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The Employees State Insurance Corporation Vs. Sherabkha Nasharkha - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1260
AppellantThe Employees State Insurance Corporation
RespondentSherabkha Nasharkha
Cases ReferredM. P. Sugar Mills v. State of U.P.
Excerpt:
- - 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. '), and that if he failed to do so, it would be assumed that he did not desire to claim commutation. or (d) in the case of provisional assessment, as to the period for which such assessment shall hold good. (2) if the insured person or the corporation is not satisfied with the decision of the medical board, the insured person or the corporation may appeal in the prescribed manner and within the prescribed time to: provided that such reference may be made by the appropriate regional office after the expiry of the period prescribed as aforesaid if it is satisfied that the applicant was prevented by sufficient cause from applying for the making of.....r.c. mankad, j.1. this group of appeals filed by the employees state insurance corporation (hereinafter referred to as the 'corporatio') is directed against a common judgment and order dated december 10, 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.....
Judgment:

R.C. Mankad, J.

1. This group of appeals filed by the Employees State Insurance Corporation (hereinafter referred to as the 'Corporatio') is directed against a common judgment and order dated December 10, 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 Section 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 Section 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 Section 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. 1. 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. 1.3 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 has 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 Corporation's contentions and while allowing the respondent's 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. 1. Court. The contention regarding maintainability of appeal of the respondent before the Tribunal was reiterated before the E. 1. Court. The E. 1. 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/- per day.

4. The only ground on which the decision of the E. 1. Court is assailed is that it has erred in holding that the Appeal of the respondent filed before the Tribunal was maintainable. It is urged that the respondent had while applying for commutation under regulation 76-B in terms stated that he had not appealed against the decision of the Medical Board and that in future also, he would not challenge this decision by way of appeal. It was relying on and acting upon this specific statement and agreement made by the respondent that the Corporation has given to the respondent benefit of commutation as provided in regulation 76-B. According to the Corporation, it was not under an obligation to commute p. d. b. awarded to the respondent unless and until the question of such benefit was finally decided by the appellate authority, namely the Tribunal or the E.I. Court as the case may be. Therefore allowing any claim for commutation under regulation 76-B, the insured person was required either to wait till the final decision was rendered by the appellate authority, or to agree not to challenge the decision of the Medical Board by way of appeal. It was entirely a matter for the insured person to decide whether he wanted the benefit of commutation immediately after the decision of the Medical Board, or whether he wanted to wait for such commutation till the decision was finally given by the appellate authority in case he wanted to challenge the decision of the Medical Board by way of appeal. The respondent wanted to take the benefit of commutation after the decision of the Medical Board and it was, therefore that he gave application in form GRO 197 staling that he had not prefered appeal nor did he want to prefer appeal against the decision of the Medical Board. Since the respondent did not want to prefer appeal against the decision of the Medical Board, it was not necessary for the Corporation to wait till the expiry of the period of limitation for filing such appeal for giving benefit of commutation. It accepted the statement made by the respondent and undertaking given by him in the application in Form No. GRO 197 at its face value and acting on such statement and undertaking, gave to the respondent the benefit of commutation under regulation 76-B. Thus according to the Corporation it had altered its position and acted in detriment to its interest in acting upon the aforesaid statement and undertaking. Under the circumstances, the respondent was estopped from preferring appeal against the decision of the Medical Board. According to the Corporation the principle of promissory estoppel would also be attracted and consequently the respondent was estopped from preferring appeal irrespective of the fact whether or not the Corporation had acted ind etriment to its interest or whether or not there was consideration for the agreement entered into by the respondent. It may be mentioned here that the question of promissory estoppel has been raised for the first time in the present appeals. In other words, this question was not raised either before the Tribunal or the E. 1. Court. It is further submitted on behalf of the Corporation that there is a clear agreement not to prefer appeal and the agreement shows that the respondent had waived his right of appeal. In other words, according to the Corporation, the respondent's appeal before the Tribunal was barred by principle of waiver also.

5. In order to appreciate the contentions which are raised on behalf of the Corporation it is necessary to refer to some of the provisions of the Act and the Regulations. Section 46(1) (c) provides:

46. Benefits.-(1) Subject to the provisions of this Act, the insured persons, their dependents or the persons hereinafter mentioned, as the case may be shall be entitled to the following benefits, namely:

x x x x x x

(c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit).

