CHANAKYA NATIONAL LAW UNIVERSITY PATNA
LABOUR LAW-II EMPLOYER’S LIABILITY IN CASE OF
OCCUPATIONAL DISEASE SUMIT KUMAR SUMAN th
5 Semester, 628
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ACKNOWLEDGEMENT
First of all I want to thank GOD for successfully completing this project. Then I w-I I F aculty aculty want to give my sincere thanks to our respected L abour L aw-I , M r. S.C.Roy Si Si r who has guided me all the way in completing this project.
Then I would like to give thanks to our librarians who have helped me all the way in searching through the source materials, which help me, lot in completing the project. The list couldn‟t be completed without thanking my family and my friends who have encouraged me all the way in completing the project.
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METHODOLOGY OF RESEARCH
RESEARCH METHODOLOGY:
Keeping the objectives in mind, material was collected with the help of different books and then it was compiled to make the theoretical part of the project. The methodology of my research is doctrinaire method. RESEARCH TOOLS:
The research of this project was carried with the help of the Internet and Library of Chanakya National Law University. FOOTNOTING STYLE:
In whole of my project uniform footnoting style is adopted in conformity Chanakya National Law University, Patna footnoting style along with “blue bo ok.” AIMS AND OBJECTIVES
In this present project, researcher wants to know about Occupational Diseases and provision regarding the Employer‟s liability in the case of occupational diseases and also want to know that Scope regarding the present research work (Section 3 of employer compensation Act, 1923). SOURCE OF DATA
In this present project has used only one source of data: Secondary
Books
Websites
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TABLE OF CONTENTS
I.
INTRODUCTION …………………………………………………...05
II.
BACKGROUND (EMPLOYEES‟ COMPENSATION ACT, ACT, 1923)...06
III.
CONCEPT OF LIABILITY UNDER EMPLOYEES’ COMPENSATION ACT, 1923…………………………………..…08 1. NATURE OF LIABILITY
IV.
EMPLOYER’S LIABILITY ……………………………………….09 1. EMPLOYER‟S LIABILITY FOR COMPENSATION 2. IN CASE OF OCCUPATIONAL DISEASES 3. SCOPE OF SECTION 3 OF EMPLOYEES‟ COMPENSATION ACT, 1923
V.
CONCLUSION ………………………………………………………20 BIBLIOGRAPHY
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INTRODUCTION In any industrial society the problem of labour management relations becomes so important that some sort of social insurance becomes necessary to provide adequate protection from losses caused to the labourers by accidents. With the view to improve the condition of the employees some social insurance legislations legislations have been enacted. This employee‟s compensation Act is one of the earliest measures adopted to benefit the labourers. It was passed in 1923 and enforced on st 1 July, 1924. Since then a number of amendments have been made from time to time so as to suit the changing needs and conditions of the employees. The object of the Act was to make provision for the payment pa yment of compensation by b y certain class of employers to their employees for injury by accident. accident. Originally the Act was applicable to employees of certain specified industries, employed otherwise than in clerical capacity; and receiving monthly wages no exceeding Rs. 300. The employees were entitled to compensation from the employer in case of personal injury caused by accident arising out of and in the course of employment with certain reservations to the duration of incapacity and negligence of employee himself. The payment of compensation was mainly dependent upon the incapacity or disablement of employees. The Employees‟ Compensation Act creates a new type of liability. It liability. It is not strictly a liability arising out of tort, but is a sort of liability arising out of the relationship of the employer and the employee. An employer under this Act is liable to pay compensation at a rate fixed in the Act itself to any employee incapacitated by an accident arising out of and in the course of his employment. The main principle governing the compensation is not dependent on the suffering caused to the employee or expenses incurred by him in his treatment but on the difference between his wage earning capacity before be fore and after the accident. The liability for the payment of 1 compensation is not dependent upon the neglect or wrongful act on the part of employer.
1
Misra, S. N. Labour and Industrial Law . 26th ed. Allahabad: Central Law Publications, 2011, p. 401.
