Description
The Workmen's Compensation Act is the first piece of legislation towards social security. It deals with compensation for workers who are injured in the course of duty. The scheme of the Workmen’s Compensation Act is not to compensate the worker in lieu of wages.
Alternative Law Forum
The Workmen’s
Compensation Act
A Guide for Activists
The Workmen’s Compensation Act
A Guide for Activists
Illustrations: Muralidhar Rathod
Book Layout: Vinay Chandran
Published by: Alternative Law Forum, Bangalore, 2005
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Table of Contents
Preface .............................................................................................3
Chapter 1. The Workmen’s Compensation Act, 1923.................. 7
Introduction and H istorical context of the A ct..............................7
To w hich establishm ents does the A ct apply?............................... 8
W ho is eligible to receive the benefits provided by this law ?
(s. 2 (1)
read w ith Schedule II)..................................................8
Chapter 2. Disablement and Compensation.............................. 11
W hen is an em ployer liable to pay com pensation? (Section 3)....11
Chapter 3. Deciding Compensation............................................ 22
H ow Is the A m ount of C om pensation D eterm ined?...................22
a) In case a w orker dies w ho is entitled to com pensation
and how m uch com pensation should be paid?.................23
b) In case of injury how is com pensation to be
calculated? ......................................................................25
i) H ow m uch of C om pensation in case of total
perm anent disablem ent? ........................................25
ii) H ow m uch C om pensation in case of injury
resulting in perm anent partial disablem ent? ...........25
iii) C alculation of com pensation for ‘non scheduled
injury’resulting in perm anent partial
disablem ent...........................................................26
iv) H ow m uch C om pensation in case of injury
resulting in tem porary disablem ent? (Section 4(2)
to 4(4))...................................................................28
Chapter 4. Procedure to be followed when an accident
occurs for receiving compensation............................................. 30
1. N otice of A ccident to the Em ployer ..................................30
2. Penalties (on Em ployer for not discharging duties
under the A ct)..................................................................32
3. C om m issioner’s pow ers in case of accident resulting
in death ...........................................................................32
4. M edical Exam ination ........................................................32
5. C hoice to enter into agreem ent by em ployer....................33
6. The distribution of com pensation in case of a
w orker’s death, etc...........................................................35
Revision of com pensation paid to dependants...........................37
W hat if em ployer does not accept the extent of com pensation? 37
Chapter 5. Legal Remedies (Adjudication)................................. 39
i. W ho can m ake the claim to the C om m issioner? ...............39
ii. W ho is the claim m ade to? ...............................................39
iii. Tim e period w ithin w hich the claim should be m ade
(section 10)......................................................................40
iv. Form of application (section 22)........................................40
v. A ppearance and Record of Evidence
(sections 24 and 25).........................................................43
vi. W hat happens if the em ployer delays in paying of
com pensation? (Section 4-a) Provision for interest
and penalty......................................................................44
vii.A ppeal (section 30)...........................................................46
Bar against double rem edies ( section 3 (5))...............................46
Annexure 1... M ethod of calculating m onthly w ages.....................47
Annexure 2... C onditions for appeal..............................................48
Annexure 3... Schedule I of the A ct...............................................49
Annexure 4... Schedule II of the A ct..............................................52
Annexure 5... Schedule III of the A ct.............................................57
Annexure 6... Schedule IV of the A ct.............................................60
Annexure 7... Form at of application for com pensation by
w orkm an ........................................................................................61
Annexure 8... D iscussion on em ployer liability: C ase study .............63
There are large groups of unorganized w orkers in sm all industry,
agriculture, construction, dom estic service, garm ent industry, m any
form s of self-em ploym ent, etc. Their condition resem bles that of
w orkers in large industry in the early years of union form ation. Few
law s apply to them ; even the ones that are passed are not im plem ented.
M any of these w orkers have no education, few skills and little ability
to organise them selves.
The m anual originated from a feeling shared by m any, that a labour
rights education m anual is the need of the hour. It is m eant for activists
w orking w ith unorganised labour. A n aw areness of rights does not
m ean that they w ill be im plem ented easily, but it is certainly im portant
for further action and future strategies - legal or otherw ise to gain
those entitlem ents.
The m anual attem pts to untangle the law from the w eb of legalese,
and present w orkers rights under this enactm ent in a sim ple m anner
along w ith Bangalore specific procedures for enforcem ent, inform ation
about ground realities and issues.
The idea for this booklet on w orkm en’s com pensation w as suggested
by C . Balakrishna, H on. President of the G uttige Pow rakarm ikara
Sangha w ho pointed out that this enactm ent w as one of the im portant
law s for unorganized sector labour. M any people have been part of
the process. Valuable guidance w as received from M uralidhara, State
Secretary, A ITU C and labour law yer, as w ell as inputs from labour officer,
N .B. Ram achandra, currently a claim s authority for w orkm en’s
com pensation at Karm ikara Bhavan. The booklet ow es its vitality, if
any, to A LF’s experience in litigating a w orkm en’s com pensation case
for a child labourer. In this connection, M iriam C hinnappa, C hitra
Balakrishnan and A rvind N arrain from A LF provided useful suggestions
on the practical aspects to be kept in m ind in any adjudication under
this law . These find a place in the m anual as w ell as other useful
suggestions on form and content from C lifton D ’Rozario and A arti
M undkur, A LF. Initial w ork on this booklet w as done by G anesh Rao,
a student of N A LSA R
The deeper one digs the m ore one realises how little one know s. This
m anual w ill alw ays be a w ork in progress. A ll suggestions for
im provem ent are w elcom e, and m ay be sent via em ail to:
[email protected].
Preface
A nuja M irchandaney
Alternative Law Forum
Sections meant for intended for
Workers and Activists
I ntended for Activists. And possibly for
Workers. Up to the trainer’s discretion.
Refers specifically to context in Karnataka
Frequently asked questions
I N F O
KAR
W&A
A
Additionally, all references to:
Section or s. means sections under the Workmen’s
Compensation Act, 1948
Rules means the Karnataka Workmen’s Compensation
Rules, 1966
Act means the Workmen’s Compensation Act, 1948
Q&A
7
Introduction and Historical context of the Act
The W orkm en’s C om pensation A ct is the first piece of legislation
tow ards social security. It deals w ith com pensation for w orkers w ho
are injured in the course of duty. The schem e of the W orkm en’s
C om pensation A ct is not to com pensate the w orker in lieu of w ages.
The general principle is that a w orker w ho suffers an injury in the
course of his em ploym ent, w hich results in a disablem ent, should
be entitled to com pensation and in the case of a fatal injury his
dependants should be com pensated. U nder the W orkm en’s
C om pensation A ct it is the em ployer w ho is responsible to pay
com pensation (as opposed to the em ployees State insurance.
Establishm ents to w hich the Em ployees’State Insurance A ct applies
to the liability to pay com pensation is on the ESI corporation).
The m eaning of compensation in this A ct is lim ited to
com pensation granted under the A ct for em ploym ent injuries
sustained during the course of w ork. It is also lim ited to specifically
m onetary com pensation other than a salary, travel allow ance, and
any other form of rem uneration that could be paid under norm al
circum stances of em ploym ent.
To get an overall understanding of the A ct it is useful to look at the
“Statem ent of O bjects and Reasons’published w ith the A ct w hen
it w as first passed in 1923. To quote:
“…the grow ing com plexity of industry in this country w ith the
increasing use of the m achinery and consequent danger to
w orkm en, along w ith the com parative poverty to w orkm en
them selves renders it advisable that they should be protected, as
far as possible from hardship arising out of accidents.
A n additional advantage of a legislation of this type is that by
increasing the im portance for em ployers of adequate safety devises,
it reduces the num ber of accidents to w orkm en in a m anner that
cannot be achieved by official inspection. Further, the
encouragem ent given to em ployers to provide adequate m edical
treatm ent for their w orkm en should m itigate the effects of such
accidents as does occur. The benefits so conferred added to the
increased sense of security, w hich he w ill enjoy, should render
CHAPTER 1.
The Workmen’s Compensation Act, 1923
8
industrial life m ore attractive and thus increase the available supply
of labour. A t the sam e tim e a corresponding increase in the efficiency
of the average w orkm en m ay be expected.”
W hile these w ere the official objects and reason, Indian reality today,
is that the protection offered by the A ct does not act as an incentive
for w orkers, m ost of w hom are unaw are of it and w ho sim ply join
w ork to earn a livelihood.
A t the tim e the fram ing of the bill tw o criteria w ere follow ed in
determ ining w hom the A ct w ould apply to:
1. those industries w hich w ere m ore or less organized
2. W orkm en w hose occupations w ere hazardous.
N ow adays the governm ent (State of C entral) m ay extend the
application of this A ct to other establishm ents of an industry that
m ay not be organised.
To which establishments does the Act
apply?
A ll establishm ents hiring 20 w orkers and
above m ust com pulsorily register them selves under the Em ployees’
State Insurance A ct (ESI A ct). It is only those establishm ents, w hich
em ploy a lesser num ber of w orkers, and therefore to do not com e
w ithin the purview of the ESI A ct that the W orkm en’s C om pensation
A ct applies to. A lso if em ployers fail to register them selves under
the ESI A ct, then they w ill be responsible to pay com pensation under
the W orkm en’s C om pensation A ct.
H ow ever, the W orkm en’s com pensation A ct w ill only apply to those
persons considered “w orkers”and those Em ployers considered
‘Em ployers’, as defined under the A ct.
Who is eligible to receive the benefits provided by this law?
(s. 2 (1) read with Schedule II)
The A ct w ill apply only to persons recognized as a “w orkm en”
under the A ct. The follow ing criteria have to be satisfied:
! W ith the am endm ent of the W orkm en’s C om pensation A ct
in 2000 now it is not necessary that the w orker in question is
engaged in the em ployer’s trade or business. Further w ith the
W&A
9
Babu works as a gardener at the employer’s house. He is not considered a ‘workman’ under this law,
because his job is not in the list of scheduled employments
10
A m endm ent of 2000 now even casual w orkers
1
are covered
by this law . The only requirem ent is:
! The w orker should be employed in an activity, which has
to be either listed in schedule II
2
of the Act O R any duty
having connection with the specified activity
mentioned in the schedule. In addition, schedule III
3
to
the A ct contains a list of diseases and persons in occupations
w here infection is possible can claim com pensation under
this A ct. They are ‘w orkm en’for the purposes of this A ct.
! In addition to persons em ployed in the capacity m entioned in
Schedule II, a driver, a m echanic, cleaner, or person em ployed
in any other capacity in connection w ith a m otor vehicle are
also considered ‘w orkers’under this A ct.
Are Contract Labour eligible to receive benefits? (Section 12)
In case part of the w ork of an establishm ent is contracted out to a
contractor and a w orker em ployed by the contractor for this
purpose, is injured then, the principle em ployer and not the
contractor (w ho is the w orker’s im m ediate em ployer), is responsible
to pay com pensation as though the w orker w as directly em ployed
by him .
H ow ever, this principal em ployer holds the right to be indem nified
by the person w ho w ould norm ally pay for the com pensation of an
injured/deceased w orker, i.e. the contractor. H ow ever, nothing shall
prevent the w orker from claim ing his com pensation from the
principal em ployer.
Note: Piece rated workers are ‘workmen’ for the purposes of the
Act.
The Employer: is defined in this A ct, as a body of person/s, w ho
the w orker has entered into a contract of apprenticeship or service
w ith; the term ‘em ployer’also extends to his agent, legal
representative of a dead em ployer, or a tem porary em ployer on to
w hom the w orker has been lent to hire basis.
1
C asual em ploym ent is em ploym ent, w hich is not regular or continuous. It is
em ploym ent for short periods or for a lim ited or tem porary purpose. W ebster’s
D ictionary defines it as w ork ‘H appening to com e w ithout being foreseen;
com ing w ithout regularity.
2
Schedule II of the A ct is attached as A nnexure 4
3
Schedule III of the A ct is attached as A nnexure 5
11
When is an employer liable to pay compensation?
A s per Section 3 of the A ct, the em ployer is liable to
pay com pensation if the w orker is injured by accident that:
! arises out of (i.e. w hile engaged in w ork), and;
! in the course of his em ploym ent (i.e. during w ork
hours),and;
! such an injury results in disablem ent of the w orker.
If three conditions are m et, the em ployer of an establishm ent
covered by the A ct, is bound to pay com pensation. W hile the second
condition, i.e. during w ork hours is easy to prove, the first condition
(i.e., the accident occurred w hile engaged in w ork) has been difficult
to establish in certain cases.
Example: A bus w as on its last trip for the day. Som e assailants
entered the bus, sprayed chilli pow der on the passengers and shot
the conductor dead. It occurred during w ork hours, but could such
an act be term ed as an injury ‘arising out of the course of w ork’?
In this particular case, it w as argued –successfully - that such an
incident is a contingency that can arise during the course of duty.
H e w as exposed to that particular risk by reason of his em ploym ent.
4
Definition of ‘Disablement’
The definition of ‘disablement’ is very im portant in this A ct, as it
determ ines the extent of com pensation that can be claim ed by the
w orker injured in the course of his em ploym ent. U nder the A ct,
there are four types of eventualities, w hich can be com pensated,
nam ely:
1. Death
2. Permanent Total Disablement: disablem ent that
incapacitates a w orker from all kinds of w ork.
3. Permanent partial disablement: disablem ent that reduces
the capacity to w ork in any em ploym ent sim ilar to that the
w orker w as perform ing at the tim e of the accident.
4
For further discussion on this see A nnexure 8
A
CHAPTER 2.
Compensation & Disablement
12
Velu, who worked in a printing business, got his fingers cut off
by accident. This is “Partial Disablement” as it reduces his
capacity to work in any such employment of similar nature.
13
Ramamurthy, a powrakarmika (Road sweeper employed on
contract basis for Bangalore City Corporation) slipped and fell
from a garbage truck and fractured his hand. He could not work
for one month. This is temporary disablement.
Better get well
soon, 50% wages
is not enough
1
4
As Shiraz can no longer work as a coolie or do any work of a
similar nature, he can be considered 100% disabled under this law.
15
4. Temporary disablement: This m ay be total or partial
disablem ent, w hich is of tem porary nature, w hich reduces
the earning capacity of the w orker in any sim ilar em ploym ent
for the period of disablem ent.
Note: Total disability (i.e. 100% disability) has a different meaning
under the Workmen’s Compensation Act as compared to its
meaning in normal language. According to the Act, disability is
determined with reference to the work that the worker was doing
immediately before accident took place and if the resulting injury
leaves him incapable of performing any work of a similar nature
then his disability is considered as 100%.
Example: A n accident left a w orker- a coolie w ith a defect in his
leg and as a result unfit to perform the w ork of a coolie.
5
Legally he
can be considered 100% disabled. In this case the court stated that
the incapacity to earn is to be determ ined w ith reference to the
w ork, the w orker w as doing at the tim e of accident.
Q: If the w orker w as already suffering from
som e disease and the accident suffered by him
together w ith the disease resulted in the injury/
death w ould the em ployer be liable to pay
com pensation?
