THE WORKMEN’S COMPENSATION ACT, 1923

THE WORKMEN’S COMPENSATION ACT, 1923

OBJECT OF THE ACT

The Act applies to any person who is employed otherwise than in a clerical capacity, in railways factories, mines, plantations, mechanically propelled vehicles, loading and unloading work on a ship, construction, maintenance and repairs of roads and bridges, electricity generation, cinemas, catching or trading of wild elephants, circus, and other hazardous occupations and other employment specified in Schedule II to the Act, Under Section 2(3) of the Act, the State Governments are empowered to extend the scope of the Act to any class of persons whose occupations are considered hazardous after giving three months' notice in the official gazette. The Act, however, does not apply to members serving in the Armed Forces of Indian Union, and employees covered under the provisions of the Employees' State Insurance Act 1988 as disablement and dependents' benefit is available under this Act.

 

Definition [Sec 2(1)]

(d) "Dependent" means any of the following relatives of a deceased (dead) workman, namely :-

 

(i) a widow, a minor legitimate or adopted son, and unmarried legitimate or adopted daughter, or a widowed mother; and

(ii)    if wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm;

(iii)   if wholly or in part dependent on the earnings of the workman at the time of his death,

·       a widower,

·       a parent other than a widowed mother,

·       (a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted if married and a minor or if widowed and a minor,

·       a minor brother or an unmarried sister or a widowed sister if a minor,

·       a widowed daughter-in-law,

·       a minor child of a pre-deceased son,

·       a minor child of a pre-deceased daughter where no parent of the child is alive, or

·       a paternal grandparent if no parent of the workman is alive.

(f) "managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer;

(ff) "minor" means a person who has not attained the age of 18 years;

(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time:

Every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement.

(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement :

Permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I, mentioned below or

from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to 100% or more;

 

EMPLOYEES ENTITLED TO COMPENSATION

Every employee (including those employed through a contractor but excluding casual employees), who is engaged for the purposes of employer's business and who suffers an injury in any accident arising out of and in the course of his employment, shall be entitled for compensation under the Act.

Employer's Liability For Compensation

The employer of any establishment covered under this Act, is required to compensate an employee:

Ø  Who has suffered an accident arising out of and in the course of his employment, resulting into (i) death, (ii) permanent total disablement, (iii) permanent partial disablement, or (iv) temporary disablement whether total or partial, or

Ø  Who has contracted an occupational disease.

 

HOWEVER THE EMPLOYER SHALL NOT BE LIABLE

·       In respect of any injury which does not result in the total or partial disablement of the workmen for a period exceeding three days;

·       In respect of any injury not resulting in death, caused by an accident which is directly attributable to-

a.     the workmen having been at the time thereof under the influence or drugs, or

b.     the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

c.     the willful removal or disregard by the workmen of any safeguard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

The burden of proving intentional disobedience on the part of the employee shall lie upon the employer.

·       when the employee has contacted a disease which is not directly attributable to a specific injury caused by the accident or to the occupation; or

·       when the employee has filed a suit for damages against the employer or any other person, in a Civil Court.

 

CONTRACTING OUT

Any contract or agreement which makes the workman give up or reduce his right to compensation from the employer is null and void insofar as it aims at reducing or removing the liability of the employer to pay compensation under the Act.

What is Disablement

Disablement is the loss of the earning capacity resulting from injury caused to a workman by an accident.

Ø  Disablement's can be classified as (a) Total, and (b) Partial. It can further be classified into (i) Permanent, and (ii) Temporary, Disablement, whether permanent or temporary is said to be total when it incapacitates a worker for all work he was capable of doing at the time of the accident resulting in such disablement.

Ø  Total disablement is considered to be permanent if a workman, as a result of an accident, suffers from the injury specified in Part I of Schedule I or suffers from such combination of injuries specified in Part II of Schedule I as would be the loss of earning capacity when totaled to one hundred per cent or more. Disablement is said to be permanent partial when it reduces for all times, the earning capacity of a workman in every employment, which he was capable of undertaking at the time of the accident. Every injury specified in Part II of Schedule I is deemed to result in permanent partial disablement.