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BACKGROUND The Employees‟ Compensation Act is one of the earliest measures adopted to benefit the st labourers. It was passed in 1923 and enforced on 1 July, 1924. Since then a number of amendments have been made from time to time as to suit the changing needs and conditions of the employees. The object of this Act was to make provision for the payment of compensation by certain class of employers to their employees for injury by accident. It was as early as 1884, that the question of payment of compensation to employees involved in serious or fatal accidents was raised when the factory and mining inspectors drew the attention of the government to this human problem which warranted immediate legislative protection of employees. But its importance was realized by the Government of India only at the end of 1920, when public opinion was invited on connected issues. A committee consisting of members of the legislative Assembly, employers, workers or representatives of workers, medical and insurance experts was constituted. It was on the basis of recommendation of the committee that Employees‟ Compensation Act was enacted in 1923 which provided for setting up of tribunals on the American model of decide disputes, appointment of special Commissioners with wide powers and a limited right of appeal to the High Court. Court. With the progress of time in the standards of living in the society the Act has on many occasions been modified so as to benefit greater number of employees and to provide for payment of greater amount of compensation to them. The Royal Commission on labour paid a tribute to the smooth working of the Act and recommended the extension of the benefits under the Act to a large class of employees. Prof. Adarkar advocated for compulsory insurance of all employees. The result was that the Employees‟ State Insurance Act, 1948 was passed. This Act was a substantial substantial improvement over the Employees‟ Compensation Act. Any person who is covered by Employees‟ state Insurance Act, 1948 and who who is entitled to receive disablement or dependant‟s benefit under this Act is not entitled to compensation from the employer under the Employees‟ Compensation Act, 1923. So, 1923. So, this Employees‟ Compensation Act was framed with a view to provide for compensation compensation to employees incapacitated by an injury from accident arising out and in course employment and also in case of occupational disease. This Act extends to the whole of India except the Jammu and Kashmir. Unlike the English Act, this Act is not applicable to all employees. It applicable to employees of certain industries. FEATURES OF THE ACT1. The employees‟ Compensation Act is modeled on this British pattern. Under the Act payment of compensation has been made obligatory on all employers whose employees are entitled to claim benefit under the Act.
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2. The employee or his dependants may claim compensation if the injury has been caused by accident arising out of and in the course of employment and in case lf injury not resulting in death if such accident cannot be attributed to the employees having been at the time of accident under the influence of drink or drugs or if it is not caused due to willful disobedience of rule or orders or disregard of safety devices. 3. In order to protected the interest of dependants in case of fatal accidents the following provisions are made(i) All cases of fatal accident are to be brought to the notice of the commissioner; (ii) If the employer admits his liability the amount of compensation payable is to be deposited with the commissioner; (iii) If the employer admits his liability and at the same time there are grounds for believing compensation to be payable, the dependants get the information necessary to enable them to judge if they should make a claim or not. 4. The Act is administered by the Commissioner Commissioner for Employees‟ Compensation appointed by the State Government.
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CONCEPT OF LIABILITY UNDER EMPLOYEES’ COMPENSATION ACT, 1923 The concept of liability in labour law implies sanctions against those,breaking the law. This injurious conduct takes place in the framework of permanent legal relations. However, liability is not the only means of education; there are also other legal and extra-legal social means at our disposal. This circumstances makes its effect felt in labour law in more than one respect. It menifests itself in connection with the injurious conduct committed by employee in the following: on the one hand, the legal regulation establishes a differentiated system of sanctions, making it possible to take into consideration the situation within the collective, and it considerably restricts the extent of material liability. On the other hand, it leaves it to the discretion of the one who is entitled to claim liability whether he/she wishes to use this means of individual and collective prevention. Finally, it has repeatedly been expressed in judicial practice that in applying sanction one of the essential point of view to be considered is the internal situation and the level of order and discipline in the enterprise. In case of an injury suffered by a worker, this manifests itself in that the employer, as a general rule, is held liable irrespective of culpability and emphasizes that the enterprise should organize the work and cooperation within its scope of activity in such a way as to prevent misconduct or accident. NATURE OF LIABILITY
Liability in labour law arises only upon the infringement of a given right. However, it does not arise automatically. The Employees‟ Compensation Act creates a new type of liability. liability. It is not strictly a liability arising out of tort, but is a sort of liability arising out of the relationship of the employer and the employee. An employer under this Act is liable to pay compensation at a rate fixed in the Act itself to any employee incapacitated by an accident arising out of and in the course of his employment. The main principle governing the compensation is not dependent on the suffering caused to the employee or expenses incurred by him in his treatment but on the difference between his wage earning capacity before and after the accident. The liability for the payment of compensation is not dependent upon the neglect or wrongful act on the part of employer.
