% on a permanent basis. Aggrieved by the fixation of the loss of earning capacity by the Medical Board, he filed an appeal before the Employees' Insurance Court, Alleppey. The said appeal was dismissed on the ground that the loss of earning capacity is not affected since the appellant was continuing in service and is receiving the monthly salary with periodical enhancements. It is this judgment of the E.I. Court which is under challenge.
3. The main contention taken by the learned counsel appearing for the appellant is that in view of the provisions of Sub-section (15-A) of Section 2 read with Section 51-B of the Act, if there is a reduction of earning capacity as a result of an accident, an employee is eligible to be paid periodical payments on the basis of the reduction of earning capacity. In other words, the contention of the counsel is that the continued receipt of wages without any reduction from the employer cannot be a ground for denying the benefits available under the said provisions. On that basis, the counsel submitted that the E.I. Court was not justified in denying the benefits claimed in the appeal on the ground that the appellant is still continuing in employment and receiving monthly salary with periodical enhancements. The counsel further submitted that the E.I. Court was not justified in denying the benefit stating that the disability has not in any way affected his earning capacity. The counsel also submitted that the real question before the E.I. Court was the correctness of the percentage of the disability fixed by the Medical Board which has not been decided. The counsel, in support of the contention that the continued employment without affecting the wages under the employer is no bar for getting the disablement benefit under the Act, relied on the decision of the Division Bench of this of Court in Kerala Minerals & Metals Ltd. v. K. Bhaskaran and Ors. 1998 (1) KLJ 254. Learned counsel appearing for the respondent, on the other hand, submitted that the employment injury sustained by the appellant is a negligible one, that it has not affected the loss of earning capacity of the appellant and that it is only in view of the above, he was allowed to continue in service without any reduction in the wages and with usual periodical increments. She further submitted that the Scheme of the Act and the provisions of the Workmen's Compensation Act are different and therefore, the decision rendered under the provisions of the Workmen's Compensation Act cannot have any application in deciding the question arising under the Act.
4. We have considered the rival submissions. The fact that the appellant was insured under the Act and the injury sustained by him is an employment injury is not in dispute. The only dispute that arose for consideration was regarding the percentage of the disability. The appellant was referred to the Medical Board which, after examining him, initially fixed the loss of earning capacity at 6% provisional for one year and later, on final assessment fixed it at 2% permanent. This finding of the Medical Board is questioned by the appellant before the E.I. Court. According to him, the disablement benefit should have been fixed at 35%. The E.I. Court, on a consideration of the evidence available in the case, held that there is no reason to interfere on the finding recorded by the Medical Board. The E.I. Court further held that on account of the injury sustained though the appellant may have some disability or discomfort in his movement, the same has not affected his earning capacity in any manner at present. The Court also noted that the appellant is still continuing in employment and receiving monthly salary with periodical enhancement and observed that for awarding disablement benefit the main criterion is the impact of disability on the earning capacity and that the disability on the earning capacity and that the disability he has now has not in any way affected his earning capacity. On that count also it is stated that mere is no need for any enhancement in the disablement benefit awarded to the appellant. The Court also by way of abundant caution, had observed that on account of the disability if the appellant had lost employment or there is reduction in his salary, he will have the liberty to approach the Corporation for a fresh reference to the Medical Board in which case it is incumbent on the part of the Medical Board to determine the quantum of disability with reference to the loss of earning capacity.
