The petitioner has filed the present writ petition, seeking for a direction to the respondents to consider his case and to pay permanent disablement benefits.
2. When the matter came up on 07.09.2006, this Court ordered notice of motion to the respondents and the learned Standing Counsel for the ESI Corporation took notice.
3. On notice, the first respondent had filed a counter affidavit dated 'Nil'.
4. The facts leading to the filing of the case are as follows:
The petitioner was working in the second respondent factory. On 10.09.1992, he met with an accident in the course of and arising out of his employment. He was hospitalized for an injury on his left eye, which was operated upon. But despite treatment, he had lost his vision of his left eye. Even the vision in his right eye was impaired. The petitioner filed an application under the Workmen's Compensation Act in W.C.No.307 of 2000 before the Commissioner for Workmen's Compensation, claiming compensation for the disablement suffered by him due to the injury. Since there is a bar under the Workmen's Compensation's Act from entertaining any claim from an injured person covered by the provisions of the ESI Act, his application was dismissed.
5. Thereafter, the petitioner filed an application under Section 75 before the ESI Court, claiming compensation. Though the application was numbered as E.S.I.No.1 of 2002, the then notified ESI Court namely, the I Assistant City Civil Court did not entertain his application and directed him to move the Principal Labour court, which was the notified ESI Court. Since there was a delay in moving the Court, the petitioner filed CMP No.205 of 2005 to condone the delay. It also transpired that during the pendency of these proceedings, the third respondent, who was the Managing Director of the second respondent changed the name of the company and started functioning as the 4th respondent. The petitioner also sent an application to the first respondent ESI claiming benefits due to his disablement. Thereafter the petitioner sent legal notice to the ESI as well as to the former employer on 26.04.2006 and 11.07.2006.
6. In the reply affidavit dated 09.11.2005, it was the stand of the first respondent that they did not receive any accident report from the second respondent.
7. On behalf of the 4th respondent, a reply was sent claiming that the 4th respondent had purchased the property from the second respondent on a registered sale deed and they are no way connected with the second respondent's activities.
8. Having left with no other remedy, the petitioner moved this Court with the present writ petition.
9. In the counter affidavit filed by the first respondent, in paragraphs 4 and 5, it was averred as follows:
"4. It is admitted that the IP was an insured person under Section 2(14) of the ESI Act by virtue of his entry into Insurable employment on 02.05.1992 with the second respondent and by virtue of the above entry into insurable employment, as per Regulation 17 of the ESI (General) Regulation, 1950, a permanent Identity Card was issued through second respondent. However the contention of the petitioner that the legitimate benefit of permanent disablement is denied is not true. The second respondent has not forwarded Accident Report as per Employment injury defined under Section 2(8) of the Act and ESI Dispensary as required under Regulation 68 of ESI General Regulation 1950.
5.It is admitted that the 1st respondent by Letter No.TN/B.O/AIE/m8/misc/2005 dated 09.11.2005 that the 1st respondent has not received any accident report from the second respondent for the injury sustained by the petitioner and no claim received from the petitioner is pending. In the absence of accident report as required in employment injury as defined under Section 2(8) of the Act and Regulation Certificates from ESI Dispensary, the petitioner was not called for making any benefit or to assess the quantum of disablement.
An I.P is entitled for disablement benefit as a result of employment injury sustained as an employee U/s 2(9) of the Act and certified to be eligible for payments of Temporary disablement Benefit/Permanent Disablement Benefit as per
Section 46(C) of the Act.
It is also submitted that as per Rule 57 of ESI Central Rules a person shall be qualified to claim Temporary Disablement Benefit and Permanent Disablement Benefit only for an injury sustained as an employee under the Act. But in this case, it is not known."
It was also claimed that Section 77(1A)(a) of the ESI Act provides for a limitation and the petitioner's claim is barred by limitation.
10. The short question that has to be decided is whether the respondent ESI was correct in denying to extend the benefit due and payable to the petitioner. It is not the case of the respondent that the petitioner has been inactive and came up with the plea for disablement benefit. On the contrary, on mistaken belief, he had moved an application under the Workmen's Compensation Act and thereafter moved the ESI court and has kept the issue alive. On the only ground that the second respondent employer did not send any accident report will not disentitle an injured person from claiming compensation. The respondents have a whole army of officials, who can always visit the spot and find out the veracity of the claim of a workman. The discharge summary produced by the petitioner (found enclosed in pages 33 to 35 of the typed set) certified by the Assistant professor of Ophthalmology, Madras Medical College shows that the petitioner had suffered an injury on 11.09.1992 in his left eye and the vision loss was estimated at 60%. The respondent having insured the worker cannot abdicate their responsibility in entertaining the claim of the petitioner.
11. The Supreme Court vide its judgment in Bharagath Engineering v. R.Ranganayaki and another reported in (2003) 2 SCC 138 has held even a person for whom no subscription was deducted and was not actually insured, if he dies in the course of an employment relating to injury, he is eligible to get benefits. It was indicated that the Act is a welfare legislation and it should be broadly interpreted by the Court so as to include even a person who is liable to be insured. When that is the case, it was unfortunate that the respondent should deny the claim made by the petitioner.
12. Under the circumstances, the writ petition is disposed of with a direction to the first respondent to consider the claim of the petitioner in accordance with the available records and grant benefit to the petitioner on the basis of the claim made by him. This exercise shall be undertaken within a period of eight weeks from the date of receipt of a copy of this order. The petitioner is also directed to co-operate with the respondent, if any enquiry was held by them. No costs.
svki To The Manager, The Employees' State Insurance Corporation, Ambattur Industrial Estate, Plot No.95, D/14, Industrial Estate, Chennai 600 058