WORKMEN’S COMPENSATION COMPENSATION ACT A COMPARAT COMPARATIVE IVE STUDY STUD Y Submitted toMs. Padma.A.Parija Padma.A.Parija Faculty of Law Submitted ByAunnesha Dey Semester V oll !o. "# Section $ Project Submitted %n- & st Se'tember( )*&+.
,idayatullah !ational Law niersity( ai'ur /$.0.1
Index •
2ntroduction
Main Proisions of the Act
•
,istorical $onte3t of the Act
4o which establishments the act a''lies
•
•
•
•
•
5ho is eli6ible to receie the benefits 'roided by this law7 4he 8m'loyer 5hen is an em'loyer liable to 'ay com'ensation7 Definition of 9Disablement: Definition of $om'ensation 5hat if the 8m'loyer becomes ban;ru't7 - Liability 2n $ase %f 2nsolency ,ow is the amount of com'ensation decided7 5hat is the basis of calculation of the amount of com'ensation7 $om'ensation to be calculated on the basis of the minimum wa6e( if notified Determinin6 wa6es in case of a wor;er inflicted with an occu'ational disease 5ho is a De'endant7 ,ow much should be 'aid as $om'ensation7 ,ow much of $om'ensation in case of injury resultin6 in total 'ermanent disablement7 ,ow much $om'ensation in case of injury resultin6 in 'ermanent 'artial disablement7 $alculation of com'ensation for non scheduled injury resultin6 in 'ermanent 'artial disablement. ,ow much $om'ensation in case of injury resultin6 in tem'orary disablement7 /Section +/)1 to +/+11 Procedure to be followed when an accident occurs for receiin6 com'ensation Le6al emedies /adjudication1 5ho can ma;e the claim7 /section &*/&11 5ho should the claim be made to7 /s. &<1 4ime 'eriod within which the claim should be made /section &*1 Form of a''lication /section ))1 5hat ha''ens if the em'loyer delays in 'a yin6 of com'ensation7 A''eal /section "*1 $onclusion
Acknowledgement 4he 'roject has been 're'ared in consideration within the aailable time and resources. %n com'letion of the 'roject satisfactorily and successfully land new in the midst of elation at the moement. %n the culmination of finishin6 my 'roject( 2 am in de't to all those who hel'ed me continuin6 my tas;( u' till end es'ecially to my lecturers who were the sources of constant ins'iration and encoura6ement for the com'letion of the 'roject. 2 owe a dee' sense of 6ratitude and in debt to our lecturers for 6iin6 us o''ortunity to write nd hel' us and 6uide us with throu6hout the 'roject. 4o ma;e subject clearer suitable details hae been 6ien. 8rrors do cree' of eery care has been ta;en as it is well ;nown fact that it is im'ossible to esca'e the deil of errors. 5ords fail to e3'ress my dee' sense of 6lee to my honorable teacher( Ms. Padma. A. Parija who enli6htened me with her beautiful wor; on the to'ic. 2 would li;e to than; her for 6uidin6 me in doin6 all sorts of researches( su66estions and hain6 discussions re6ardin6 my 'roject to'ic by deotin6 his 'recious time.
My heartiest than;s also 6o to ,.!.L. for 'roidin6 Library( $om'uter and 2nternet facilities. And lastly 2 than; my friends( seniors and all those around me who hae hel'ed me in the com'letion of the 'roject in collectin6 and
locatin6 all the re=uired source of materials. 2t is my 6reat 'leasure to ac;nowled6ement my dee' sense of 6ratitude to our teachers for their aluable 6uidance and than;s to all my friends for their aluable contribution and hel' in com'letion of the 'roject.
Aunnesha Dey oll !o-"# Sociolo6y/Majors1
Scoe !nd Co"e#!ge •
4he act e3tends to the whole of 2ndia
•
4he 5or;men:s $om'ensation Act( &<)" aims to 'roide wor;men and> or their de'endants some relief in case of accidents arisin6 out of and in the course of em'loyment and causin6 either death or disablement of wor;men.
•
4he wor;men:s com'ensation amendment act . )*** has brou6ht all the wor;ers under its 'uriew( irres'ectie of the nature of the em'loyment.
•
For the first time( casual laborers will be 'roided with com'ensation for death or disability
•
8stablishments which are coered by the 8m'loyees State 2nsurance Act( are outside the 'uriew of this Act.
•
O$%ect&"e' 4he objectie of this 'roject is to 6ie a detailed e3'lanation of what ma;es u' the
•
5or;men:s $om'ensation Act. 4his 'roject contains the main heads under the 5or;men $om'ensation Act which are 4he
•
8m'loyer( 4he 8m'loyee and 4he $om'ensation. 2n this 'roject a detailed 'uriew of how the Act coers all its heads hae been mentioned. Re'e!#c( Met(odolog)
•
4his 'roject is 'urely descri'tie and theoretical in nature. Primary and Secondary sources hae been used for the successful com'letion of the same.
