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1. A BRIEF OVERVIEW The Workmen’s Compensation Act is the first piece of legislation towards social security. Under the Act, It is obligatory on the employers to pay compensation to their employees for injury caused by accident, arising out of and in the course of their employment, resulting in death or in total/partial disablement. Compensation is also payable for some occupational diseases contracted by employees during the course of their employment. [Schedule III]
The workmen compensation act has been recently amended in 2009. The LATEST AMENDMENT EFFECTIVE FROM January 2010 are: Change of name of the Act . WORKMEN COMPENSATION ACT, 1923 now changed as EMPLOYEES COMPENSATION ACT, 1923
The words workman or workmen in the Act have been substituted by the words employee or employees wherever they occur. Clerks are now covered for compensation. (Schedule – (Schedule – II) (in case of death) minimum compensation has been enhanced from Rs.80,000 to Rs.1,20,000 (in case of permanent disability) minimum compensation has been enhanced from Rs.90,000 to Rs.1,40,000
funeral expenses enhanced from Rs.2,500 to Rs.5,000. A new section has been added – Section 25A – which fixes 3 months time limit for disposal of claims from the date of reference.
APPLICABILITY 1. The Act extends to the whole of India. 2. The act applies to certain categories of railway servants and employees employed in any capacity as specified in Schedule II of the Act. Such as - Factories, Mines, Plantations, Construction Work and certain other hazardous occupations, etc. 3. Every employee employed through a contractor for the purposes of employer’s trade and business and who suffers from an injury by accident rising out of and in the course of his employment, shall be entitled for compensation under this Act. 4. The Act is applicable to apprentices also. 5. This Act is applicable even when only one person is employed and it is not a “factory” under 1 Factories Act [ ]
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Sunil Industries v. Ram Chander 2000 AIRSCW 4109 = 2001 LLR 64 = 2000(7)SCALE 415
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6. The Central Government or the State Governments are empowered to extend the scope of the Act to any class of persons whose occupations are considered hazardous. [section 2(3)] 7. Similarly, the State Governments or the Central Government are also empowered to add any other disease to the list of occupational disease mentioned in Schedule III. [section 3(3)] 8. The Act however does not apply to – (i) Persons whose employment is of a casual nature and who are employed for purposes other than the employers’ trade or business; (ii) Persons serving in Armed Forces and (iii) Employees covered by the ESI Act.
IMPORTANT DEFINATIONS 1) Commissioner [Section 2 (1) (b)]: Commissioner means a Commissioner for Employees Compensation appointed under Section 20. 2) Employer: [Section 2 (1) (e)]: The word employer means any person who g ives employment to any person. It includes not only natural persons, body of persons but legal artificial person also. It also includes the managing agent of the employer or A legal representative of a deceased employer. When a master lends or lets or hire the services of his servant or apprentice to another person, the latter alone would be the employer so long as the employee is working for him.
2. COMPENSATION AND DISABLEMENT Under the Act, there are four types of eventualities, which can be compensated, namely: 1. 2. 3. 4.
Death Permanent Total Disablement Permanent partial disablement Temporary disablement - This may be total or partial disablement.
Compensation has been defined under Sec. 2 (1) (c): means compensation as provided for by this Act [under section 4 (1)] Disablement: Disablement means loss of capacity to work or to move. Disablement may be partial, or total. Partial Disablement has been defined under Section 2 (1) (g): means any disablement which reduces the earning capacity of an employee as a result of an accident. Partial disablement may be temporary or permanent.
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Temporary partial disablement means any disablement which reduces the earning capacity of an employee in the employment in which he was engaged at the time of accident which resulted in such disablement. Permanent partial disablement is one which reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of injury.
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Total Disablement has been defined under Section 2 (1) (L) of the Act: It means complete loss of capacity to work. Where an employee as a result of an accident, becomes unfit for a particular job but is fit for another class of job which is offered to him by the employer, the employee is entitled to claim compensation for partial disablement only and not total disablement. Total disablement is established only when the earning capacity becomes totally inexistent and no medium of it remains. Example: A carpenter lost his left hand, it was held by the court that he suffered from total 2 disablement – as he would not get any job of carpentry – as now he cannot do carpentry. [ ] EMPLOYER’S LIABILITY TO PAY COMPENSATION
As per Section 3 (1) of the Act, the employer is liable to pay compensation if the employee is injured by accident that arises out of and; in the course of his employment and; Such an injury results in death or temporary or permanent disablement of the employee.