A: If the injury suffered by the w orker produces a disease, w hich
aggravates a pre-existing disease thereby causing a death or
disability, it is still com pensable (i.e. com pensation can be paid.)
The em ployer cannot defend him self by saying that the w orker
already had an existing disease,
Example: A w orker has a pre existing heart condition, w hich due
to the strain or over exertion of w ork causes his death, the em ployer
w ill is still liable to pay com pensation. A ll that is required is that the
accident suffered during the course of and arising out of the w ork
im m ediately led to his death injury.
In legal term inology: the injury suffered by the w orkm en at w ork
should be the ‘proxim ate cause’of his death, or that there should
be a ‘close causal connection’betw een the accident and the injury.
5
This has been held by the Bom bay H igh C ourt in Sadashiv Krishna A dke v.
M /s Tim e Trader 1992 I LLJ 877 (Bom )
Q&A
16
Shivanna got injured at work because he was under the
influence of alcohol. The employer is not responsible
to pay compensation for the resulting disablement.
For accidents resulting
in injury while the
worker was not
working, during work
hours, no compensation
needs to be paid.
17
Even if the cumulative result of a slight injury is death then such
injury is compensable.
6
Q: If after the injury, the w orkm an does not
lose his old post and receives the sam e salary,
does the em ployer still have to pay
com pensation?
A: Yes. This w as held in a M adras H igh C ourt
judgem ent (1989 II LLJ 38) w here the em ployee suffered from injury
on the right side of the neck, shoulder and head and there w as
100% hearing loss in the right ear and partial loss of hearing in the
left ear. The court held the fact that he w as holding the old post
and getting the old w age w ould not dis-entitle him from
com pensation under the A ct. This is because, the injury suffered
w ould affect him getting another job of a sim ilar nature, w ith a
different em ployer.
C om pensation is not payable by the em ployer
in the follow ing circum stances:
! W here the disablem ent does not last for m ore than three
days.
! W here the disablem ent has arisen out of the follow ing:
(a) D rugs or drink;
(b) D isobedience;
(c) D isregard for the safety m easures prescribed.
The grey area in this section is that there is no definition w hatsoever
that defines w hat is “drink”, “drugs”, “disobedience”or “disregard
to safety m easures”.
7
The em ployers m ay take advantage of this
section and evade paying the com pensation. H ow ever, the w orker’s
being under the influence of drugs or alcohol is not a defense in
the case of death or total disablem ent resulting from injury. Secondly,
in the case of disobedience, such disobedience should be ‘w ilful’.
6
H eld by the G ujarat H igh C ourt in D evi Behn D udhabhai v. M anager Liberty
Talkies and another, 1994-II-LLJ-1207(G uj.)
7
In addition to these defences, em ployers have often taken the recourse that
the w orker w as negligent. This m ay have nothing to do w ith provision of safety
m easures; for e.g. the w orker m ay have fallen asleep during w ork. In such
cases no com pensation m ay be aw arded or a lesser am ount of com pensation
m ay be aw arded.
W&A
Q&A
18
The back-related
problems suffered by
powrakarmikas due to
constant bending can
be considered an
occupational disease
Asthma resulting from
repeated exposure to
congress grass can also
be considered an
occupational disease
19
Is the employer liable to pay compensation in case a worker
gets inflicted by an ‘Occupational Disease’? (Section 3(2))
A n “occupational disease”w hile in service, is a disease that inflicts
w orkers in that particular occupation in w hich s/he w as em ployed
in and resulting from exposure to a hazardous w orking atm osphere,
particular to that em ploym ent. If a w orker contracts such a disease
then the em ployer is liable to pay com pensation, provided that the
w orker w as em ployed by him for a continuous period of six m onths.
A n occupational disease that is contracted in the course of
em ploym ent w ill fall w ithin the m eaning of an ‘accident’for the
purposes of this A ct. In the case of such a disease being contracted,
the em ployer w ill be liable to pay com pensation to the affected
w orker. The occupational diseases for w hich com pensation is
payable are specified in a list attached to the A ct- specifically, Part A
of Schedule III (see annexure 5).
Som e exam ples of occupational D iseases:
(i) Skin diseases caused by physical, chem ical or biological agents.
(ii) Bronchopulm onary disease caused by flax, hem p and sisal
dust (Byssinosis).
(iii) O ccupational asthm a caused by recognized sensitizing agents
inherent to the w ork process.
Comment: A shortcom ing of this A ct is that the List of occupational
diseases does not include m ental disorders that can arise from
particular kinds of w ork, for e.g. from m onotonous jobs. H ow ever,
according to a labour officer presently functioning as a C om m issioner
for W orkm en’s com pensation, if it can be proved through m edical
evidence that a m ental disorder arose out of the w ork, com pensation
can be paid.
Point for discussion: W hat are the professional hazards/
occupational diseases faced by the BM P contract Pow rakarm ikas?
What if the Employer becomes bankrupt? - Liability In Case
Of Insolvency (Section 14)
In the case w here the em ployer of the w orker has entered into an
agreem ent w ith insurers, to pay com pensation and subsequently
the em ployer becom es bankrupt, then in the event of any accident
happening, the em ployer’s liabilities w ill be transferred to the
insurers, and they w ould be treated as the em ployers of the
aggrieved w orker for the purpose of paying com pensation. This
20
In cases where employers have insured their liabilities
under the workmen’s compensation act, the insurers
have to pay compensation to workers getting injured.
I have no m
oney,
I can’t pay you!
Employer
Worker
Worker Insurance
Company
21
happens irrespective of w hether the em ployer is bankrupt or not. If
he has taken insurance to cover claim s arising out of w orkers’
accidents, the insurance com pany w ill be responsible to pay
com pensation. It is interesting that in such cases w ere an em ployer
has taken insurance, the em ployer w ill back the w orker’s claim
against the insurance com pany! N aturally, as they are not responsible
to pay the w orker com pensation w hich responsibility has shifted to
the Insurance C om pany. The practice of taking insurance is com m on
only am ongst the bigger contractors/ com panies.
H ow ever, they w ill be no m ore liable to the w orker than the original
em ployer. If the liability of the insurers is to be less than that of the
original em ployers, then the w orker can claim the balance am ount
from the insolvency proceedings.
In the case of the com pensation being half m onthly paym ents, the
insurers m ay convert that to an appropriate lum p sum and pay that
com pensation to the w orker.
22
How is the amount of compensation decided?
The com pensation to be paid by the em ployer for
injuries caused depend on extent of the disablem ent
suffered by the w orker; m ore severe disablem ents naturally receive
higher com pensation.
This has been categorised as follow s:
C om pensation payable in case of:
1) D eath;
2) D isablem ent
(a) Perm anent total disablem ent;
(b) Perm anent partial D isablem ent
(c) Tem porary disablem ent-
(i) Tem porary total disablem ent;
(ii) Tem porary partial disablem ent.
In addition, the guiding principle is, the higher the age of the injured
worker, the lower the compensation.
What is the basis of calculation of the amount of
compensation?
W ages are the basis for am ount of com pensation paid. Tw o w orkers
earning different salaries therefore w ill get different am ounts of
com pensation even though the injury they suffered m ight be
identical. C om pensation under this A ct is calculated on the basis
of the m onthly w age received by the w orker. A ccording to this A ct,
it is the am ount of w ages w hich w ould be payable for a m onth’s
service - i.e. irrespective of w hether the w orker is paid on a daily,
w eekly or piece rate basis. For m ethod of calculating ‘m onthly
w ages’see A nnexure 1.
Note: Wages: is defined as the privilege or benefit which is
measurable in terms of money other than any travel allowance, or
provident fund or any other special benefit claimable by the worker,
during the course of his employment.
CHAPTER 3.
Deciding Compensation
A
23
! Compensation to be calculated on the basis of the
minimum wage, if notified
W here a w orker received a m onthly w age less than w hat is
prescribed under the M inim um W ages A ct, 1948, s/he w ould be
deem ed to be draw ing the m onthly w ages as prescribed by the A ct
for the purposes of calculating com pensation. .
! Determining wages in case of a worker inflicted with
an occupational disease
A ccording to the Karnataka H igh C ourt,
8
com pensation in the case
of contracting of occupational disease is to be calculated on the
basis of w ages draw n at the tim e of term ination of em ploym ent
and not on the date of contracting the occupational disease.
(a) In case a worker dies who is entitled
to compensation and how much
compensation should be paid?
W here death results from the injury the com pensation is payable to
the w orkers dependants.
Who is a Dependant?
A ‘dependant’is defined under the A ct in section 2(d). This
definition is of vital value, as it determ ines w ho w ill be eligible to
receive the com pensation, in case the w orker dies in course of his
em ploym ent.
(i) (a) A w idow ,
(b) A m inor
9
, legitim ate/ adopted son,
(c ) A n unm arried legitim ate/ adopted daughter and;
(d) A w idow ed m other.
All the above people come under one category as being
dependants of the deceased worker.
(ii) If w holly dependent on the earnings of the w orker, then in
addition: (a) a son or (b) a daughter w ho has reached the
age of 18 but is infirm or sick.
8
This w as held by the Karnataka H igh C ourt in the case of Bharat G old
M ines Ltd., v. H anum an (1992) 1 LLN 1023
9
A m inor in this A ct is defined, as is norm ally the case, as a person w ho
has not attained the age of 18 years.
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24
(iii) If w holly or partly dependant on the w orker, then the
follow ing can also be term ed as dependants of the deceased
w orker:
(a) a w idow er;
(b) a parent other than a w idow ed m other;
(c) a m inor illegitim ate son;
(d) an unm arried or w idow ed, adopted, legitim ate or
illegitim ate daughter;
(e) a m inor brother;
(f) an unm arried sister;
(g) a w idow ed sister, if m inor;
(h) a w idow ed daughter-in-law ;
(i) a m inor child of a deceased son;
(j) an orphaned grandchild;
(k) a paternal grandparent if the parents of the deceased
w orker are also dead.
Comment: The definition of the term “D ependant”show s that it
is not intended to benefit all the legal heirs of a deceased w orker
but only those relations w ho to som e extent depend upon the
w orker’s earnings for their daily necessities. H ow ever, all persons
m entioned in (i) above are beneficiaries w ho only have to prove
their relationship w ith the deceased w orker and do not have to
prove that they w ere dependent on earnings of the w orker.
How much should be paid?
The com pensation due to the dependants is an am ount equal to
fifty percent of the m onthly salary of the deceased w orker m ultiplied
by the relevant factor or an am ount of eighty thousand rupees,
w hichever is m ore. The minimum compensation in the case of death
in no circumstances can be less than Rs. 80,000/-.
The ‘relevant factor’is m entioned in the schedule IV of the A ct (see
annexure for relevant factors). The factor depends on the age of
the person deceased, i.e., the num ber of years the person could
have w orked for, if he did not die on the job.
Example: M uniyappa, a w orker aged 35 m eets w ith an accident
and dies w hile at w ork (i.e. in the course of em ploym ent). A t the
tim e he drew a m onthly w age of Rs.2,500/-. A s per Schedule IV of
25
the A ct the relevant factor applicable to his case w ould be
Rs. 197.06. A s such, the am ount of com pensation payable to his
dependants w ill be arrived at in the follow ing w ay:
(i) 50% of Rs. 2,500 = 1,250
(ii) 1,250 x relevant factor (i.e.197.06) =
Rs.2,46,325.00/- (total com pensation payable)
Where the monthly wages of a worker is more than Rs. 4000/- , it
is taken to be only Rs. 4000/- for calculating either compensation
in case of death, or permanent disablement.
(b) in case of injury how is compensation to be
calculated?
i) How much of Compensation in case of injury
resulting in total permanent disablement?
W here there is total perm anent disablem ent resulting from the injury
suffered, the w orker is entitled to be paid sixty percent of his m onthly
salary, m ultiplied by the relevant factor, or an am ount of ninety
thousand rupees, w hichever is m ore.
The minimum compensation in the case of total permanent
disablement, in no circumstances can be less than Rs. 90,000/-.
Example: Shakila Bano, a w orker aged 35 m eets w ith an accident
and suffers perm anent total disablem ent w hile at w ork (i.e. in the
course of em ploym ent) A t the tim e she drew a m onthly w age of
Rs.2,500/- The am ount of com pensation payable w ill be arrived at
as follow s:
(i) 60% of Rs. 2,500 = 1,500
(ii) 1,500 x relevant factor (i.e. 197.06) =
2,95,590.00/- (total com pensation payable)
ii.) How much Compensation in case of injury
resulting in permanent partial disablement?
In the case of partial disablem ent of the w orker, the
am ount he is entitled to is the percentage of that for total perm anent
disablem ent, the percentage being given in the schedule of the
A ct. Schedule I
10
, part II, to the A ct contains a list of injuries said to
result in perm anent partial disablem ent and the corresponding loss
in earning capacity.
10
Schedule I of the A ct is attached as A nnexure 3
A
A
26
Examples:
Description of injury: % loss of earning capacity
A m putation through Shoulder joint.....................................90
Loss of all toes of one foot through a
m etatorso-phalangeal joint..................................................20
Loss of one eye, w ithout com plications,
the other being norm al........................................................40
The com pensation is calculated on the lines given in the exam ple
above for perm anent total disablem ent, substituting the percentage
of disability suffered and the appropriate ‘relevant factor’obtained
from the schedule IV
11
, as per the age of the concerned w orker.
iii.) Calculation of compensation for ‘non scheduled injury’
resulting in permanent partial disablement.
The problem arises w hen the partial disablem ent
resulting from the injury is not listed in the schedule.
Then a reasonable percentage is to be given, as decided
by the com m issioner.
Example: G irija, a child labourer em ployed in a silk tw isting and
reeling unit in M agadi suffered third degree burns w hen a vessel of
boiling w ater used for boiling silkw orm cocoons, overturned on
her during the course of w ork. The injury sustained is not m entioned
in the schedule. H ow is the loss of earning capacity ascertained?
In such cases of ‘non scheduled injuries’the procedure follow ed is
to obtain a certificate from a m edical practitioner w ho w ill certify
the percentage of disability suffered. The certificate w ill form the
basis for determ ining the loss of earning capacity, w hich is the labour
com m issioner ‘s duty. H ence, the percentage loss of earning capacity
m ay not be equal to the percentage of disability suffered. In som e
cases it could be m ore, w hich the com m issioner is to decide. U seful
case law s in this regard are:
1. The Karnataka H igh C ourt decision in O riental Insurance Ltd.
v. M oham m ed H anif 1995(6) Kar. L. J.696
2. Pratap N arain Singh v. Shrinivas and ors 1976 –I - LLJ- 235
3. Kashi N ath Prasad v. Tata Engg. and Locom otive C o.,
(1998)2TA C 452(A ll)
A
11
Schedule IV of the A ct is attached as A nnexure 6
27
Therefore it is very im portant to m ake sure that the certificate issued
by the doctor contains all the relevant details. These include:
! The percentage of disability suffered as a result of the injury
! W hether the disability suffered is perm anent in nature
In the case of an unscheduled injury occurring, once the percentage
of perm anent disability is ascertained by the doctor, the am ount of
com pensation due to the injured w orker can be got using the
calculation m entioned above. The 60 % disability m entioned in
that exam ple can be substituted for the percentage of disability
ascertained by the doctor for the unscheduled injury, and the
relevant factor obtained from the schedule IV, as per the age of the
concerned w orker (see annexure 6 for Schedule IV).
