Professional Documents
Culture Documents
In what
situations does an employer have to compensate a worker? Explain the phrase "arising out of and in the course of employment"
with reference to WCA, 1923. How far is an employer liable to pay compensation to a laborer injured in an accident arising out of
and in the course of employment? Since amount of compensation depends on the nature of suffering, discuss the various
sufferings on the which amount to be paid differs. What are the remedies available to a workman injured in course of an
employment? How is social security is made available to the workman under WCA, 1923?
What are the objectives behind Employees' State Insurance Act 1948 and how does it differ from Workmen's Compensation Act
1923?
Dependents
Dependents means any of the following relatives of a deceased workman. Section 2 (1) (d) of WCA 1923 classifies dependents into three
classes. In the case of New India Insurance Co Ltd vs Man Singh and others, 1984, MP HC held that persons in these classes do not
have mutually exclusive claim to compensation. They can simultaneously claim compensation.
1.
2.
3.
Widowed mother, widow, minor legitimate or adopted son, unmarried legitimate or adopted daughter. In this case it is irrelevant
whether they are fully or partially dependent on the earnings of the workman.
Legitimate son or daughter if 1. they are fully dependent on the earnings of the workman.
2. if they are infirm.
3. if they are above 18.
The persons in this class must be dependent wholely or partially on the earnings of the workman to claim compensation.
1. widower
2. a parent other than widowed mother
3. an minor illegitimate son, an illegitimate or legitimate or adopted daughter if minor and married or if minor and widowed
4. widowed daughter in law
5. a minor brother, an unmarried sister, or widowed sister if minor.
6. a minor child of predeceased son.
7. a minor child of a predeceased daughter if no parent of the child is alive.
8. a paternal grandparent if no parent of the worker is alive.
In the case of Ramji vs Lalit Kumar Bardiya, 1995, MP HC held that the parents have to the right to claim compensation because the
workman was living jointly with them. In joint families there is a sharing of income and responsibilities. Even if workman did not contribute to
the family fund that was only because he was not being paid by the employer. The family would have received the benefit of his wages
otherwise.
WagesSection 2(1) m defines wages as any benefit or privilege received by a worker from an employer that can be estimated in money
except
1.
2.
3.
1.
2.
3.
4.
5.
6.
Bonus - was held to be wages in the case of Maharastra Sugar Mills Ltd. vs Ashru Jaiwant AIR 1966 Bom.
Maternity benefits payable to a woman after pregnancy.
Dearness Allowance
Benefits in the form of food, clothing, and accommodation
Accommodation
Overtime pay
In the case of M/s J C Mills vs Deshraj, AIR 1952, MP HC held that paid leave is not a wage unless it is stated expressly in the contract of
employment that paid leave can be encashed if not taken.
Workman
Section 2(1) n defines workman as
A railway servant as defined in Railways Act 1989 except those who are permanently employed in an administrative office.
a master, seaman, or any crewman of a ship.
captain or a crew member of an aircraft.
driver, mechanic, cleaner, helper or employed to any task related to motor vehicles.
a person recruited for work abroad by a company.
a person working for any task as described in schedule 2.
A porter even though not included in schedule II. Narayanan vs Southern Railway - Kerala 1980
Working for 24 days in a month on daily wages. Hastimal vs Arjunan - Madras 1993.
Modeled on the British pattern and payment is obligatory on all employers whose employees are entitled to benefit under this act.
The workmen or his dependents can claim compensation if the injury has been caused by an accident arising out of and in course of
employment and if such an accident cannot be attributed to drug or drinks or willful neglect of safety rules.
Various class of workmen have been specified. Earlier clerical workers and workers making more than 1600 rs per month were
excluded but now the wage limit has been removed.
The amount of compensation depends, in case of death, the average monthly wages, and in case of injury, the average monthly
wages and the type of injury.
The term wages includes -overtime page, benefits like food, housing, and clothing.
The purpose is not to give a solatium but to compensate the worker or his dependents for the actual loss suffered due to an
accident.
There must be a casual connection between the injury and the accident, and the accident and the work done in the course of
employment.
The claimant must prove the connection between the injury and the course of work during employment.
It is not necessary that the worker is actually working or has just finished work.
If the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the injury, it is enough to
prove the claim.
Nature of liability
This is a different kind of liability. It is not same as a liability in torts. It arises due to the relationship between the worker and employer. An
employer is only liable to pay the difference between the earning capacities of the worker before and after the accident irrespective of the
loss or expenses incurred in treatment of the worker. It is also not dependent upon the neglect or wrong doing of the employer.
When is an employer liable to pay compensation?
Section 3 says that an employer is liable to pay compensation if a personal injury is caused to the workman due to an accident arising out of
and in the course of employment. Thus, the following conditions must be satisfied to claim compensation:
1.
2.
3.
4.
The following are the excuses or conditions in which an employer is not liable to pay any compensation:
1.
2.
If the injury did not cause total or partial disablement for more than 3 days.
If the injury did not result in death or permanent total disablement and
1. The worker was under the influence of drinks or drugs.
2. The worker willfully disobeyed the orders expressly given or a rule expressly framed for the safety of the workman.
3. The worker willfully did not wear or removed protective gear as required to work while having known that such devices exist
and were available.
1.
2.
3.
However, a workman is not allowed to put his employer into double jeopardy of proceedings or compensation as per section 3(5). Thus, he
cannot make any claim for compensation under this act if he has instituted any civil proceeding for the same injury. Similarly, a workman is
not allowed to institute any civil proceeding for damages against the employer or any other person for the same injury if,
1.
2.
A workman cannot get compensation twice through any means for the same injury.
Section 3(5) uses the word "instituted", which is more specific than that the just filing a claim. "Instituted" means setting on foot an inquiry.
Thus, if a workman has filed a claim and then withdrawn it before any inquiry was started, it will not be considered as instituted.
Amount of compensation
The amount of compensation for an injury depends on the extent of the loss of earning capacity, which usually depends on the type of injury
and resulting disablement. Section 4 defines detailed rules for determining the amount of compensation.
a) If the injury results in death, the amount of compensation is equal to the amount of 50% of the monthly wages of the deceased workman
multiplied by a relevant factor or 80,000/- which ever is more.
b) If the injury results in total permanent disability, the amount of compensation is equal to the amount of 60% of the monthly wages of the
workman multiplied by a relevant factor or 90,000/- which ever is more.
In these cases, if the monthly wage is more than 4000 Rs then the monthly wage considered in the calculation will be 4000/-. The relevant
factor must be seen in schedule IV and it depends on the number of years in service.
c) If the injury results in partial permanent disability, the amount of compensation is equal to the amount determined under permanent total
disability multiplied by the percentage of loss of earning capacity as given in schedule I, if the injury is mentioned in schedule I, or is equal to
the percentage of amount determined under permanent total disability as the percentage of loss of earning capacity as determined by a
qualified medical practitioner.
d) If the injury results in temporary, partial or total, disablement, the workman must be paid half monthly payments of 25% of his monthly
wages for the time he is disabled.
Any payment received by the workman for the treatment of his injury from his employer will not be considered against the amount of
compensation.