Chennai: The Madras high court has expressed its expectation that the Central government would amend the Employee’s State Insurance Act as well as the Employee’s Compensation Act, to include “injuries sustained to internal organs, like, kidneys, lungs, liver etc., as schedule injuries” and ‘consequent disablement as schedule disablement’.
Justice N.Kirubakaran expressed the above expectation while disposing of an appeal from the Regional Director, ESI Corporation, Puducherry and the Chairman, ESI Medical Board-Director, Health and Family Services, Puducherry, challenging the order passed by the ESI Court, Puducherry, awarding
Rs 2 lakh to an employee who fell down and sustained injuries while in employment and lost his left kidney.
On July 13, 2000, S.Senthil, a plumber, was doing his routine work in a factory fitting pipes on the external wall of the company, which was about 20 feet above the ground, fell down and sustained injuries on his abdomen region. He underwent major operation and his left kidney was removed as it was damaged completely. Since he lost his earning capacity due to injury sustained by him, he filed a claim petition under the Workmen Compensation Act. But it was dismissed. On his appeal, the Commissioner for Workmen’s Compensation directed him to approach the ESI Corporation for accident benefits. However based on the assessment made by the government hospital and JIPMER that the disability suffered by him was reported to be nil, the ESI denied to pay any disablement benefit to him. Aggrieved, he approached the ESI court, which awarded him Rs 2 lakh. Against this order, the ESI filed the present appeal.
The judge said the Medical Board constituted as per the order of this court has given an opinion namely
“As of now the patient has sufficient renal function. He however, has future risk of deterioration in renal function as the single available kidney has to work more”.
From the above, it was clear that the workman has lost one kidney and he has got a future risk of deterioration in renal function as the single available kidney has to work more. He had sustained injury in the abdomen which has resulted in the damage of one kidney and hence he had to under go surgery for the removal of the damaged kidney. A manual labour cannot be expected to work normally after a surgery, that too for removal of damaged kidney and he has to take precaution even while working, in view of the surgery and loss of kidney and therefore, it was impossible for him to work normally, that too, as a manual labour as a plumber. Hence, what has been suffered viz., loss of kidney has to be treated as “permanent partial disablement”, the judge added.
The judge said a perusal of Schedule II of ESI Act, would give the list of injury deemed to result in “Permanent Total Disablement” and almost all speak about only loss of external organs and no injury caused to the internal organs has been listed in the Schedule-II. The Schedule-III only speaks about the occupational diseases, the judge pointed out and enhanced the award from Rs 2 lakh to Rs 2.15 lakh.
The judge said, “From the nature of injury mentioned in Part I Schedule II of the Act, it seems that policy makers during 1948 concentrated only on external organs and the eventuality of injuries to internal organs, like what has happened in this case, has not been taken into consideration. Therefore, the Act needs to be amended so as to incorporate the injuries to internal organs/parts and the consequential disablement, so that the workman would be benefited”.