Example: G irija, the child labour em ployed in the silk reeling unit
m entioned above, w as certified by the doctor in the governm ent
hospital to be inflicted w ith 28% disability from the third degree
burns she suffered from her accident. H er salary w as Rs. 50/- per
day. In accordance w ith the A ct, for purposes of calculating
com pensation her salary w ill be as per the M inim um w age notified
for that em ploym ent, i.e., Rs. 65/- per day, w hich w orks out to Rs.
1950/- per m onth. Being below the age of 16 yrs, only 60% of the
w age w ill be applicable to her, i.e. Rs. 1170/-(as per the m inim um
w age notification for sericulture industry). C om pensation is
calculated as follow :
(i) Percentage of disability = 28%
(ii) Salary as per m inim um w ages A ct = Rs. 1950
(iii) 60% payable to child labour = Rs. 1170/-
(iv) Relevant factor for w orker of 14 years
(i.e. G irija’s age)= 228.54
(v) Therefore C om pensation is: 28/100 x 1170 x 228.54
(relevant factor) = Rs. 74,869.70
The accident occurred in 29th Septem ber 1998, w hereas
com pensation w as aw arded only in D ecem ber 2003. Therefore
interest @ 12% per annum w hich w as payable from the date of
the accident, w as calculated as follow s:
(i) 12/100 x 74,869.70 = Rs. 8984.36
(interest payable for one year)
28
(ii) Rs. 8984. 36 x 5(years) = Rs. 44, 921/-
(interest from Sept 1998 to Sept 2003)
+ Rs. 2246.09 (interest from O ct. to D ec. 2003)
Therefore total am ount due (principal + interest) = Rs. 12,2036.70
iv.) How much Compensation in case of
injury resulting in temporary
disablement? (Section 4(2) to 4(4))
In case of tem porary disablem ent, paym ents
equal to 25% of the w orkers w ages shall be m ade at half m onthly
intervals. C lause (d) of sub section 4(1) talks about com pensation
for tem porary disablem ent In case the disablem ent lasts for m ore
than 28 days then the em ployer should m ake the paym ent on the
16th day from the day of the disablem ent.
If the period of disablem ent lasts for less than 28 days then the
paym ent shall be m ade after the expiry of 3 days. This w ait for 3
days is to ascertain how long the tem porary disablem ent w ill last;
w hether it is likely to get over before 28 days or take longer.
In case the em ployer m akes any paym ent to the w orker before the
paym ent of this half m onthly or lum p sum am ount it shall be
deducted from this. (section 4 (2) (a))
This provision envisages a situation w here an
application is m ade w hen the w orker is still
undergoing treatm ent and recovering. W hile
this is possible, in Bangalore w orkers’
applications for tem porary disablem ent
com pensation are norm ally m ade only after they
recover from the injury and find them selves out of a job. Then they
m ake an application to recover the com pensation. In such cases,
the C om m issioner, grants a lum p sum adding up half-m onthly
paym ents for the period starting from the day of the accident up till
the date show n on the last m edical record (i.e. doctor’s. prescription,
case sheet, outpatient coupon, etc) that the w orker is able to
produce. In addition, the C om m issioner also grants 12% interest.
Therefore, in the event of suffering an injury-related disablement,
workers should maintain these medical records. Because it is on the
basis of this proof, that they get com pensation.
KAR
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29
Review of payments in case of temporary disablement
(section 6)
In the case of tem porary disablem ent w here half-m onthly w ages is
to be paid, there is provision for review of such am ount, by the
com m issioner. Either party, supported by an attested certificate of
a m edical exam iner can apply for the review to the com m issioner.
The review m ight lead to the increase, decrease or the end of the
half-m onthly w ages, depending on the condition of the w orker. In
case the tem porary disablem ent leads to a perm anent disablem ent,
then the review has the pow er to call for the lum p sum
com pensation to be paid to the w orker. The lum p sum the w orker
is entitled to is less any am ount that s/he has already received in
half m onthly paym ents.
In case of tem porary disablem ent, any w orker, receiving the half
m onthly paym ent, shall be required to subm it him self from tim e to
tim e for a m edical exam ination. A ccording to Rule 17 of the
Karnataka W orkm en’s C om pensation Rules, 1966, the w orker needs
only to subm it herself/him self for m edical exam ination only tw ice
in the m onth follow ing the accident and only once in subsequent
m onths, if the place is aw ay from the w orker’s place of residence.
30
1. Notice of accident to the employer
In the case of an accident or an accident
leading to death, a notice m ust be sent to the em ployer or any
other person w ho is em ployed to supervise w ork in the sam e
establishm ent as soon as is practicable after the occurrence of the
accident.
The notice from the aggrieved party can be served to the em ployers
either by sending the notice by registered post to the residence or
the office of the em ployer, or by entering such notice into the notice
book, m aintained at the prem ises of the office.
The state governm ent m ay require that a certain class of
establishm ents m ust m aintain a “notice book” w hich m ust be
accessible to all the em ployees at all tim es.
The notice m ust contain:
(a) The nam e and address of the person w ho died or w as injured,
and;
(b) In norm al language m ust state the cause of the injury, and;
(c) The date on w hich it occurred.
Q : w ould establishm ents (not covered by the
ESI A ct) m anufacturing garm ents com e under
this category?
A : Yes, they w ould.
If there is any law in force requiring the em ployer to give notice
regarding the death or serious bodily injury of an em ployee, the
em ployer shall do so, by giving the notice to the labour
com m issioner
12
w ithin seven days of such event, describing the
circum stances of the injury or death. This law is in force in Karnataka.
A ll references to C om m issioner in this booklet refers to the Labour
O fficer w ho handles W orkm ens’C om pensation cases.
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Q&A
CHAPTER 4.
Procedure to be followed when an accident occurs,
for receiving compensation
12
U nder this A ct, the com m issioner is a public servant as per the Indian Penal
C ode, and is appointed by the state governm ent by notification in the official
gazette. In practice, Labour officers are appointed under the Industrial D isputes
31
W ithin thirty days of such notice
being served, the em ployer
should reply as to the
circum stances of such death,
and w hether, in his opinion, he
is to deposit com pensation to
the com m issioner.
Commissioner’s powers in case of accident
resulting in death (S. 10-A)
Anyone can report to the Labour C om m issioner in case of a w orker
being killed in an accident.
If the em ployer feels that he is
responsible to do so, then he
m ust deposit the com pensation
w ith the com m issioner w ithin
thirty days after the notice is
served. If he feels in the contrary,
he m ust inform the
com m issioner of the grounds
under w hich he claim s such
exem ption.
O n claim ing such exem ption, the
com m issioner m ay inform the
dependants of the deceased
w orker, leaving it open to them ,
w hether they w ould w ant to
claim com pensation or not.
A
In case, the com m issioner is
aw are of a fatal accident, he has
the pow er to send a notice to the
em ployer (i.e. w ithout receiving
any application), requiring him to
subm it a statem ent w ithin a
m onth’s tim e.
32
2. Penalties (on Employer for not discharging duties under
the Act)
If an em ployer fails to
! send the com m issioner a statem ent; or report as required in
case of fatal accidents fails to do so, or,
! m aintain a notice book
S/he shall be liable to pay a fine, w hich m ay extend to five thousand
rupees. Such a proceeding cannot be m ade w ithout the previous
perm ission of the com m issioner, and the court shall not take
cognizance of any offence, if such m atter is not brought before the
court at least w ithin six m onths from the tim e that the com m issioner
becom es aw are of such offence.
3. Commissioner has the power to require further deposit in
cases of fatal accident (section 22-A)
! In the case of a fatal accident, w here the com m issioner feels
that the am ount deposited as com pensation is not adequate,
he m ay serve a notice to the em ployer stating his reasons,
and asking the em ployer to show cause as to w hy the am ount
deposited is adequate.
! If the em ployer fails to show cause, the com m issioner m ay
m ake the aw ard and direct the em ployer to pay the deficiency.
! The aw ard in such a case is norm ally on the basis of the
A ct (i.e. 50% of w ages m ultiplied by the relevant factor. See
exam ple in section on “H ow m uch should be paid?”).
4. Medical Examination (section 11)
In cases of injury not am ounting to death, on
serving notice of accident to the em ployer, the
em ployer m ay require the em ployee to undergo a m edical
exam ination free of charge. The injured w orker should subm it
him self to such m edical exam ination.
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A ct to do the job of conciliation and inspection. In Karnataka the State
governm ent by issuing a notification in the official gazette appoints som e labour
officers as ‘designated com m issioners for W orkm en’s C om pensation.’A nd hence
they perform the additional w ork of a claim s authority to hear and decide
claim s under the W orkm en’s C om pensation A ct. The com m issioner is appointed
for the com pensation of w orkers for a specific designated area; Bangalore
N orth is a designated area, sim ilarly Bangalore South etc.
33
! The tim e of the exam ination shall not be betw een 7 p.m .
and 6 a.m . unless the w orkm an specifically agrees.
! If the w orkm en’s condition is so bad that it is either im possible
or in advisable for him to leave his residence then the em ployer
cannot force him to get exam ined at any other place other
than his residence.
! A w om en w orker has a right to ask for the presence of
another w om en if a m ale doctor is exam ining her. (Rule 19)
If the w orker does not agree to subm it him self for a m edical
exam ination, by a qualified m edical practitioner, then he shall lose
his right to claim com pensation from his em ployer, and this right
shall be suspended till he refuses to appear for the exam ination. In
case the w orker does not subm it him self for the exam ination and
dies before doing so, the com m issioner m ay m ake an order to pay
com pensation to the dependants of the w orker.
Note: If the employer does not take the worker for a medical
examination, or if the worker is not satisfied with the employer’s
doctor’s medical certificate, he may approach any other registered
medical practitioner for a certificate. In case of different percentages
of disability being certified, it is up to the Labour Officer in the
claims proceeding to decide what to rely on, when judging the
loss in earning capacity of the worker.
5. Choice to enter into an agreement
(SECTION 28)
The em ployer and em ployee, have the choice
of entering into an agreem ent. The provision relating to agreem ents
under the W orkm en’s C om pensation A ct, relate to cases w here
the parties have arrived at an agreem ent prior to any hearing before
the court. It does not refer to any agreem ent reached by parties
betw een w hom there is an existing dispute before the court
regarding the quantum of com pensation. These agreem ents m ay
be for:
! the settlem ent of any lum p sum payable as com pensation,
(i.e., paym ent of a lum p sum (one-tim e) paym ent to convert
the em ployer’s liability for half m onthly paym ents, or
otherw ise) or;
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13
Legal disability is a disability, w hich can be enforced by law . A person under
a legal disability is one w ho is incapable of representing them selves, e.g.
m inor or a m entally challenged person.
34
KAR
I N F O
14
H eld by the G ujarat H igh C ourt in Bai Chanchalben v. Burorji Dinshaw
Sethna (1969) 2 LLJ 357
If in the agreement the employer states that the amount is an ex
gratia payment and the language of the receipt does not show
that the money given was in settlement of compensation, then the
employers liability to pay compensation still exists.
14
Registration of Agreements and consequences of not doing so(Section 29)
The Law requires that the em ployer registers such agreem ents w ith
the C om m issioner. Failing w hich, the em ployer w ill be responsible
to pay the full am ount and not the reduced am ount if any under
the settlem ent/ agreem ent. If the em ployer fails to register such a
m em orandum , the com m issioner m ay order the em ployer to pay
the entire am ount of com pensation that the provisions of the A ct
provide for.
In the agreem ent entered into the em ployer cannot pay less then
the principle sum due as per the provisions of the A ct. If s/he does
the agreem ent w ill not be registered. A com prom ise can only be
m ade in term s of the interest and penalty due from the em ployer.
In practice, in Karnataka several tim es the principle am ount it self is
not paid and as such agreem ents are not
subm itted for registration to the com m issioner,
they do not also com e up for scrutiny. The
practice is com m on in the construction industry.
In cases w here the agreem ent is placed before
the C om m issioner in Bangalore, no com prom ise is allow ed in the
principal am ount of com pensation payable in fatal cases. H ow ever
in non-fatal cases, com prom ise is often perm itted to the extent of
Rs. 2-3,000/-. The C om m issioners m ay them selves ‘appraise’the
w orker of the consequences of not com prom ising. I.e. the ensuing
litigation, and the tim e and m oney that s/he w ill have to incur,
w hich often influences the w orker to accept the lesser am ount.
In cases of com pensation payable to a w om en or person under a
legal disability the A ct requires that the sum be deposited w ith the
! any com pensation payable to a w om an or a person under
any legal disability.
13
In such a case a m em orandum is to be sent to the com m issioner,
w ho, after exam ining the genuineness of such a m em orandum ,
m ust register it in the m anner prescribed.
35
Note: This provision for registration and depositing payment with
the commissioner is to safeguard the interests of the women and
dependants from fraud or force. An unscrupulous employer may
pay a lesser amount to the deceased’s dependents. Similarly an
unscrupulous dependent may collude with the employer to deny
other dependents of their share. Therefore, in the case of payments
to women and dependents of deceased, an employer can enter
into agreement with them, however:
! Such agreement should be registered, and;
! The money should not be given directly, but deposited with
the commissioner.
H ow ever:
! N o m em orandum can be registered by the com m issioner
before the lapse of seven days from the tim e he had received
the notice of such accident.
15
! The com m issioner m ay at any tim e alter the registration. A nd
if he has reason to believe that the agreem ent has been
reached due to fraud or undue influence, he m ay refuse the
m em orandum sent by the em ployer, and can pass an
appropriate order, including an order to pay the com pensation.
6. Distribution of compensation
(including in case of worker’s death, and
payment of compensation to women
workers / persons under legal disabilities).
M oney given by em ployer to w orker is only considered as
‘com pensation’under this act if it is given through the com m issioner.
! O nce the com pensation is deposited w ith the C om m issioner,
in case of the injured party being a w orkm an, the
C om m issioner can directly pay the m oney to him (s.8(6)).
! In case of paym ent m ade to a w idow and other heirs of a
w orker w hose injury resulted in death, any such lum p sum
paym ent already paid to the dependent of the deceased by
15
The w ait for seven days is to give tim e for objections in case of fraud etc.
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com m issioner. A ny direct paym ent m ade to such persons is
considered to be no paym ent of com pensation under law .
36
the em ployer cannot be deducted from actual am ount of
com pensation payable. (Section 8).
16
! Rule 11 of the Karnataka Rules provide that
all w orkm en covered by the A ct m ay register
w ith their em ployer and the com m issioner the
nam es and addresses of their dependants.
In case of death of a w orker, in an inquiry for the distribution
of com pensation, if no other person m akes a claim the
com m issioner m ay presum e the persons registered by the
deceased w orker are the dependants.