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EMPLOYER’S LIABILITY As per Employees‟ Compensation Act, 1923 the term „employer‟ means and includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of an employee are temporarily lent or let on hire to another person by the person with whom the employee has entered into a contract of service or apprenticeship, means such other person while the employee is working for him (Section-2e). Generally employer ‟s liability has been arising in case of any injury or any damage occurred due to employer meaning thereby, if any injury has been arising during the course of employment the employers are liable to pay compensation. EMPLOYER’S LIABILITY FOR COMPENSATION
If personal injury is caused to an employee employee 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 of this Chapter: 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 employee for employee for a period exceeding three days; (b) In respect of any [injury, not resulting resulting in death or permanent total total disablement, caused by an accident which is directly attributable to — (i) The employee having employee having been at the time thereof under the influence of drink or drugs, or (ii) ii) The willful disobedience of the employee employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, employees, or (iii) iii) the willful removal or disregard by the employee of employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employees, employees, (2) If an employee employed employee 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 an employee, employee, 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 an employee whilst in the service of one or more employers in 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:
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Provided that if it is proved, — — (a) that an employee whilst in the service of one or more employers in any employment 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 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 an employee 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 an employee employed employee 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 inten tion 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 occu pational diseases d iseases 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 b y 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 an employee in respect of any disease unless the disease is directly attributable to a specific 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 an employee employee 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 an employee in employee 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 employee and employee and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
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Employer’s liability for compensation (Accidents)
The employer of any establishment covered under this Act is required to compensate an employee: (a) Who has suffered an accident arising out of land in the course of his employment, resulting into: (i) Death (ii) Permanent total disablement, (iii) Permanent partial disablement, (iv) Temporary disablement whether total or partial, or (b) Who has contracted an occupational disease? 2
In Saurashtr , the Supreme court had an opportunity aurashtr a salt salt M anuf actur actur in g co. co. v. Bai valu Raja to provide the meaning and scope of the pharase “arising out of and in the course of” provided in Section (3) (1) of the Workmen‟s compensation Act. The appellant, in the instant case, is the saurashtra salt manufacturing co. It employs workmen both temporary and permanent. The salt works of the appellant is situated near a creek which has to be crossed by a boat. There are at least two ways to go to salt works from the said town, one an over land route nearly 6 or 7 miles long and the other via the creek which has to be crossed by a boat. At the porbandar end of the creek is the asmavati Ghat and the creek can be crossed from there at point A to the other side point B, which is on a sandy sa ndy piece of land. land . Those crossing t he creek from point p oint a alight from the boat at point B. From point B, after travelling the sandy area, one can c an reach rea ch the salt jetty of the salt works and the salt works itself. On the sandy area near point B, there is also a public footpath which goes to the salt works at Point D, the distance being 1 and ½. mile. A boat carrying certain workmen, who had been employed by the appellant, capsized due to bad whether and over-loading while crossing the creek from point B to point A. As the result of the accident, some of the workmen were drowned resulting in 7 cases for compensation being filled under the Employees‟ Compensation Act. The commissioner for workmen‟s compensation found that the accident arose out of and in the course of the employment of the workmen. Accordingly, he awarded compensation. The Appellant appealed to the High Court of saurashtra. The High Court, after an elaborate discussion of the law, came to the same conclusion and dismissed the appeal with costs. In the appeal before Supreme Court, it was urged on behalf of appellant that although the compensation had been paid to the dependants of the drowned workmen and the appellant did not seek a refund of the same and the appellant must pay the costs of the respondents even in the event of success, it was essential for the appellant to have discussion whether in the circumstances disclosed in this case, in law the appellant was liable to pay any compensation. The Supreme Court has applied the theory of „notional extension‟ and held: “As a r ule, ule, the employment of a workman does not commence until he was reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being exclude. ex clude. It is now well settled, however, that this is subject to the theory of notional extension of the employer‟s premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be regarded as in the course of his employment even though he had not reached or had left his employer‟s premises. The facts and circumstances of each case will have to be 2
AIR 1958 SC 881.
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examined very carefully in order to determine whether the accident arose out of land in the course of employment of a workman, keeping in view at all times this theory of notional extension.”