Int#od*ct&on 4he 5or;men:s $om'ensation Act( &<)" 'roides for 'ayment of com'ensation to wor;men and their de'endants in case of injury and accident /includin6 certain occu'ational disease1 arisin6 out of and in the course of em'loyment and resultin6 in disablement or death. 4he Act a''lies to railway serants and 'ersons em'loyed in any such ca'acity as is s'ecified in Schedule 22 of the Act. 4he Schedule 22 includes 'ersons em'loyed in factories( mines( 'lantations( mechanically 'ro'elled ehicles( construction wor;s and c ertain other ha?ardous occu'ations. 4he amount of com'ensation to be 'aid de'ends on the nature of the injury and the aera6e monthly wa6es and a6e of wor;men. 4he minimum and ma3imum rates of com'ensation 'ayable for death /in such cases it is 'aid to the de'endents of wor;men1 and for disability hae been fi3ed and is subject to reision from time to time. A Social Security Diision has been set u' under the Ministry of Labor and 8m'loyment ( which deals with framin6 of social security 'olicy for the wor;ers and im'lementation of the arious social security schemes. 2t is also res'onsible for enforcin6 this Act. 4he Act is administered by the State 0oernments throu6h $ommissioners for 5or;men@s $om'ensation.
M!&n #o"&'&on' o+ t(e Act •
An em'loyer is liable to 'ay com'ensation- /i1 if 'ersonal injury is caused to a wor;man by accident arisin6 out of and in the course of his em'loyment /ii1 if a wor;man em'loyed in any em'loyment contracts any disease( s'ecified in the Act as an occu'ational disease 'eculiar to that em'loyment.
•
,oweer( the em'loyer is not liable to 'ay com'ensation in the followin6 cases-
2f the injury does not result in the total or 'artial disablement of the wor;man for a 'eriod e3ceedin6 three days.
•
2f the injury( not resultin6 in death or 'ermanent total disablement( is caused by an accident which is directly attributable to
the wor;man hain6 been at the time of the accident under the influence of
the willful disobedience of the wor;man to an order e3'ressly 6ien( or to a rule e3'ressly framed( for the
drin; or
dru6s or
'ur'ose of securin6 the safety of wor;men or
the willful remoal or disre6ard by the wor;man of any safety 6uard or other deice which has been 'roided for the 'ur'ose of securin6 safety of wor;men.
•
4he State 0oernment may( by notification in the %fficial 0a?ette( a''oint any 'erson to be a $ommissioner for 5or;men@s $om'ensation for such area as may be s'ecified in the notification. Any $ommissioner may( for the 'ur'ose of decidin6 any matter referred to him for decision under this Act( choose one or more 'ersons 'ossessin6 s'ecial ;nowled6e of any matter releant to the matter under in=uiry to assist him in holdin6 the in=uiry.
•
$om'ensation shall be 'aid as soon as it falls due. 2n cases where the em'loyer does not acce't the liability for com'ensation to the e3tent claimed( he shall be bound to ma;e 'roisional 'ayment based on the e3tent of liability which he acce'ts( and( such 'ayment shall be de'osited with the $ommissioner or made to the wor;man( as the case may be.
•
2f any =uestion arises in any 'roceedin6s under this Act as to the liability of any 'erson to 'ay com'ensation /includin6 any =uestion as to whether a 'erson injured is or is not a wor;man1 or as to the amount or duration of com'ensation /includin6 any =uestion as to the nature or e3tent of disablement1( the =uestion shall( in default of a6reement( be settled by a $ommissioner. !o $iil $ourt shall hae jurisdiction to settle( decide or deal with any =uestion which is by or under this Act re=uired to be settled( decided or dealt with by a $ommissioner or to enforce any liability incurred under this Act.
•
4he State 0oernment may( by notification in the %fficial 0a?ette( direct that eery 'erson em'loyin6 wor;men( or that any s'ecified class of such 'ersons( shall send at such time and in such form and to such authority( as may be s'ecified in the notification( a correct return s'ecifyin6 the number of injuries in res'ect of which com'ensation has been 'aid by the em'loyer durin6 the 'reious year and the amount of such com'ensation to6ether with such other 'articulars as to the com'ensation as the State 0oernment may direct.
•
5hoeer( fails to maintain a notice-boo; which he is re=uired to maintain or fails to send to the $ommissioner a statement which he is re=uired to send or fails to send a re'ort which he is re=uired to send or fails to ma;e a return which he is re=uired to ma;e( shall be 'unishable with fine.
