Quest – Opinion The Employees’ Compensation Act, 1923 (Old Name The Workmen’s Compensation Act, 1923) The Employees’ Compensation Act, 1923 is an old but an important enactment, as it introduced a kind of social security scheme for the employees of this country. It enables an employee, and in case of death of an employee, his dependents, to get, at the cost of his employer compensation for employment injury.
Much later, in 1948, the Employees’ State Insurance Act, introduced a social insurance scheme for the employees of his country. Unlike the earlier scheme this scheme rests on joint contribution by Government, employers and employees. The two enactments together constituted what may be called a Code of social security benefits for the workers of this country. Objectives The Object of the Act is to provide for the payment of compensation by certain employers to their employees for injury caused to them by accident while in employment. If an employee contracts an occupational disease while in employment, it is also treated under the Act as injury caused by accident. Applicability In case of Maharashtra, The Employees’ Compensation Act is applicable to all shops & Establishments by virtue of Sec. 38-A of The Bombay Shops & Establishments.
16 of the Apprentices Act extends the application of the Employees’ Compensation Act to the Apprentices appointed under Apprentices Act, 1961 rendering the employers liable to pay compensation for any personal injury or accident arising out of and in the course of employment caused to the apprentices. Every Employer. Employing persons listed in Schedule II to the Act;. Carrying on an occupation listed in Schedule III to the Act Is liable to pay compensation under the Act.
Eligibility The following persons are liable to receive compensation under the Act:-. Certain Railway Servants;. Persons listed in schedule II to the Act,. Persons employed in occupations listed in Schedule III to the Act. Injuries Compensated under the Act Under the Act injuries are broadly classified into four groups as those resulting in:-. Death,.
Permanent Total Disablement,. Permanent partial disablement &.
Temporary disablement whether total or partial. Contracted an occupational diseases. The Act provides for different scales of compensation for different kinds of injuries. Conditions for Receiving Compensation An employee to whom personal injury is caused by accident is entitled to receive compensation under the Act if the accident arose out of and in the course of his employment.
That means the accident must occur while the employee is in employment and it must also be connected with his employment. No Graded Tenure of Service Computation of Monthly Wages A Monthly wages in case of an employee in continuous service for not less than twelve months immediately preceding the accident ½ of the total wages due for payment in the twelve months preceding the accident (Sec. An employee’s total wages in the preceding 12 months is ` 40,800/- His monthly wages in this case will be:- ` 40,000 / 12 = ` 3,333/- B Monthly wages in case of an employee whose whole of the continuous period immediately preceding the accident is less than a month The average monthly amount earned by any other an employee doing the same work during the twelve months immediately preceding the accident.
Or in his absence, by a an employee employed in similar work in the same locality. Ex.: A an employee doing the same work earns a total of ` 33,600/- as wages during the preceding 12 months. Average monthly amount = ` 33,600 / 12 = ` 2,800/- C Monthly wages in any other case where it is not possible to calculate it for want of information The total wages earned in respect of the last continuous period immediately preceding the accident multiplied by thirty times & divided by No. Of days of such continuous period. An employee drawing in to wages of ` 4,000/- is in continuous period for 60 days immediately preceding the accident. The monthly wages can be arrived at: 4,000 x 30 / 60 = ` 2,000/- After having determined the monthly wages, the Compensation will be computed as under: D Compensation in case of death 50% (fifty per cent) of monthly wages of the deceased employee (if the monthly wages exceed 8,000 the monthly wages are to be taken ` 8,000/- only) x the relevant factor specified in the second column of sch.
IV Or An amount of ` 1,20,000/- whichever is more Sec. Contoh program bk ktsp smp. An employee draws monthly wages of ` 9,000/- (worked out as above) dies of burn injuries while working at a furnace and his age is 42 years. In terms of Sec. 4(a) his monthly wages is to be taken as ` 8,000/- only and 50% of it is ` 4,000/- Thus compensation Payable = 4,000 x 178.49 = ` 7,13,960/- E Compensation in the case of permanent total disablement 60% of monthly wages of the deceased employee (if the monthly wages exceed ` 8,000/- the monthly wages are to be taken ` 8,000/- only) multiplied by the relevant factor specified in the second column of Sch. Or ` 1,40,000/- whichever is more Sec.
