CHENNAI: Will not loss of an internal part of the body – a kidney – sustained during employment, amount to permanent disability and render the affected person eligible for compensation under the Workmen Compensation Act?
This question has been raised in the Madras High Court and Justice N Kirubakaran has held in the affirmative and directed the government to amend the relevant rules to include it as a permanent disability.
S Senthil, a plumber in Hindusthan National Glass and Industries Limited in Puducherry, met with an accident on July 13, 2000. He sustained serious injuries and his right kidney was irreparably damaged, while at work. Later it was removed.
He moved the Commissioner under the Workmen Compensation Act, but it was dismissed in view of the prohibition contained under Section 53 of the Employees’ State Insurance Act. The Schedule II of ESI Act gave the list of injuries deemed to result in ‘permanent total disablement’ and it spoke about only loss of external organs. It did not cover any injury caused to the internal organ.
Senthil moved the Employees’ State Insurance Court, which in January 13, 2009, directed him to approach the ESI Corporation. When approached, the Corporation, in turn referred the matter to the Indira Gandhi Government General Hospital in Puducherry for assessment of the disability. The hospital held that no disability is suffered by the claimant. Only loss of hands, legs or any such external part would attract the permanent disability, it had held. He moved the ESI Court in Puducherry again, which, however in February, 2014, awarded Rs 2 lakh compensation. Challenging this, the present appeal is filed by the ESI Corporation.
Dismissing the appeal, Justice N Kirubakaran said that a labourer cannot be accepted to work normally after a surgery, that too after removal of the damaged kidney. Therefore, it is impossible for the workman to work normally, that too as in manual labour as a plumber. Hence, what has been suffered – loss of a kidney – has to be treated as “permanent partial disablement.”
The ESI Court, taking into consideration the opinion of the Medical Board that permanent disability as “NIL”, held that Senthil is not entitled for temporary disablement benefit at the rate of 50 per cent. It, however, on equity granted Rs 2 lakh for loss of one kidney and the pain and sufferings undergone by Senthil. The judge enhanced the amount by another Rs 15,000 towards compensation, treating the loss of a kidney as a ‘permanent partial disablement’.
From the nature of injury mentioned in Part I Schedule II of the Act, the judge opined that the 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 workmen would be benefited.
Referring to the International Labour Organisation’s recommendations dated August 20, 2018, the judge expected that the Central government would amend the Employees’ State Insurance Act as well as the Employees’ Compensation Act to include ‘injuries sustained to internal organs, like, kidneys, lungs, liver, etc, as schedule injuries’ and ‘consequent disablement as schedule disablement’.