,&'to#&c!l context o+ t(e Act
4he 5or;men:s $om'ensation Act is the first 'iece of le6islation towards social security. 2t deals with com'ensation for wor;ers who are injured in the course of duty. 4he scheme of the 5or;men:s $om'ensation Act is not to com'ensate the wor;er in lieu of wa6es. 4he 6eneral 'rinci'le is that a wor;er who suffers an injury in the course of his em'loyment( which results in a disablement( should be entitled to com'ensation and in the case of a fatal injury his de'endants should be com'ensated. nder the 5or;men:s $om'ensation Act it is the em'loyer who is res'onsible to 'ay com'ensation /as o''osed to the em'loyees State insurance. 8stablishments to which the 8m'loyees: State 2nsurance Act a''lies to the liability to 'ay com'ensation is on the 8S2 cor'oration1. An additional adanta6e of a le6islation of this ty'e is that by increasin6 the im'ortance for em'loyers of ad e=uate safety deises( it reduces the number of accidents to wor;men in a manner that cannot be achieed by official ins'ection. Further( the encoura6ement 6ien to em'loyers to 'roide ade=uate medical treatment for their wor;men should miti6ate the
effects of such accidents as does occur. 4he benefits so conferred added to the increased sense of security( which he will enjoy( should render industrial life more attractie and thus increase the aailable su''ly of labor. At the same time a corres'ondin6 increase in the efficiency of the aera6e wor;men may be e3'ected.C 5hile these were the official objects and reason( 2ndian reality today( is that the 'rotection offered by the Act does not act as an incentie for wor;ers( most of whom are unaware of it and who sim'ly join wor; to earn a lielihood. At the time the framin6 of the bill two criteria were followed in determinin6 whom the Act would a''ly to &. 4hose industries which were more or less or6ani?ed ). 5or;men whose occu'ations were ha?ardous. !owadays the 6oernment /State or $entral1 may e3tend the a''lication of this Act to other establishments of an industry that may not be or6ani?ed.
To w(&c( e't!$l&'(ment' doe' t(e Act !l)-
All establishments hirin6 )* wor;ers and aboe must com'ulsorily re6ister themseles under the 8m'loyees 9State 2nsurance Act /8S2 Act1. 2t is only those establishments( which em'loy a lesser number of wor;ers( and therefore to do not come within the 'uriew of the 8S2 Act that the 5or;men:s $om'ensation Act a''lies to. Also if em'loyers fail to re6ister themseles under 8S2 Act( then they will be res'onsible to 'ay com'ensation under the 5or;men:s $om'ensation Act. ,oweer( the 5or;men:s com'ensation Act will only a''ly to those Persons considered wor;ersC and those 8m'loyers considered 98m'loyers:( as defined under the Act.
W(o &' el&g&$le to #ece&"e t(e $ene+&t' #o"&ded $) t(&' l!w- .'/ 0 1231n3 #e!d w&t( Sc(ed*le II4 4he Act will a''ly only to 'ersons reco6ni?ed as a wor;men under the Act. 4he followin6 criteria hae to be satisfied •
5ith the amendment of the 5or;men:s $om'ensation Act in )*** now it is not necessary that the wor;er in =uestion is en6a6ed in the em'loyer:s trade or business. Further with the Amendment of )*** now een casual wor;ers& are coered by this law. 4he only re=uirement is 4he wor;er should be em'loyed in an actiity( which has to be either listed in Schedule 22 of the Act or any duty hain6 connection with the
•
s'ecified actiity mentioned in the schedule. 2n addition( Schedule 222 to the Act contains a list of diseases and 'ersons in occu'ations
5here infection is 'ossible can claim com'ensation under this Act. 4hey are 9wor;men: for the 'ur'oses of this Act. 2n addition to 'ersons em'loyed in the ca'acity mentioned in Schedule 22( a drier( a mechanic( cleaner( or 'erson em'loyed in an y other ca'acity in connection with a motor ehicle are also considered 9wor;ers: under this Act.
T(e Emlo)e# 4he 8m'loyer is defined in this Act( as a body of 'erson>s( who the wor;er has entered into a contract of a''renticeshi' or serice with the term 9em'loyer: also e3tends to his a6ent( le6al re'resentatie of a dead em'loyer( or a tem'orary em'loyer on to whom the wor;er has been lent to hire basis.
W(en &' !n emlo)e# l&!$le to !) comen'!t&onAs 'er Section " of the Act( the em'loyer is liable to 'ay com'ensation if the wor;er is injured by accident that • • •
arises out of /i.e. while en6a6ed in wor;1( and in the course of his em'loyment /i.e. durin6 wor; hours1(and such an injury results in disablement of the wor;er.