Personal Injury: The expression ‘personal injury’ has not been defined under the Act. Personal injury is a bodily injury or a physical injury, it also include abnormal mental conditions. It includes injuries such as disease, sunstroke, nervous collapse etc. There must be a causal link between the employment and the injury. 3 In Indian News Chronicle Ltd. V. Luis Lazarus , [ ] an electrician had to frequently go to a heating room and from there to a cooling room. While on duty the workman fell ill and subsequently died of pneumonia. The court held that the word ‘injury’ in Section 3 of the Act may include a strain which causes a chill . The death of the workman was thus due to personal injury caused by an accident arising out of and in the course of the employment. Hence compensated.
Accident: Means an unexpected event or a mishap. 4 In Padam Debi v. Raghunath Ray [ ] – there is an accident of a bus, which dashed against a tree as a result of its being driven rashly and negligently - which resulted in injuries to the driver leading to his death. The court held that his death was caused by an accident arising out of and in the course of his employment and as such the employer would be liable to pay compensation. The fact that the driver was negligent or that he committed a breach of the provisions of the Motor Vehicles Act, would not affect the right to claim compensation.
Out of and In The Course of Employment: Out of employment i.e.…..while engaged in work
In the course i.e.….. during work hours
According to Section 3 (2) the employer’s liability for occupational disease arises under three circumstances: If an employee, employed in any employment specified in Part A of Schedule III contracts any occupational disease peculiar to that employment such as diseases caused by work in
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Pratap Narain Singh Deo Vs sriniwas Sabata (1976) AIR 1951 Punj. 102 4 AIR 1960 Orissa 207 3
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compressed air, poisoning by nitrous fumes etc. [ No specific period of employment is necessary for a claim of compensation] or If an employee, who 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 occupational disease peculiar to that employment such as - diseases caused by phosphorus or its toxic compounds, etc. or If an employee, whilst in the service of one or more employers, in respect of any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment such as –diseases caused by hard metals etc. [ For diseases in Part C the period of employment would be such as is specified by the Central Government for each of such employment whether in the service of one or more employers]
-the contracting of the disease shall be deemed to be an injury by accident and the accident shall be deemed to have arisen out of, and in the course of, the employment. As per Section 3 (2A) if an employee contracts any occupational disease peculiar to that employment under Part C of the schedule III - the contracting whereof is deemed to be an injury by accident - and if such employment was under more than one employer then all the employers shall be liable for the payment of compensation in such proportion as the commissioner may deem just. WHEN EMPLOYER’S LIABILITY D OES NOT ARISE
As per Section 3 (1) (a) any injury which does not result in the total or partial disablement of the employee for a period exceeding 3 days subsequent to the accident. 5
In The Oriental Fire and General Insurance Co. Ltd. and another v. Union of India [ ] the Court held that it is a valid defense available to the employer to plead that the personal injury which had admittedly been caused to the employee by accident arising out of and in the course of his employment has not resulted in the total or partial disablement of the workman for a period exceeding three days. If it could be proved, the employer is not liable for compensation under Section 3(1) of the Act.
Section 3 (1) (b) any injury not resulting in death or permanent total disablement caused by an accident which is directly attributable to i. the employee having been at the time of accident under the influence of drinks or drugs, or ii. Wilful disobedience of the employee to an order expressly given for the purpose of securing the safety of the employees, or iii. Wilful removal or disregard by the employee of any safety guard or device. which he knew to have been provided for the purpose of securing the safety of the employees. 6
It has been observed in Bhurangya Coal Co. Ltd. V. Sahebjan Mian, [ ] that proviso (b) (ii) to Section 3 (1) applies to only those cases of injuries which do not result in death. Where, therefore, the injury has resulted in death, the question as to the disobedience of any rule or order is not material at all so long as it can be reasonably held that the accident arose out of and in the course of the employment.
Section 3 (4) states that save as provide by Section 3 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 injury by accident arising out of and in the course of his employment.
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AIR 1975 AP 222 AIR 1956 Pat 299
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Section 3 (5) nothing shall be deemed to confer any right to compensation on an 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; and no suit for damages shall be maintainable by an 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 [Section 10] or b) If an agreement has been come to between the employee and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act [Section 28] c)
3. DECIDING COMPENSATION AMOUNT OF COMPENSATION The amount of compensation payable to an employee depends on: 1) The nature of the injury caused by accident. 2) The average monthly wage of the employee concerned, and 3) The age of the employee concerned. [The relevant factor for working out lump-sum equivalent of compensation amount as specified in Schedule IV. The guiding principle is - higher the age of the injured employee, the lower the compensation [as per Sc hedule IV] There is no distinction between an adult and a minor employee with respect to the amount of compensation.