Section 51 of the Act provides as under:

51. Subject to the provisions of this Act and the regulations, if any,

(a) a person who sustains temporary disablement for not less than three days (excluding the day of the accident) shall be entitled to periodical payment for the period of such disablement in accordance with the provisions of the First Schedule;

(b) a person who sustains permanent disablement, whether total or partial shall be entitled to periodical payment for such disablement in accordance with the provisions of the First Schedule;

Provided that where permanent disablement, whether total or partial, has been assessed provisionally, for a limited period or finally, the benefit provided under this clause shall be payable for that limited period, or as the case may be for life.

Section 54 provides as under:

54. Determination of question of disablement.-Any question:

(a) whether the relevant accident has resulted in permanent disablement; or

(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or

(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or

(d) in the case of provisional assessment, as to the period for which such assessment shall hold good.

shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the disablement question.

Section 54-A provides as under:

54. A. Reference to medical boards and appeals to medical appeal tribunals and Employees' Insurance Courts.-(1) The case of any insured person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement question and, if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment.

(2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to:

(i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employee's Insurance Court, or (ii) the Employee's Insurance Court directly'. Section 62 reads as under:

62. Persons not to commute cash benefits.-Save as may be provided in the regulations no person shall be entitled to commute for a lump sum any periodical payment admissible under this Act.

Section 70 of the Act provides:

70. Repayment of benefit improperly received. (1) Where any person has received any benefit or payment under this Act when he is not lawfully entitled thereto, he shall be liable to repay to the Corporation the value of the benefit or the amount of such payment, or in the case of his death his representative shall be liable to repay the same from the assets of the deceased, if any, in his hands.

(2) The value of any benefit received other than cash payments shall be determined by such authority as may be specified in the regulations made in this behalf and the decision of such authority shall be final.

(3) The amount recoverable under this section may be recovered as if it were an arrear of land revenue.

Regulations 72: 73, 76-A and 76-B provide as under:

72. Reference to a Medical Board.-A reference to the Medical Board may be made:

(a) at any time not later than twelve months, in cases where claim for temporary -disablement benefit is made for an employment injury, from the date of the final certificate issued in respect of the spell of temporary disablement commencing on or immediately after the date of the occurrence of that injury, or from the date of the occurrence of an employment injury in cases where temporary disablement benefit not having been claimed, claim for permanent disablement is made on the basis thereof, by the appropriate Regional Office at the instance of the disabled person or the employer or any recognised employees' union: Provided that such reference may be made by the appropriate Regional Office after the expiry of the period prescribed as aforesaid if it is satisfied that the applicant was prevented by sufficient cause from applying for the making of the reference in time: Provided further that in the event of the claim for Temporary Disablement Benefit being rejected by the Corporation but afterwards granted by the Employees' Insurance Court in respect of the injuries resulted in Permanent Disablement, the limit of 12 months will apply from the date of the order of the Employee's Insurance Court granting the claim of the insured person for Temporary Disablement Benefit.

(b) by the Corporation.

(i) at any time, on the recommendation of an Insurance Medical Officer, and,

(ii) on its own initiative, after the expiry of the twenty-eight days from the first dale on which the claimant was rendered incapable of work by the relevant employment injury.:

73. Report of medical Board. The Medical Board shall after examining the disabled person send its decision on such form as may be specified by the Director General, to the appropriate Regional Office. The disabled person shall be informed in writing of the decision of the Medical Board and the benefit, if any, to which the disabled person shall be entitled.

76-A Submission of claims for periodical payments of permanent disablement benefit. An insured person who has been declared to be permanent disabled by a Medical Board or by a Medical Appeal Tribunal or an Employee's Insurance Court shall submit, by post or otherwise, to the appropriate Local Office a claim, covering, except in the case of a first payment, a period of one or more complete calendar months in Form 25 for claiming permanent disablement benefit.

76-B. Computation of small periodical payments of permanent disablement benefit.-(1) An insured person whose permanent disablement has been assessed as final and who has been awarded permanent disablement benefit at a rate not exceeding Rs. 1.50 per day may apply for commutation of the periodical payments of permanent disablement benefit into a lump sum:

Provided further that cases falling under Clause (3) of this Regulation where commutation has been refused the insured person did not -have average expectation of life, shall not be reopened.

(2) Where such an application is made within 6 months of the date on which he can opt for commutation hereafter called the 'date of possible action' the periodical payments shall be commuted into a lamp sum.