2f three conditions are met( the em'loyer of an establishment coered by the Act( is bound to 'ay com'ensation. 5hile the second condition( i.e. durin6 wor; hours is easy to 'roe( the first condition /i.e.( the accident occurred while en6a6ed in wor;1 has been difficult to establish in certain cases. Ex!mle5 Comm&''&one# Ko"&l!tt& M*n&c&!l&t)6 Ko"&l!!t& "/ T!m&l!#!'!n !nd o#' 7 2889 ::; 1<<03 <=9>? M!d#!'/
A bus was on its last tri' for the day. Some assailants entered the bus( s'rayed chili 'owder on the 'assen6ers and shot the conductor dead. 2t occurred durin6 wor; hours( but could such an act be termed as an injury 9arisin6 out of the course of wor;:7 2n this 'articular case( it was ar6ued E successfully - that such an incident is a contin6ency that can arise durin6 the course of duty. ,e was e3'osed to that 'articular ris; by reason of his em'loyment.& 4he Madras ,i6h $ourt relyin6 on the Su'reme $ourt jud6ment in Reg&on!l D&#ecto# "/ @#!nc&' Deco't! 288= :!$ I C 00< /a jud6ment which dealt with an em'loyee coered under the 8m'loyee:s State 2nsurance Act1 held that the
deceased was on the road as a member of the 'ublic and was definitely not there in the course of his em'loyment and hence his de'endants were not awarded com'ensation. As 'er the jud6ment in Francis Decosta( the em'loyment of the wor;er does not commence until he has reached his 'lace of em'loyment. & $ommr. oil'atti Munici'ality( oila'ati . 4amilarasan and anr.G &<<# LLH /**)1 *I#"J Madras.
De+&n&t&on o+ BD&'!$lement’
4he definition of Bd&'!$lement’ is ery im'ortant in this Act( as it determines the e3tent of com'ensation that can be claimed by the wor;er injured in the course of his em'loyment. nder the Act( there are four ty'es of eentualities( which can be com'ensated namely &. De!t( ). Pe#m!nent Tot!l D&'!$lement disablement that inca'acitates a wor;er from all ;inds of wor;. ". Pe#m!nent !#t&!l d&'!$lement disablement that reduces the ca'acity to wor; in any em'loyment similar to that the wor;er was 'erformin6 at the time of the accident +. Temo#!#) d&'!$lement5 4his may be total or 'artial disablement( which is of tem'orary nature( which reduces the earnin6 ca'acity of the wor;er in any similar em'loyment for the 'eriod of disablement.
4otal disability /i.e. &**K disability1 has a different meanin6 under the 5or;men:s $om'ensation Act as com'ared to its meanin6 in normal lan6ua6e. Accordin6 to the Act( disability is determined with reference to the wor; that the wor;er was doin6 immediately before accident too; 'lace and if the resultin6 injury leaes him inca'able of 'erformin6 any wor; of a similar nature then his disability is considered as &**K.
Ex!mle5 An accident left a wor;er- a coolie with a defect in his le6 and as a result
unfit to 'erform the wor; of a coolie. Le6ally he can be considered &**K disabled. 2n this case the court stated that the inca'acity to earn is to be determined with reference to the wor;( the wor;er was doin6 at the time of accident.) E"en &+ t(e c*m*l!t&"e #e'*lt o+ ! 'l&g(t &n%*#) &' de!t( t(en '*c( &n%*#) &' comen'!$le .3
De+&n&t&on o+ Comen'!t&on 4he meanin6 of com'ensation in this Act is limited to com'ensation 6ranted under the Act for em'loyment injuries sustained durin6 the course of wor;. 2t is also limited to s'ecifically monetary com'ensation other than a salary( trael allowance( and any other form of remuneration that could be 'aid under normal circumstances of em'loyment.
$om'ensation is not 'ayable by the em'loyer in the followin6 circumstances ) Sadashi rishna Ad;e .M>s 4ime 4rader /&<<) 2 LLH #1 Bombay. " Dei Behn Dudhabhai . Mana6er Liberty4al;ies and anr( /&<<+-22-LLH-&)*1 0ujarat
• •
5here the disablement does not last for more than three days. 5here the disablement has arisen out of the followin6 Dru6s or drin; Disobedience Disre6ard for the safety measures 'rescribed
4here is no definition whatsoeer that defines what is drin;C( dru6sC( disobedienceC or disre6ard to safety measuresC.+ 4he em'loyers may ta;e adanta6e of this section and eade 'ayin6 the com'ensation. ,oweer( the wor;er:s bein6 under the influence of dru6s or alcohol is not a defense in the case of death or total disablement resultin6 from injury. Secondly( in the case of disobedience( such disobedience should be 9willful:.