Section 4 provides that Compensation is payable in case of: 1. Death; 2. Disablement a) Permanent total disablement; b) Permanent partial Disablement; c) Temporary disablement i. Temporary total disablement; ii. Temporary partial disablement. WHAT IS THE BASIS OF CALCULATING THE AMOUNT OF COMPENSATION Wages are the basis for amount of compensation paid. Two employees earning different salaries therefore will get different amounts of compensation even though the injury they suffered might be identical.
Wages [Section 2 (1) (m)]: Wages includes – any privilege or benefit which is capable of being estimated in money
other than a travelling allowance, or
a contribution paid by the employer towards any pension or provident fund, or
a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment.
COMPENSATION FOR DEATH Section 4 (1) (a): Where death results, from an injury the compensation is payable to the employees dependants.
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Dependent [Section 2(1) (d)]: Dependent means any of the following relatives of a deceased employee, namely: a) A widow, a minor, legitimate or adopted son, an unmarried legitimate or adopted daughter or a widowed mother b) If wholly dependent on the earnings of the employee at the time of his death a son or a daughter who has attained the age of 18 years and who is infir m; c) If wholly or in part dependant on the earnings of the employee at the time of his death: i. A widower, ii. A parent other than a widowed mother, iii. 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 minor, iv. A minor brother or an unmarried sister or a widowed sister if a minor, v. A widowed daughter-in-law, vi. A minor child of a pre-deceased son, vii. A minor child of a pre-deceased daughter where no parent of the child is alive, or viii. A paternal grandparent if no parent of the employee is alive.
The compensation due to the dependants is an amount equal to fifty percent of the monthly salary of the deceased employee multiplied by the relevant factor or an amount of one lakh and twenty thousand rupees, whichever is more. The minimum compensation in the case of death in no circumstances can be less than Rs. 1,20,000/-. Although the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation. The ‘relevant factor’ is mentioned in the schedule IV of the Act. The factor depends on the age of the person deceased, i.e., the number of years the person could have worked for, if he did not die on the job.
Example: Shankar, a employee aged 35 meets with an accident and dies while at work (i.e. in the course of employment). At the time he drew a monthly wage of Rs.2,500. As per Schedule IV of the Act the relevant factor applicable to his case would be Rs. 197.06. As such, the amount of compensation payable to his dependants will be arrived at in the following way: 50% of Rs. 2,500 = 1,250 1,250 x relevant factor (i.e.197.06) = Rs.2,46,325.00/- (total compensation payable)
Note - Where the monthly wages of an employee exceeds Rs. 4000, his monthly wages for the purpose of Section 4 (1) (a) shall be deemed to be four thousand rupees only. According to Section 4(4) if the injury of the employee results in his death, the employer 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.
COMPENSATION FOR PERMANENT TOTAL DISABLEMENT
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Section 4 (1) (b): Where there is total permanent disablement resulting from the injury suffered, the employee is entitled to be paid an amount equal to sixty percent of his monthly salary, multiplied by the relevant factor, or an amount of one lakh and forty thousand rupees, whichever is more. The minimum compensation in the case of total permanent disablement, in no circumstances can be less than Rs. 1, 40,000/-. Although the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation.
Example: Ravi, an employee aged 35 meets with an accident and suffers permanent total disablement while at work (i.e. in the course of employment) At the time he drew a monthly wage of Rs.2,500/- The amount of compensation payable will be arrived at as follows: 60% of Rs. 2,500 = 1,500 1,500 x relevant factor (i.e. 197.06) = 2,95,590.00/- (total compensation payable)
Note - Where the monthly wages of an employee exceeds Rs. 4000, his monthly wages for the purpose of Section 4 (b) shall be deemed to be four thousand rupees only.
