UPENDRA JENA Vs. REGIONAL DIRECTOR

JUDGEMENT

(1.) <DJG>B.N.MAHAPATRA, J.</DJG> This appeal has been filed under Section 82 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the 'E.S.I. Act') challenging the legality of the order dated May 4, 1996 passed by the District Judge cum Employees Insurance Court, Cuttack (hereinafter referred to as the 'E.I. Court') in E.S.I. Misc. Case No. 2/1994.

(2.) The case of the appellant in a nutshell is1 that the appellant was working under the Orissa Textile Mills Limited, Choudwar, and was insured under the E S.I. Act having Insurance No. 42946. On April 8,1983 while the appellant. was in his duty in the factory, he met with an accident and sustained injuries on his left side nose and eye. The accident took place due to hit of a shattle while he was working inside the Mill. Due to such accident, the appellant felt, pain on his nose and eye and got admitted in the ESI Hospital, Choudwar on the very day. Thereafter, he was referred to the SCB Medical College and Hospital, Cuttack. After the external injuries were cured, he was declared fit and discharged from the Hospital. A few days thereafter, appellant's brain was affected due to the reasons of such injuries received in the accident and he underwent treatment in the Neurosurgery Department of S.C.B. Medical College and Hospital, Cuttack. He was under the continuous treatment of Dr. Sanatan Rath. The appellant at times was losing his sense and memory. The said injuries made the appellant permanently disabled. Therefore, he approached respondent No. 1, the Regional Director, E.S.I. Corporation, Janapath, Bhubaneswar, number of times to refer his case to the Medical Board toassess the loss sustained by him in the accident, but his request was turned down on the ground of limitation vide letter dated July 17, 1989. Thereafter, on December 28,1989, he sent a notice through his lawyer to opposite party No. 2, the Director General, E.S.I., Corporation. In response to the said lawyer's notice, O.P. No. 2 vide letter dated June 24, 1993/June 25, 1993 stated that reference to the Medical Board could not be made because of the fact that such request was not made within the period ot twelve months from the date of accident. Being aggrieved by the reply letter dated June 24, 1993/June 25, 1993 of opposite party No. 2, the appellant filed E.S.I. Misc. Case No. 2/1994 on January 3, 1994 before the E.I. Court with a prayer to refer his case to the Medical Board for estimation of the loss. Along with the said Misc. Case, the appellant filed an application for condonation of delay. The learned E.I. Court vide its order dated May 4,1996 rejected the said application on the ground of limitation. Hence, the present appeal.

(3.) Shri B.K. Sahoo, learned counsel appearing on behalf of the appellant vehemently argued that the learned E.I. Court has committed a gross error in law by rejecting the application of the appellant on the ground of limitation. There are sufficient reasons for delay in filing the appeal. Since the appellant has claimed for reference of his case to the Medical Board and the claim for benefit comes after assessment of loss by the Medical Board, the limitation prescribed under Section 77 of the E.S.I. Act is not applicable to the present case. The E.S.I, authority has wrongly refused to refer the appellant's case to the Medical Board when the appellant was under the continuous medical treatment and no final certificate has been issued showing closure of the treatment.