W(!t &+ t(e Emlo)e# $ecome' $!nk#*t- :&!$&l&t) In C!'e O+ In'ol"enc) 1Sect&on 23 2n the case where the em'loyer of the wor;er has entered into an a6reement with insurers( to 'ay com'ensation and subse=uently the em'loyer becomes ban;ru't( then in the eent of any accident ha''enin6( the em'loyer:s liabilities will be transferred to the insurers( and they would be treated as the em'loyers of the a66rieed wor;er for the 'ur'ose of 'ayin6 com'ensation.
4his ha''ens irres'ectie of whether the em'loyer is ban;ru't or not. 2f he has ta;en insurance to coer claims arisin6 out of wor;ers: accidents( the insurance com'any will be res'onsible to 'ay com'ensation. 2t is interestin6 that in such cases were an em'loyer has ta;en insurance( the em'loyer will bac; the wor;er:s claim a6ainst the insurance com'any. !aturally( as they are not res'onsible to 'ay the wor;er com'ensation which res'onsibility has shifted to the 2nsurance $om'any. 4he 'ractice of ta;in6 insurance is common only amon6st the bi66er contractors> com'anies.
,oweer( they will be no more liable to the wor;er than the ori6inal em'loyer. 2f the liability of the insurers is to be less than that of the ori6inal em'loyers( then the wor;er can claim the balance amount from the insolency 'roceedin6s. 2n the case of the com'ensation bein6 half monthly 'ayments( the insurers may conert that to an a''ro'riate lum' sum and 'ay $om'ensation to the wor;er.
,ow &' t(e !mo*nt o+ comen'!t&on dec&ded4he com'ensation to be 'aid by the em'loyer for injuries caused de'ends on e3tent of the disablement suffered by the wor;er more seere disablements naturally receie hi6her com'ensation. 4his has been cate6ori?ed as follows( com'ensation 'ayable in case of + 2n addition to these defenses( em'loyers hae often ta;en the recourse that the wor;er was ne6li6ent. 4his may hae nothin6 to do with 'roision of safety measures for e.6. the wor;er may hae fallen aslee' durin6 wor;. 2n suchcases no com'ensation may be awarded or a lesser amount of com'ensation may be awarded.
&1 Death )1 Disablement /a1 Permanent total disablement /b1 Permanent 'artial Disablement /c1 4em'orary disablement/i1 4em'orary total disablement /ii1 4em'orary 'artial disablement. 2n addition( the 6uidin6 'rinci'le is the hi6her the a6e of the injured wor;er( the lower the com'ensation.
W(!t &' t(e $!'&' o+ c!lc*l!t&on o+ t(e !mo*nt o+ comen'!t&on-
5a6es are the basis for amount of com'ensation 'aid. 4wo wor;ers earnin6 different salaries therefore will 6et different amounts of com'ensation een thou6h the injury they suffered mi6ht be identical. $om'ensation under this Act is calculated on the basis of the monthly wa6e receied by the wor;er. Accordin6 to this Act( it is the amount of wa6es which would be 'ayable for a month:s serice - i.e. irres'ectie of whether the wor;er is 'aid on a daily( wee;ly or 'iece rate basis.
W!ge'5 is defined as the 'riile6e or benefit which is measurable in terms of money other than any trael
allowance( or 'roident fund or any other s'ecial benefit claimable by the wor;er( durin6 the course of his em'loyment. Comen'!t&on to $e c!lc*l!ted on t(e $!'&' o+ t(e m&n&m*m w!ge6 &+ not&+&ed
5here a wor;er receied a monthly wa6e less than what is 'rescribed under the Minimum 5a6es Act( &<+#( she>he would be deemed to be drawin6 the monthly wa6es as 'rescribed by the Act for the 'ur'oses of calculatin6 com'ensation.
Dete#m&n&ng w!ge' &n c!'e o+ ! wo#ke# &n+l&cted w&t( !n occ*!t&on!l d&'e!'e
Accordin6 to the arnata;a ,i6h $ourt( com'ensation in the case of contractin6 of occu'ational disease is to be calculated on the basis of wa6es drawn at the time of termination of em'loyment and not on the date of contractin6 the occu'ational disease.
Bharat 0old Mines Ltd.( . ,anuman /&<<)1 & LL! &*)"
W(o &' ! Deend!nt-
A 9de'endant: is defined under the Act in section )/d3. 4his definition is of ital alue( as it determines who will be eli6ible to receie the com'ensation( in case the wor;er dies in course of his em'loyment. /i1 /a1 A widow( /b1 A minor I( le6itimate> ado'ted son( /c 1 An unmarried le6itimate> ado'ted dau6hter and /d1 A widowed mother. All the aboe 'eo'le come under one cate6ory as bein6 de'endants of the deceased wor;er. /ii1 2f wholly de'endent on the earnin6s of the wor;er( then in addition /a1 a son or /b1 a dau6hter who has reached the a6e of &# but is infirm or sic;.