IN CASE OF OCCUPATIONAL DISEASES
As per Section 3(2) certain occupations involve clear risks from specified diseases. If the workers in these occupations contract particular diseases, it is practically certain that the disease arose out of the employment. But most industrial diseases are contracted gradually, and in the case of a workman who has pursued the same occupation under several employers, it is not always possible to assign responsibility to any particular employer. This is especially the case as regards lead poisoning and phosphorous poisoning, the two diseases at present entered in Schedule III. On the other hand, anthrax is a disease which is not contracted gradually. The clause accordingly provides that where a workman contracts one of the three specified occupational diseases, it is for the employer to prove that the disease did not result from the employment. Except in the case of anthrax. The grant of compensation is subject to the condition that six months should have elapsed since the workman took service with the employer concerned. So, section 3(2), deals with the payment of compensation in case of an injury resulting from occupational diseases. The list of the occupational diseases is contained in schedule III of the Act. Schedule III is divided into three parts, A, B and C. The disease contracted must be an occupational disease peculiar to the employment specified in schedule III. In respect of every such disease mentioned as occupational disease in schedule III, a list of number of employments is given. To support any claim for compensation in case of occupational disease in part A no specified period of employment is necessary; for disease in part B the employee must be in continuous employment of the same employer for a period of employment would be such as is specified by the central Government for each such employment whether in service of one or more employers. The contracting of any accident arising out of and in the course of employment unless the contrary is proved. Part A of schedule III- The employer shall be liable to pay compensation for an injury resulting
from an occupational disease mentioned in Part a of schedule III, if an employee employed in any employment specified in part A of schedule III 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 would be deemed to have arisen out of and in the course of employment. Contracting of an occupational disease after discontinuance of service.- If any such disease as is mentioned in part A of Schedule III develops after an employee has left the employment, no compensation shall be payable to him. 12
Part B of schedule III.- In case of contracting of any disease mentioned in part B of schedule
III the employer shall be liable if an employee while in the service of an employer in whose service he has been employed for a continuous period of not less than six months in any employment specified in part B of schedule III contracts any disease peculiar to that employment. The contracting of the disease shall be deemed to be an injury by accident within meaning of this section, and unless contrary is proved, the accident would be deemed to have arisen out of and in the course of the employment. Contracting of an occupational disease after discontinuous of service- The employer shall be liable to pay compensation to an employee where an employee contracts any disease as aforesaid after he has left his employment in the following conditions: 1. If an employee has served under any employer in any employment specified in Part B of Schedule III for a continuous period of six months. 2. If an employee has after cessation of his service contracted any disease specified in Part B of Schedule III as an occupational disease peculiar to that employment. 3. If it is proved that such disease arose out of employment. The contracting of the disease shall then be deemed to be an injury by accident within the meaning of this section. Part C of Schedule III- Where an employee contracts any disease specified in Part C of
Schedule III the employer shall be liable: 1. If an employee was 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; and 2. If he contracts any disease specified therein as an occupational disease peculiar to that employment. If the above two condition fulfilled, the contracting of the disease shall be deemed to be an injury by accident within the meaning of section 3 of the Act and unless contrary is proved the accident shall be deemed to have arisen out of and in the course of the employment. According to the first proviso to sub-section 2 of section 3 if it is proved: a. That an employee while in service of one or more employers in any employment specified in Part C of the Schedule III 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 b. 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. 13
Contracting of such occupational disease after discontinuous of service.- where an employee contracts an occupational disease after discontinuous of his service the employer shall be liable to pay compensation: 1. If it is proved that the employee has served under 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 employment; 2. If he has after cessation of his service contracted any disease specified in Part C of Schedule III as an occupational disease to that employment; and 3. If it is proved 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.