17
! A fter the com pensation is deposited w ith the com m issioner,
he m ay, if he thinks fit, call the dependants, to appear before
him , to decide how m uch com pensation each one gets.
! The receipt given to the em ployer by the C om m issioner on
paym ent of such com pensation is proof enough of giving
com pensation to the w orker and the burden is no longer on
the em ployer.
! The practice in Karnataka is that 50% is given to the w idow ,
if any, of the deceased and the rest is distributed equally am ong
the dependants m entioned in section 2(d) of the A ct
(m entioned above).
! A fter such hearing is done, and if the com m issioner finds that
there is no dependant, then he m ust return the m oney to the
em ployer. A lso, if there is any balance am ount, the
com m issioner m ust return the sam e to the em ployer.
! The em ployer m ay dem and a detailed account of the
distribution of com pensation.
! W here any lum p sum com pensation deposited w ith the
C om m issioner is payable to a w om an or person under legal
disability, it m ay be invested or otherw ise dealt w ith by the
C om m issioner for the benefit of such persons (s.8(7)). U nder
Rule 10 of the Karnataka Rules, the C om m issioner m ay invest
the com pensation due to the deceased w orkm en’s dependents
only in (a) G overnm ent securities, or; (b) G overnm ent Savings
Bank, or; (c) Post O ffice Savings Bank. This Rule also applies
16
Kathelena Dias v. H.M. Coria and sons A IR 1951 C al 877 follow ed in 1989
Lab IC 1399
17
In discussion w ith the labour officer it appears that this provision is not in
use, although as it is ‘law ’it m ay be found useful by som e w orkers.
KAR
I N F O
37
w here com pensation is payable to a w om an w orker/ persons
under legal disabilities (i.e., w orkers w ho haven’t yet attained
adulthood).
Note: How much of compensation money is given in cash and how
much is invested is entirely at the discretion of the Commissioner.
But it fair to say that more investments are made in case of women
workers than men, although the Commissioner may also invest the
compensation amount in case of workmen. Also, in the case of
women beneficiaries, a larger percentage of the compensation
amount is invested and the remaining is given as cash, compared
to men. This is decided entirely on a case-to-case basis.
Comment: These provisions for (a) paying full am ount of
com pensation regardless of any paym ents already m ade; and (b)
not giving com pensation directly; are exam ples of the ‘protectionist
approach’(as opposed to the ‘Rights based approach’) that the
legislature has in m aking law s covering/dealing w ith w om en w orkers
(considered to be persons under legal disabilities). A t the sam e tim e,
it cannot be forgotten that w om en w orkers are often m ore
vulnerable, and could be exploited.
Revision of compensation paid to dependants
O n account of neglect of children on the part of a parent or on
account of the variation of the circum stances of any dependent or
for any other sufficient cause, the com m issioner m ay m ake orders
w ith regard to changes in the com pensation payable to the
dependants. This m ay be done on an application to the
com m issioner or by the C om m issioner acting on his ow n on the
basis of inform ation received by him .
What if employer does not accept the extent
of compensation?
Essentially, com pensation is to be paid as soon as it falls due, i.e.,
w hen the accident occurs - at the latest w ithin 30 days. In case the
em ployer does not accept the extent to w hich com pensation is
being claim ed, then the em ployer is to pay the am ount of
com pensation to the extent of responsibility he accepts, at the
earliest. H e is to do so by depositing the am ount at the office of the
com m issioner or w ith the w orker.
By doing so, the w orker, how ever, is not prevented from m aking a
further claim before the Labour com m issioner for the rem aining
am ount of com pensation.
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38
Procedure in brief to be followed when an accident occurs
(see p. 30)
The em ployer and em ployee, have
the choice of entering into an
agreem ent for: the settlem ent of
any lum p sum payable as
com pensation, I.e., paym ent to
convert the em ployer’s liability for
half m onthly paym ents, or
otherw ise (com pensation for total/
partial disability).
The C om m issioner for W orkm en’s
C om pensation has pow ers to act by
him self, w ithout receiving a notice,
if he com es to know of any accident
w here a w orker w as injured. S/he
m ay issue a notice to the em ployer
asking w hat the cause of the injury
w as and w hether the em ployer
thinks s/he is liable to pay
com pensation.
In cases of injury not am ounting to
death, on serving notice of accident
to the em ployer, the em ployer m ay
require that the injured w orker
should subm it him self to a m edical
exam ination
In the case of an accident or an
accident leading to death, a notice
m ust be sent to the em ployer or any
other person w ho is em ployed to
supervise w ork in the sam e
establishm ent as soon as is
practicable after the accident
occurs. The notice can be served to
the em ployers either by sending the
notice by registered post to the
residence or the office of the
em ployer, or by entering such
notice into the notice book.
The com m issioner’s pow er to
determ ine how m uch each
dependant gets is discretionary. In
Karnataka, the practice is that 50%
is given to the w idow if any, of the
diseased w orkm an, and the rest is
equally distributed am ongst the
other dependants.
In such a case a m em orandum (of
the settlem ent) is to be sent to the
com m issioner, w ho, after
exam ining the genuineness of such
a m em orandum , m ust register it in
the m anner prescribed.
In cases of com pensation payable
to a w om an (w ho m ay be a w orker
or dependent of a deceased
w orkm an) or person under a legal
disability the A ct requires that the
sum be deposited w ith the
com m issioner and not paid directly
to the w om an/ person under a legal
disability, even though an agreem ent
can be entered into w ith her.
39
In cases w here the em ployer does not pay com pensation
after notice has been issued and after the lapse of 30
days from the date of the accident., or w here the
em ployee and em ployer fail to arrive at an agreem ent, an application
can be m ade to the labour officer by the w orker. The proceedings
before the Labour officer are quasi-judicial in nature.
In case of w orkers’injuries, the governm ent has the responsibility
of disposing w orkers claim s, in a speedy w ay. N o technical procedure
is follow ed in w orkm en com pensation cases. H ow ever, as the
em ployer has to be heard, and the m atter m ay need to be
investigated, there is som e m inim um procedure follow ed. A s it w ill
take aw ay from the governm ent’s tim e, a Labour C om m issioner is
appointed to discharge this responsibility. To enable him /her, the
rules provide that few provisions of the C ivil Procedure C ode m ay
be used to em pow er the C om m issioner to dispose of the cases
18
.
i. Who can make the claim? (section 10(1))
The injured em ployee or som eone on his
behalf can file a claim before the com m issioner
for w orkm en’s com pensation. In reality m ostly a law yer files the
claim .
N ote: W hile a m atter is pending for settlem ent before the
com m issioner, the em ployer’s liability to pay com pensation is not
suspended. It is the duty of the em ployer to pay the com pensation
at the rate prescribed under this A ct as soon as injury is caused to
the em ployee.
ii. Who should the claim be made to? (s. 19)
In the event that the em ployer does not pay com pensation for
accidents sustained by his w orkers w hile at w ork, a claim can be
m ade to the labour com m issioner, of the area w here the accident
took place. In case of a fatal accident the claim can be m ade w here
the claim ant ordinarily resides, or w here the em ployer has his
registered office.
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A
CHAPTER 5.
Legal Remedies (adjudication)
18
These provisions are: to take evidence on oath; enforce attendance of
w itnesses; and com pel production of docum ents and other required objects
m ay be used by the C om m issioner to dispose of his/her cases.
40
In Karnataka, unlike A ndhra Pradesh and Tam il
N adu, the claim s authority is a ‘labour officer’-
an authority junior to the ones in the states
m entioned w here the A uthority is an officer not
junior than the level of the assistant labour
com m issioner.
iii. Time period within which the claim should be made
(section 10)
A ll such claim s have to be m ade w ithin tw o years of the occurrence
of the accident, or death of the w orker. The com m issioner can refuse
to hear the m atter if no notice w as issued to the em ployer on the
occurrence of the accident and no claim m ade to the com m issioner
w ithin tw o years. If there is a delay in m aking such a claim it is
possible for the delay to be excused by the com m issioner, but the
w orker should give sufficient reason. A s the A ct is a ‘Beneficial A ct’,
delays and technical short com ings are not given im portance unlike
crim inal and civil cases.
What is ‘Sufficient Reason’?
Example # I: A s a result of an accident arising out of w ork, a
w orkm an sustained m ultiple fractures on both his legs and had to
be operated upon tw ice. H e rem ained under treatm ent for three-
and-a-half years. The court held that there w as sufficient cause to
condone the delay.
Example # 2: In a M adras H igh C ourt case
19
it w as held that “...
the cause for the delay i.e., illiteracy, m inority of children, nature of
em ploym ent in its totality is sufficient reason to condone the
delay….”In this case the w idow of the deceased w orkm an 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 w orker 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 w orker to take
leave, then the period of lim itation shall be from the date that the
w orker gives notice to his em ployer of his condition.
iv. Form of application (section 22)
! The com m issioner shall not be liable to entertain an application
for com pensation unless it is given in the prescribed form at,
19
Laxm i and others vs. D eputy com m issioner of Labour of M adras and
A nother 1998 I LLJ158(M ad) (D B)
KAR
I N F O
41
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i.e. it m ust be m ade w ith the follow ing details being
furnished
20
:
(a) a statem ent in ordinary language w ith regards to the
circum stances under w hich the application is being
forw arded and the relief or order w hich the applicant
claim s
(b) in case the claim for com pensation is m ade against the
em ployer, the application should m ention the date w hen
the notice of such accident w as m ade to the em ployer,
and if there w as any delay in doing so, the reason for
the delay;
(c) The nam e and address of the parties.
! A ll applications for claim s for com pensation m ust be m ade
to the com m issioner w ith the appropriate accom panying fee.
The fee is Rs. 2 for every Rs. 1000 of com pensation claim ed.
If the w orker is unable to pay this am ount an application can
be filed for exem ption till the final order is passed;
! In case of application m ade by/on behalf of dependants of
the deceased w orker, the photographs of the dependants
should be fixed on the application.
A role that can be played by A ctivists is to gather
evidence at the tim e of the occurrence of the
accident, or as soon as possible thereafter, as to
the fact of w orker’s em ploym ent w ith that particular em ployer and;
the fact that the injury occurred during the course of w ork. This is
crucial if a claim is being m ade before the labour officer later on.
Som etim es the em ployer denies that s/he em ployed the w orker
and secondly, that the accident occurred in the establishm ent
prem ises during the course of w ork.
Example: G irija, the child w orker em ployed in a silk reeling and
spinning factory suffered burns w hen a tub of boiling w ater fell on
her. Subsequently w hen a claim w as m ade, the em ployer denied
that the w orker w orked for him , and also denied that the accident
occurred at his w ork prem ises. The case w as com plicated by the
fact that there w as no record of em ploym ent kept by the em ployer
show ing that he em ployed the w orker. Further there w as no person,
other than the w orker’s relatives, w ho w ere available to testify before
the labor officer about having w itnessed the accident.
20
Sam ple form of A pplication for C om pensation by W orkm an see A N N EXU RE 7
4
2
He does not work for
me. In fact, I don’t even
know who he is!
43
The norm in m ost em ploym ents covered by W C A is for
appointm ents to be m ade orally. In such situations, w orkers should
try to seek docum entary evidence by w ay of registrar of w ages. If
the em ployer is not m aintaining the register, then according to the
Karnataka H igh C ourt, an ‘adverse inference’should be suffered
by the em ployer. Therefore, in such cases of absence of m aintenance
of a w ages register, the co- w orkers statem ent w ould be sufficient
evidence.
21
Som etim es co-w orkers are not w illing to give evidence for fear of
losing their jobs. In such cases, other docum entary evidence should
be looked for. This could be for e.g., the w orker ‘s bank passbook,
or a letter sent to the em ployee at the office address (can happen
in the case of m igrant w orkers or other w orkers living in slum s).
22
What did Girija’s lawyers do? An important legal strategy for all
Workmen’s Compensation cases.
A strategy that could be very effective, depending on the
circum stances is to check w hether a crim inal com plaint has been
registered and at w hat stage it is. N orm ally w hen the w orker is
taken to a governm ent hospital after the accident for treatm ent,
the hospital authorities have a legal duty to m ake a report to the
police. For exam ple, the em ployer m ay be crim inally liable for not
m aking adequate provisions for the safety of the w orkers engaged
in w ork at his prem ises and thus guilty of crim inal negligence.
There are tw o benefits of this approach; if the em ployer’s guilt is
proven in the crim inal proceedings, this helps trem endously in
proving his/her liability in the case before the labour officer deciding
the w orkm en’s com pensation case. Secondly, it puts pressure on
the em ployer to settle the m atter.
In case the w orker m aking the application dies before the final
outcom e of the case, there is nothing to prevent his legal heirs
from continuing the application. There is no tim e fixed w ithin w hich
such legal heirs m ust com e on record to continue such application
originally filed by the deceased applicant.
21, 22
A s per M uralidhara, Labour A dvocate and State secretary A ITU C , and S.
Bajaj , V.V. G iri Institute, respectively speaking at a w orkshop on ‘Role of
D epartm ent officers and their pow ers and functions for disposing of cases
under the W orkm en’s’C om pensation A ct. Paym ent of G ratuity A ct and
M inim um w ages claim s under the M inim um W ages A ct’on 18 Feb 2005.
44
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v. Appearance and Record of Evidence (sections
24 and 25)
! The parties m ust m ake their appearance before or to the
com m issioner. A registered legal practitioner/ trade union
m em ber/ inspector or other person appointed by the
G overnm ent for this purpose can represent the w orker or
can represent the parties if the necessary.
Note: Sometimes the employer absconds, and successfully evades
the summons to appear before the Commissioner and submit his
written statement (proving that he is not liable to pay compensation).
Then the practice is for the Commissioner to print the summons in
the State gazette publication and paper publication (a widely
circulated local newspaper), OR paste a copy of the summons on
the employer’s premises. Even after this, if the employer refuses to
appear, the case will proceed without him and s/he will have to
suffer the possible consequence of an adverse order.
! The com m issioner m ust m ake a m em orandum , recording the
substance of the evidence given by each of the w itnesses.
This m ust be w ritten in his ow n hand and m ust be signed by
him , and this m em orandum w ould be a part of the official
record.
Note: In this connection, if neither the worker or the employer are
able to produce any documents supporting their respective claims
as to how much wages was paid to the worker, the practice in
Bangalore is the Labour Officer will support the worker’s claim.
! A rgum ents w ill be presented by both parties after w hich
an order is issued by the com m issioner
! The com m issioner m ay, if he thinks it being fit, refer such a
m atter to the H igh C ourt.
vi. What happens if the employer delays
in paying of compensation? (Section 4-a)
C om pensation is to be paid as soon as the injury is caused to the
w orker. If the em ployer does not pay the com pensation am ount to
the disabled w orker w ithin a m onth from w hen the com pensation
fell due, then the com m issioner on application can give relief to
the w orker in the follow ing w ay:
(a) The com m issioner can direct the em ployer to pay the
com pensation to the w orker, plus sim ple interest at the rate
A
45
of 12% , or any other rate, not exceeding the rate of a
scheduled bank, or as published in an official gazette; and
(b) If the com m issioner feels that there w as no justification for
the delay in paym ent to the w orker, he m ay order the
em ployer, in addition to the sim ple interest, to pay a penalty
of not greater than 50% of the com pensation to be paid.