(3) Where such an application is made after the expiry of 6 months from the date of possible option, the periodical payments may be commuted into a lump sum if the Corporation is satisfied that the insured person has an average expectation of life for his age. For the purpose, the insured person shall, if so required by the appropriate office, present himself for examination by such medical ~ authority as the Director General may, by general or special order, specify.

(4) For the purpose of this regulation, the date of possible option shall mean-

(i) in the case of a person who, on the date on which the regulation comes into force, is in receipt of permanent disablement benefit covered by sub-regulation (1), the date of coming into force of this regulation;

(ii) in the case of any other insured person, the date on which the assessment of permanent disablement covered by sub-regulation (1), is communicated to him by the appropriate Regional Office.

(5) The amount of lump sum admissible under this regulation shall be determined by multiplying the daily rate of permanent disablement benefit by the figure indicated in column 2 of Schedule III to these regulations, corresponding to the age on last birthday of the insured person on the date on which his application for commutation is received in the appropriate office and on and from the date periodical payments of permanent disablement benefit shall cease to be payable to him:

Provided that where no proof of age has been submitted as required by the appropriate office or if submitted, has not been accepted as satisfactory by the appropriate office, the corresponding age as aforesaid of the insured person shall be the age as estimated by the Medical Board on the date of examination adjusted by the period intervening between the date of examination by the Medical Board and the date on which the application for commutation was received in the appropriate office :

Provided further that the age so estimated by the Medical Board shall also operate against any proof of age that may be submitted after the time allowed for the purpose to the insured person by the appropriate office before reference of his case to the Medical Board.

6. In the instant case, it is not in dispute that the respondent who is an in uncurred person suffers from permanent disablement as a result of employment injury his case was referred by the Corporation to the Medical Board for determination of disablement and the extent of loss of his earning capacity. As pointed out above, Section 54, deals with determination of question of disablement. Under Clause (c) of Section 54. the Medical Board had to determine whether the assessment of the proportion of the loss of earning capacity is provisional or final, and in the case of provisional assessment, under Clause (d) of the said section, it had further to determine as to the period for which such assessment shall hold good. Therefore, Section 54 does contemplate two kinds of assessments, namely, provisional assessment or final assessment. I am emphasising this aspect because it is relevant in the context of the language used in regulation 76-B, which has been pressed into aid on behalf of the Corporation. Section 54A(2) confers right on the insured person and the Corporation, who is not satisfied with the decision of the Medical Board to appeal against its decision in the prescribed manner within prescribed time. Appeal can be preferred to either the Tribunal or the E. 1. Court directly. If appeal is preferred before the Tribunal further appeal to the E. 1. Court is provided. In other words, decision of the Medical Board is subject to appeal to the E. 1. Court directly or two appeals, one initially to the Tribunal and then to the E. 1. Court. In the instant case, the respondent had first approached the Tribunal by way of appeal and it was before the Tribunal that the Corporation objected to maintainability of the appeal. Section 62 which provides for commutation of cash benefit lays down that save as may be provided in the regulation, no person shall be entitled to commute for sum any periodical payment admissible under the Act. In other words, the insured person has no right to claim commutation of the cash benefit awarded to him except as provided in the regulation. Regulation 72 deals with reference to the Medical Board and regulation 73 deals with report of the Medical Board. It is not necessary to deal with these regulations in detail. It is however, important to note that regulation 73 provides that decision of the Medical Board has to be given in a form to be specified by the Director General. It is stated before me that Form B.I. 3 to which reference is already made is the form prescribed by the Director General under regulation 73. Regulation 76-A provides for submission of claim for periodical payments of p.d.b. It lays down that an insured person who has been declared to be permanently disabled by a Medical Board or by a Tribunal or by the E. 1. Court, shall submit a claim claiming p.d.b. It is not in dispute that such claim can be made once the Medical Board gives a decision that the insured person is permanently disabled. In fact, while communicating the decision of the Medical Board in form B.I. 3 along with letter in form ESIC-154, the claimant is informed that if he is dissatisfied with the decision of the Medical Board, he may prefer an appeal as provided in Section 54-A of the Act and that in the meanwhile he may claim the benefit at the rate determined by the Medical Board without prejudice to his right to claim benefit at a higher rate that may be awarded to him on appeal. Therefore, it is not in dispute that claim under regulation 76-A can be submitted without waiting for the decision of the appellate authority even if the insured person who is dissatisfied with the decision of the Medical Board, wants to challenge the decision of the Medical Board, by way of appeal as provided in Section 54-A(2). This position is clear from the language of regulation 76-A also. In other words, the claim for periodical payments for p.d.b. submitted by the insured person does not debar him from preferring appeal to the Tribunal or to the E.I. Court. While regulation 76-A provides for submission of claim for periodical payments of p.d.b. regulation 76-B provides for commutation of such periodical payment. This regulation 76-B amongst other things provides that an insured person whose disablement has been assessed as final, and who has been awarded p.d.b. at a rate not exceeding Rs. 1.50 per day, may apply for commutation of the periodical payments of p.d.b. into a lump sum. Proviso to sub-regulation (1) is not relevant for our purpose and therefore, I need not refer to it. Claim for commutation has to be made within six months of the date on which the insured person can opt for commutation as provided in sub-regulation (2). It would, therefore, appear that in order to claim benefit of commutation of periodical payments of p.d.b. under regulation 76-B following two conditions must be satisfied : (1) permanent disablement must have been assessed as final; and (ii) p.d.b. must have been awarded at a rate not exceeding Rs. 1.50 per day. In other words, the insured person who satisfies these two conditions would become eligible for commutation of the periodical payments; provided, of course, the application is made within the prescribed time. The time prescribed for making application for commutation is six months from the 'date of possible option' which is defined in sub-regulation (4) of regulation 76-B. Even after the expiry of the period of limitation of six months, claim of the insured person could be entertained if the Corporation is satisfied that the insured person has an average expectation of life for his age. What is important to note is that regulation 76-B does not in terms lay down any condition that in case the insured person wants to challenge the decision of the Medical Board by way of appeal, he shall not be entitled to such benefit until decision is rendered by the appellate authority, namely, the Tribunal or the E.I. Court. I will deal with the contention which is raised on behalf of the Corporation in this connection, but, at this stage I am only pointing out that the regulation in question itself does not make a specific provision as stated above. Sub-regulation (4) of regulation 76-B as pointed outabove defines 'date of possible option', and in so far as the matters under appeal are concerned, only Clause (ii) thereof is relevant. Under this Clause (ii), the date of possible option is defined to mean the date on which assessment of permanent disablement covered by sub-regulation (1) is communicated to the insured person by the appropriate Regional Office. As point out above the decision of the Medical Board is communicated to the insured person by the appropriate Regional Office. As pointed out above, the decision of the Medical Board is communicated to the insured person in from B.I 3 specified by the Director General under regulation 73. It would therefore appear that period of limitation of six months would begin to run from the date the communication in form B.I. 3 is received by the insured person.