Section 4 (1) (c) (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. COMPENSATION FOR PERMANENT PARTIAL DISABLEMENT Section 4 (1) (c) (i): Where permanent partial disablement results from the injury specified in Part II of Schedule I, such percentage of the compensation as is specified therein. Examples:
Description of injury: % loss of earning capacity Amputation through Shoulder joint ..................................... 90 Loss of all toes of one foot through a metatorso-phalangeal joint .................................................. 20 Loss of one eye, without complications, the other being normal ........................................................ 40 COMPENSATION FOR TEMPORARY DISABLEMENT (WHETHER TOTAL OR PARTIAL)
Section 4 (1) (d): In case of temporary disablement, a half monthly payment of the sum equivalent to twenty-five per cent (25%) of the monthly wages of the employee, to be paid in accordance with the provisions of Section 4 (2). Section 4 (2): The half monthly payment shall be payable on sixteenth day – i. from the date of disablement where such disablement lasts for a period of 28 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 It has been further provided that there shall be deducted from any lump sum or half-monthly payments to which the employee is entitled the amount of any payment or allowance which the
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employee has received from the employer by way of compensation during the period of disablement 7 prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be; [ ] and no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the employee before the accident exceeds half the amount of such wages 8 which he is earning after the accident. [ ]
Section 4 (2A): The employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during course of employment. Section 4 (3): On the ceasing of the disablement before the date on which any half-monthly payment falls due, there shall be payable a sum proportionate to the duration of the disablement. COMPENSATION TO BE PAID WHEN DUE AND PENALTY FOR DEFAULT Section 4A (1): compensation amount must be paid as soon as it falls due to victim or his or her legal heirs. Section 4A (2): In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the employee, without prejudice to the right of employee to make any further claim. Section 4A (3): Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall a) direct that the employer shall, in addition to the amount of the arrears pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
Section 4A (3A): The interest and the penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be.
4. PROCEDURE TO BE FOLLOWED FOR RECEIVING COMPENSATION PROCEDURES AND/OR FORMALITIES PRESCRIBED FOR PAYMENT OF COMPENSATION STARTING FROM THE TIME OF ACCIDENT
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Proviso (a) to Section 4 (2) Proviso (b) to Section 4 (2)
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1. Section 10 of the Act prescribes notice of accident given to the employer subject to certain exceptions. 2. Power of the Commissioner to receive statements regarding fatal accidents from the employer under Section 10A. 3. Reports of total accidents find to be submitted by the employer to the appropriate authorities under Section 10B. 4. Penalties – on employer for not discharging duties under the Act. [Section 18A]. 5. Medical examination certificate as to the accident under Section 11 of the Act. 6. Determination of employers liability for compensation under Section 3 of the Act. 7. Assessment of loss of earning capacity as per Schedule I read with Section 2(1) (g) and Section 2 (1) (b) of the Act. 8. Calculation of wages according to method provided in Section 5 of the Act. 9. Verification of the amount of compensation as per provision of Section 4 read with Schedule IV. 10. Registration of any agreement of compensation [Section 28] and distribution of the same by the Commissioner according to Section 8 of the Act. 11. Depositing the amount of compensation with and distribution of the same by the Commissioner according to Section 8 of the Act. 12. Submission of claim application under Section 22 of the Act. 13. Settlement of disputes, if any, by the Commissioner under Section 19 of the Act. 14. Distribution of Compensation after deduction under Section 8 (4) or proviso (a) to Section 4 (2) (ii) of the Act subject to provisions of Section 4A of the Act.
NOTICE OF ACCIDENT AND CLAIM FOR COMPENSATION [SECTION 10] In the case of an accident causing injury or an accident leading to death – A notice must be sent to the employer or any other person who is employed to supervise work in the same establishment as soon as is practicable after the occurrence of the accident. 1. No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death. The Commissioner may entertain and decide any claim to compensation even though the notice has not been given, or the claim has not been preferred in due time, if he is satisfied that the failure to give the notice or to prefer the claim, as the case may be, was due to a sufficient cause. 2. The notice must contain: The name and address of the person who died or was injured, a nd The cause of the injury, and The date on which it occurred, and The notice shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed.
3. The State Government may require that a certain class of establishments must maintain a notice-book which shall be accessible at all reasonable times to any injured employee employed on the premises and to any person acting bond fide on his behalf.
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4. The notice from the aggrieved party can be served to the employers by delivering it at, or sending the notice by registered post addressed to the residence or the office of the employer, or by entering such notice into the notice book, m aintained at the premises of the office.
