Explain genesis, scope, coverage and definitions of the Workmen’s
Compensation Act, 1923. Discuss what are the circumstances under which the
employer is not liable to pay compensation for injury to a workman? What are
the various benefits payable under the Act?
Ans : Workmen's Compensation Act, 1923
1) This Act may be
called the Workmen's Compensation Act, 1923.
(2) It extends to the
whole of India.
(3) It shall come into
force on the first day of July, 1924.
The Workmen's
Compensation Act, aims to provide workmen and/or their dependents some
relief in case of accidents arising out of and in the course of employment and
causing either death or disablement of workmen.
This act is a central
legislation which provides for payment of compensation for injuries suffered by
a workman in the course of and arising out of his employment according to the
nature of injuries suffered and disability incurred, where death results from
the injury, the amount of compensation is payable to the dependants of the
workmen.
WORKMAN
Workman means any
person (other than a person whose employment is of a casual nature and who is
employed otherwise than for the purposes of the employers trade or business)
who is- a railway servant as defined in section 3 of the Indian Railways Act,
1890 not permanently employed in any administrative, district or sub-divisional
office of a railway and not employed in any such capacity as is specified in
Schedule II, or employed in any such capacity as is specified in Schedule II,
Whether the contract of
employment was made before or after the passing of this Act and whether such
contract is expressed or implied, oral or in writing.
The provisions of the
Act have been extended to cooks employed in hotels, restaurants using power,
liquefied petroleum gas or any other mechanical device in the process of
cooking.
Every employee
(including those employed through a contractor but excluding casual employees),
who is engaged for the purposes of employers 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.
The employer of any
establishment covered under this Act, is required to compensate an employee :
- 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
- Who has contracted an occupational disease.
- 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;
- That accident occurred at the place where he as performing his duties; and
- Injury must have resulted from some risk incidental to the duties of the service, or inherent in the nature condition of employment.
- There must be a casual connection between the injury and the accident and the work done in the course of employment;
- The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury;
- 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
- 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.
EMPLOYER'S LIABILITY
FOR COMPENSATION. -
(1) If personal injury
is caused to a workman by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in accordance with
the provisions:
Provided that the
employer shall not be so liable -
(a) In respect of any
injury which does not result in the total or partial disablement of the workman
for a period exceeding three days;
(b) In respect of any
injury, not resulting in death or permanent total disablement, caused by an
accident which is directly attributable to -
(i) The workman having
been at the time thereof under the influence of drink or drugs, or
(ii) 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
(iii) The willful
removal or disregard by the workman of any safety guard or other device which
he knew to have been provided for the purpose of securing the safety of
workmen,
(2) If a workman
employed in any employment specified in Part A of Schedule III contracts any
disease specified therein as an occupational disease peculiar to that
employment, or if a workman, whilst in the service of an employer in whose
service he has been employed for a continuous period of not less than six
months (which period shall not include a period of service under any other
employer in the same kind of employment) in any employment specified in Part B
of Schedule III, contracts any disease specified therein as an occupational
disease peculiar to that employment, or if a workman whilst in the service of
one or more employers in any employment specified in Part C of Schedule III,
for such continuous period as the Central Government may specify in respect of
each such employment, contracts any disease specified therein as an
occupational disease peculiar to that employment, the contracting of the
disease shall be deemed to be an injury by accident within the meaning of this
section and, unless the contrary is proved, the accident shall be deemed to have
arisen out of, and in the course of, the employment :
Provided that if it is
proved, -
(a) That a workman
whilst in the service of one or more employers in any employment specified in
Part C of Schedule III has contracted a disease specified therein as an
occupational disease peculiar to that employment during a continuous period
which is less than the period specified under this sub-section for that
employment, and
(b) That the disease
has arisen out of and in the course of the employment; the contracting of such
disease shall be deemed to be an injury by accident within the meaning of this
section:
Provided further that
if it is proved that a workman who having served under any employer in any
employment specified in Part B of Schedule III or who having served under one
or more employers in any employment specified in Part C of that Schedule, for a
continuous period specified under this sub-section for that employment and he
has after the cessation of such service contracted any disease specified in the
said Part B or the said Part C, as the case may be, 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 this section.
(2A) If a workman
employed in any employment specified in Part C of Schedule III contracts any
occupational disease peculiar to that employment, the contracting whereof is
deemed to be an injury by accident within the meaning of this section, and such
employment was under more than one employer, all such employers shall be liable
for the payment of the compensation in such proportion as the Commissioner may,
in the circumstances, deem just.
(3) The Central
Government or the State Government, after giving, by notification in the
Official Gazette, not less than three months' notice of its intention so to do,
may, by a like notification, add any description of employment to the
employments specified in Schedule III, and shall specify in the case of employments
so added the diseases which shall be deemed for the purposes of this section to
be occupational diseases peculiar to those employments respectively, and
thereupon the provisions of sub-section (2) shall apply In the case of a
notification by the Central Government, within the territories to which this
Act extends or, in case of a notification by the State Government, within the
State as if such diseases had been declared by this Act to be occupational
diseases peculiar to those employments.