7. The argument which is advanced on behalf of the Corporation is that benefit of commutation under regulation 76-B could be 'claimed only when the claim is finally determined by the appellate authority under Section 54-A. of the Act. In support of this contention, emphasis was laid on the words 'as final' used in sub-regulation (1) of regulation 76-B and it was urged that permanent disablement could be said to have been assessed as final only when the appellate authority renders its decision. It was urged that in case appeal is preferred to the Tribunal, the assessment would not become final, unless and until the Tribunal gives its decision and the decision of the Tribunal is not subjected to further appeal and if subjected to appeal to E.I. Court, the decision is rendered by the E 1. Court. In other words, according to the Corporation unless and until the final appellate authority on facts pronounces upon the claim made by the insured person, assessment cannot be said to have become final within the meaning of regulation 76-B and unless it has so become final, the -insured person does not have a right to claim benefit of commutation of the periodical payment. Regulation 76-B(1) reproduced above is as the regulation stands to-day after its amendment which came into force on December 17, 1977. The words 'in terms of proviso to Regulation 73' which followed the words 'as final' have been deleted by the aforesaid amendment which came into force on December 17, 1977. Sub-regulation (1) before its amendment in December 1977 read as follows:

(1) An insured person whose permanent disablement has been assessed as final in terms of proviso to Regulation 73 and who has been awarded permanent disablement benefit of a rate not exceeding 50 Paise per day may apply for commutation of the periodical payments of permanent disablement benefit into a lump sum.