2f wholly or 'artly de'endant on the wor;er( then the followin6 can also be termed as de'endants of the deceased wor;er •
A widower
•
A 'arent other than a widowed mother
•
A minor ille6itimate son
•
An unmarried or widowed( ado'ted( le6itimate or ille6itimate dau6hter
•
A minor brother
•
An unmarried sister
•
A widowed sister( if minor
•
A widowed dau6hter-in-law
/i1 A minor child of a deceased son /j1 An or'haned 6randchild
I A minor in this Act is defined( as is normally the case( as a 'erson who has not attained the a6e of &# years .
/;1 A 'aternal 6rand'arent if the 'arents of the deceased wor;er are also dead.
4he definition of the term De'endantC shows that it is not intended to benefit all the le6al heirs of a deceased wor;er but only those relations who to some e3tent de'end u'on the 5or;er:s earnin6s for their daily necessities. ,oweer( all 'ersons mentioned in aboe are beneficiaries who only hae to 'roe their relationshi' with the deceased wor;er and do not hae to 'roe that they were de'endent on earnin6s of the wor;er.
,ow m*c( '(o*ld $e !&d !' Comen'!t&on-
4he com'ensation due to the de'endants is an amount e=ual to *K of the monthly salary of the deceased wor;er multi'lied by the releant factor or an amount of ei6hty thousand ru'ees( whicheer is more. 4he minimum com'ensation in the case of death in no circumstances can be less than R'/ 9<6<<<.4he 9releant factor: is mentioned in the schedule 2V of the Act 4he factor de'ends on the a6e of the 'erson deceased( i.e.( the number of years the 'erson could hae wor;ed for( if he did not die on the job. Ex!mle5 amesh( a wor;er a6ed " meets with an accident and dies while at wor; /i.e. in the course of
em'loyment1. At the time he drew a monthly wa6e of s.)(**>-. As 'er Schedule 2V of the Act the releant factor a''licable to his case would be s. &<.*I. As such( the amount of com'ensation 'ayable to his de'endants will be arried at in the followin6 way /i1 *K of s. )(** N &()* /ii1 &()* 3 releant factor /i.e.&<.*I1 N s.)(+I(").**>- /total com'ensation 'ayable1 5here the monthly wa6es of a wor;er is more than s. +***>- ( it is ta;en to be only s. +***>- for calculatin6 either com'ensation in case of death( or 'ermanent disablement.
,ow m*c( o+ Comen'!t&on &n c!'e o+ &n%*#) #e'*lt&ng &n tot!l e#m!nent d&'!$lement-
5here there is total 'ermanent disablement resultin6 from the injury suffered( the wor;er is entitled to be 'aid si3ty 'ercent of his monthly salary( multi'lied by the releant factor( or an amount of ninety thousand ru'ees( whichee r is more. 4he minimum com'ensation in the case of total 'ermanent disablement( in no circumstances can be less than s. <*(***>-.
Ex!mle5 Sha;ila Bano( a wor;er a6ed " meets with an accident and suffers 'ermanent total disablement while at
wor; /i.e. in the course of em'loyment1 At the time she drew a monthly wa6e of s.)(**>- 4he amount of com'ensation 'ayable will be arried at as follows /i1 I*K of s. )(** N &(** /ii1 &(** 3 releant factor /i.e. &<.*I1 N
)(<(<*.**>- /total com'ensation 'ayable1
,ow m*c( Comen'!t&on &n c!'e o+ &n%*#) #e'*lt&ng &n e#m!nent !#t&!l d&'!$lement-
2n the case of 'artial disablement of the wor;er( the amount he is entitled to is the 'ercenta6e of that for total 'ermanent disablement( the 'ercenta6e bein6 6ien in the schedule of the Act. Schedule 2 &*( 'art 22( to the Act contains a list of injuries said to result in 'ermanent 'artial disablement and the corres'ondin6 loss in earnin6 ca'acity.
