RAMAKRISHNAN Vs. EMPLOYEES STATE INSURANCE CORPORATION

JUDGEMENT

(1.) The scope of S.46 read with S.51B and S.2(15A) 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 15.12.1987 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 8.6.1988 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-s.(15A) of S.2 read with S.51B 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 Court in Kerala Minerals & Metals Ltd. v. K. Bhaskaran and Others ( 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.