Regulation 73 before its amendment in December 1977, read as follows:

73. Report of Medical Board. The Medical Board shall after examining the disabled person, submit its report to the appropriate regional office making recommendations as to:

(i) whether the disablement should continue to be treated as temporary, and if so, the next date when the case should again be referred to the Medical Board;

(ii) whether the disablement can be declared to be of a permanent nature and, if so, whether the extent of loss of earning capacity can be assessed provisionally or finally;

(iii) the assessment of the proportion of the loss of earning capacity whether provisional or final; and

If the employment injury sustained- by the disabled person is caused by any occupational disease specified in Schedule II to the Workmen's Compensation Act, 1923, the Medical Board shall also state whether the disablement is due to the said disease:

Provided that an assessment of disablement due to an employment injury shall be treated as 'final' unless the Medica Board specifically states to the contrary and records reasons therefor. All assessments which are not 'final' may be referred to a Medical Board for review by the appropriate Regional Office at any time it may deem proper.The disabled person shall be informed, in writing of the recommendations of the Medical Board, the decision of the appropriate Regional Offer thereon and the benefit, if any, to which the disabled person shall be entitled.

It would thus be seen that under the proviso to the aforesaid regulation 73, the assessment of disablemint due to employment injury was treated as 'final' unless the Medical Board specifically stated to the contrary and recorded the reasons therefor. It was in that context that regulation 76-B(1) read as aforesaid before its amendment in December 1977. Regulation 73 was substituted by new regulation 73, which is already reproduced above. It will be seen that regulation 73 which was inserted in December 1977, did not contain proviso which was there in the old regulation 73. New regulation 73 introduced in December 1977 is totally different from the old regulation 73. It was in view of the substitution of the old regulation 73 by new regulation 73 that amendment of regulation 76-B(1) as stated above became necessary. Since there was no proviso as was found in the old regulation in the new regulation 73, reference to such proviso had to be deleted. However, what is important to be borne in mind is the words 'as final' have been retained.

8. Question now to be considered is whether these words 'as final' have reference to the final decision by the appellate authority as contended on behalf of the Corporation, or whether these words have been used in contradistinction to the word 'provisional'? It was not disputed on behalf of the Corporation that before the amendment of regulation 76-B in December 1977, the words 'as final' were used in contradistinction to the word 'provisional'. No other view is possible for the obvious reason that proviso to old regulation 73 clearly refers to assessment of permanent disablement as 'final' by the Medical Board. Under Clause (iii) of old regulation 73, the Medical Board was required to state in its report whether the assessment of the proportion of the loss of earning capacity was provisional or final. And it was in that context that proviso laid down that assessment of disablement due to employment injury was to be treated as final, unless the Medical Board specifically stated to the contrary and recorded the reasons therefor. There is, therefore, no doubt that before its amendment in December 1977 when sub-regulation (1) spoke of final assessment, it meant assessment which was not provisional. In other words, word 'final' was used in contradistinction to the word 'provisional'. Now, did the amendment of regulation 76-B in December 1977, brought about such change in the provision as to make the benefit of commutation available only when decision was rendered by the final appellate authority? According to the Corporation, the object of retaining the words 'as final' was to make benefit available only when decision was rendered by the final appellate authority. I am unable to see any force in this argument. I have already referred to the earlier provisions of regulation 76-B and as pointed out above, it is not disputed on behalf of the Corporation that before its amendment the word 'final' was used in contradistinction to the word 'provisional'. In other words, if the assessment of permanent disability by the Medical Board was final and not provisional, the insured person was entitled to claim the benefit of commutation. In my opinion, amendment of regulation 76-B(1) in December 1977 has not it any way altered this position. Deletion of the words which followed the words 'as final' in regulation 76-B(1) before its amendment, became necessary in view of the substitution of the old regulation 73 by new regulation 73. This deletion of words was not meant to make any change as suggested on behalf of the Corporation. Since there was no proviso to new regulation 73, no reference to such proviso could have been retained in regulation 76-B(1) and it was for that reason that reference to such proviso was deleted. It must be borne in mind that even after the substitution of regulation 73, it is open to the Medical Board to make provisional assessment of the permanent disability under Section 51 read with Section 54. It is because it is within the power of the Medical Board to make either provisional or final assessment that regulation 76-B(1) provides that only in case where the assessment of permanent disablement is final that benefit of commutation can be claimed. When assessment of permanent disablement is only provisional, for obvious reason, the benefit of commutation cannot be claimed. It is with the above object in view that the words 'as final' have been used in regulation 76-B(1) and not for the purpose which is urged on behalf of the Corporation. Regulation making authority has advisedly used the words 'has been assessed as final' and not 'has been finally assessed' or 'assessment has become final'. The language used in regulation 76-B makes it abundantly clear that the word 'final' has been used in contradistinction to the word 'provisional', bearing in mind the provisions of Sections 51 and 54 of the Act.