C!lc*l!t&on o+ comen'!t&on +o# Bnon 'c(ed*led &n%*#)’#e'*lt&ng &n e#m!nent !#t&!l d&'!$lement/
4he 'roblem arises when the 'artial disablement resultin6 from the injury is not listed in the schedule. 4hen a reasonable 'ercenta6e is to be 6ien( as decided by the commissioner. Ex!mle5 0irija( a child labour em'loyed in a sil; twistin6 and reelin6 unit in Ma6adi suffered third de6ree burns
when a essel of boilin6 water used for boilin6 sil;worm cocoons( oerturned on her durin6 the course of wor;. 2n such cases of 9non scheduled injuries: the 'rocedure followed is to obtain a certificate from a medical 'ractitioner who will certify the 'ercenta6e of disability suffered. 4he certificate will form the basis for determinin6 the loss of earnin6 ca'acity( which is the labour $ommissioner9s duty. ,ence( the 'ercenta6e loss of earnin6 ca'acity may not be e=ual to the 'ercenta6e of disability suffered. 2n some cases it could be more( which the commissioner is to decide. 4herefore it is ery im'ortant to ma;e sure that the certificate issued by the doctor contains all the releant details. 4hese include • •
4he 'ercenta6e of disability suffered as a result of the injur y 5hether the disability suffered is 'ermanent in nature
,ow m*c( Comen'!t&on &n c!'e o+ &n%*#) #e'*lt&ng &n temo#!#) d&'!$lement- 1Sect&on 103 to 133
2n case of tem'orary disablement( 'ayments e=ual to )K of the wor;ers: wa6es shall be made at half monthly interals. $lause /d1 of sub section +/&1 tal;s about com'ensation for tem'orary disablement 2n case the disablement lasts for more than )# days then the em'loyer should ma;e the 'ayment on the &Ith day from the day of the disablement.
4his 'roision enisa6es a situation where an a''lication is made when the wor;er is still under6oin6 treatment and recoerin6. 4hen they ma;e an a''lication to recoer the com'ensation. 2n such cases( the $ommissioner( 6rants a lum' sum addin6 u' half-monthly 'ayments for the 'eriod startin6 from the day of the accident u' till the date shown on the last medical record /i.e. doctor:s. 'rescri'tion( case sheet( out'atient cou'on( etc1 that the wor;er is able to 'roduce. 2n addition( the $ommissioner also 6rants &)K interest. 4herefore( in the eent of sufferin6 an injury-related disablement( wor;ers should maintain these medical records. Because it is on the basis of this 'roof( that they 6et com'ensation.
P#oced*#e to $e +ollowed w(en !n !cc&dent occ*#' +o# #ece&"&ng comen'!t&on
Not&ce o+ !cc&dent to t(e emlo)e#
2n the case of an accident or an accident leadin6 to death( a notice must be sent to the em'loyer or any other 'erson who is em'loyed to su'erise wor; in the same establishment as soon as is 'racticable after the occurrence of the accident. 4he notice from the a66rieed 'arty can be sered to the em'loyers. 4he notice must contain /a1 4he name and address of the 'erson who died or was injured( /b1 2n normal lan6ua6e must state the cause of the injury( and /c1 4he date on which it occurred. •
Pen!lt&e' 1on Emlo)e# +o# not d&'c(!#g&ng d*t&e' *nde# t(e Act3
2f an em'loyer fails to •
send the commissioner a statement or re'ort as re=uired in case of fatal accidents fails to do so( or maintain a notice boo; Comm&''&one# (!' t(e owe# to #eF*&#e +*#t(e# deo'&t &n c!'e' o+ +!t!l !cc&dent 1'ect&on 00A3 2n the case of a fatal accident( where the commissioner feels that the amount de'osited as com'ensation is not ade=uate( he may sere a notice to the em'loyer statin6 his reasons( and as;in6 the em'loyer to show cause as to why
the amount de'osited is ade=uate. 2f the em'loyer fails to show cause( the commissioner may ma;e the award and direct the em'loyer to 'ay the deficiency. Med&c!l Ex!m&n!t&on 1'ect&on 223
2n cases of injury not amountin6 to death( on serin6 notice of accident to the em'loyer( the em'loyer may re=uire the em'loyee to under6o a medical e3amination free of char6e. 4he injured wor;er should submit himself to such medical e3amination.
C(o&ce to ente# &nto !n !g#eement 1Sect&on 093
4he em'loyer and em'loyee( hae the choice of enterin6 into an a6reement. 4he 'roision relatin6 to a6reements under the 5or;men:s $om'ensation Act( relate to cases where the 'arties hae arried at an a6reement 'rior to any hearin6 before the court.
D&'t#&$*t&on o+ comen'!t&on 1&ncl*d&ng &n c!'e o+ wo#ke#’' de!t(6 !nd !)ment o+ comen'!t&on to women wo#ke#' e#'on' *nde# leg!l d&'!$&l&t&e'3/
Money 6ien by em'loyer to wor;er is only considered as 9com'ensation: under this act if it is 6ien throu6h the commissioner .
,ow much of com'ensation money is 6ien in cash and how much is inested is entirely at the discretion of the $ommissioner. But it fair to say that more inestments are made in case of women wor;ers than men(
althou6h the $ommissioner may also inest the com'ensation amount in case of wor;men. Also( in the case of women beneficiaries( a lar6er 'ercenta6e of the com'ensation amount is inested and the remainin6 is 6ien as cash( com'ared to men. 4his is decided entirely on a case-to-case basis.