Interest and penalty can be levied by the com m issioner only on
application by the w orker after a claim s proceedings has been
com pleted and the w orkm en’s com pensation com m issioner has
passed an order aw arding com pensation to the w orker. In
consonance w ith principles of natural justice
23
, the em ployer has
to be given the opportunity of being heard by the com m issioner
before he passes such an order directing the paym ent of penalty.
In Karnataka, in practice penalty is not levied
often, norm ally the labour officer only im poses
interest. In rare cases w here the em ployer
w ilfully doesn’t deposit the m oney, the
authorities, after observing the behaviour of the
em ployer m ay im pose a penalty.
Is the insurance company liable to pay interest and penalty in cases
of delay in payment of compensation?
The Suprem e C ourt has held
24
that if com pensation is not paid
w ithin one m onth from w hen if fall due, then the paym ent of
interest is alm ost autom atic. It is considered part and parcel of the
liability to pay com pensation. H ence w hen the em ployer takes
insurance coverage for any liabilities arising under the W orkm en’s
C om pensation A ct, the insurance com pany w ill have to pay the
com pensation as w ell as interest on it. The C om m issioner for
W orkm en’s C om pensation m ay calculate the interest either from
the date of the accident or else from the date of passing the order
for com pensation. It is w ithin his/her pow ers to do either.
Regarding the paym ent of penalty, it w as held that as the delay
w as due to the personal fault and negligence of the insured
em ployer, he and not the insurance com pany w ould have to pay
the penalty.
23
‘N atural Justice’refers to conventions evolved by the law courts to ensure
justice and to prevent the m iscarriage of justice.
24
In Ved Prakash G arg, A ppellant, v. Prem i devi and O rs., Respondents, 1998
001 LLJ 363 SC
KAR
I N F O
46
H ow ever, the Suprem e C ourt w ent on to approve a decision of the
Karnataka H igh C ourt
25
. In that particular Karnataka case, the
insurance policy taken by the em ployer expressly excluded the
paym ent of interest and penalty in the event of any com pensation
payable under the W C A , and so the H igh C ourt held that the
insurance com pany w as not liable to pay interest in addition to
com pensation. Therefore it depends on the term s and conditions
of the insurance policy taken.
vii . Appeal (section 30)
A w orker can appeal against any decision can be m ade in the high
court, this can only be done so under certain circum stances, and
only if the com m issioner allow s the appeal, w hich is determ ined by
his certificate allow ing so, attached along w ith the appeal. The
conditions to m ake an appeal are m entioned in A nnexure 2
Bar against double remedies ( section 3 (5))
O nce an injured w orker, initiates action against, or
reaches an agreem ent w ith, an em ployer the said w orker cannot
initiate a sim ultaneous proceeding in a civil court in respect of the
sam e injury (but s/he can in a crim inal court). Sim ilarly if the w orker
institutes a suit for com pensation, for injury sustained during the
course of w ork, in a civil court, then s/he cannot then apply to the
labour com m issioner under this A ct. Therefore the w orker can chose
the type of rem edy s/he w ants i.e. either under the W C A , or civil
court or M otor Vehicles A ct ( incase of a m otor accident), but s/he
cannot apply for m ore than one rem edy.
If a w orker has m ade an application before the
M otor Vehicles A ccidents C laim s Tribunal
(M VC T), it is possible to subsequently w ithdraw
it from that forum and m ake another application
under the W orkm en’s C om pensation A ct. The
only requirem ent being that s/he m ust prove that
no com pensation w as taken through the M VC T.
A
25
O riental Insurance C om pany Ltd. V. Raju 1994 A C J 191
KAR
I N F O
47
ANNEXURE 1
M ethod of C alculating M onthly W ages (Section 5)
The calculation of m onthly w ages varies from situation to situation.
They are as follow s:
If the w orker has been in service for over a year prior to the accident,
then the m onthly w ages is calculated as that to be one-tw elfth of the
w ages the w orker collected in the past year (section 5 (a)).
Note: the above covers only those cases where workers have been in
continuos employment under the same employer for 12 months
preceding the accident. A worker might be in receipt of a retainer by a
particular set of employers and have been periodically employed by them
over the whole of the preceding year, yet section 5(a) will not apply
here.
If the w orker, prior to the accident had w orked for less than one m onth,
then the m onthly w ages is to be the sam e am ount that a person of
the sam e ability, doing the sam e kind of w ork in the sam e locality gets
as his m onthly w age (section 5 (b)).
The m ethod of calculating the m onthly w ages for a daily wage w orker
is given under section 5(c). A ccording to the section, the total w ages
earned by the daily w age w orker in the ‘last continuous period’of w ork
is m ultiplied by thirty, and then divided by num ber of days in that period.
By ‘last continuous period’it is m eant the last thirty days w orked.
Keeping in m ind that the daily w age w orker does not necessarily get
w ork on a regular basis, this period of w ork m ay not be ‘continuous’in
the norm al sense of the w ord. There m ay be cases w here the w orker
gets w ork for 5 days, then has no w ork for the follow ing eight days
before getting w ork again. A s long as the period of absence from w ork
is not m ore than fourteen days, the last thirty days of w ork can be
taken into account for calculating the m onthly w age.
It is also not necessary that the w orker w as em ployed by only one
em ployer during that period. The em ployer w ho s/he w as w orking for
at the tim e of occurrence of the accident w ill be liable to pay the
com pensation.
The m onthly w ages of a piece rated w orker can be w orked out by
using either of the m ethods given in section 5. C lause (b) or (c) of the
said section can be used for a piece rated w orker w ho has w orked for
less than a m onth. In com puting m onthly w age, the payable w ages
should be taken into account.
48
ANNEXURE 2
The conditions for appeal are:
! A n order aw arding as com pensation a lum p sum w hether by
w ay of redem ption of a half-m onthly paym ent or otherw ise
or disallow ing a claim in full or in part for a lum p sum ;
! A n order aw arding interest or penalty;
! A n order refusing to allow redem ption of a half-m onthly
paym ent;
! A n order providing for the distribution of com pensation
am ong the dependents of a deceased w orker, or disallow ing
any claim of a person alleging him self to be such dependent;
O R
! A n order refusing to register a m em orandum of agreem ent,
registering the sam e, or providing for the registration of the
sam e subject to conditions:
Such an appeal should be filed w ithin sixty days.
49
ANNEXURE 3
SC H ED U LE I
[See Sections 2(1) and 4]
Part I
List of injuries deemed to result in permanent total disablement
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
1 Loss of both hands or am putation at higher sites 100
2 Loss of hand and a foot 100
3 D ouble am putation through leg or thigh, or am putation
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 claim ant
unable to perform any w ork for w hich eyesight is
essential 100
5 Very severe facial disfigurem ent 100
6 A bsolute deafness 100
Part II
List of injuries deemed to result in permanent partial disablement
1 A m putation throug shoulder joint 90
2 A m putation below shoulder w ith stum p less
than [20.32 cm s] from tip of acrom ion 80
3 A m putation from [20.32 cm s] from tip of acrom ion
to less than [11.43 cm s] below tip of olecranon 70
4 Loss of hand or of the thum b and four fingers of one
hand or am putation from [11.43 cm s] below tip of
olecranon 60
5 Loss of thum b 30
6 Loss of thum b and its m etacarpal bone 40
7 Loss of four fingers of one hand 50
8 Loss of three fingers of one hand 30
9 Loss of tw o fingers of one hand 20
10 Loss of term inal phalanx of thum b 20
10 A G uillotine am putation of tip of thum b w ithout loss
of bone 10
Amputation cases–lower limbs
11 A m putation of both feet resulting in end-bearing stum ps 90
12 A m putation through both feet proxim al to the m etatarso-
phalangeal joint 80
13 Loss of all toes of both feet through m etatarso-phalengeal
joint 40
14 Loss of all toes of both feet proxim al to the proxim al inter-
phalangeal joint 30
15 Loss of all toes of both feet distal to the proxim al inter-
phalangeal joint 20
16 A m putation at hip 90
50
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
17 A m putation below hip w ith stum p not exceeding
[12.70 cm s] in length m easured from tip of great
trenchanter 80
18 A m putation below hip w ith stum p exceeding [12.70 cm s]
in length m easured from tip of great trenchanter but not
beyond m iddle thigh 70
19 A m putation below m iddle thigh to [8.89 cm s] below knee 60
20 A m putation below knee w ith stum p exceeding [8.89 cm s]
but not exceeding [12.70cm s] 50
21 A m putation below knee w ith stum p exceeding [12.70cm s]50
22 A m putation of one foot resulting in end-bearing 50
23 A m putation through one foot proxim al to the m etatarso-
phalangeal joint 50
24 Loss of all toes of one foot thorugh the m etatarso-
phalangeal joint 20
O ther injuries
25 Loss of one eye, w ithout com plications, the other being
norm al 40
26 Loss of vision of one eye, w ithout com plications or
disfigurem ent of eye-ball, the other being norm al 30
26 A Loss of partial vision of one eye 10
A. Fingers of right or left hand
Index finger
27 W hole 14
28 Tw o phalanges 11
29 O ne phalanx 9
30 G uillotine am putation of tip w ithout loss of bone 5
Middle finger
31 W hole 12
32 Tw o phalanges 9
33 O ne phalanx 7
34 G uillotine am putation of tip w ithout loss of bone 4
Ring or little finger
35 W hole 7
36 Tw o phalanges 6
37 O ne phalanx 5
38 G uillotine am putation of tip w ithout loss of bone 2
B. Toes of right or left foot
Great toe
39 Through m etatarso-phalangeal joint 14
40 Part, w ith som e loss of bone 3
Any other toe
41 Through m etatarso-phalangeal joint 3
42 Part, w ith som e loss of bone 1
51
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
Two toes of one foot, excluding great toe
43 Through m etatarso-phalangeal joint 5
44 Part, w ith som e loss of bone 2
Three toes of one foot, excluding great toe
45 Through m etatarso-phalangeal joint 6
46 Part, w ith som e loss of bone 3
Four toes of one foot, excluding great toe
47 Through m etatarso-phalangeal joint 9
48 Part, w ith som e loss of bone 3
Note –– Complete and permanent loss of the use of any limb or member
referred to in this Schedule shall be deemed to be equivalent to be loss of that
limb or member.
52
ANNEXURE 4
SC H ED U LE II
[See Sections 2(1)]
List of persons who, subject to the provisions of Section
2(1), are included in the definition of workmen
The follow ing persons are w orkm en w ithin the m eaning of Section 2(1)
and subject to the provisions of that section, that is to say, any person w ho is–
(i) em ployed, otherw ise than in a clerical capacity or on a railw ay, in
connection w ith the operation, [, repair] or m aintenance of a lift or
a vehicle propelled by steam or other m echanical pow er or by
electricity or in connection w ith the loading or unloading of any
such vehicle; or
(ii) em ployed, otherw ise in a clerical capacity, in any prem ises w herein
or w ithin the precincts w hereof a m anufacturing process as defined
in clause (k) of Section 2 of the Factories A ct, 1948 (63 of 1948), is
being carried on, or in any kind of w ork w hatsoever incidental to or
connected w ith any such m anufacturing process or w ith the article
m ade, [w hether or not em ploym ent in any such w ork is w ithin such
prem ises or precincts] and steam , w ater or other m echanical pow er
or electrical pow er is used; or
(iii) em ployed for the purpose of m aking, altering, repairing,
ornam enting, finishing or otherw ise adapting for use, transport or
sale of any article or part of an article in any prem ises w herein or
w ithin the precincts w hereof tw enty or m ore persons are so em ployed;
[Explanation. For the purposes of this clause, persons em ployed
outside such prem ises or precincts but in any w ork incidental to, or
connected w ith, the w ork relating to m aking, altering, repairing,
ornam enting, finishing or otherw ise adapting for use, transport or
sale any article or part of an article shall be deem ed to be em ployed
w ithin such prem ises or precincts; or]
(iv) em ployed in the m anufacture or handling of explosives in connection
w ith the em ployer’s trade or business; or
(v) em ployed in any m ind as defined in clause (j) of Section 2 of the
M ines A ct, 1953 (35 of 1952), in any m ining operating or in any
kind of w ork, other than clerical w ork incidental to or connected
w ith any m ining operation or w ith m ineral obtained, or in any kind
of w ork w hatsoever below ground; or
(vi) em ployed as the m aster or as a seam an of––
a. any ship w hich is propelled w holly or in part by steam or
other m echanical pow er or by electricity or w hich is tow ed or
intended to be tow ed by a ship so propelled; or
b. any ship not included in sub-clause (a) of tw enty-five tons
net tonnage or over; or
53
c. any sea-going ship not included in sub-clause (a) or sub-clause
(b) provided w ith sufficient area for navigation under sails
alone; or
(vii) em ployed for the purpose of––
a. loading, unloading, fuelling, constructing, repairing,
dem olishing, cleaning or painting any ship of w hich he is not
the m aster or a m em ber of the crew , or handling or transport
w ithin the lim its of any port subject to [the Ports A ct, 1908 (15
of 1908) or the M ajor Port Trusts A ct, 1963 (38 of 1963)], of
goods w hich have been discharged from or are to be loaded
into any vessel; or
b. w arping a ship through the lock; or
c. m ooring and unm ooring ships at harbour w all berths or in pier;
or
d. rem oving or replacing dry dock caisoons w hen vessels are
entering or leaving dry docks; or
e. the docking or undocking of any vessel during an em ergency;
or
f. preparing splicing coir springs and check w ires, painting depth
m arks on lock-sides, rem oving or replacing fenders w henever
necessary, landing of gangw ays, m aintaining life-buoys up to
standard or any other m aintenance w ork of a like nature; or
g. any w ork on jolly-boats for brining a ship’s line to the w harf;
or
(viii) em ployed in the construction, m aintenance, repair or dem olition of–
–
a. any building w hich is designed to be or is or has been m ore
than one storey in height above the ground or tw elve feet or
m ore from the ground level to the apex of the roof; or
b. any dam or em bankm ent w hich is tw elve feet or m ore in
height from its low est to its highest point; or
c. any road, bridge, tunnel or canal; or
d. any w harf, quay, sea-w all or other m arine w ork including
any m oorings of ships; or
(ix) em ployed in setting up, m aintaining, repairing or taking dow n any
telegraph or telephone line or post or any overhead electric line or
cable or post or standard or fittings and fixtures for the sam e; or
(x) em ployed, otherw ise than in a clerical clerical capacity, in the
construction, w orking, repair or dem olition of any aerial ropew ay,
canal, pipe-line, or sew er; or
(xi) em ployed in the service of any fire brigade; or
54
(xii) em ployed upon a railw ay as defined in [clause (31) of Section2 and
sub-section (1) of Section 197 of the Railw ays A ct, 1989 {24 or 1989)]
either directly or through a sub-contractor, by a person fulfilling a
contract w ith the Railw ay adm inistration; or
(xiii) em ployed as an inspector, m ail guard, sorter or van peon in the
Railw ay M ail Service, [or as a telegraphist or as a postal or railw ay
signaller], or em ployed in any occupation ordinarily involving outdoor
w ork in the Indian Posts and Telegraphs D epartm ent; or
(xiv) em ployed, otherw ise than in a clerical capacity, in connection w ith
operation for w inning natural petroleum or natural gas; or
(xv) em ployed in any occupation involving blasting operations; or
(xvi) em ployed in the m aking of any excavation in w hich on any one day