(4) Save as provided by
Sub-sections (2), (2A) and (3), no compensation shall be payable to a workman
in respect of any disease unless the disease is directly attributable to a
specific injury by accident arising out of and in the course of his employment.
(5) Nothing herein
contained shall be deemed to confer any right to compensation on a workman in
respect of any injury if he has instituted in a Civil Court a suit for damages
in respect of the injury against the employer or any other person; and no suit
for damages shall be maintainable by a workman in any Court of law in respect
of any injury -
(a) If he has
instituted a claim to compensation in respect of the injury before a
Commissioner; or
(b) If an agreement has
been come to between the workman and his employer providing for the payment of
compensation in respect of the injury in accordance with the provisions of this
Act.
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:
The general principles
that are evolved are:
AMOUNT OF COMPENSATION.
-
(1) Subject to the
provisions of this Act, the amount of compensation shall be as follows, namely
:-
(a) where death results
an amount equal to fifty from the injury cent of the monthly wages of the
deceased workman multiplied by the relevant factor; or an amount of fifty
thousand rupees, whichever is more;
(b) Where permanent
total an amount equal to disablement results from sixty the injury per cent of
the monthly wages of the injured workman multiplied by the relevant factor, or
an amount of sixty thousand rupees, whichever is more.
(c) where permanent
partial disablement results from the injury
(i) in the case of an
injury specified in Part II of Schedule I, such percentage of the compensation
which would have been payable in the case of permanent total disablement as is
specified therein as being the percentage of the loss of earning capacity
caused by that injury, and
(ii) in the case of an
injury not specified in Schedule I, such percentage of the compensation payable
in the case of permanent total disablement as is proportionate to the loss of
earning capacity (as assessed by the qualified medical practitioner)
permanently caused by the injury;
(d) Where temporary a
half monthly payment of the sum disablement, whether equivalent to twenty-five
per cent of total or partial, results monthly wages of the workman, to from the
injury be paid in accordance with the provisions of sub-section (2).
(2) The half-monthly
payment referred to in clause (d) of sub-section (1) shall be payable on the
sixteenth day -
(i) from the date of
disablement where such disablement lasts for a period of twenty-eight days or
more; or
(ii) after the expiry
of a waiting period of three days from the date of disablement where such
disablement lasts for a period of less than twenty-eight days; and thereafter
half-monthly during the disablement or during a period of five years, whichever
period is shorter :
Provided that -
(a) there shall be
deducted from any lump sum or half-monthly payments to which the workman is
entitled the amount of any payment or allowance which the workman has received
from the employer by way of compensation during the period of disablement prior
to the receipt of such lump sum or of the first half-monthly payment, as the
case may be; and
(b) no half-monthly
payment shall in any case exceed the amount, if any, by which half the amount
of the monthly wages of the workman before the accident exceeds half the amount
of such wages which he is earning after the accident.
(3) On the ceasing of
the disablement before the date on which any half-monthly payment falls due,
there shall be payable in respect of that half-month a sum proportionate to the
duration of the disablement in that half-month.
(4) If the injury of
the workman results in his death, the employer shall, in addition to the
compensation under sub-section (1), deposit with the Commissioner a sum of one
thousand rupees for payment of the same to the eldest surviving dependant of
the workman towards the expenditure of the funeral of such workman or where the
workman did not have a dependant or was not living with his dependant at the
time of his death to the person who actually incurred such expenditure.
METHOD OF CALCULATING
WAGES
In this Act and for the
purposes thereof the expression "monthly wages" means the amount of
wages deemed to be payable for a month's service (whether the wages are payable
by the month or by whatever other period or at piece rates), and calculated as
follows, namely:-
(a) where the workman
has, during a continuous period of not less than twelve months immediately
preceding the accident, been in the service of the employer who is liable to pay
compensation, the monthly wages of the workman shall be one-twelfth of the
total wages which have fallen due for payment to him by the employer in the
last twelve months of that period;
(b) where the whole of
the continuous period of service immediately preceding the accident during
which the workman was in the service of the employer who is liable to pay the
compensation was less than one month, the monthly wages of the workman shall be
the average monthly amount which, during the twelve months immediately
preceding the accident, was being earned by a workman employed on the same work
by the same employer, or, if there was no workman so employed, by a workman
employed on similar work in the same locality;
(c) in other cases
[including cases in which it is not possible for want of necessary information
to calculate the monthly wages under clause (b), the monthly wages shall be
thirty times the total wages earned in respect of the last continuous period of
service immediately preceding the accident from the employer who is liable to
pay compensation, divided by the number of days comprising such period.
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