rs i ae emplovers’ (Workmen's) Compensation Act 1923 ow 111 Chapter 4 ~ Employees’ (Workmen’s) Compensation Act, 1923 Doctrines ~ Main Features of the Act ~ Principles Governing Compensation = Definitions - Employees’ Compensation — Obligations ~ Questions their dependents in the case of injury by industrial accidents, including occupational diseases. Defences available to employers before Passing of the Employees Compensation Act, 1923. The employers were liable to pay compensation to the workers if they were proved guilty of negligence. Even when his negligence was proved, he could avoid his liability by putting forward any of the following defences. (Defence means facts offered by a party against whom proceedings have been instituted to diminish a plaintiff's cause of action or defeat recovery to an action). (1) Doctrine of Assumed Risks: A defence in negligence, entails proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it, Assumption of the risk is an Affirmative Defence that the defendant in a negligence action must plead and prove, The doctrine of assumption of risk is also known as volenti non fit injuria. Situations that encompass assumption of the risk have been Classified in three broad categories: In its principal sense, assumption of the risk signifies that the Plaintiff, in advance, has consented to relieve the defendant of an Obligation of conduct towards him or her and to take a chance ofEmployees’ (Workmen's) Compensation Act, 1923 a 113 tiff is not cognizant the plain! of the provision in his ao or her contract, and a reasonable person in the same position would not have een "i is not binding upon the indivi o ‘of mutual assent individual, and the agreement fails for Assumption of risk is no more compensation laws. This doctrine ‘one ema eens et extreme hardship it imposed on workers. 7 (2) Doctrine of Common Employment: ine of common employment is ai i a oS is liable for the areas ot his bee ee According to the doctrine of ‘common empk 5 were not liable for the personal injuries of ee by the negligence of another worker. In Priestley v Fowler (an English case) a coachman employed by the defendant overloaded a carriage making deliveries, causing it to overturn and injure the claimant, another employee who was riding on the carriage. In this case, the had no means of knowing about his worker's negligent actions. The judicial fear was that the imposition of liability on employers in such circumstances would lead to a proliferation of similar claims, a resultant loss of control by employers and: an increased cost of production, which would, in turn, adversely affect economic growth. Implicit in the doctrine of common employment was the assumption that when workers contract to work they know, or ought taknow, what risks they are exposing themselves to. This was taken to include the knowledge that the want of care on the part of a fellow judicial approach was reflected in the fact that up until the late — nineteenth century employers could ming the defence eae (known as volenti non fit injuria - a person who 1 risk ot harm fiom an activity cannot then make a claim for eempereay for personal injuries and damage that result rat activity) to claims brought by workers injured as result of negligence in the However, the Common Law doctrine of common employment abrogated (in the UK) in 1948. Accordingly, : é[Pircccivreees mee y- S Viput's™ Industrial Lay ig, (84 ae mw ho is sued to an employer w’ IN tespec , (1) twas not a defenc® 7? 5, the wrongful act, neglect, or dos, t any. injury oF by him, that that person was at the time the of a pier ea ‘as caused in common employment with the injury oF i damage. ing that injury OF person suffering on contained in a contract Of service a (2) Any oa nan agreement collateral thereto shall be yo, apprenticeship, or of excluding or limiting any ia, nal injuries caused to the z Doctrine of Contributory Negligence: mn « negligence is generally a defence to a claim based on negligence, an action in Tort. This principle is relevant to i, determination of liability and is applicable when plaintiffs/claiman, have, through their own negligence, contributed to the harm the, suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has ay contributed to the accident, they may be barred from complete ang full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it weren't for their failure to keep 2 proper lookout. Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first. A doctrine of common law is that if a person's own negligence peli an accident in which that person is injured, the injured party can't collect any damages (money) from another patty aha cased the acdent. Because this doctrine often ended in wis results (where a person only i ibited from recovering domocllial slightly negligent was prohi Plait bas accused rae er negligence. The defendant ™ then charge the plaintiff with contributory negligence. At coi- y es’ (Workmen’s) Compe: enptovees’ (Workmen's) Compensation Act, yp cs rw 115 aw, if the defendant proves 4 dence, the plaintiff cannot +, defendant was negligent—because the cont “f capenigpags sis ae defendant's Bala ry oF loss. ish law since th lence and plaintiff's invigence) Act (1945) and in many en een {Contry intif is shown to have contributed to the ine oie’ States, ifthe Fp allowed, but provision is made for mr Mt: Tecovery may sil aoe uitable reduction of “Last Clear Chance” Doctrine: The “Last Clear Chance” doctrine g sill be liable for the Plaintiff's injuries, if th . chance” to avoid the injury, even if the milena) ie at example, suppose that the plaintiff ran a red light and ee eo the defendant. Here, the plaintiff was partly liable for then one because they negligently ran the red light, and in a ee, negligence jurisdiction, the plaintiff Normally will not be ai damages for their injury. aoe However, if the defendant still had time to avoid the plainti intiff: car, but failed to do so, they could still be held liable for the plaintiffs injury. Here, the defendant is said to have the “last 8 chance” to avoid the injury, and so they can still be held liable. The elements of proof for the last clear chance doctrine are: ¢ The plaintiff placed themselves in a situation of risk or danger through their own negligence. «The plaintiff could not avoid the danger. ¢@ The defendant recognized the danger, and thus acquired a duty to avoid it. ¢ The defendant failed to avoid the danger. ¢ The plaintiff was injured as a result of the defendant's failure. After passing of the Employees Compensation Act, 1923 the employer cannot refute the claim for damages on the basis of any of these doctrines In case of injury causing disablement in certain cases Defences are available to an Employer which are discussed in this chapter. his char arge by a ee: Preponderance ¢ st any damages—ever f a even if the tory negligence breaks tates that the defendant mayoor ind Law (844 a disablement, it is tempora,, of the accident rears econ by an accident mae TA @ partial disablement el tity capacity in respect of employmeny @ the rata ae capable of undertaking at the time ¢y © which the emplove® © artial disablement Any injury specific, . ee Eepedule | shall be deemed to result in permaneny as in part Il of Sel t, Compensation under the Act is payable onj, beak aera sed by an accident results in employes’, ai di ing three days- oe a ee ate the injury is permanent or temporary emPL< To eee to see whether the injury has incapacitated the Emplo the courts bee ery employment which he was capable of a eee at the time of accident or merely from the particular aa employment in which he was at the time of a accident Tesulli 3) the in disablement. In the former case the disablement is partial bu; Cond permanent, in the latter case it is temporary. a i) Pe Loss of earning capacity or the extent of it is question of fact @) / Ithas to be determined by taking into account the diminution or 7 destruction of physical capacity as disclosed by the medical evidence and then it is to be seen to what extent such diminution ot or destruction would reasonably be taken to have disabled the ¢ | affected employee from performing the duties which an | employee of his class ordinarily performs. (7) Wages: The term “wages” as defined in section 2(1)im) f . includes any privilege or benefit which is capable of being ! estimated in money. The definition is not exhaustive. The following are not wages: (a) Travelling allowance or the value of any traveling concession; (b) Contribution paid by the employer of an employee towards, (c) any pension, or (d) any provident fund; (e) Any sum paid to an employee to cover any special expenses incurred on him by the nature of his employment. (f) Leave carried forward to next year. Privilege or benefit: The fol - ok pe ; llowing privileges and benefi (a) Free accommodation.