of the preceding tw elve m onths m ore than [tw enty-five] persons
have been em ployed or explosives have been used, or w hose depth
from its highest to its low est point exceeds [tw elve] feet; or
(xvii) em ployed in the operation of any ferry boat capable of carrying m ore
than ten persons; or
(xviii) em ployed, otherw ise than in a clerical capacity, on any estate w hich
is m aintained for the purpose of grow ing [cardam om ,] cinchona,
coffee, rubber or tea, and on w hich on any one day in the preceding
tw elve m onths tw enty-five or m ore persons have been so em ployed;
or
(xix) em ployed, otherw ise than in a clerical capacity, in the generating,
transform ing, transm itting or distribution of electrical energy or in
generation or supply of gas; or
(xx) em ployed in a lighthouse as defined in clause (d) of Section 2 of the
Indian Lighthouse A ct, 1927 (17 of 1927); or
(xxi) em ployed in producing cinem atograph pictures intended for public
exhibition or in exhibiting such pictures; or
(xxii) em ployed in the training, keeping or w orking of elephants or w ild
anim als; or
(xxiii) em ployed in the tapping of palm -trees or the felling or logging of
trees, or the transport of tim ber by inland w aters, or the control or
extinguishing of forest fires; or
(xxiv) em ployed in operations for the catching or hunting of elephants or
other w ild anim als; or
(xxv) em ployed as a driver;
(xxvi) em ployed in the handling or transport of goods in, or w ithin the
precincts of–
a. any w arehouse or other place in w hich goods are stored, and
in w hich one any one day of the preceding tw elve m onths
ten or m ore persons have been so em ployed, or
55
b. any m arket in w hich on any one day of the preceding tw elve
m onths [fifty] or m ore persons have been so em ployed; or
(xxvii) em ployed in any occupation involving the handling and m anipulation
of radium or X-rays apparatus, or contact w ith radioactive substances;
or
(xxviii) em ployed in or in connection w ith the construction erection,
dism antling, operation or m aintenance of an aircraft as defined in
Section 2 of the Indian A ircraft A ct, 1934 (22 of 1934); or
(xxix) [em ployed in horticultural operations, forestry, bee-keeping or
farm ing] by tractors or other contrivances driven by steam or other
m echanical pow er or by electricity; or
(xxx) em ployed, otherw ise than in a clerical capacity, in the construction,
w orking, repair or m aintenance of a tube-w ell; or
(xxxi) em ployed in the m aintenance, repair or renew al of electric fittings in
any building; or
(xxxii) em ployed in a circus;
(xxxiii) em ployed as w atchm an, in any factory or establishm ent; or
(xxxiv) em ployed in any operation in the sea for catching fish; or
(xxxv) em ployed in any em ploym ent w hich requires handling of snakes for
the purpose of extraction of venom or for the purpose of looking
after snakes or handling any other poisonous anim al or insect; or
(xxxvi) em ployed in handling anim als like horses, m ules and bulls; or
(xxxvii) em ployed for the purpose of loading or unloading of any m echanically
propelled vehicle or in the handling or transport of goods w hich
have been loaded in such vehicles; or
(xxxviii) em ployed in cleaning of sew er lines or septic tanks w ithin the lim its
of a local authority; or
(xxxix) em ployed on surveys and investigation, exploration or gauge or
discharge observation of rivers including drilling operations,
hydrological observations and flood forecasting activities, ground
w ater surveys and exploration ; or
(xl) em ployed in cleaning of jungles or reclaim ing land or ponds in w hich
on any one day of the preceding tw elve m onths m ore than tw enty-
five persons have been em ployed; or
(xli) em ployed in the cultivation of land or rearing and m aintenance of
live-stock or forest operations or fishing in w hich on any one day of
the preceding tw elve m onths m ore than tw enty-five persons have
been em ployed; or
(xlii) em ployed in installation, m aintenance or repair of pum ping
equipm ent used for lifting of w ater from w ells, tubew ells, ponds,
lakes, stream s and the like; or
56
(xliii) em ployed in the construction boring or deepening of an open w ell
or dug w ell, bore w ell, bore-cum -dug w ell, filter-point and the like;
or
(xliv) em ployed in spraying and dusting of insecticides or pesticides in
agricultural operations or plantations; or
(xlv) em ployed in m echanised harvesting and threshing operations; or
(xlvi) em ployed in w orking or repair or m aintenance of bulldozers, tractors,
pow er tillers and the like; or
(xlvii) em ployed as artist for draw ing pictures on advertisem ent boards at
height of 3.66 m etres or m ore from the ground level; or
(xlviii) em ployed in any new spaper establishm ent as defined in the W orking
Journalists and O ther N ew spaper Em ployees (C onditions of Service)
and M iscellaneous Provisions A ct, 1955 and engaged in outdoor
w ork.]
(xlix) em ployed as divers for w ork under w ater.]
Explanation–In this Schedule, “the preceding tw elve m onths”relates in any
particular case to the tw elve m onths ending w ith the day on w hich the accident
in such case occurred.
57
ANNEXURE 5
SC H ED U LE III
(See Section 3)
List of Occupational Diseases
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
PART A
1. Infectious and parasitic diseases (a) A ll w ork involving exposure
contracted in an occupation to health or laboratory w ork;
w here there is a particular risk
of contam ination. (b) A ll w ork involving exposure to
veterinary w ork;
(c) W ork relating to handling
anim als, anim al carcasses, part of
such carcasses, or m erchandise
w hich m ay have been
contam inated by anim als or
anim al carcasses;
(d) O ther w ork carrying a
particular risk of contam ination.
2. D iseases caused by w ork in A ll w ork involving exposure to
com pressed air. the risk concerned.
3. D iseases caused by lead or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
4. Poisoning by nitrous fum es. A ll w ork involving exposure to
the risk concerned.
5. Poisoning by organo phosphorus A ll w ork involving exposure to
com pounds. the risk concerned.
PART B
1. D iseases caused by phosphorus or A ll w ork involving exposure to
its toxic com pounds. the risk concerned.
2. D iseases caused by m ercury or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
3. D iseases caused by benzene or its A ll w ork involving exposure to
toxic hom ologues. the risk concerned.
4. D iseases caused by nitro and am ido A ll w ork involving exposure to
toxic derivates of benzene the risk concerned.
or its hom ologues.
5. D iseases caused by chrom ium or its A ll w ork involving exposure to
toxic com pounds the risk concerned.
58
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
6. D iseases caused by arsenci or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
7. D iseases caused by radioactive A ll w ork involving exposure to
substances and ionising radiations. the action of radioactive
substances or ionising radiations.
8. Prim ary epitheliom atous cancer of A ll w ork involving exposure to
the skin caused by tar, pitch, the risk concerned.
bitum en, m ineral oil, anthracene,
or the com pounds, products or
residues of these substances.
9. D iseases caused by the toxic A ll w ork involving exposure to
halogen derivatives of hydro- the risk concerned.
carbons (of the aliphatic and
arom atic series).
10. D iseases caused by carbon A ll w ork involving exposure to
disulphide the risk concerned.
11. O ccupational cataract due to A ll w ork involving exposure to
infra-red radiations the risk concerned.
12. D iseases caused by m anganese or A ll w ork involving exposure to
its toxic com pounds. the risk concerned.
13. Skin diseases caused by physical A ll w ork involving exposure to
chem ical or biological agents not the risk concerned.
included in other item s.
14. H earing im pairm ent caused by A ll w ork involving exposure to
noise. the risk concerned.
15. Poisoning by dinitrophenol or a A ll w ork involving exposure to
hom ologue or by substituted the risk concerned.
dinitrophenol or by the salts of such
substances.
16. D isease caused by beryllium or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
17. D iseases caused by cadm ium or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
18. O ccupational asthm a caused by A ll w ork involving exposure to
recognised sensitising agents the risk concerned.
inherent in the w ork process.
19. D iseases caused by flourine or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
20. D iseases caused by nitorglycerine A ll w ork involving exposure to
or other nitroacid esters. the risk concerned.
59
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
21. D iseases caused by alcohols and A ll w ork involving exposure to
ketones. the risk concerned.
22. D iseases caused by asphyxiants: A ll w ork involving exposure to
carbon m onoxide, and its toxic the risk concerned.
derivates, hydrogen sulfide.
23. Lung cancer and m esotheliom as A ll w ork involving exposure to
caused by asbestos. the risk concerned.
24. Prim ary neoplasm of the epithelial A ll w ork involving exposure to
lining of the urniary bladder or the the risk concerned.
kidney or the ureter.
25. Snow blindness in snow bound A ll w ork involving exposure to
areas the risk concerned.
26. D isease due to effect of heat in A ll w ork involving exposure to
extrem e hot clim ate. the risk concerned.
27. D isease due to effect of cold in A ll w ork involving exposure to
extrem e cold clim ate. the risk concerned.
PART C
1. Pneom oconioses caused by A ll w ork involving exposure to
sclerogenic m ineral dust (silicosis, the risk concerned.
anthraoosilicosis, asbestosis) and
silico-tuberculosis provided that
silicosis is an essential factor in
causing the resultant incapacity
or death.
2. Bagassosis. A ll w ork involving exposure to
the risk concerned.
3. Bronchopulm onary diseases caused A ll w ork involving exposure to
by cotton, flax hem p and sisal dust the risk concerned.
(Byssinosis).
4. Extrinsic allergic alveelitis caused by A ll w ork involving exposure to
the inhalation of organic dusts. the risk concerned.
5. Bronchopulm onary diseases caused A ll w ork involving exposure to
by hard m etals. the risk concerned.
6. A cute Pulm onary O edem a of high A ll w ork involving exposure to
altitude. the risk concerned.
60
ANNEXURE 6
SC H ED U LE IV
(See Section 4)
Factors for working out lump sum euivalent of compensation
amount in case of permanent disablement and death
C om pleted years of age Factors C om pleted years of age Factors
on the last birthday of on the last birthday of
the w orkm an im m ediately the w orkm an im m ediately
preceding the date on preceding the date on
w hich the com pensation w hich the com pensation
fell due fell due
(1) (2) (1) (2)
not m ore than 16 228.54 41 181.37
17 227.49 42 178.49
18 226.38 43 175.54
19 225.22 44 172.52
20 224.00 45 169.44
21 222.71 46 166.29
22 221.37 47 163.07
23 219.95 48 159.80
24 218.47 49 156.47
25 216.91 50 153.09
26 215.28 51 149.67
27 213.57 52 146.20
28 211.79 53 142.68
29 209.92 54 139.13
30 207.98 55 135.56
31 205.98 56 131.95
32 203.85 57 128.33
33 201.66 58 124.70
34 199.40 59 121.05
35 197.06 60 117.41
36 194.64 61 113.77
37 192.14 62 110.14
38 189.56 63 106.52
39 186.90 64 102.93
40 184.17 65 or m ore 99.37
61
ANNEXURE 7
FO RM 8
[See Rule 21]
Format of Application for Compensation by Workman
To
The C om m issioner for W orkm en’s C om pensation.
.....................................................................................................
.....................................................................................................
.....................................................................................................
Residing at ....................................................................applicant
Versus
.....................................................................................................
.....................................................................................................
.....................................................................................................
Residing at...........................................................O pposite Party.
It is hereby subm itted that–
(1) The applicant, a w orkm an em ployed by the
opposite party on the ......... day of .......19...........
received personal injury by accident arising out of
an in the course of his em ploym ent.
The cause of the injury w as (here insert briefly in
ordinary language the cause of the injury)
............................................................................
............................................................................
............................................................................
(2) The applicant sustained the follow ing injuries,
nam ely
............................................................................
............................................................................
............................................................................
62
(3) The m onthly w ages of the applicant am ounted to
Rs.................. the applicant is over/ under the age
of 15 years..............................
(4) * (a) N otice of the accident w as served on the
................... day of ...............
(b) N otice w as served as soon as practicable.
(c) N otice of the acident w as not served (in
due tim e by reason of
.................................................................
(5) The applicant is accordingly entitled to receive–
(a) half m onthly paym ent of Rs.......................
from the........... day of ....... 19..... to........
(b) a lum psum paym ent of Rs. .......................
(6) The applicant has taken the follow ing steps to
secure a settlem ent by agreem ent, nam ely
............................................................................
but it w as proved im possible to settle the
questions in dispute because.................................
............................................................................
* You are therefore requested to determ ine the follow ing
questions in dispute nam ely–
(a) W hether the applicant is a w orkm an w ithin the
m eaning of the A ct.
(b) W hether accident arose out of and in the course
of the applicant’s em ploym ent
(c) W hether the am ount of com pensation claim ed is
due, or any part of that am ount.
(d) W hether the opposite party is liable to pay such
com pensation as is due.
(e) etc., (as required).
D ate A pplicant
63
ANNEXURE 8
W hen the C om m issioner is deciding w hether an injury resulted
from an accident that ‘arose out of and in the course of em ploym ent’
for the purpose of aw arding com pensation, as a general rule,
em ploym ent of a w orker does not begin until he has reached the
place of em ploym ent and does not continue w hen s/he has left it.
But this is subject to the theory of ‘notional extension’both in tim e
and place, and a w orker m ay be regarded as in the his/her course of
em ploym ent even though s/he hasn’t reached or has left the
em ployer’s prem ises.
In recent tim es, the courts have been relying on a lim ited idea of
‘notional extension of the w orkplace’. Thus they have not been
including accidents that occurred w hile the w orker w as on route to
his/her place of w ork, w ithin the am bit of accidents that have arisen
“out of and in the course of w ork” w hich w as the earlier
jurisprudence and w as necessary in order to claim com pensation.
In Commr. Kovilpatti Municipality, Kovilapati v. Tamilarasan and anr.
1998 LLJ (002) 0683 –M ad., a w orker w as attacked by som e
m iscreants on his w ay to w ork and died as a result of injuries
sustained. The M adras H igh C ourt relying on the Suprem e C ourt
judgem ent in Regional Director v. Francis Decosta 1996 Lab I C 2720
(a judgem ent w hich dealt w ith an em ployee covered under the
Em ployee’s State Insurance A ct) held that the deceased w as on the
road as a m em ber of the public and w as definitely not there in the
course of his em ploym ent and hence his dependants w ere not
aw arded com pensation. A s per the judgem ent in Francis Decosta,
the em ploym ent of the w orker does not com m ence until he has
reached his place of em ploym ent.