9. Even the Corporation, it seems, placed the above construction on regulation 76-B(1). This becomes evident from forms B. 1.3 and ESIC-154 which are not prescribed by the Act, the rules or regulations, but by the Corporation itself. As already pointed out above, in form B.I. 3 which is prescribed for communicating the decision of the Medical Board, it is clearly stated that the insured person, if dissatisfied with the decision of the Medical Board, may prefer an appeal to the Tribunal or to the E.I. Court and in the mean time, claim benefit at the rate stated in the decision without prejudice to his right to claim benefit at a higher rate that may be awarded to him on appeal. In the letter in form ESIC-154, along with which the decision of the Medical Board in form B.I. 3 is sent to the insured person, it is stated that if the insured person wants to claim benefit of commutation, he should do so within 15 days from the receipt of the decision of the Medical Board. The combined reading of forms B.I.3 and ESIC-154 makes it clear that even according to the Corporation, the insured person who wants to prefer appeal against the decision of the Medical Board, can apply for benefit of commutation; the letter does not state that in case the insured person wants to prefer appeal, he should not apply for commutation until the decision is rendered by the final fact finding appellate authority. On the contrary, as pointed out above, it intimates the insured person to make an application within 15 days from the receipt of the letter. This intimation is given while informing the insured person that he is free to appeal against the decision of the Medical Board if he is dissatisfied with it. Incidentally it may be mentioned that asking the insured person to apply for commutation within 15 days of the receipt of the decision of the Medical Board is not in consonance with the provision of sub-regulation (2) of regulation 76-B, which in terms provides that claim can be made within six months from the date on which the insured person can opt for commutation; but at this stage, what I am emphasising is that even according to the Corporation in case whether the permanent disablement has been assessed as final by the Medical Board, the right to claim commutation accrues in favour of the insured person under regulation 76-B(1). Apart from the view which the Corporation appears to hold, in the light of forms B.I.3 and ESIC-154, as discussed above, language of regulation 76-B(1) itself is clear leaving no room for doubt that when assessment of permanent disability of an insured person is assessed as final by the Medical Board, the right to make application for commutation accrues or arises. In my view, therefore, the submission that in case the appeal is preferred against the decision of the Medical Board, right of commutation under regulation 76-B (1) does not arise till the decision of the appellate authority, cannot be accepted. Insured person has a right to make application for commutation under the said regulation on permanent disablement being assessed as final by the Medical Board, and he does not have to wait till the decision is rendered by the appellate authority. Of course, before the application for commutation can be granted other requirements of regulation 76-B have to be satisfied. If the right to make application for periodical payments under regulation 76-A arises on the Medical Board giving decision on the question of permanent disablement, having regard to the language used in regulation 76-A and regulation 76-B, I am unable to understand how it can be argued that the right to claim commutation under regulation 76-B does not arise till final decision is given by the appellate authority. It is true that so far as regulation 76-A is concerned, as pointed out on behalf of the Corporation, the words 'assessed as final' have not been used but this is because both in the case of provisional and final assessments, insured person is entitled to make application. In my opinion, the right to make application under regulation 76-A or regulation 76-B, as the case may be, arises no sooner the decision is rendered by the Medical Board. Therefore, the only conclusion which could be reached is whether or not the insured person desires to prefer appeal under the provisions of Section 54-A(2), the Corporation is under an obligation to commute periodical payments of permanent disablement benefit, provided the conditions and requirements of regulation 76-B stated above are satisfied. The insured person cannot be denied the right to claim commutation in case he desires to prefer appeal until the decision, is rendered by appellate authority.