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SCOPE OF SECTION 3 OF EMPLOYEES’ COMPENSATION ACT, 1923
The Compensation Acts, by virtue of their own terms, are extended to cases of "personal injury by accident arising out of or in the course of the employment." This is also the phraseology of the English Act and for the most part, the same or similar words are used in the various enactments of the American and the continental States of Europe. The Workmen's Compensation Act is a beneficial statute which was enacted to provide payment by certain class of employers to their workmen wo rkmen of compensation for injury by way of accident. Since it is a beneficial legislation, the act is to be liberally construed so much so that it provides security to workmen and their family resulting in loss of earning capacity. Section 3 of the said Act fixes him liability on the employer for compensation. 11 The use of those words have played a very important part in the development of case law under the statute: and as to the fundamental concept embodied in the language of this section, opinions of Judges have not always been uniform. In this provision of the Act is to be found a description of the conditions which, in respect of any particular calamity, place responsibility on the employer and also a description of the conditions which fix responsibility therefor on the injured employee. The question must then be determined as to what constitutes "injury arising out of or in the course of the employment" between the employee on the one side and the employer or the industry on the other: for under no statute as yet has the employee an absolute and incontestable right to compensation, regardless of his position, conduct and intention at the time of the calamity. In order to attract section 3(1) of the Act, following three co nditions must be fulfilled: (i) Personal injury; (ii) Accident; and (iii) Arising out of and in the course of emplo yment. The practical effect of the passing of the Workmen's Compensation Act, is that it discarded the old theory of the employer's fault as the basis of liability and conferred absolute right of compensation on every employee who is injured by "accident arising out of and in the course of the employment." 15
Discussing the question of taking rest during rest period, the Bombay High Court clarified in AIR 1957 Bom 52 that the term employment does not necessarily mean to be on work, it also extends to all things which a workman is entitled by way of contract of employment, expressly or impliedly. The plain reading of the material provision section 3 of the Act, makes it crystal clear that employer's liability to pay compensation to a workman arises only if the personal injury is caused to the workman by accident arising out of and in the course of his employment. 13 A workman left the place to collect labourer's salary from P.W.D. Officer and was murdered while on his way. It was held in Public Works Department v. Kaunsa," 14 that the phrase "arising out of employment" are wide enough to cover cases where there may be no direct connection between the injury caused as a result of an accident in the employment on work. The Court observed that if a particular accident would not have happened to a workman had he not been employed to work in a particular place and condition, then it is an accident arising out ou t of employment. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, 15 the Supreme Court while discussing the scope of section 3 (1) observed that it is now well settled that the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded, is subject to the theory of notional extension of the employers premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of o f work. There may be b e some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employers premises. The facts and circumstances of each case require careful examination for determining if the accident arose out of and in course of employment keeping in view the theory of notional extension. It is also equally well settled that when a workman is on a public road or place or transport, he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment the moment he leaves his house and is on his way to work. He is in 16
the course of his employment if he reaches the place of work or a point or an area which comes within the theory and notional extension outside of which the employer has no liability for any accident happening to him. A driver of the Irrigation Survey Department died while on election duty and the Commissioner awarded the compensation. Elaborating on the point if in the present case the deceased died in the course of employment of State or not, the Rajasthan High Court observed in State of Rajasthan v. Smt. Kanta, 16 that under the Scheme of the Act, unless established by consistent evidence from the employer that the employee did not die in discharge of his duty, it will be presumed that the employee died in the course of the employment. emplo yment. The Court held that the driver being on election duty all the 24 hours, died in the course of employment emplo yment and his claimants were entitled for compensation. A workman was cleaning the machinery of his employer on a holiday and met with an accident. It was held by the Madras High Court in Management of Sree Lalithambika Enterprises v. S. Kailasam,1987 55 FLR 129: (1988) 1 LLJ 63, that the fact of the time of accident being a holiday does not advance the case of the management in as much as the accident occurred while cleaning the machinery and must be held to have occurred in the course of employment. The Court upheld the factual finding. Discussing the scope of loss in earning capacity the Court held that the loss in earning capacity should not be confined only to the present capacity because the earning capacity in future is also an important factor. The continuation of the workman after injury on same salary is only begging the question. If this were the law, any an y employer can evade his liability and provisions of the Act. A truck was given on hire to 'A' in pursuance of a hire agreement and was not sold. The cleaner of the truck died because of an accident caused by rash and negligent driving. The Madhya Pradesh High Court held in Ranibai v. Shamsher Singh, 17 that 'A' can be said to working as an agent of the owner of the truck who had the insurance of the truck in his name. The owner cannot escape liability on the basis of hire agreement. The insurance company also cannot evade its liability as it is vicariously liable to A on the basis of its insurance policy. It was held that all the respondents were jointly and severally liable to pay compensation.