Subsequently som e H igh C ourt decisions have expanded the
expression ‘arising out of and in the course of em ployem ent’in a
m anner w hich is beneficial for w orkers. Presented below are a few
judgem ents in brief:
In another M adras H igh C ourt judgem ent of that year - Mgmt. Of
Pannimedu Estate, Tata Tea Ltd. P.O. Valparai v. Chandra 1998 (002)
LLJ 0693 M ad. the C ourt held that the w om an w orker w ho w as
assaulted and injured in that case w as entitled to com pensation.
The court ruled that as the incident occurred w hile she w as near
64
the m uster to get assigned to her place of w ork, it m ust be held to
have occurred on account of the risk w hich is in the course of
em ploym ent and hence is com pensable( i.e. com pensation can be
paid).
Sim ilarly, in M.L. Aneja’s case 1999 (002) C LR 0062 Raj. The
Rajasthan H igh C ourt held that w here injury is caused to a w orker
by any person including a co w orker w ithin the m aster’s prem ises
(unless the m aster has no reasonable apprehension of the assailant’s
entry) the accident m ust be held to have occured ‘in the course of
and arising out of em ploym ent’. Even though this w as not w hat
m ay traditionaly be considered an hazard that im plicit in and
connected to the nature of the w ork. In this case the em ployee w as
stabbed by another em ployee. H ow ever, the em ployee did not get
com pensation because being a clerk he did not com e w ithin the
definition of ‘w orkm an’under this A ct.
In a 1999 O risa H igh C ourt judgem ent - Steel Authority of India,
Rourekela, Appellant v. Sabitri Nayak 1999 (002) CLR 0062 ORI the
court held that the deceased w orkm en’s w ife, Sabitri N ayak, w as
entitled to com pensation as a dependant of the deceased. The court
held that as the death occurred due to the strain and stress
undergone during em ploym ent, it is deem ed to arise out of and in
the course of em ploym ent. In this case the deceased w orker fell
from the bus w hile on his w ay to w ork. W hile such an injury norm ally
does not result in death, the w orker had heart problem s due to
w ork- related stress and the fall caused a heart attack.
Further, a person m ay be ‘in the course of his em ploym ent’not only
w hen he is actually discharging his duty to his em ployer. It also
includes m atters w hich are incidental to it. Therefore, in cases w here
a w orker m eets w ith an accident during periods of rest, or acts
w hen the w orker is satisfying bodily needs of food, drink and even
tobacco the injury can be regarded as being in the course of
em ploym ent.
doc_196151677.pdf
The Workmen's Compensation Act is the first piece of legislation towards social security. It deals with compensation for workers who are injured in the course of duty. The scheme of the Workmen’s Compensation Act is not to compensate the worker in lieu of wages.
Alternative Law Forum
The Workmen’s
Compensation Act
A Guide for Activists
The Workmen’s Compensation Act
A Guide for Activists
Illustrations: Muralidhar Rathod
Book Layout: Vinay Chandran
Published by: Alternative Law Forum, Bangalore, 2005
This w ork is licensed under the term s and conditions of the C reative
C om m ons N on C om m ercial / Share A like A greem ent. (For full text
of the license see w w w .creativecom m ons.org).
This m eans that you m ay freely copy, distribute, reproduce this text
in full or in part for non com m ercial purposes provided that you
provide full credit to the author of the w ork. You m ay m ake
m odifications and additions, provided that the derived w ork is also
licensed under the sam e term s and conditions as this w ork.
Table of Contents
Preface .............................................................................................3
Chapter 1. The Workmen’s Compensation Act, 1923.................. 7
Introduction and H istorical context of the A ct..............................7
To w hich establishm ents does the A ct apply?............................... 8
W ho is eligible to receive the benefits provided by this law ?
(s. 2 (1)
read w ith Schedule II)..................................................8Chapter 2. Disablement and Compensation.............................. 11
W hen is an em ployer liable to pay com pensation? (Section 3)....11
Chapter 3. Deciding Compensation............................................ 22
H ow Is the A m ount of C om pensation D eterm ined?...................22
a) In case a w orker dies w ho is entitled to com pensation
and how m uch com pensation should be paid?.................23
b) In case of injury how is com pensation to be
calculated? ......................................................................25
i) H ow m uch of C om pensation in case of total
perm anent disablem ent? ........................................25
ii) H ow m uch C om pensation in case of injury
resulting in perm anent partial disablem ent? ...........25
iii) C alculation of com pensation for ‘non scheduled
injury’resulting in perm anent partial
disablem ent...........................................................26
iv) H ow m uch C om pensation in case of injury
resulting in tem porary disablem ent? (Section 4(2)
to 4(4))...................................................................28
Chapter 4. Procedure to be followed when an accident
occurs for receiving compensation............................................. 30
1. N otice of A ccident to the Em ployer ..................................30
2. Penalties (on Em ployer for not discharging duties
under the A ct)..................................................................32
3. C om m issioner’s pow ers in case of accident resulting
in death ...........................................................................32
4. M edical Exam ination ........................................................32
5. C hoice to enter into agreem ent by em ployer....................33
6. The distribution of com pensation in case of a
w orker’s death, etc...........................................................35
Revision of com pensation paid to dependants...........................37
W hat if em ployer does not accept the extent of com pensation? 37
Chapter 5. Legal Remedies (Adjudication)................................. 39
i. W ho can m ake the claim to the C om m issioner? ...............39
ii. W ho is the claim m ade to? ...............................................39
iii. Tim e period w ithin w hich the claim should be m ade
(section 10)......................................................................40
iv. Form of application (section 22)........................................40
v. A ppearance and Record of Evidence
(sections 24 and 25).........................................................43
vi. W hat happens if the em ployer delays in paying of
com pensation? (Section 4-a) Provision for interest
and penalty......................................................................44
vii.A ppeal (section 30)...........................................................46
Bar against double rem edies ( section 3 (5))...............................46
Annexure 1... M ethod of calculating m onthly w ages.....................47
Annexure 2... C onditions for appeal..............................................48
Annexure 3... Schedule I of the A ct...............................................49
Annexure 4... Schedule II of the A ct..............................................52
Annexure 5... Schedule III of the A ct.............................................57
Annexure 6... Schedule IV of the A ct.............................................60
Annexure 7... Form at of application for com pensation by
w orkm an ........................................................................................61
Annexure 8... D iscussion on em ployer liability: C ase study .............63
There are large groups of unorganized w orkers in sm all industry,
agriculture, construction, dom estic service, garm ent industry, m any
form s of self-em ploym ent, etc. Their condition resem bles that of
w orkers in large industry in the early years of union form ation. Few
law s apply to them ; even the ones that are passed are not im plem ented.
M any of these w orkers have no education, few skills and little ability
to organise them selves.
The m anual originated from a feeling shared by m any, that a labour
rights education m anual is the need of the hour. It is m eant for activists
w orking w ith unorganised labour. A n aw areness of rights does not
m ean that they w ill be im plem ented easily, but it is certainly im portant
for further action and future strategies - legal or otherw ise to gain
those entitlem ents.
The m anual attem pts to untangle the law from the w eb of legalese,
and present w orkers rights under this enactm ent in a sim ple m anner
along w ith Bangalore specific procedures for enforcem ent, inform ation
about ground realities and issues.
The idea for this booklet on w orkm en’s com pensation w as suggested
by C . Balakrishna, H on. President of the G uttige Pow rakarm ikara
Sangha w ho pointed out that this enactm ent w as one of the im portant
law s for unorganized sector labour. M any people have been part of
the process. Valuable guidance w as received from M uralidhara, State
Secretary, A ITU C and labour law yer, as w ell as inputs from labour officer,
N .B. Ram achandra, currently a claim s authority for w orkm en’s
com pensation at Karm ikara Bhavan. The booklet ow es its vitality, if
any, to A LF’s experience in litigating a w orkm en’s com pensation case
for a child labourer. In this connection, M iriam C hinnappa, C hitra
Balakrishnan and A rvind N arrain from A LF provided useful suggestions
on the practical aspects to be kept in m ind in any adjudication under
this law . These find a place in the m anual as w ell as other useful
suggestions on form and content from C lifton D ’Rozario and A arti
M undkur, A LF. Initial w ork on this booklet w as done by G anesh Rao,
a student of N A LSA R
The deeper one digs the m ore one realises how little one know s. This
m anual w ill alw ays be a w ork in progress. A ll suggestions for
im provem ent are w elcom e, and m ay be sent via em ail to:
[email protected].
Preface
A nuja M irchandaney
Alternative Law Forum
Sections meant for intended for
Workers and Activists
I ntended for Activists. And possibly for
Workers. Up to the trainer’s discretion.
Refers specifically to context in Karnataka
Frequently asked questions
I N F O
KAR
W&A
A
Additionally, all references to:
Section or s. means sections under the Workmen’s
Compensation Act, 1948
Rules means the Karnataka Workmen’s Compensation
Rules, 1966
Act means the Workmen’s Compensation Act, 1948
Q&A
7
Introduction and Historical context of the Act
The W orkm en’s C om pensation A ct is the first piece of legislation
tow ards social security. It deals w ith com pensation for w orkers w ho
are injured in the course of duty. The schem e of the W orkm en’s
C om pensation A ct is not to com pensate the w orker in lieu of w ages.
The general principle is that a w orker w ho suffers an injury in the
course of his em ploym ent, w hich results in a disablem ent, should
be entitled to com pensation and in the case of a fatal injury his
dependants should be com pensated. U nder the W orkm en’s
C om pensation A ct it is the em ployer w ho is responsible to pay
com pensation (as opposed to the em ployees State insurance.
Establishm ents to w hich the Em ployees’State Insurance A ct applies
to the liability to pay com pensation is on the ESI corporation).
The m eaning of compensation in this A ct is lim ited to
com pensation granted under the A ct for em ploym ent injuries
sustained during the course of w ork. It is also lim ited to specifically
m onetary com pensation other than a salary, travel allow ance, and
any other form of rem uneration that could be paid under norm al
circum stances of em ploym ent.
To get an overall understanding of the A ct it is useful to look at the
“Statem ent of O bjects and Reasons’published w ith the A ct w hen
it w as first passed in 1923. To quote:
“…the grow ing com plexity of industry in this country w ith the
increasing use of the m achinery and consequent danger to
w orkm en, along w ith the com parative poverty to w orkm en
them selves renders it advisable that they should be protected, as
far as possible from hardship arising out of accidents.
A n additional advantage of a legislation of this type is that by
increasing the im portance for em ployers of adequate safety devises,
it reduces the num ber of accidents to w orkm en in a m anner that
cannot be achieved by official inspection. Further, the
encouragem ent given to em ployers to provide adequate m edical
treatm ent for their w orkm en should m itigate the effects of such
accidents as does occur. The benefits so conferred added to the
increased sense of security, w hich he w ill enjoy, should render
CHAPTER 1.
The Workmen’s Compensation Act, 1923
8
industrial life m ore attractive and thus increase the available supply
of labour. A t the sam e tim e a corresponding increase in the efficiency
of the average w orkm en m ay be expected.”
W hile these w ere the official objects and reason, Indian reality today,
is that the protection offered by the A ct does not act as an incentive
for w orkers, m ost of w hom are unaw are of it and w ho sim ply join
w ork to earn a livelihood.
A t the tim e the fram ing of the bill tw o criteria w ere follow ed in
determ ining w hom the A ct w ould apply to:
1. those industries w hich w ere m ore or less organized
2. W orkm en w hose occupations w ere hazardous.
N ow adays the governm ent (State of C entral) m ay extend the
application of this A ct to other establishm ents of an industry that
m ay not be organised.
To which establishments does the Act
apply?
A ll establishm ents hiring 20 w orkers and
above m ust com pulsorily register them selves under the Em ployees’
State Insurance A ct (ESI A ct). It is only those establishm ents, w hich
em ploy a lesser num ber of w orkers, and therefore to do not com e
w ithin the purview of the ESI A ct that the W orkm en’s C om pensation
A ct applies to. A lso if em ployers fail to register them selves under
the ESI A ct, then they w ill be responsible to pay com pensation under
the W orkm en’s C om pensation A ct.
H ow ever, the W orkm en’s com pensation A ct w ill only apply to those
persons considered “w orkers”and those Em ployers considered
‘Em ployers’, as defined under the A ct.
Who is eligible to receive the benefits provided by this law?
(s. 2 (1)
read with Schedule II)The A ct w ill apply only to persons recognized as a “w orkm en”
under the A ct. The follow ing criteria have to be satisfied:
! W ith the am endm ent of the W orkm en’s C om pensation A ct
in 2000 now it is not necessary that the w orker in question is
engaged in the em ployer’s trade or business. Further w ith the
W&A
9
Babu works as a gardener at the employer’s house. He is not considered a ‘workman’ under this law,
because his job is not in the list of scheduled employments
10
A m endm ent of 2000 now even casual w orkers
1
are covered
by this law . The only requirem ent is:
! The w orker should be employed in an activity, which has
to be either listed in schedule II
2
of the Act O R any duty
having connection with the specified activity
mentioned in the schedule. In addition, schedule III
3
to
the A ct contains a list of diseases and persons in occupations
w here infection is possible can claim com pensation under
this A ct. They are ‘w orkm en’for the purposes of this A ct.
! In addition to persons em ployed in the capacity m entioned in
Schedule II, a driver, a m echanic, cleaner, or person em ployed
in any other capacity in connection w ith a m otor vehicle are
also considered ‘w orkers’under this A ct.
Are Contract Labour eligible to receive benefits? (Section 12)
In case part of the w ork of an establishm ent is contracted out to a
contractor and a w orker em ployed by the contractor for this
purpose, is injured then, the principle em ployer and not the
contractor (w ho is the w orker’s im m ediate em ployer), is responsible
to pay com pensation as though the w orker w as directly em ployed
by him .
H ow ever, this principal em ployer holds the right to be indem nified
by the person w ho w ould norm ally pay for the com pensation of an
injured/deceased w orker, i.e. the contractor. H ow ever, nothing shall
prevent the w orker from claim ing his com pensation from the
principal em ployer.
Note: Piece rated workers are ‘workmen’ for the purposes of the
Act.
The Employer: is defined in this A ct, as a body of person/s, w ho
the w orker has entered into a contract of apprenticeship or service
w ith; the term ‘em ployer’also extends to his agent, legal
representative of a dead em ployer, or a tem porary em ployer on to
w hom the w orker has been lent to hire basis.
1
C asual em ploym ent is em ploym ent, w hich is not regular or continuous. It is
em ploym ent for short periods or for a lim ited or tem porary purpose. W ebster’s
D ictionary defines it as w ork ‘H appening to com e w ithout being foreseen;
com ing w ithout regularity.
2
Schedule II of the A ct is attached as A nnexure 4
3
Schedule III of the A ct is attached as A nnexure 5
11
When is an employer liable to pay compensation?
A s per Section 3 of the A ct, the em ployer is liable to
pay com pensation if the w orker is injured by accident that:
! arises out of (i.e. w hile engaged in w ork), and;
! in the course of his em ploym ent (i.e. during w ork
hours),and;
! such an injury results in disablem ent of the w orker.
