Amend Employees State Insurance Act to cover Internal Injuries, Madras High Court

Justice N Kirubakaran of the Madras High Court has recommended that the Central Government amend the Employees State Insurance Act, 1948 (ESI Act) to cover internal injuries suffered by employees as well..In a judgment passed recently, it was observed,.“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…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.”.The Court was dealing with an appeal filed by the state against an award of compensation granted to an employee for the loss of his kidney. The employee had sustained internal injuries leading to the loss of his kidney after an accident which took place during his employment. The ESI Court had granted him Rs 2 lakh as compensation on equitable grounds, even though the ESI Act does not expressly cover internal injuries..The Madras High Court, on its part, enhanced the compensation payable to Rs 2.15 lakh, noting,.“… what is to be seen is whether there will not be any unwanted pressure on the lone kidney, which is functioning. If one kidney is performing the functions of both the kidneys, then, obviously, its work would be doubled, for which, it will have to function for a longer time….…[a] manual labour[er] cannot be accepted 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 is impossible for the first respondent/workman to work normally, that too as a manual labour as a plumber. Hence, what has been suffered, viz., loss of a kidney, has to be treated as “permanent partial disablement”….… As the Act does not speak about injury to kidney or loss of kidney, this Court determines the loss of a kidney as permanent partial disablement as equivalent to the loss of one eye, without complication...”.At present, Schedule II and III of the ESI Act only lists external injuries and occupational diseases for which an employee may be compensated under the Act. Viewing the exclusion of internal injuries from the purview of the Act, the Court opined,.“The human body, as a whole, is a composition of both internal as well as external organs and its wellbeing depends on whether all the organs are intact and are functioning normally. If there is any damage caused or if there is malfunctioning of any of the organs, may be internal or external, then it would definitely disable a person from being normal.“.While highlighting that India, in particular, has a high number of people employed as manual labourers, who may face internal injuries during the course of their work, the Court proceeded to suggest,.“…the Government has to take into consideration the same and amend the Employees’s State Insurance Act as well as the Employees’s Compensation Act, 1923, to cover even internal injuries as it has not been defined so far.“.It therefore directed the Centre to amend the ESI Act to include injuries sustained to internal organs, like, kidneys, lungs, liver, etc., as schedule injuries and “consequent disablement as schedule disablement”.