(1.) Appeal at the instance of the Employees State Insurance Corporation is against the judgment of the Employees Insurance Court, Alleppey in I.C. A. No.22/91 granting the respondent herein full rate of benefit till the date of superannuation or till he gets a suitable employment elsewhere. The respondent herein was working as a toddy tapper. He met with an accident in the course of his employment on 25-1-1990. He is an employee covered by the Employees State Insurance Scheme.
(2.) Employees State Insurance Medical Board fixed his disability at 40%. The finding of the Medical Board on his condition was "post Traumatic Spondylo-listhesis L5 S1 with Sciatica left side." It is contended before the E.I. Court on behalf of the injured employee that since he is incapable of doing the work of toddy tapper as a result of the injury sustained by him, he is entitled to be awarded 100% disablement benefit. The E.I. Court came to the conclusion on the evidence of DW 1, Dr. K. Balachandran, that the respondent herein is incapable of attending the work of toddy tapper. Even though he is capable of doing some other work which will not strain his spinal column, the employer was not inclined to allot him such work. Under these circumstances, following the dictum laid down by the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata & Another, AIR 1976 SC 222 , the E.I. Court came to the conclusion that the respondent herein was entitled to full rate of benefit as he was incapable of doing the duties which he could do before the accident. Reliance was also placed on a judgment of this Court in M.F.A. 182 of 1991. The above finding is under challenge in this appeal.
(3.) Learned counsel appearing on behalf of the appellant contended that the E.I. court has committed a grave error of law in granting full rate of benefit to the respondent herein when the Medical Board has assessed his disability only at 40%. It was further contended that a worker who has sustained an injury in the course of employment which does not come within the proviso to S.2(15B) has to prove that he is incapable of doing not only the work which he was doing at the time of the accident, but he is unable to do any work in order to claim full benefit In support of the above contention, the learned counsel relied on a decision of this Court in E. S. I. Corporation v. Pushkaran, 1993 (2) KLT 187 . A reading of the above judgment would show that no reference has been made to an earlier Bench decision of this Court in M.F.A. 182 of 1991 which has been relied on by the E.I. Court in the impugned judgment. In M.F.A. 182 of 1991, an employee lost his fingures in an accident in the course of his employment. It was contended that he was incapable of doing the work which he was capable of doing immediately before the accident and therefore he was entitled to the full benefit. The Division Bench of this Court accepted the above contention and upheld the judgment of the Employees Insurance Court granting the worker full benefit The Division Bench had considered the definition of the term 'permanent total disablement' and relying on an earlier judgment of this Court in Kochu Velu v. Joseph & others, 1984 KLT SN 129 and the decision of the Supreme Court in AIR 1976 SC 222 supra took the view that since the employees was not in a position to do the work which he was capable of doing at the time of accident by loss of three fingures, it would come within the term 'permanent total disablement' as defined under S.2(15B) of the Employees' State Insurance Act.