CASE OF ACCIDENT RESULTING IN DEATH (Section 10-A)
COMMISSIONER’S POWERS IN
1. Anyone can report to the Commissioner in case of an employee being killed in an accident. 2. In case, the commissioner is aware of a fatal accident, he has the power to send a notice to the employer requiring him to submit a statement within a month’s time. 3. Within thirty days of such notice being served, the employer should reply as to the circumstances of such death, and whether, in his opinion, he is to deposit compensation to the commissioner. 4. If the employer feels that he is responsible to do so, then he must deposit the compensation with the commissioner within thirty days after the notice is served. 5. If however, he feels in the contrary, he must inform the commissioner of the grounds under which he claims such exemption. 6. On claiming such exemption, the commissioner may inform the dependants of the deceased employee, leaving it open to them, whether they would want to claim compensation or not.
REPORT OF FATAL ACCIDENTS AND SERIOUS INJURIES (SECTION 10B) If there is any law in force requiring the employer to give notice regarding the death or serious bodily injury of an employee, the employer shall do so, by giving the notice to the Commissioner, within seven (7) days of such event, describing the circumstances of the injury or death.
PENALTIES (ON EMPLOYER FOR NOT DISCHARGING DUTIES UNDER THE ACT) Section 18A: If an employer fails to –
send the commissioner a statement; or report as required in case of fatal accidents fails to do so, or make returns as to compensation, or maintain a notice book.
The employer shall be liable to pay a fine, which may extend to five thousand rupees. Such a proceeding cannot be made without the previous permission of the commissioner, and the court shall not take cognizance of any offence, if such matter is not brought before the court at least within six months from the time that the commissioner becomes aware of such offence.
MEDICAL EXAMINATION (Section 11)
In cases of injury (not amounting to death) the employer may require the employee to undergo a medical examination free of charge [Section 4 (2A)] . The injured employee should submit himself to such medical examination. If the employees condition is so bad that it is impossible for him to leave his residence then the employer can get him examined at his residence.
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If the employee does not agree to submit himself for a medical examination, by a qualified medical practitioner, then he shall lose his right to claim compensation from his employer, and this right shall be suspended for so long as he refuses to appear for the examination. In case the employee does not submit himself for the examination and dies before doing so, the commissioner may, if he thinks fit, make an order to pay compensation to the dependants of the deceased [employee]. Where an injured employee having being examined by a qualified medical practitioner has deliberately disregarded the instructions of such medical practitioner, then, if it is proved that the disregard or failure was unreasonable and that the injury has been aggravated thereby, the injury shall be deemed to be of the same nature, if the employee had been regularly attended by a qualified medical practitioner, whose instructions he had followed, and compensation, if any, shall be payable accordingly.
REGISTRATION OF AGREEMENTS AND EFFECT OF FAILURE TO REGISTER AGREEMENT (SECTION 28) Where the amount of any lamp sum payable as compensation has been settled by an agreement or where any compensation has been so settled as being payable to a woman, or a person under a legal disability - a memorandum thereof shall be sent by the employer to the Commissioner, who shall, on being satisfied as to its genuineness, record the memorandum in a register in the prescribed manner. Such agreements/memorandum should be registered and the money should not be given directly, but deposited with the Commissioner. However No such memorandum can be registered by the commissioner before the lapse of seven (7) days from the time he had received the notice of such accident.
The commissioner may at any time alter the registration. And if he has reason to believe that the agreement has been reached due to fraud or undue influence, he may refuse the memorandum sent by the employer, and can pass an appropriate order, including an order to pay the compensation.
(SECTION 29) The Law requires the employer to registers such agreements with the Commissioner. If the employer fails to register such a memorandum, the commissioner may order the employer to pay the entire amount of compensation that the provisions of the Act provide for. In such agreements the employer cannot pay less than the principle sum due. If he does so the agreement will not be registered. A compromise can only be made in terms of the interest and penalty due from the employer. DISTRIBUTION OF COMPENSATION (Section 8) 1. No payment of compensation in respect of an employee whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
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2. The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
3. Compensation in respect of an Employee whose injury has resulted in death:
On the deposit of money with the Commissioner as compensation in respect of a deceased employee the Commissioner shall cause notice to be served on each dependant calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation.
Compensation shall be apportioned among the dependants of the deceased employee or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one d ependant.
However, if the Commissioner, after conducting an inquiry, is satisfied that no dependant exists, he shall repay the money to the employer by whom it was paid.
4. Payment of a lump sum as compensation to a woman or a person under a legal disability:
Where lump sum money has been deposited with the Commissioner such sum may be invested, applied or dealt with for the benefit of the woman, or of such person during his disability.