- sjoyees’ (Workmen's) Compensation Act, 1973 tno T 4 a 7 119 ‘0 determine whether a pe. Ba ei ies other than a railway I, ts necessary, The fair” reference to Schedule fulfilled before a person can be ag tons Must be under this Act. said to be an employee (ii) The employment must be . Schedule Il of the Act. ‘"® hatte mentioned in yer. | i tees of section 2(1)(e) employer inchides the (a) any, body Persons whether incorporated or not, (b) any managing agent of an employer, {c) legal joaecieiaes of a deceased employer, and (d) when the services of an employee are tem ily | hire to another person by the person eee the employee has entered into a contract of service or apprenticeship, means such other person while the employee is working for him by the rules made under the Employees’ Compensation Act. (6) Total Disablement: ‘Total disablement’ is defined in section 2(1)(l) of the Act. When an employee is incapacitated of doing any work which he was performing at the time of accident resulting in such disablement, it is total disablement. Incapacity for all work is different from the incapacity for the work which an employee was doing at the time of accident. It is further provided in the Act that permanent total disablement shall be deemed to result from every injury specified in Part 1 of Schedule |. It may also result from any combination of injuries in Part Il of Schedule I, where the aggregate percentage of the loss of earning capacity, as specified against those injuries amounts to one hundred per cent or more. Partial Disablement: Such disablement is of two kinds: (i) Temporary partial disablement. (ii) Permanent partial disablement. La ; The test of such disablement is the retain Seo capacity of the employee. If the earning Ca batt es is reduced in relation to the employment he hi a |_"~— | Fr Vipul’s™ Industrial L aW (Bye 8M) ¥ vee his plea only if he employee’ loyer can succeed in his plea only | can establish the i rer atriouteble to any one of the above factors, thay the Employer's Liability in case of Occupational Diseases; wi Part A of Schedule A: part a The employer shall be liable to pay compensation for an injury a resulting from an occupational disease mentioned in Part 4” ; Schedule Ill, if an employee employed in any employment speci of a! in Part A of Schedule Ill contracts any disease specified therein i occupational disease peculiar to that employment. The contracting m ¢ the disease shall be deemed to be an injury by accident and y; of 7 the contrary is proved the ‘accident would be deemed to have le, 2) | out of and in the course of employment. zm 4 If the Contracting of an occupational disease after discontinuance Fe service. if any such disease as is mentioned in Part A of Schedule jj loyee has left the employment, yn, — | develops after an emp! compensation shall be payable to him. Part B of Schedule III: “ i em Accc In case of contracting of any disease mentioned in Part B of Schedule Ill the employer shall be liable if an employee while in the proved - service of an employer in whose service he has been employed for continuous period of not less than six months in any anaes specified in Part B of Schedule Ill 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 cident within the meaning of this section, and unless contrary is a Ex esr Gould be deemed iy Heck ih Gul ot and inthe co ae course of (b) Contracting of an occupational disease aft i disco lence, Thaeindite ua be Tbe bay oe ee employee where an employee contracts any dise oi ae Co he has left his catia 5 a i (1) If an employee has served und es i discon’ under any employer in any employment specified ee seit compe continuous period jon! (2) fan . ql) af employee has after cessation of his service contracte) occupational OT aca wo oe (3) If it is proved that such di: ee 5 isease arose out of the employmentY — (¢) Dearness allowance es’ (Workmen's) Compensation act employe’ 1923 vou (b) Maternity benefit payable to woman delivering a child (d) Overtime pay or allowance. (e) Benefits in the form of food or clothing (0 Gratuity payable to an employee on retir retirement (g) Value of any other concessions, bene enn bars nefit or Privileges capable (h) Bonus. EMPLOYEES’ COMPENSATION: Employer's Liability for Compensation (Sec. 3): The liability of an employer to pay compensa : subject to the provisions of the Act. Under Riba ee {@) the liability of the employer to pay compensati at ane) © te cme pensation is dependent (1) Personal injury must have been caused to an employee: (2) Such injury must have been caused by an accident; (8) The accident must have arisen out of and in the course of employment; and i (4) Tey must a — either in death of the employee or 2 is total or partial disablement for a period exceeding three YS. The employer shall not be liable to pay compensation in the following cases (a) If the injury did not result