5. From the above findings of the E.I. Court it would appear that though the said Court was of opinion that there is no justification for interfering with the assessment of disablement benefit fixed by the Medical Board, if the appellant loses his employment or his salary is reduced, opportunity is given to him to move the Corporation for a fresh reference and an assessment. A reading of the grounds of appeal shows that the appellant is not seriously aggrieved by the findings of the E.I. Court regarding the percentage of disablement benefit fixed by the Medical Board. The main grievance of the appellant as could be seen from the grounds of appeal and also from the submission made by the counsel appearing for the appellant is regarding the finding of the E.I. Court that since the appellant continued in the employment even after the injury sustained by him without any reduction in wages the question of granting disablement benefit under the Act does not arise. In order to test the correctness of the view taken by the E.I. Court, it is necessary to refer to the relevant provisions of the Act. Section 2(15-A) reads as follows:
"(15-A) "Permanent partial disablement" means such disablement of the 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;"
Section 46 of the Act providing for benefits, the relevant portion reads:
"(1) Subject to the provisions of this Act, the insured persons, their dependants or the persons hereinafter mentioned, as the case may be, shall be entitled to the following benefits, namely,
(c) periodical payments to an injured 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);"
Section 51 which deals with the disablement benefit, the relevant portion reads:
"Subject to the provisions of this Act,
(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment at such rates and for such period and subject to such conditions as may be specified by the Central Government".
Before proceeding further, it would be beneficial to refer to some other provisions of the Act also. Section 54-A provides for references to Medical Boards and appeals to Medical Appeal Tribunals and Employees' Insurance Courts. Under Sub-section (1) of the said section, the case of any insured person for permanent disablement benefit shall be referred by the Corporation to a Medical Board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the Medical Board not later than the end of the period taken into account by the provisional assessment, Sub-section (2) thereof further 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 (ii) the Employees' Insurance Court directly. As per Section 63 of the Act, except as may be provided in the regulations, no person shall be entitled to sickness benefit or disablement benefit for temporary disablement on any day on which he works or remains on leave or on a holiday in respect of which he receives wages or on any day on which he remains on strike. Section 63 in this form is introduced by Act 29 of 1989 with effect from October 20, 1989. Section 82 of the Act providing for appeal says that an appeal shall lie to the High Court from an order of the Employees' Insurance Court if it involves a substantial question of law.
6. Now we will consider the scope of the provisions of Section 46 read with Section 51-B and Section 2(15-A) of the Act in regard to the grant of disablement benefit. It is by virtue of the provisions of Section 46 that an insured person becomes entitled to the disablement benefit. Clause (c) of Sub-section (1) of Section 46, as already noted, provides for periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under the Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations. The conditions precedent for being entitled to get the disablement benefit are: (i) disablement either permanent or partial, (ii) employment injury and (iii) certificate from the authorised person. As already stated, there is no dispute that there is a disablement 2% permanent, that the injury sustained is an employment injury and that the disability to the extent of 2% is certified by the authorised person. Disablement as such is not defined in the Act. However, permanent partial disablement is defined in Sub-section (15-A) of Section 2 as 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. Permanent total disablement is also defined in Section 2(15-B) as 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. Similarly temporary disablement is defined in Section 2(21) to mean a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of doing the work which he was doing prior to or at the time of injury. From the above it is clear that it is not every disablement which entitles an insured person to get the disablement benefits. It is only such disablement which has the effect of reducing the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident. So, necessarily the entitlement to disablement benefit is geared to the reduction in the earning capacity. Thus, unless the disablement is of such a nature as reduces the earning capacity, the insured person is not entitled to the disablement benefit. So, the benefit contemplated under Clause (b) of Section 51 is available only to an insured person who sustains a permanent total or partial disablement, which affects the earning capacity prejudicially. In other words, it will have the effect of reducing the earning capacity. In this context, the provisions of Section 63 mentioned above are significant. It says that no person shall be entitled to disablement benefit for temporary disablement on any day on which he works or remains on leave or