Where a half-monthly payment is payable to any person under a legal disability, the Commissioner may order that the payment be made during the disability - to any dependant of the employee or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the employee.
Where on application made to him in this behalf or otherwise, the commissioner is satisfied that – an order of the Commissioner as to the distribution of compensation ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case.
Where the Commissioner varies any order by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered as an arrear of land-revenue
COMPENSATION NOT TO BE ASSIGNED, ATTACHED OR CHARGED Section 9: No lump sum or half-monthly payment payable under this Act shall in any way be capable of being assigned or charged or be liable to attachment or pass to any person other than the employee by operation of law.
5. LEGAL REMEDIES In cases where the employer does not pay compensation after notice has been issued and after the lapse of 30 days from the date of the accident, or where the employee and employer fail to arrive at an agreement, an application can be made to the labour officer by the employee.
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The proceedings before the Commissioner are quasi-judicial in nature. However, a few provisions of the Civil Procedure Code may be used to empower the Commissioner to dispose of the cases. These provisions are: to take evidence on oath; enforce attendance of witnesses; and compel production of documents and other required objects may be used by the Commissioner to dispose of his/her cases.
WHO CAN MAKE THE CLAIM The injured employee or someone on his behalf can file a claim for employees compensation. In reality mostly a lawyer files the claim. WHO SHOULD THE CLAIM BE MADE TO Section 22 (1): Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may, subject to the provisions of this Act, be made before the Commissioner. TIME PERIOD WITHIN WHICH THE CLAIM SHOULD BE MADE All such claims have to be made within two years of the occurrence of the accident, or death of the employee. However, the commissioner may entertain and decide any claim to compensation even though the notice has not been given, if he is satisfied that the failure to give the notice was due to sufficient cause/ reason What is ‘Sufficient cause/ Reason’?
Example # 1: As a result of an accident arising out of work, a employee sustained multiple fractures on both his legs and had to be operated upon twice. He remained under treatment for three and-ahalf years. The court held that there was sufficient cause of delay. Example # 2: In a Madras High Court case [ 9] it was held that “... the cause for the delay i.e., illiteracy, minority of children, nature of employment in its totality is sufficient reason to condone the delay….” In this case the widow of the deceased employee filed the application after a delay of 8 years. In case the accident is the contraction of an occupational disease, the first few days of the employee being continuously absent due to the disease, shall be considered as the day of occurrence of the accident. In case, the disease does not force the employee to take leave, then the period of limitation shall be from the date that the employee gives notice to his employer of his condition.
FORM OF APPLICATION (Section 22) (1) Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may, subject to the provisions of this Act, be made before the Commissioner. (1A) Subject to the provisions of sub-section (1), no application for the settlement of any matter by Commissioner, other than an application by a dependant or dependants for compensation, shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement. (2) An application to a Commissioner may be made in such form and shall be accompanied by such fee, if any, as may be prescribed, and shall contain, in addition to any particulars which may be 9
Laxmi and others vs. Deputy commissioner of Labour of Madras and Another 1998 I LLJ158(Mad) (DB)
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prescribed, the following particulars namely:-
a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims; in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer and, if such notice has not been served or has not been served in due time, the reason for such omission; the names and addresses of the parties; and Except in the case of an application by dependants for compensation a concise statement of the matters on which agreement has and of those on which agreement has not been come to.
(3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner.
SETTLEMENT OF DISPUTE (Section 19)
If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a employee) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner. And
No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.
APPEARANCE AND RECORD OF EVIDENCE Section 24: Any appearance required to be made by any person before a Commissioner may be made on behalf of such person by a legal practitioner, or by an official of an Insurance Company, or by a registered Trade Union, or by an Inspector appointed under sub-section (1) of section 8 of the Factories Act, 1948, or by an Inspector appointed under sub-section (1) of section 5 of the Mines Act, 1952, or by any other officer specified by the State Government in this behalf, authorised in writing by such person, or, With the permission of the Commissioner, by any other person so authorised.
Section 25: The Commissioner shall make a brief memorandum of the substance of the evidence given by each witness and such memorandum shall be written and signed by the Commissioner with his own hand and shall form part of the record. The evidence of any medical witness shall be taken down as nearly as may be word for word.