in total or partial disablement of the employee for a period exceeding three days; (b) In respect of any injury not resulting in death or permanent total disablement the employer can plead (i) that the employee was at the time of accident under the influence of drinks or drugs; (ii) that the employee wilfully disobeyed an order expressly given or a rule expressly framed for the purpose of securing safety of employees; and (iii) that the employee having known that certain safety- guards or safety devices are specifically provided for the purpose of securing the safety of employee; wilfully disregarded or removed the same.ay of ed an of en of Tl 10 es’ (Workmen's) Compensat nye ion Act, 1 ro" ct, 1923 ow rhe contracting of the disease shall y bY accident within the Meaning of Ail be deemed tot ¢ of Schedule Ill: WS Section, - e loyee cont Where an employ racts any dise, _jule ill the employer shall be liable. <°S* SPecified in p, a) Iran oe was in the service of one'c: inany empl a Specified in Part C of cae employers continuous period as the Centraj Govern edule Ill for such respect of each such employment; and ment may specify in he contracts any di (2) If : ; isease spe occupational disease peculiar to that eri _theten ifthe above two conditions are fulfil ms gisease shall be deemed to be an inju: ning of section 3 of the Act and unl accident shall be deemed to have arisen the employment. According to the first proviso to sub-section (2) of section 3 inv be ar art C of as an led, the contracting of the ty by accident within the less Contrary is proved the Out of and in the course of if itis (a) That an employee while in service of one or more employers in any employment specified in Part C of Schedule Ill has contracted a disease specified therein as an occupational disease peculiar to the employment during a continuous period which is less than the period specified under sub- section (2) of section 3 for that employment, and That the disease has arisen out of and in the course of employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of section 3 of the Act. Contracting of an occupational disease after discontinuance of service. Where an employee contracts an occupational disease after discontinuance of his service the employer shall be liable to pay compensation: (1) If it is proved that the employee has served under vou more employers in any employment specified in Part a Schedule Ill for such continuous period as the a a of each such Government may specify in respect employment; (0(0 joes’ workmen's) Compensation ac, 1 a a 1923 Ty Hisea.. The formula for calculating the am, Hiseag. case of death resulting from an injury will be se ComPensation in 50 x Monthly wages x Relevnns 4H Ment 100 hry py OF Rs. 1,20,000, whichever is m, . Examples: ph Pang fa) An employee drawing a month} ; , Section wath ani Sccldent while working on. amie ee tent 12th March, 2019. He was bom on 1ath du, 19 gon Nt of jount of compensatior te ee if o eione Nn payable to him will be determined Hment Completed years of age on 12th March, 2019 = 34 1 three Relevant factor for age 34 = 199.40 Pie Amount of compensation = 50% of Rs. 3,000 x 199.40 or la a Rs. 1,20,000, whichever is more tion to = a x 3000 x 199.40 = Rs. 2,99,100 tively ‘ase of Hence, the employee will get Rs. 2,99,100, fies to (b) An employee drawing a monthly wage of Rs. 6,000 dies on State 10th November, 2019 as a result of an injury arising out of clared and in the course of employment. He was bom on those 23rd May, 1964. The amount of compensation payable to him will be calculated as follows: pnly if Completed years of service as on 10th November, 2019 cident =55 to this Relevant factor for age 55 = 135.56 (3) of Amount of compensation = 50% of Rs. 6,000 x 135.56 or Rs. 1,20,000, whichever is more. i.e. Rs. 406,680 sation Hence the employee will get Rs. 406,680. 2 In order to claim compensation in case of death 0! 2 njury, employee, it is necessary for the claimants to prove ow pf the were dependant on the deceased. A legal representative ho y the not a dependant is not entitled to claim compensatio V. for death of the deceased under the Act tumn=_~~ @&3 = 2 z734™ 126 vee (2) Compensation for P' (3) Viput's™ industrial Law (ay, ermanent total disablement [s,. , tal disablement results from .