In the above example, if the injury results in permanent total disablement, the compensation payable will be as under ` 4,800 (60% of 8000) x 178=49 = ` 8,56,752/- F In case of permanent partial disablement resulting firm injury specified in part II of the Sch. I Compensation will be calculated as in the case of permanent total disablement on the basis of the percentage loss of earning capacity, specified against each injury in part II of Sch.
An employee’s monthly wages is ` 8,000/- and he suffered an injury of loss of three fingers of left hand. The percentage loss of earning capacity specified in Part II of Sch. I against the said injury is 30%. The employee’s age is 45 years.
The compensation is worked out as under:- Compensation that would have been payable in total permanent disablement 4,800 (60% of 8000) x 169=44 = ` 8,13,312/- Compensation payable for loss of three fingers ` 8,13,312 x 30% = ` 2,43,993=60 G In case of injury not specified in Sch. I Compensation will be equal to such percentage of compensation payable for permanent total disablement as proportionate to the loss of earning capacity as assessed by the qualified medical practitioner, permanently caused by the injury.
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H In case of more injuries than one are caused by the same accident resulting in permanent partial disablement The amount of compensation payable for all injuries shall be aggregated but it shall not exceed the amount payable, in the case of permanent total disablement 4 (C) (Explanation I) Ex. An employee lost his right hand as well as four fingers of left hand by an accident. His monthly wages are ` 8,000/- his age is 45 yrs. The compensation is worked out as under:- Compensation for permanent total disablement in his case will be = ` 8,13,312/- (ref. F) Compensation increase of loss of hand:- 8,13,312 x 60% = ` 4,87,987/- Compensation in case of loss of four fingers of left hand:- 8,13,312 x 50% = 4,06,656/- Aggregate of A + B = ` 8,94,643/- The compensation payable is restricted to ` 8,13,312/- I In case of temporary disablement whether total or partial disablement A half monthly payment of the sum equivalent to 25% of the monthly wages for the period of disablement or 5 yrs. Whichever is lesser.
An employee is temporarily disabled and his monthly wages is ` 8,000/- Compensation in this is:- 8,000 x 25 / 100 = ` 2,000/- case will be – This amount is to be paid on half monthly basis as specified in sub-sec. 4(c) In the absence of any evidence as to the wages drawn by an employee, the minimum wages applicable to him at the relevant time shall be taken as the basis for determining the amount of compensation. Claims for Compensation The procedure for claiming compensation payable under the Act may be summarized as follows:-.
An application for claiming compensation payable under the act has to be made to the Commissioner for Employee’s Compensation in the prescribed form. Before filing the application the Employee has to give notice of the accident to the employer containing the details of the accident. Before filing the application the Employee has also to submit himself for medical examination if he is required to do so by the employer. The application has to be made within 2 years of the occurrence of the accident or within 2 years from the date of death.
If any applicant is poor, the Commissioner may exempt him from paying the application fees. The Commissioner can take the assistance of any person possessing special knowledge of any matter relating to the case for deciding the application. The Commissioner can recover the amount payable by any person under the Act as an arrear of land revenue. Orders of the Commissioner for Employee’s Compensation Appealable The provisions regarding appeals against the orders of the Commissioner for Employee’s Compensation may be summarised as follows: -. If any party is aggrieved by an order of the Commissioner it can prefer an appeal against the order to the High Court provided that (i) a substantial question of law is involved in the appeal & (ii) the amount is dispute in the appeal is ` 300/- or more.