10. It is in the background of the facts stated above and relevant provisions of the Act and the Regulations that the question whether the respondent's appeal before the Tribunal was not maintainable, as urged on behalf of the Corporation is to be examined. I will examine this question on the assumption that the respondent in his application in form No. G.R.O. 197 prescribed by the Corporation, had stated to the effect that he had not preferred appeal, that he did not propose to prefer any appeal, and that he had waived his right of appeal. As I will discuss at a later stage it is doubtfull whether the respondent had put his signature below the application in the aforesaid form fully understanding the implication of the statements made in the application. As discussed above, the Corporation was under an obligation to consider the respondent's application for commutation under regulation 76-B on merits irrespective of fact whether or not he had appealed or he proposed to appeal against the decision of the Medical Board. Therefore, when he made application for commutation of the periodical payments of p.d.b. he was not claiming something which he was not legally entitled to under the regulations, nor was the Corporation agreeing to confer on or give any advantage or benefit to the respondent which he was not legally entitled to, when it entertained his application for commutation. In other words, as a result of entertainment and grant of the respondent's application for commutation before the decision of the appellate authority, no injury is caused to the Corporation. In other words on account of the application made by the respondent the Corporation has not altered its position to its detriment. By the application what the respondent required the Corporation to do was to commute periodical payment of p. d. b. which the corporation was bound to do if the conditions and requirements of regulation 76-B were satisfied. It was not the case as if the respondent had alternative or mutually exercisable rights to choose from, namely to claim commutation under regulation 76-B or to prefer appeal. As observed by the Supreme Court in Bhau Ram v. Baij Nath Singh A.I.R. 1961 S.C. 1327, a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. The existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. The advantage which the respondent got as a result of the application made by him under regulation 76-B is not some thing which is de hors his claim on merits. In other words, he got some thing which he was entitled to on merits. If the respondent had, by agreeing not to prefer appeal, got some thing which he was not entitled to or he had put the Corporation to in less advantageous position, it could have been urged that the respondent was estopped from preferring appeal, but here he does not get anything more than what he was entitled to under the law. It is, therefore, difficult to see how principle of estoppel would be attracted.

11. As pointed out by the Supreme Court in Gyarsi Bai v. Dhansakh Lal : [1965]2SCR154 , to invoke the doctrine of estoppel embodied in Section 115, Evidence Act, 1872, three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made. In the instant case assuming for the sake of argument that first two conditions are satisfied; there is no doubt that third condition as already pointed out above, has not been satisfied. The action of the respondent has been in no way detrimental to the interest of the Corporation to whom the representation about the respondent having not filed appeal or having no desire to file appeal, has been made. Whether or not the respondent had filed appeal or desired to file appeal, the Corporation was under legal obligation to entertain the respondent's claim for commutation on merits. Therefore, there is no bar of estoppel under Section 115 of the Evidence Act.

12. It was then urged on behalf of the Corporation that even if the respondent's case does not strictly come within the purview of Section 115 of the Evidence Act, the respondent could not have appealed under the doctrine of promissory estoppel. As observed by the Supreme Court in M. P. Sugar Mills v. State of U.P. : [1979]118ITR326(SC) , promissory estoppel principle is evolved to avoid injustice. What is necessary is that the promisee should have altered his position in reliance on the promise. In the instant case, as pointed out above, no injustice or injury has resulted to the Corporation on account of the application made by the respondent for commutation or benefit derived by him under that application. The Corporation has also not altered its position in any way. On account of any promise held out by the respondent. In my opinion, therefore there is no bar of promissory estoppel either as urged on behalf of the Corporation.

13. The next question is whether there is any waiver on the part of the respondent. It is the Corporation's case that the respondent had agreed to waive his right of appeal and it was on account of this agreement that the Corporation gave him benefit of commutation under Regulation 76-B. If there is an agreement as urged on behalf of the Corporation, such agreement has to be lawful. The agreement would not be lawful unless there was consideration for it. What is the consideration for the respondent agreeing not to prefer appeal? The answer is that there was no consideration whatsoever for waiving this right of appeal. As already pointed out above, the respondent did not get any advantage or benefit to which he was not entitled as a result of the agreement. There was no purpose or object in waiving the right of appeal. In other words, there was no consideration for waiving the right of appeal. In my opinion, therefore, the question of waiver also does not: arise. In other words, the respondent's appeal before the Tribunal could not be thrown out on the ground that he had waived his right of appeal.