* (1) (b)}. Where permanent to eh injury, the amount of compensation payable shall be equay ;, 60 per cent of the monthly wages of the injured emplo,,. multiplied by the relevant factor, or Rs. 1,40,000, whichever : more. The formula for cal case of permanent total disablem: be as follows: 60 « Monthly wages x Relevant factor 100 or Rs. 1,40,000, whichever is more. The relevant factor shall be ascertained from Schedule IV ang will depend on the age of the employee on his immediate) preceding birthday. a Example: If in examples (a) and (b) given on page 111, the accident results in permanent total disablement, the amount of compensation payable would be as follows: Example: (a) Amount of compensation = 60% of Rs. 3,000 x 199.40 o Rs. 1,40,000, whichever is more. 60 700 * 3,000 x 199.40 = Rs. 3,58,920. Hence the worker will get Rs. 3,58,920 (b) Amount of compensation = 60% of Rs. 2,000 x 135.56 or Rs. 1,40,000, whichever is more. 60 00 * 2,000 x 13556 = Rs. 1,62,672. a be the employee will get Rs. 162,672. 4 (1) (c) provides that where permanent partial disablemet — aa an injury, the amount of compensation shall be * (a) In the case of an injury specified in Part Il of Schedule 1, amount of. compensation shall be such percentage of erento which would have been payable in the oe e pepiert total disablement as is specified therei" © ig the percentage of the loss of earning capacity ©" culating the amount of compensation ;, ent resulting from an injury, wij (b)= joyees’ (Workmen's) Compensation Act, 923 Peg: er ‘ds half the cident, 129 employee before the accident excee, wages which he is earning after the s Amount of such treatment shall not be deemed to be oo eee received by him by way of Compensation within the meaning. a clause (a) of the proviso, (2A) The employee shall be rei nditure incurred by him for trea: the course of employment. (3) On the ceasing of the disablement before the date on which half-monthly payment falls due there shall be payable in Tespect a he half-month a sum proportionate to the duration of the disablement in that half-month, (4) If the injury of the employee results i shall in addition to the compensation under sub-section (1), deposit with the Commissioner a sum. of not less than five thousand rupees for payment of the same to the eldest surviving dependant of the employee towards the expenditure of the funeral of such employee or where the employee 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. SCHEDULES Iv: (See Sec. 4) a for working out lump-sum equivalent of compensai Seek case disablement and death of permanent disablement and death, imbursed th actual medical tment of inju ies caused during KEE CR SE FOFE £F in his death, the employer aoe—_~ 7 . Sy . Vipul’s™ industrial Law (py 128 vor am ° he percentage: hall have due regard to # 828 Of ly. pacientes, in relation to different injuries speci, empl ieee I tt whether total j ‘gat temporary disablemen! OF part () seat ta he injury — @ half-monthly payment of ,,. eno sum equivalent to twenty-five per cent of monthly wage, - treatn the employee, to be paid in accordance with the Provision, recelv of sub-section (2). ee : qa (1A) Notwithstanding anything contained in sub-section (1), While (2A) xing the amount of compensation payable to an employee j, expenditu aoe of an accident occurred outside India, the Commissioner ta the course take into account the amount of compensation, if any, awarded 6 (3) such employee in accordance with the law of country in which the any half-n accident occurred and shall reduce the amount fixed by him by the of the hi ‘amount of compensation awarded to the employee in accordance disableme v with the law of that country; (4) If! (1B) The Central Government may, by notification in the’ Offic shall in ac Gazette, Gazette, specify, for the purposes of sub-section (1), such with the ¢ monthly wages in relation to an employee as it may consider for pay necessary. employee (2) The half-monthly payment referred to in clause (d) of sub. where the section (1) shall be payable on the sixteenth day: aa s (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 date of disablement where such disablement lasts for a period of les Facton than twenty-eight days; and thereafter half-monthly during the amount it disablement or during a period of five years, whichever period is and death shorter; ! : Complete: Provided that: the last! employs (a) There shall be deducted from any lump. sum or half-monthly | | Payments to which the employee is entitled, the amount of any the comp isletaplone: which the employee has received from dieabie ay” PY Way of compensation during the period o ro half monthly paorcgt ee ecPt of Such ump sum or ofthe i (0) No halt as the case may be; and monthly payment shall in any case exceed the amour if any, by which half the amount of the monthly wages of the