on a holiday in respect of which he receives wages or on any day on which he remains on strike. Though this provision deals with a situation of a temporary disablement, the principle behind the said provision is that if the person who is temporarily disabled gets wages for the period of temporary disablement since he had worked or was on leave or being a holiday with wages. The other circumstance referred to is, that the person under disablement remains on strike. Of course, there is no specific provision covering a situation of permanent disablement either total or partial. Probably this can be on the assumption that on account of the permanent disability either total or partial an insured person's earning capacity may be affected either total or partial. But if the permanent disability by itself does not result in reduction of salary, the legislative intent, according to us, is that the disablement benefit cannot be granted so long as such disability did not affect his employment. The E. I. Court in the instant case has specifically entered a finding that the evidence in this case does not call for any interference on the finding recorded by the Medical Board. The E.I. Court further found that the disability was not much serious as to affect his earning capacity. It is only to buttress the said finding that the E.I. Court had stated that he is still continuing in employment and receiving monthly salary with periodical enhancements. We find that the E.I. Court had borne in mind the principles regarding the grant of disablement benefit, namely, the impact of the disability on the earning capacity. The Court has clearly entered a finding that the disability caused on account of the employment injury did not affect his earning capacity. The finding regarding the percentage of disability and the loss of earning capacity is a finding entered by the Medical Board on the basis of the materials which is essentially a finding of fact. The question as to whether this disability caused on account of the employment injury had in fact affected the loss of earning capacity is also a matter to be determined on the basis of evidence. The E.I. Court has considered all the relevant materials and found that the disability did not affect the loss of earning capacity of the appellant. We do not find any illegality in the said finding.
7. Now we will deal with the contention of the appellant that reduction in the loss of earning capacity is the only criterion for getting the disablement benefit under the Act. According to the appellant, the fact that due to the magnanimity of the employer he is allowed to continue in work without any reduction in the wages will not disentitle the appellant from getting the benefit, for, the benefit granted is not for the actual loss of wages but for the disability itself. The High Court of Punjab in Sewa Singh v. Indian Hume Pipe Co. AIR 1964 Punjab 512 considered a similar question which arose under the Workmen's Compensation Act, 1923. In that case, in the context of assessing compensation under Section 4(1)(c)(ii) of the said Act the Court held that where a workman, after his permanent total disablement due to an accident was continuously employed to do the same work which he was doing before the accident and received his full wages as well as increments which had accrued since the time when be was discharged from the hospital, there was no loss of earning capacity and hence the claim under the said section was not maintainable. A Division Bench of this Court in Kerala Minerals & Metals v. K. Bhaskaran and Ors. (supra) considered the scope of the provisions of Section 4(1)(c)(ii) of the Workmen's Compensation Act where it was held that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. The Division Bench referred to the decision of the Punjab High Court mentioned above and disagreed with the view taken by the said Court. This Court found that the Madras High Court in Management of Sree Lalithambika Enterprises, Salem v. S. Kailasam 1988-I-LLJ-63 (Mad-DB) and the Rajasthan High Court in Executive Engineer P.W.D. (B&R) Udaipur v. Narain Lal, 1978-I-LLJ-141 took a contrary view holding that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. The Division Bench agreed with the said view.
8. We have perused the relevant provisions of the Workmen's Compensation Act. Section 2(g) of the said Act defines partial disablement and Section 2(1) defines total disablement. We have also perused the provisions of Section 4(1)(c)(ii). We find that the aforesaid provisions are more or less similar to the provisions in the E.S.I. Act referred to earlier in this judgment. We do not, however, find a provision similar to Section 63 of the E.S.I. Act in the Workmen's Compensation Act. From the above, it would appear that the scheme of the Workmen's Compensation Act is somewhat different from the scheme of the E.S.I. Act. It would appear that if the employment injury did not affect the loss of earning capacity in view of the continued employment of the insured person with usual pay and allowances and periodical increments, the intention of the legislatures is that disablement benefit cannot be granted to such a person. Thus, according to us, the decisions rendered under the provisions of the Workmen's Compensation Act referred to above cannot have any application in construing the provisions of Section 46 read with Section 51-B and Section 2(15-A) of the Act. We have already held that there is no illegality in the finding of the E.I Court. There is no merit in this appeal. It is accordingly dismissed.