:eg!l Remed&e' 1!d%*d&c!t&on3 2n cases where the em'loyer does not 'ay com'ensation after notice has been issued and after the la'se of "* days from the date of the accident( or where the em'loyee and em'loyer fail to arrie at an a6reement( an a''lication can be made to the labour officer by the wor;er. 2n case of wor;ers: injuries( the 6oernment has the res'onsibility of dis'osin6 wor;ers claims( in a s'eedy way. !o technical 'rocedure is followed in wor;men com'ensation cases. ,oweer( as the em'loyer has to be heard( and the matter may need to be inesti6ated( there is some minimum 'rocedure followed. As it will ta;e away from the 6oernment:s time( a Labour $ommissioner is a''ointed to dischar6e this res'onsibility.
W(o c!n m!ke t(e cl!&m- 1'ect&on 2<1233
4he injured em'loyee or someone on his behalf can file a claim before the commissioner for wor;men:s com'ensation. 2n reality mostly a lawyer files the claim. 5hile a matter is 'endin6 for settlement before the commissioner( the em'loyer:s liability to 'ay com'ensation is not sus'ended. 2t is the duty of the em'loyer to 'ay the com'ensation at the rate 'rescribed under this Act as soon as injury is caused to the em'loyee.
W(o '(o*ld t(e cl!&m $e m!de to- 1'/ 283
2n the eent that the em'loyer does not 'ay com'ensation for accidents sustained by his wor;ers while at wor;( a claim can be made to the labour commissioner( of the area where the accident too; 'lace. 2n case of a fatal accident the claim can be made where the claimant ordinarily resides( or where the em'loyer has his re6istered office.
T&me e#&od w&t(&n w(&c( t(e cl!&m '(o*ld $e m!de 1'ect&on 2<3
All such claims hae to be made within two years of the occurrence of the accident( or death of the wor;er. 4he commissioner can refuse to hear the matter if no notice was issued to the em'loyer on the occurrence of the accident and no claim made to the commissioner within two years. Sufficient reason for claim should be 'roided for dela y. @o#m o+ !l&c!t&on 1'ect&on 003 4he commissioner shall not be liable to entertain an a''lication for com'ensation unless it is 6ien in the ' rescribed
format( i.e. it must be made with the followin6 details bein6 furnished La3mi and others s. De'uty commissioner of Labour of Madras and Another &<<# 2 LLH&#/Mad1 /DB1
/a1 a statement in ordinary lan6ua6e with re6ards to the circumstances under which the a''lication is bein6 forwarded and the relief or order which the a''licant claims /b1 in case the claim for com'ensation is made a6ainst the em'loyer( the a''lication should mention the date when the notice of such accident was made to the em'loyer( and if there was any delay in doin6 so( the reason for the delay /c1 4he name and address of the 'arties. W(!t (!en' &+ t(e emlo)e# del!)' &n !)&ng o+ comen'!t&on1Sect&on !3 $om'ensation is to be 'aid as soon as the injury is caused to the wor;er. 2f the em'loyer does not 'ay the
com'ensation amount to the disabled wor;er within a month from when the com'ensation fell due( then the commissioner on a''lication can 6ie relief to the wor;er in the followin6 way
/a1 4he commissioner can direct the em'loyer to 'ay the com'ensation to the wor;er( 'lus sim'le interest at the rate of &)K( or any other rate( not e3ceedin6 the rate of a scheduled ban;( or as 'ublished in an official 6a?ette
/b1 2f the commissioner feels that there was no justification for the delay in 'ayment to the wor;er( he may order the em'loyer( in addition to the sim'le interest( to 'ay a 'enalty of not 6reater than *K of the com'ensation to be 'aid.
Ae!l 1'ect&on ><3 A wor;er can a''eal a6ainst any decision can be made in the hi6h court( this can only be done so under certain
circumstances( and only if the commissioner allows the a''eal( which is determined by his certificate allowin6 so( attached alon6 with the a''eal.
Concl*'&on 4here are lar6e 6rou's of unor6ani?ed wor;ers in small industry( a6riculture( construction( domestic serice( 6arment industry( many forms of self-em'loyment( etc. 4heir condition resembles that of wor;ers in lar6e industry in the early years of union formation. Few laws a'' ly to them een the ones that are 'assed are not im'lemented. Many of these wor;ers hae no education( few s;ills and little ability to or6ani?e them. 4he 5or;men:s $om'ensation Act is the first 'iece of le6islation towards social security. 2t deals with com'ensation for wor;ers who are injured in the course of duty. 4he 6eneral 'rinci'le is that a wor;er who suffers an injury in the course of his em'loyment( which results in a disablement( should be entitled to com'ensation and in the case of a fatal injury his de'endants should be com'ensated.