Ø  Temporary disablement reduces the earning capacity of a workman in the employment in which he was engaged at the time of the accident.

 

Accident Arising Out of and in The Course of Employment

An accident arising out of employment implies a casual connection between the injury and the accident and the work done in the course of employment. Employment should be the distinctive and the proximate cause of the injury. The three tests for determining whether an accident arose out of employment are:

Ø  At the time of injury workman must have been engaged in the business of the employer and must not be doing something for his personal benefit;

Ø  That accident occurred at the place where he as performing his duties; and

Ø  Injury must have resulted from some risk incidental to the duties of the service, or inherent in the nature condition of employment.

The general principles that are evolved are:

Ø  There must be a casual connection between the injury and the accident and the work done in the course of employment;

Ø  The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury;

Ø  It is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and

Ø  Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment or where the accident was the result of an added peril to which the workman by his own conduct exposed himself, which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable.

 

Compensation in The Case of Occupational Diseases

Workers employed in certain types of occupations are exposed to the risk of contracting certain diseases, which are peculiar and inherent to those occupations. A worker contracting an occupational disease is deemed to have suffered an accident out of and in the course of employment and the employer is liable to pay compensation for the same.

Occupational diseases have been categorised in Parts A, B and C of Schedule III. The employer is liable to pay compensation:

Ø  When a workman contracts any disease specified in Part B, while in service for a continuous period of 6 months under one employer. (Period of service under any other employer in the same kind of employment shall not be included),

Ø  When a workman contracts any disease specified in Part C, while he has been in continuous service for a specified period, whether under one or more employers. (Proportionate compensation is payable by all the employers, if the workman had been in service under more than one employer).

If an employee has after the cessation of that service contracted any disease specified in the said Part B or Part C, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of the Act.

COMMISSIONERS- THEIR POWER AND FUNCTION

S.20. Appointment of Commissioners

(1) The State Government may by notification in the Official Gazette appoint any person to be a Commissioner for Workmen's Compensation for such area as may be specified in the notification.

(2) Where more than one Commissioner has been appointed for any area the State Government may by general or special order regulate the distribution of business between them.

(3) Any Commissioner may for the purpose of deciding any matter referred to him for decision under this Act choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry.

(4) Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).

22A. Power of Commissioner to require further deposit in cases of fatal accident

Where any sum has been deposited by an employer as compensation payable in respect of a workman whose injury has resulted in death and in the opinion of the Commissioner such sum is insufficient the Commissioner may by notice in writing stating his reasons call upon

the employer to show cause why he should not make a further deposit within such time as may be stated in the notice.

(2) If the employer fails to show cause to the satisfaction of the Commissioner the Commissioner may make an award determining the total amount payable and requiring the employer to deposit the deficiency

23. Powers and procedure of Commissioners.

The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects and the Commissioner shall be deemed to be a Civil Court for all the purposes of section 195 and of Chapter XXVI of the Code of Criminal Procedure 1973 (2 of 1974).

27. Power of submit cases

A Commissioner may if he thinks fit submit any question of law for the decision of the High Court and if he does so shall decide the question in conformity with such decision.

REGISTRATION OF AGREEMENTS.[Sec 28]

When there is agreement (memorandum) of compensation in between workman and employer for lump sum amount settlement against the half monthly payments (every two weeks payments) to the women or a person under a legal disability, employer should sent the memorandum to the commissioner.

Memorandum should not be obtained by fraud, undue influence or other improper means. If the commissioner satisfies with memorandum, it shall be registered.

[Sec 29] Effect of failure to register agreement

If memorandum of agreement is not send to commissioner by the employer shall be liable to pay the full amount of compensation which he is liable to pay.

31. Recovery

The Commissioner may recover as an arrear of land revenue any amount payable by any person under this Act whether under an agreement for the payment of compensation or otherwise and the Commissioner shall be deemed to be a public officer within the meaning of section 5 of the Revenue Recovery Act 1890 (1 of 1890).