TIME LIMIT FOR DISPOSAL OF CASES
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Section 25A: The Commissioner shall dispose of the matter relating to compensation under this Act within a period of three (3) months from the date of reference and intimate the decision in respect thereof within the said period to the employee. APPEAL Section 27: 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. Section 30: An appeal shall lie to the High Court from the following orders of a Commissioner, namely – a. An order awarding as compensation a lump sum or disallowing a claim in full or in part for a lump sum; b. An order awarding interest or penalty under section 4A; c. An order refusing to allow redemption of a half-monthly payment; d. An order providing for the distribution of compensation among the dependants of a deceased employee; or e. An order refusing to register a memorandum of agreement or registering the same subject to conditions: That no appeal shall lie against any order unless a substantial question of law is involved in the appeal. That no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement made by the parties. That no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
The provisions of section 5 of the Limitation Act, 1963, shall be applicable to appeals under this section. The period of limitation for an appeal under this section shall be sixty days.
BAR AGAINST DOUBLE REMEDIES Once an injured employee reaches an agreement with, the employer the said employee cannot initiate a simultaneous proceeding in a civil court in respect of the same injury (but s/he can in a criminal court). Similarly if the employee institutes a suit for compensation, for injury sustained during the course of work, in a civil court, then s/he cannot then apply to the Labour Commissioner under this Act. Therefore the employee can chose the type of remedy s/he wants i.e. either under the Employees Compensation Act, or civil court or Motor Vehicles Act (in case of a motor accident), but s/he cannot apply for more than one remedy.
6. CONCLUSION COMPARATIVE ANALYSIS (A) WORKERS’ COMPENSATION LAW – UNITED STATES OF AMERICA
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Workers' Compensation Law is that area of law that administers the laws implemented by the government for ill, injured and disabled workers. The program includes state-mandated insurance which reimburses these workers when they are injured on the job and provides benefits for dependent family members when the employees are killed as a result of illnesses or accidents caused by their employment. Workers’ Compensation laws are not uniform. Workers Compensation Acts exist at state level allowing each state to create individual programs and statutes for the protection of injured and ill workers. The workers compensation laws cover - medical care, rehabilitation and job retraining costs also. The various Workers’ Compensation Law in o peration in USA are: Black Lung Benefits Act, Merchant Marine Act, Coal Mine Workers' Compensation, Occupational Safety and Health Organization, Workers Compensation and the Americans with Disabilities Act
(B) WORKERS’ COMPENSATION LAW - ENGLAND An employee injured at work in the UK is able to claim not only social security benefit from the state under the industrial injuries compensation scheme, but also damages from the employer if liability in tort can be established. Use of one system of compensation does not lead to exclusion from the other; there is no ‘employer privilege’ preventing an employee claiming from both workers’ compensation and tort. It is the State that has taken full responsibility for all payments. The industrial injuries scheme is financed by the state. It is compulsory for an employer to insure against liability to employees injured in the course of their employment. Failure to comply with the statutory obligation to insure is subject to sanctions in the criminal law. The industrial injuries scheme provided for compensation only if workers are injured ‘in the course of employment’ and their wrongdoing may affect entitlement. This scheme offers monetary compensation only. Medical care and rehabilitation assistance are available free of charge under the National Health Service, but no special provision is made for those injured at work. Nor is the scheme linked to any retraining or support services to encourage a return to work. It is very important to emphasise that loss of earnings resulting from the industrial injury is not covered by the scheme. The benefit (monetary compensation) is paid exclusively by means of a pension. Pensions increase in line with inflation and are often paid for life even though that period is uncertain. A pension can be increased later if there is an unforeseen aggravation of injury.
SUGGESTIONS FOR IMPROVING THE PROVISIONS REGARDING THE EMPLOYEES COMPENSATION ACT IN INDIA With the recent amendments to this Act in 2010, this Act has been made full-proof by removing all the loopholes. However, on comparative analysis of the worker compensation laws in countries in U.S.A. and U.K. the researcher would like to make certain suggestions to Indian Act governing employees’ compensation. These suggestions are: In United States of America The workers’ compensation laws beside covering for total or temporary disablement/injury also covers medical care, rehabilitation and job retraining costs.
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The compensation is financed by the State.
In UK
The industrial injuries scheme is financed by the state. The benefit (monetary compensation) is paid exclusively by means of a pension. Pensions increase in line with inflation and are often paid for life even though that period is uncertain. A pension can be increased later if there is an unforeseen aggravation of injury.