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Compensation-Quantum-Jurisdiction of Commissioner-Original pleading about quantum-Raising of fresh contention subsequently. The High Court observed thus: "There was no dispute as to the territorial jurisdiction of the court or as to whether the deceased was a workman or not. The only contention was regarding the amount of compensation. Under the circumstances, the respondent could not be allowed to raise any other point beyond the pleadings as given in the reply repl y to the notice. n otice. Moreover, both the contentions raised on behalf of the respondent required the leading of evidence and unless the same were specifically pleaded and issues framed, the respondent could not be allowed to raise this point at the stage of arguments. Under the circumstances the High Court opined that instead of sending the case back for decision on merits to the learned Commissioner, it would be in the interest of justice to grant a sum of Rs. 8,000 by way of compensation to the appellant to which the respondent itself admitted in reply to the notice." In the result, the order of the learned Commissioner was set aside and the appellant was found entitled to a sum of Rs. 8,000 by way of compensation. 18 A Railway employee travelling back to his residence in a local train after completion of his duty, in a free pass, met with an accident. Elaborating if the accident was in the course of employment the Bombay High Court observed in Parvatiammal Dharmalingam v. Divisional Superintendent, Central Railway, Bombay, 19 that the question was if a railway employee met with an accident while travelling back from his place of duty to his residence by a local train using a free pass given by his employer, can the accident be treated to have taken place in the course of employment within the purview of Section 3. Relying on the Supreme Court judgment in a similar case of General Manager, BEST Undertaking, Bombay v. Agnes, 20 in which there were similar circumstances, the Court held that the accident occurred out of and in the course of the employment and the entitlement to claim was upheld. A workman, fell down while doing his work and sustained injuries which in course of time caused total disablement. The employer a building contractor took the plea that the workman was no longer working with him and that at the time of accident he had no work contract in the building in which the accident occurred. 18
The Bombay High Court held in M.S. Varma and Co. v. Ganga Ram Kamta Kevat, 21 that the workman was working in Manisha Building as a workman of the employer for the last one year before the day of accident. The employer's brother was working in the employment of same employer in the same building on the day of the accident. Both the facts being incontrovertible the inevitable conclusion is that the employer did have a work contract in the Manisha Building on the day of the accident. It is also true that, on the day in question other workman of the employer were working in the building. The Court observed that it was reasonable to conclude that both of these employees were employees of the same employer and the injured workman met with an accident resulting in total disablement in the course of and arising out of his employment. In another case a workman sustained injury in the course of employment and did not recover even for a single day to join his duty and ultimately died as a result. The death was attributable to acceleration of existing ailment due to injury. The Bombay High Court held in Kalavati Sakharam Ingulrar v. Mahindra Ugine Steel Co. Ltd., 22 that the Commissioner was not justified in holding that death was not even attributable to or accelerated by the injury. If the workman was having big stones in both kidneys for years and nothing had happened he could as well have survived for a few more years but for the injury. The High Court upheld the entitlement of claim. The Madhya Pradesh High Court observed that the word "employment" used in Section 3, Workmen's Compensation Act has a wider meaning than the word "work". The principle of notional extension of employer's premises was applied in this case and the lower court followed judgment in Bombay Electric Supply and Transport Undertaking. v. Mrs. Agnes, 1963 (2) LLJ 615: AIR 1964 SC 193: (1964) 3 SCR 930. The deceased was going to attend his duty from his house and on his way met with an accident. The act of the deceased of going from his house for attending to his duty would be included in the term "employment" and the trial Court did not err in any way in applying the notional extension theory in the facts and circumstances of the case. Regarding delay, the Court observed that the applicant is an illiterate lady and has explained the reasons for delay to the satisfaction of the trial court.
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CONCLUSION So, basically after all the research researcher found that Workers often sustain an injury or contract a disease arising out of their employment for which the employer and worker‟s compensation insurer deny worker‟s compensation benefits, on the grounds that the worker cannot identify a specific specific traumatic event that caused or precipitated the injury injury or disease. Such a denial may be contrary to fact and law. It is not always necessary for for the worker to be able to identify a specific event or date of injury for the claim to be compensable. The purpose of this research work is to explain the concept of “occupational injury or disease,” for which worker‟s compensation benefits may indeed be awarded.
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private limited, new delhi. P. 591, 593-595. th PL Malik, 11 edition, eastern book company, lucknow , 2007, Misra, S. N. Labour N. Labour and Industrial Law. Law. 26th ed. Allahabad: Central Law Publications, 2011. Patel,Vithalbhai B . Law on Industrial Disputes. Disputes. 4th ed. New Delhi: Lexis Nexis Butterworths Wadhwa Nagpur, 2010. Saharay, Dr. H.K. Labour H.K. Labour and Industrial Law. Law. 5th ed. New Delhi: Universal Publishing Co., 2011. Singh, Dr. Avtar, and Dr.Harpreet Kaur. Introduction Kaur. Introduction to Labour and Industrial Law. 2nd ed. New Delhi: Lexis Nexis Butterworths Wadhwa Nagpur, 2 008. Srivastava S.C (Rev.) Labour Law Labour Law and Labour L abour Relations : Cases and Materials (3rd Materials (3rd ed., 2007). Pai G.B, Labour G.B, Labour Law in India (2001). India (2001).
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