Such appeal must be filed within 60 days. If the party preferring such appeal happens to be an employer, he must first deposit with the Commissioner the amount payable under the order appealed against. List of Injuries Deemed to Result in Permanent Total Disablement. No Description of Injury Percentage of Loss of Earning Capacity 1 Loss of both hands or amputation at higher sites 100 2 Loss of hand and a foot 100 3 Double amputation through leg or thigh, or amputation through leg or thigh on one side and loss of other foot 100 4 Loss of sight to such an extent as to render the claimant unable to perform any work for which eye-sight is essential 100 5 Very severe facial disfigurement 100 6 Absolute deafness 100 List of Injuries Deemed to Result in Permanent Partial Disablement. Non – Compliance with sections 10(3), 10(1A), 10B or 16 Fine which may extend to ` 5000/- Recent Court Judgment 1) In order to cast liability for compensation on the employer it must be shown that the accident arose within and in the course of employment. The deceased was in the employment of the owner of an auto rickshaw. On 23-9-2005 while proceeding by the road in the rickshaw, another rickshaw came from the opposite side and dashed against the rickshaw of the deceased.
The deceased then questioned that driver of the opposite rickshaw as to why he was driving the vehicle so rashly and negligently. Then there was a quarrel between the two and in that quarrel the deceased fell down on the road and sustained head injury.
He was removed to the hospital where he succumbed to the injuries. The respondents who are the legal heirs of the deceased filed a claim petition for compensation and the Commissioner of Workmen’s Compensation allowed that petition against which order the insurance company preferred an appeal in the High Court. The High Court referred to the decision in Rashida Haroon’s case 2010 (1) TN MAC 131 (SC) wherein it was held that the accident must arise within and in the course of employment.
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The claimant should prove the nexus between the death and the accident. The High Court held that in the instant case the deceased sustained his injuries not due to the accident but on account of the assault made by the driver of the opposite auto rickshaw following a quarrel.
Thus there was no nexus between the accident and the death of the deceased. Consequently the insurance company cannot be fastened with any liability to pay compensation. Hence the appeal was allowed. LL (4) 2011 P. 106, New India Assurance Co.
Noorjahan Begum & 8 ors. 2) Insurer will not be liable if the act of workman was in breach of condition of the policy The appellant is Insurance Company and the third respondent is the owner of the rice mill. The deceased workman was in the employment of the 3rd respondent as a driver and he died in an accident which took place upon the premises of the rice mill.
There was an electricity transformer within the compound of the rice mill. There was failure of electricity supply of rice mill due to burning of one fuse in the transformer. The deceased workman attempted to put fuse wire during that attempt he suffered an electric shock, due to which he fell down and died on the spot. Respondent no.1 and 2 are his legal heirs and they filed a claim petition before the Commissioner for Workmen’s Compensation contending that respondent 3 who is the owner of the rice mill has instructed the deceased to install the fuse wire to the transformer located within the rice mill premises.
The Commissioner for Workman’s Compensation allowed the claim petition and granted total compensation of ` 4,17,586/- to be paid to the respondent nos.1, and 2. Feeling aggrieved thereby the Insurance company filed an appeal in the High Court contending that replacing fuse wire in the transformer is outside the duty of driver of rice mill and that is not authorised by law and therefore it cannot be said that the accident in question occurred during the course of employment of the deceased workman. The High Court observed that if the accident has occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. The High Court referred to the provisions of Indian Electricity Rules 195 and pointed out that on a combined reading of the relevant rules, it emerges that the consumer can either undertake himself or permit to undertake repairs or adjustments or additions to installations which are anterior to the electricity meter and such repairs are not permissible in respect of installations which are posterior to the electricity meter.
It was held that the deceased tried to do repaid work by way of applying electricity fuse to the transformer which was impermissible under the rules. Therefore there was violation of condition No.
3, of the insurance policy with the result that the insurance company cannot be saddled with the compensation. Hence the appeal was allowed. 835, United India Insurance Co. Ltd., Hyderabad v. Elkachenu Kistamma & Ors. 3) Employees Compensation Act, 1923 – Section 3 (Claim for compensation is not sustainable if the death of workman is not shown to be due to injury in accident arising in the course of employment) Deceased Bholakal was working as Asstt.
