EMPLOYEES STATE INSURANCE CORPORATION LIMITED Vs. SHERABKHA NASHARKHA
LAWS(GJH)-1983-4-3
HIGH COURT OF GUJARAT
Decided on April 27,1983

Employees State Insurance Corporation Limited Appellant
VERSUS
SHERABKHA NASHARKHA Respondents

JUDGEMENT

R.C.MANKAD - (1.) This group of appeals filed by the Employees State Insurance Corporation (hereinafter referred to as the Corporation) is directed against a common judgment and order dated 10/12/1982 passed by the Employees Insurance Court Ahmedabad (hereinafter referred to as E. I. Court) dismissing its appeals filed against the decisions of the Medical Appeal Tribunal (hereinafter referred to as the Tribunal) and the only question which is raised in these appeals is whether the E. I. Court was right in holding that the appeals filed by the Respondents in these appeals before the Tribunal were maintainable and that they were not barred by principles of estoppel or waiver.
(2.) The facts in these appeals are common except for the fact that the percentage of permanent disability or the value of permanent disability suffered by each of the respondents varies. The respondent in each appeal (hereinafter referred to as respondent) is an insured person as defined in sec. 2(14) of the Employees State Insurance Act 1948 (hereinafter referred to as the Act). The respondent suffered from disablement as a result of employment injury sustained as an employee under the Act. It is not in dispute that the respondent suffered from permanent disability as a result of the employment injury and was entitled to periodical payments for such disablement in view of the decision given by the Medical Board to whom reference was made by the Corporation as provided in sec. 54-A of the Act. The decision of the Medical Board was communicated to the respondent in from B. I. 3 specified by the Director General under regulation 73 of the Regulations framed by the Corporation in exercise of the powers conferred on it by sec. 97 of the Act (hereinafter referred to as the Regulations). In this from B. I. 3 which communicated the decision of the Medical Board it was stated that disablement suffered by the respondent was permanent and that the assessment of permanent disablement was final. The percentage of the permanent disablement suffered by the respondent and the rate at which he was entitled to claim benefit for such permanent disablement were also stated. The respondent was informed that if he was not satisfied with the decision of the Medical Board he may appeal to the Tribunal or to the E. I. Court and give notice of appeal to the Regional Office of the Corporation in the prescribed form. The respondent was further informed In the mean time you may claim benefit at the above rate. This is without prejudice to your right to claim benefit at higher rate that may be awarded to you on appeal. It appears that the decision of the Medical Board in form B. I. 3 was communicated along with the letter in form ESIC. 154. In this letter also the percentage of disability suffered by the respondent and the rate at which the respondent was entitled to claim benefit for such permanent disablement were stated. It was also made clear that the assessment of permanent disability was final. By the aforesaid letter the respondent was called upon to state within 15 days from the receipt of the letter whether he desired to claim commutation of periodical payments of permanent disablement benefit (hereinafter for the sake of brevity referred to as p. d. b.) and that if he failed to do so it would be assumed that he did not desire to claim commutation. It may be mentioned here that the respondent was entitled to claim commutation of periodical payment of p. d. b. under regulation 76-B of the Regulations. The form in which the respondent was required to apply for commutation of periodical payment of p. d. b. is known as G. R. O. 197. This form is not prescribed by the Act or the Rules or the Regulations but it is specified by the Corporation. These forms are either printed or cyclostyled by the Corporation and they are available in the office of the Corporation. In this application in form G. R. O. 197 which as stated above the respondent was required to make within 15 days of the receipt of the letter in form ESIC 154 the respondent was required to state: (i) that he was accepting the assessment of his permanent disability determined by the Medical Board; (ii) that he 11as not preferred application appeal to the Tribunal under Regulation 74; and (iii) that in future also he does not propose to prefer application-appeal to the Tribunal and that he waives his right to prefer appeal under regulation 74. The respondent made application in form G. R. O. 197. After receipt of this application in form GRO 197 the Corporation commuted in lump sum periodical payments admissible to the respondent under the provisions of the Act and the Regulations. The respondent being dissatisfied with the assessment of permanent disability made by the Medical Board preferred appeal to the Tribunal. The Corporation raised a preliminary objection before the Tribunal that the appeal preferred by the respondent was not maintainable on the grounds: (i) that the respondent was estopped from preferring appeal in view of the fact that he had accepted the benefit of commutation under regulation 76-B specifically on the condition that he would not prefer an appeal; and (ii) that in any case the respondent had agreed to waive his right of appeal. The application made by the respondent in GRO 197 was not produced before the Tribunal. The Tribunal rejected the Corporations contentions and while allowing the respondents appeal increased the percentage of permanent disability and consequently the rate of p.b.d.
(3.) The Corporation feeling aggrieved by the order passed by the Tribunal carried the matter in appeal before the E. I. Court. The contention regarding maintainability of appeal of the respondent before the Tribunal was reiterated before the E. I. Court. The E. I. Court however by its impugned judgment and order rejected this contention and upheld the decision of the Tribunal on merits. It may be mentioned here that as a result of the appeal being allowed by the Tribunal rate of p. d. b. as stated above was raised or increased but except in two cases this rate did not exceed Rs. 1.50 per day. It is stated before me that in case of respondent in first Appeals Nos. 482 of 1983 and 501 of 1983 the rate of p. d. b. is more than Rs. 1.50 per day but in their cases also the rate does not exceed Rs. 2.00per day.;


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