LABOUR LAW-1

THE EMPLOYEES COMPENSATION ACT, 1923

Asst Prof Nithin Rajeev

Introduction
◦ Every employee needs a secured job and wants to get compensation for the expenses he has incurred.
This is a requirement that needs to be fulfilled by the company whether it is small scale or large scale.
After all, a company’s success depends on its employees. Therefore, the protection of employees’ and
their safety is a top priority of a company. This article is all about how much compensation is given,
under what conditions, who is entitled to claim compensation and a lot more.
◦ The “Employees Compensation Act, 1923” is an Act to provide payment in the form of compensation by
the employers to the employees for any injuries they have suffered during an accident. Earlier this Act
was known as the Workmen Compensation Act, 1923.
◦ Sec 2(dd)"employee" means a person, who is–
◦ (i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not
permanently employed in any administrative district or sub-divisional office of a railway and not
employed in any such capacity as is specified in Schedule II; or
◦ (ii) (a) a master, seaman or other members of the crew of a ship, (b) a captain or other member of the
crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in
connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is
employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor
vehicle, or company, as the case may be, is registered in India; or
◦ (iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment
was made before or after the passing of this Act and whether such contract is expressed or implied, oral
or
◦ in writing; but does not include any person working in the capacity of a member of the Armed Forces of the
Union; and any reference to any employee who has been injured shall, where the employee is dead, include a
reference to his dependants or any of them;]
◦ 2 (e) "employer" includes anybody of persons whether incorporated or not and any managing agent of an
employer and the legal representative of a deceased employer, and, when the services of a *[employee] are
temporarily lent or let on hire to another person by the person with whom the *[employee] has entered into a
contract of service or apprenticeship, means such other person while the *[employee] is working for him;
◦ 2(d) "dependant" means any of the following relatives of deceased *[employee], namely:--
◦ (i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter or a widowed
mother; and
◦ (ii) if wholly dependant 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 infirm;
◦ (iii) if wholly or in part dependant on the earnings of the *[employee] at the time of his death,--
◦ (a) a widower,
◦ (b) a parent other than a widowed mother,
◦ (c) 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 a minor
◦ , (d) a minor brother or an unmarried sister or a widowed sister if a minor,
◦ (e) a widowed daughter-in-law,
◦ (f) a minor child of a pre-deceased son,
◦ (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
◦ (h) a paternal grandparent if no parent of the *[employee] is alive;
2 (g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as
reduces the earning capacity of a *[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 [in Part II of Schedule I] shall be deemed to result in permanent partial disablement;
2 (l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates
a *[employee] for all work which he was capable of performing at the time of the accident resulting in such
disablement:
◦ 3. Employer's liability for compensation.-
◦ (1) If personal injury is caused to a *[employee] by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in accordance with the provisions of this
Chapter: Provided that the employer shall not be so liable –
◦ (a) in respect of any injury which does not result in the total or partial disablement of the *[employee]
for a period exceeding three days;
◦ (b) in respect of 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 thereof under the influence of drink or drugs, or
◦ (ii) the wilful disobedience of the *[employee] to an order expressly given, or to a rule expressly framed,
for the purpose of securing the safety of *[employees], or
◦ (iii) the wilful removal or disregard by the *[employee] of any safety guard or other device which he
knew to have been provided for the purpose of securing the safety of *[employee]
◦ Employer’s liability in case of occupational diseases
◦ There are certain occupations which expose employees to particular diseases that are
inherent-
• Infra-red radiations;
• Skin diseases due to chemical or leather processing units;
• Hearing impairment caused by noise;
• Lung cancer caused by asbestos dust and Diseases due to effect of extreme climatic
conditions.
◦ Example- Miners are at a risk of developing a disease called silicosis. Sometimes miners
also develop lung diseases due to exposure to dust. The people who work in agricultural
lands, develop diseases through spraying of pesticides. These pesticides are toxic in
nature and are health hazards to many farmers.
◦ Alternative Remedy under Section 3(5): Any right to compensation cannot be conferred by an employee in
respect of injuries,if he has instituted a suit for damages in a civil court, in respect of any injury against any
employer. No suit for damages shall be maintainable by an employee in any court of law.
◦ 4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as
follows, namely:--
◦ (a) where death results from the injury : an amount equal to fifty per cent. of the monthly wages of the
deceased *[employee] multiplied by the relevant factor; or an amount of *[one lakh and twenty thousand
rupees], whichever is more;
◦ (b) where permanent total disablement results from the injury : an amount equal to sixty per cent. of the
monthly wages of the injured *[employee] multiplied by the relevant factor; *[one lakh and twenty thousand
rupees], whichever is more
◦ Explanation I.--For the purposes of clause (a) and clause (b), "relevant factor", in relation to a *[employee]
means the factor specified in the second column of Schedule IV against the entry in the first column of that
Schedule specifying the number of years which are the same as the completed years of the age of the
*[employee] on his last birthday immediately preceding the date on which the compensation fell due.
◦ 22. Form of application.-
◦ (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 prescribed, the following
particulars namely:--
◦ (a) a concise statement of the circumstances in which the application is made and the relief or order which the
applicant claims;
◦ (b) 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;
◦ (c) the names and addresses of the parties; and
◦ (d) 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.
◦ Doctrine of added peril
◦ When an employee performs something which is not required in his duty, and which
involves extra danger, the employer cannot be held liable to pay compensation for the
injuries caused. In the case of Devidayal Ralyaram v/s Secretary of State. It was ruled
that the doctrine of added peril was used as defense and the employer was not liable for
the compensation.
◦ Contributory negligence
◦ Employees owe a duty to their employers to carry out their work with reasonable care so
as to avoid accidents and injury. Employers are vicariously liable for the negligence of
their employees but are entitled to claim a contribution or indemnity from their negligent
employee in appropriate circumstances. So if there is negligence on the part of both
employee and the employer then the employer will be liable to pay compensation to the
extent of his own negligence, not of the employee. Hence, the compensation amount may
reduce as the employer will not be liable for the negligence of the employee.
◦ Adjudication of Compensation
◦ The adjudication is done by the commissioner in calculation of the amount of compensation. The quantum of
compensation is calculated from the date of the accident. Self-inflicted Injury If a worker inflicts an injury to
himself or herself it is a self-inflicted injury. The injury may be intentional or accidental but the employer is
not liable for such injuries. There are some types of jobs that have a high risk for self-inflicted injuries which
include
◦ Law enforcement, Medical employees, Farmers, Teachers, Salespeople
◦ Arising out of and in the course of employment
◦ Three factors determine whether the act is arising out of or in the course of employment:
◦ 1. When the injury occurred, the employee must have been engaged in the business of the employer. Also, he
must not be doing something for his personal benefit.
◦ 2. The accident must occur where the employer was performing his duties.
◦ 3. The injuries occurred because of the risk incidental to the duties of the work or services or if the nature or
condition of employment is inherent.
◦ Notional extension of Employer’s Premises
◦ When there is a causal connection between the accident and the place where the employee is working,
compensation is payable for the disability or death of the person according to the Employees Compensation
Act. This is the Doctrine of Notional Extension of the workplace. The theory of this doctrine was executed in
some cases:
◦ Moondra & Co. V/s Mst. Bhawani there was a truck driver who was told by his employer to drive a petrol
tanker. The driver found a leak in the tank and sought permission from the employer to look for the source of
the leakage. While searching he lit a matchstick and the tank caught fire. The driver received burn injuries and
died. It was held by the court that the family members of the deceased would be entitled to compensation since
the accident took place at the workplace and in the course of employment.