– Cum – Cleaner of a truck employed by respondent No. 1, on 10-3-2000 the said vehicle, carrying loads was on its way to Agartala. On the way the vehicle was parked near Dharamnagar Police station and the driver of the vehicle went to sleep in a nearby hotel. Deceased Bholakal however remained in the vehicle and was supposed to sleep in the cabin of the vehicle.
On the next morning the driver found Bholakal lying dead inside the vehicle. He therefore informed the incident to Dharamnagar police station which registered a case under sec. In the petition filed by his legal heirs for compensation, it was contended that the deceased performed strenuous job of cleaning and loading the vehicle in full day and due to heavy exertion he died because of heart failure. Respondent No.1, the owner of the vehicle filed his written statement that the deceased died due to drinking excessive quantity of alcohol and there was no accident at all in the course of employment and therefore the claim of compensation was not maintainable. Respondent no.2, the insurance company also took the same stand.
The tribunal after considering the evidence on record including the post mortem reports held that the deceased died due to consumption of excessive quantity of ethyl alcohol and his death was not incidental to the nature of his work. Feeling aggrieved thereby the appellant filed the present appeal. The High Court analysed the provisions of Section 3 of the Employees’ Compensation Act and observed that there is practically no iota of evidence that the deceased suffered any injury because of any accident arising out of or in the course of his employment and therefore no liability could be fixed on the employer for the death of the deceased. Consequently the appeal was dismissed. CLR II 2012 P. 613, Sankar Kal, Tripura v. Sunil Kumar Saha & Anr.
Summary The Employees’ Compensation Act applies to railways (other than those) employed in administrative work and persons employed in factories, mines, plantations, mechanically propelled vehicles, construction work, and certain other hazardous occupations. There is no wage limit for coverage under the Act.
The Act, however, is not applicable to the persons who are covered under the Employees’ State Insurance Act, 1948. The Act provides for payment of compensation to workmen or their dependants, as the case may be, for industrial accidents (including prescribed occupational diseases) arising out of and in the course of employment and resulting in disablement or death. It is administered by the respective State governments / Union Territory administrations. The State Governments are required to appoint Commissioners for Employees’ Compensation for (a) settlement of disputed claims; (b) disposal of cases of injuries involving death; and (c) revision of periodical payments. The Compensation payable to the workman or to his dependants cannot be assigned, attached or charged.
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managing agent means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer; State Amendment West Bengal. in section 2, in sub-section (1), after clause (f), insert the following clause, namely: (ff) 'medical reference' means a qualified medical practitioner appointed under section 24A as a medical reference for the purposes of this Act'. Vide Bengal Act 6 of 1942, sec.
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partial disablement means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a 6 employee in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified 8 in Part II of Schedule I shall be deemed to result in permanent partial disablement. total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates 15 an employee for all work which he was capable of performing at the time of the accident resulting in such disablement: 16 Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent.
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. For the purposes of this sub-section, scheduled bank means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). 48 where the whole of the continuous period of service immediately preceding the accident during which the 47 employee was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the 47 employee shall be 49. the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by 50 an employee employed on the same work by the same employer, or, if there was no 47 employee so employed, by a workman employed on similar work in the same locality;. 51 52 in other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period.
53. Explanation. A period of service shall, for the purposes of 54 this 55 section be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.
On the deposit of any money under sub-section (1), 62 as compensation in respect of a deceased 59 employee the Commissioner 63. shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made. 67 Where the Commissioner varies any order under sub-section (8) 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 in the manner hereinafter provided in section 31. STATE AMENDMENTS Andhra Pradesh.