14. It is also doubtful whether the respondent put his signature or thumb impression below the application GRO-197 after fully understanding and knowing the implication of the statement made therein. It cannot be gainsaid that most of the insured persons are illiterate. Many of such persons who are not illiterate may not be knowing Gujarati, the language in which application GRO-197 is drawn up. It must be remembered that GRO-197 is not a form prescribed by the Act, Rules or Regulations. It is devised by the Corporation and insured person seeking commutation on the basis of the report of the Medical Board is required to make application in this form. It appears that it is the long standing practice of the Corporation to receive application for commutation in form GRO-197. This is obvious from the contents of the form. Even before the regulation 76-B was amended in December 1977, as pointed out above, the Corporation was receiving applications for commutation in this form. As pointed out above, it was conceded on behalf of the Corporation that under regulation 76-B before its amendment in December 1977, the Corporation was under an obligation to commute periodical payments of p.d.b. No sooner the decision was rendered by the Medical Board. In other words, even according to the Corporation before the amendment of regulation 76-B insured person who desired to prefer appeal against the decision of the Medical Board was not required to wait till the decision was rendered by the final appellate authority for making application for commutation. Still, however, the Corporation required the insured person to make application in form G.R.O-197. Therefore, there is no substance in the Corporation's contention that it is in view of the amendment of regulation 76-B on account of which right to make application for commutation accrues or arises on the appellate authority finally deciding the question of p. d. b. that the insured persons are required to state that they have not preferred any appeal nor do they desire to file appeal against the decision of the Medical Board, while making application in form No. G.R.O. 197. Even after the amendment of regulations 74 and 76-B the Corporation has not cared to bring form G.R.O. 197 inconsonance with the amended provision. The form still refers to regulation 74 as the provision under which the insured person is entitled to prefer appeal. Regulation 74 as it stands today does not make any provision for appeal. This clearly indicates non-application of mind on the part of the officers of the Corporation while receiving applications from the insured persons in form G.R.O. 197. In the said form, there is a statement to the effect that applicant forgoes or waives his right of appeal under regulation 74. Regulation 74, as pointed out above, does not deal with appeal and, therefore, this statement in context of the amended regulation is meaningless. It would, therefore, appear that the respondent while making application in form G.R.O. 197 did not know or understand what was stated in the form. He appears to have simply signed where he was asked to sign. The contents of the application form do not appear to have been explained to the respondent. Under these circumstances, mere production of application in form GRO. 197 purported to have been signed by the respondent, would not go to show that the respondent had intentionally or knowingly waived the right of appeal.

15. As discussed above all the conditions and requirements of regulation 76-B were satisfied when the respondent made application for commutation of periodical payments of p.d.b. His permanent disablement was assessed as final and he was awarded p.d.b. at a rate not exceeding Rs. 1.50 per day by the Medical Board. In the view which I am taking, it is immaterial whether or not he claimed benefit at the rate exceeding Rs. 1.50 or he was in fact awarded benefit at the rate exceeding Rs. 1.50 per day by the appellate authority. If as a result of the decision of the appellate authority, the respondent is paid some-thing which he is not legally entitled to, the Corporation is not without remedy. It may in such an event resort to the provisions of Section 70.1 may, however, make it clear that I am not expressing any final opinion on the question whether or not the Corporation would be entitled to claim repayment or refund of the commuted amount under Section 70, as it is not necessary for me to do so in the present appeals. I am merely indicating that incase any payment which the insured person is lawfully not entitled to is made to him, it may be open to the Corporation to take recourse to the provisions of Section 70. However, as pointed out above, in the present group of appeals, there are only two cases where the rate exceeding Rs. 1.50 per day has been awarded by the Tribunal. Therefore, except in those two cases, there is no question of any unlawful payment to the insured persons. I am told that by recent amendment of regulation 76-B amount of Rs. 1.50 per day is raised to Rs. 2/- per day with effect from July 1, 1983. In two cases to which reference is made above, the rate does not exceed Rs. 2/- per day. It is not in dispute that from July 1, 1983, even those insured persons who have been awarded benefit at the rate exceeding Rs. 1.50 per day but less than Rs 2/- per day, are entitled to claim the benefit of commutation. That being the position, even in the aforesaid two cases, the question of repayment would be purely academic.

In the result, these appeals fail and are dismissed with costs.

16. I am told by the learned Counsel for the respondents that the Corporation has withheld payment of commuted amounts payable to the respondents in accordance with the decisions of the Tribunal. In view of the fact that the Corporation's applications for stay of the operations of the orders of the Tribunal and E. 1. Court were rejected, there was no justification to withhold such payments. I, therefore, direct the Corporation to make payment of the commuted amounts to the respondents at an early date which shall not be later than two months from to day.

17. Writ to be sent down immediately.


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