In section 8, to sub-section (4), add the following proviso, namely: Provided that in respect of a workman belonging to an establishment to which the Andhra Pradesh Labour Welfare Fund Act, 1987 applies, the Commissioner shall pay the said balance of the money into the fund constituted under that Act in lieu of repaying to the employer. Vide Andhra Pradesh Act 34 of 1987, sec. If the claim is 76 preferred in respect of the death of a 77 an employee resulting from an accident which occurred on the premises of the employer, or at any place where the 78 employee at the time of the accident was working under the control of the employer or of any person employed by him, and the 78 employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred,. Where a Commissioner receives information from any source that a 87 an employee has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the workman's employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed form, giving the circumstances attending the death of the 88 employee, and indicating whether, in the opinion of the employer, he is or is not liable to deposit compensation on account of the death. 115 No compensation shall be payable under this Act in respect of any injury in respect of which provision is made for payment of a gratuity, allowance or pension under the War Pensions and Detention Allowances (Mercantile Marine, etc. ) Scheme, 1939, or the War Pensions and Detention Allowances (Indian Seamen, etc.) Scheme, 1941, made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act, 1939 (2 & 3 Geo.
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83), or under the War Pensions and Detention Allowances (Indian Seamen) Scheme, 1942, made by the Central Government. 16 Returns as to compensation.
The 120 State Government may, by notification in the Official Gazette, direct that every person employing 121 employees, or that any specified class of such persons, shall send at such time and in such form and to such authority, as may be specified in the notification, a correct return specifying the number of injuries in respect of which compensation has been paid by the employer during the previous year and the amount of such compensation together with such other particulars as to the compensation as the 120 State Government may direct. The State Government may, by notification in the Official Gazette, appoint any person 128 who is or has been a member of a State Judicial Service for a period of not less than five years or is or has been for not less than five years an advocate or a pleader or is or has been a Gazetted officer for not less than five years having educational qualifications and experience in personnel management, human resource development and industrial relations to be a Commissioner for 129 Employee's Compensation for such 130. area as may be specified in the notification. 23 Powers and procedure of Commissioners. The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, 142 and the Commissioner shall be deemed to be a Civil Court for all the purposes of 143 section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). Of section 8 of the Factories Act, 1948 (63 of 1948), or under sub-section (1) of section 5 of the Mines Act, 1952 (35 of 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. STATE AMENDMENT Sections 24A and 24B West Bengal.
After section 24, insert the following sections, namely: 24A. Reference of disputed medical questions to a medical referee. (1) If any question arises in any proceedings under this Act pending before the Commissioner as to. 25 Method of recording evidence. The Commissioner may recover as an arrear of land-revenue any amount payable by any person under this Act, whether under an agreement for the payment of compensation or otherwise, and the Commissioner shall be deemed to be a public officer within the meaning of section 5 of the Revenue Recovery Act, 1890 (1 of 1890). STATE AMENDMENT Section 31A West Bengal.
After section 31, insert the following section, namely: 31A. Application of section 36 of Act XVIII of 1879 to touts in office of the Commissioner. For prescribing the manner in which, and the standards by which, incapacity may be assessed.
West Bengal. For Statement of Objects and Reasons, see Gazette of India, 1922, Pt. 313, and for Report of Joint Committee, see Gazette of India, 1923, Pt. This Act has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941), to Goa, Daman and Diu by Reg. 12 of 1962, sec.
3 and Sch.; to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. I, to Pondicherry by Reg.
7 of 1963, sec. I, and to Laccadive, Minicoy and Amindivi Islands by Reg. 8 of 1965, sec. 3 and Sch., and has also been declared in force in the district of Khondmals by sec.
Of the Khondmals Laws Regulation, 1936 (4 of 1936) and in the district of Angul by sec. Of the Angul Laws Regulation, 1936 (5 of 1936). Extended to Sikkim w.e.f. 1-11-1986 vide G.S.R. 529 (E), dt. This Act has been modified in its application to apprentices under the Apprentices Act, 1961 (52 of 1961) by sec. 178 36 Rules made by Central Government to be laid before Parliament.