If three conditions are m et, the em ployer of an establishm ent
covered by the A ct, is bound to pay com pensation. W hile the second
condition, i.e. during w ork hours is easy to prove, the first condition
(i.e., the accident occurred w hile engaged in w ork) has been difficult
to establish in certain cases.
Example: A bus w as on its last trip for the day. Som e assailants
entered the bus, sprayed chilli pow der on the passengers and shot
the conductor dead. It occurred during w ork hours, but could such
an act be term ed as an injury ‘arising out of the course of w ork’?
In this particular case, it w as argued –successfully - that such an
incident is a contingency that can arise during the course of duty.
H e w as exposed to that particular risk by reason of his em ploym ent.
4
Definition of ‘Disablement’
The definition of ‘disablement’ is very im portant in this A ct, as it
determ ines the extent of com pensation that can be claim ed by the
w orker injured in the course of his em ploym ent. U nder the A ct,
there are four types of eventualities, w hich can be com pensated,
nam ely:
1. Death
2. Permanent Total Disablement: disablem ent that
incapacitates a w orker from all kinds of w ork.
3. Permanent partial disablement: disablem ent that reduces
the capacity to w ork in any em ploym ent sim ilar to that the
w orker w as perform ing at the tim e of the accident.
4
For further discussion on this see A nnexure 8
A
CHAPTER 2.
Compensation & Disablement
12
Velu, who worked in a printing business, got his fingers cut off
by accident. This is “Partial Disablement” as it reduces his
capacity to work in any such employment of similar nature.
13
Ramamurthy, a powrakarmika (Road sweeper employed on
contract basis for Bangalore City Corporation) slipped and fell
from a garbage truck and fractured his hand. He could not work
for one month. This is temporary disablement.
Better get well
soon, 50% wages
is not enough
1
4
As Shiraz can no longer work as a coolie or do any work of a
similar nature, he can be considered 100% disabled under this law.
15
4. Temporary disablement: This m ay be total or partial
disablem ent, w hich is of tem porary nature, w hich reduces
the earning capacity of the w orker in any sim ilar em ploym ent
for the period of disablem ent.
Note: Total disability (i.e. 100% disability) has a different meaning
under the Workmen’s Compensation Act as compared to its
meaning in normal language. According to the Act, disability is
determined with reference to the work that the worker was doing
immediately before accident took place and if the resulting injury
leaves him incapable of performing any work of a similar nature
then his disability is considered as 100%.
Example: A n accident left a w orker- a coolie w ith a defect in his
leg and as a result unfit to perform the w ork of a coolie.
5
Legally he
can be considered 100% disabled. In this case the court stated that
the incapacity to earn is to be determ ined w ith reference to the
w ork, the w orker w as doing at the tim e of accident.
Q: If the w orker w as already suffering from
som e disease and the accident suffered by him
together w ith the disease resulted in the injury/
death w ould the em ployer be liable to pay
com pensation?
A: If the injury suffered by the w orker produces a disease, w hich
aggravates a pre-existing disease thereby causing a death or
disability, it is still com pensable (i.e. com pensation can be paid.)
The em ployer cannot defend him self by saying that the w orker
already had an existing disease,
Example: A w orker has a pre existing heart condition, w hich due
to the strain or over exertion of w ork causes his death, the em ployer
w ill is still liable to pay com pensation. A ll that is required is that the
accident suffered during the course of and arising out of the w ork
im m ediately led to his death injury.
In legal term inology: the injury suffered by the w orkm en at w ork
should be the ‘proxim ate cause’of his death, or that there should
be a ‘close causal connection’betw een the accident and the injury.
5
This has been held by the Bom bay H igh C ourt in Sadashiv Krishna A dke v.
M /s Tim e Trader 1992 I LLJ 877 (Bom )
Q&A
16
Shivanna got injured at work because he was under the
influence of alcohol. The employer is not responsible
to pay compensation for the resulting disablement.
For accidents resulting
in injury while the
worker was not
working, during work
hours, no compensation
needs to be paid.
17
Even if the cumulative result of a slight injury is death then such
injury is compensable.
6
Q: If after the injury, the w orkm an does not
lose his old post and receives the sam e salary,
does the em ployer still have to pay
com pensation?
A: Yes. This w as held in a M adras H igh C ourt
judgem ent (1989 II LLJ 38) w here the em ployee suffered from injury
on the right side of the neck, shoulder and head and there w as
100% hearing loss in the right ear and partial loss of hearing in the
left ear. The court held the fact that he w as holding the old post
and getting the old w age w ould not dis-entitle him from
com pensation under the A ct. This is because, the injury suffered
w ould affect him getting another job of a sim ilar nature, w ith a
different em ployer.
C om pensation is not payable by the em ployer
in the follow ing circum stances:
! W here the disablem ent does not last for m ore than three
days.
! W here the disablem ent has arisen out of the follow ing:
(a) D rugs or drink;
(b) D isobedience;
(c) D isregard for the safety m easures prescribed.
The grey area in this section is that there is no definition w hatsoever
that defines w hat is “drink”, “drugs”, “disobedience”or “disregard
to safety m easures”.
7
The em ployers m ay take advantage of this
section and evade paying the com pensation. H ow ever, the w orker’s
being under the influence of drugs or alcohol is not a defense in
the case of death or total disablem ent resulting from injury. Secondly,
in the case of disobedience, such disobedience should be ‘w ilful’.
6
H eld by the G ujarat H igh C ourt in D evi Behn D udhabhai v. M anager Liberty
Talkies and another, 1994-II-LLJ-1207(G uj.)
7
In addition to these defences, em ployers have often taken the recourse that
the w orker w as negligent. This m ay have nothing to do w ith provision of safety
m easures; for e.g. the w orker m ay have fallen asleep during w ork. In such
cases no com pensation m ay be aw arded or a lesser am ount of com pensation
m ay be aw arded.
W&A
Q&A
18
The back-related
problems suffered by
powrakarmikas due to
constant bending can
be considered an
occupational disease
Asthma resulting from
repeated exposure to
congress grass can also
be considered an
occupational disease
19
Is the employer liable to pay compensation in case a worker
gets inflicted by an ‘Occupational Disease’? (Section 3(2))
A n “occupational disease”w hile in service, is a disease that inflicts
w orkers in that particular occupation in w hich s/he w as em ployed
in and resulting from exposure to a hazardous w orking atm osphere,
particular to that em ploym ent. If a w orker contracts such a disease
then the em ployer is liable to pay com pensation, provided that the
w orker w as em ployed by him for a continuous period of six m onths.
A n occupational disease that is contracted in the course of
em ploym ent w ill fall w ithin the m eaning of an ‘accident’for the
purposes of this A ct. In the case of such a disease being contracted,
the em ployer w ill be liable to pay com pensation to the affected
w orker. The occupational diseases for w hich com pensation is
payable are specified in a list attached to the A ct- specifically, Part A
of Schedule III (see annexure 5).
Som e exam ples of occupational D iseases:
(i) Skin diseases caused by physical, chem ical or biological agents.
(ii) Bronchopulm onary disease caused by flax, hem p and sisal
dust (Byssinosis).
(iii) O ccupational asthm a caused by recognized sensitizing agents
inherent to the w ork process.
Comment: A shortcom ing of this A ct is that the List of occupational
diseases does not include m ental disorders that can arise from
particular kinds of w ork, for e.g. from m onotonous jobs. H ow ever,
according to a labour officer presently functioning as a C om m issioner
for W orkm en’s com pensation, if it can be proved through m edical
evidence that a m ental disorder arose out of the w ork, com pensation
can be paid.
Point for discussion: W hat are the professional hazards/
occupational diseases faced by the BM P contract Pow rakarm ikas?
What if the Employer becomes bankrupt? - Liability In Case
Of Insolvency (Section 14)
In the case w here the em ployer of the w orker has entered into an
agreem ent w ith insurers, to pay com pensation and subsequently
the em ployer becom es bankrupt, then in the event of any accident
happening, the em ployer’s liabilities w ill be transferred to the
insurers, and they w ould be treated as the em ployers of the
aggrieved w orker for the purpose of paying com pensation. This
20
In cases where employers have insured their liabilities
under the workmen’s compensation act, the insurers
have to pay compensation to workers getting injured.
I have no m
oney,
I can’t pay you!
Employer
Worker
Worker Insurance
Company
21
happens irrespective of w hether the em ployer is bankrupt or not. If
he has taken insurance to cover claim s arising out of w orkers’
accidents, the insurance com pany w ill be responsible to pay
com pensation. It is interesting that in such cases w ere an em ployer
has taken insurance, the em ployer w ill back the w orker’s claim
against the insurance com pany! N aturally, as they are not responsible
to pay the w orker com pensation w hich responsibility has shifted to
the Insurance C om pany. The practice of taking insurance is com m on
only am ongst the bigger contractors/ com panies.
H ow ever, they w ill be no m ore liable to the w orker than the original
em ployer. If the liability of the insurers is to be less than that of the
original em ployers, then the w orker can claim the balance am ount
from the insolvency proceedings.
In the case of the com pensation being half m onthly paym ents, the
insurers m ay convert that to an appropriate lum p sum and pay that
com pensation to the w orker.
22
How is the amount of compensation decided?
The com pensation to be paid by the em ployer for
injuries caused depend on extent of the disablem ent
suffered by the w orker; m ore severe disablem ents naturally receive
higher com pensation.
This has been categorised as follow s:
C om pensation payable in case of:
1) D eath;
2) D isablem ent
(a) Perm anent total disablem ent;
(b) Perm anent partial D isablem ent
(c) Tem porary disablem ent-
(i) Tem porary total disablem ent;
(ii) Tem porary partial disablem ent.
In addition, the guiding principle is, the higher the age of the injured
worker, the lower the compensation.
What is the basis of calculation of the amount of
compensation?
W ages are the basis for am ount of com pensation paid. Tw o w orkers
earning different salaries therefore w ill get different am ounts of
com pensation even though the injury they suffered m ight be
identical. C om pensation under this A ct is calculated on the basis
of the m onthly w age received by the w orker. A ccording to this A ct,
it is the am ount of w ages w hich w ould be payable for a m onth’s
service - i.e. irrespective of w hether the w orker is paid on a daily,
w eekly or piece rate basis. For m ethod of calculating ‘m onthly
w ages’see A nnexure 1.
Note: Wages: is defined as the privilege or benefit which is
measurable in terms of money other than any travel allowance, or
provident fund or any other special benefit claimable by the worker,
during the course of his employment.
CHAPTER 3.
Deciding Compensation
A
23
! Compensation to be calculated on the basis of the
minimum wage, if notified
W here a w orker received a m onthly w age less than w hat is
prescribed under the M inim um W ages A ct, 1948, s/he w ould be
deem ed to be draw ing the m onthly w ages as prescribed by the A ct
for the purposes of calculating com pensation. .
! Determining wages in case of a worker inflicted with
an occupational disease
A ccording to the Karnataka H igh C ourt,
8
com pensation in the case
of contracting of occupational disease is to be calculated on the
basis of w ages draw n at the tim e of term ination of em ploym ent
and not on the date of contracting the occupational disease.
(a) In case a worker dies who is entitled
to compensation and how much
compensation should be paid?
W here death results from the injury the com pensation is payable to
the w orkers dependants.
Who is a Dependant?
A ‘dependant’is defined under the A ct in section 2(d). This
definition is of vital value, as it determ ines w ho w ill be eligible to
receive the com pensation, in case the w orker dies in course of his
em ploym ent.
(i) (a) A w idow ,
(b) A m inor
9
, legitim ate/ adopted son,
(c ) A n unm arried legitim ate/ adopted daughter and;
(d) A w idow ed m other.
All the above people come under one category as being
dependants of the deceased worker.
(ii) If w holly dependent on the earnings of the w orker, then in
addition: (a) a son or (b) a daughter w ho has reached the
age of 18 but is infirm or sick.
8
This w as held by the Karnataka H igh C ourt in the case of Bharat G old
M ines Ltd., v. H anum an (1992) 1 LLN 1023
9
A m inor in this A ct is defined, as is norm ally the case, as a person w ho
has not attained the age of 18 years.
W&A
24
(iii) If w holly or partly dependant on the w orker, then the
follow ing can also be term ed as dependants of the deceased
w orker:
(a) a w idow er;
(b) a parent other than a w idow ed m other;
(c) a m inor illegitim ate son;
(d) an unm arried or w idow ed, adopted, legitim ate or
illegitim ate daughter;
(e) a m inor brother;
(f) an unm arried sister;
(g) a w idow ed sister, if m inor;
(h) a w idow ed daughter-in-law ;
(i) a m inor child of a deceased son;
(j) an orphaned grandchild;
(k) a paternal grandparent if the parents of the deceased
w orker are also dead.
Comment: The definition of the term “D ependant”show s that it
is not intended to benefit all the legal heirs of a deceased w orker
but only those relations w ho to som e extent depend upon the
w orker’s earnings for their daily necessities. H ow ever, all persons
m entioned in (i) above are beneficiaries w ho only have to prove
their relationship w ith the deceased w orker and do not have to
prove that they w ere dependent on earnings of the w orker.
How much should be paid?
The com pensation due to the dependants is an am ount equal to
fifty percent of the m onthly salary of the deceased w orker m ultiplied
by the relevant factor or an am ount of eighty thousand rupees,
w hichever is m ore. The minimum compensation in the case of death
in no circumstances can be less than Rs. 80,000/-.
The ‘relevant factor’is m entioned in the schedule IV of the A ct (see
annexure for relevant factors). The factor depends on the age of
the person deceased, i.e., the num ber of years the person could
have w orked for, if he did not die on the job.
Example: M uniyappa, a w orker aged 35 m eets w ith an accident
and dies w hile at w ork (i.e. in the course of em ploym ent). A t the
tim e he drew a m onthly w age of Rs.2,500/-. A s per Schedule IV of
25
the A ct the relevant factor applicable to his case w ould be
Rs. 197.06. A s such, the am ount of com pensation payable to his
dependants w ill be arrived at in the follow ing w ay:
(i) 50% of Rs. 2,500 = 1,250
(ii) 1,250 x relevant factor (i.e.197.06) =
Rs.2,46,325.00/- (total com pensation payable)
Where the monthly wages of a worker is more than Rs. 4000/- , it
is taken to be only Rs. 4000/- for calculating either compensation
in case of death, or permanent disablement.
(b) in case of injury how is compensation to be
calculated?
i) How much of Compensation in case of injury
resulting in total permanent disablement?
W here there is total perm anent disablem ent resulting from the injury
suffered, the w orker is entitled to be paid sixty percent of his m onthly
salary, m ultiplied by the relevant factor, or an am ount of ninety
thousand rupees, w hichever is m ore.
The minimum compensation in the case of total permanent
disablement, in no circumstances can be less than Rs. 90,000/-.
Example: Shakila Bano, a w orker aged 35 m eets w ith an accident
and suffers perm anent total disablem ent w hile at w ork (i.e. in the
course of em ploym ent) A t the tim e she drew a m onthly w age of
Rs.2,500/- The am ount of com pensation payable w ill be arrived at
as follow s:
(i) 60% of Rs. 2,500 = 1,500
(ii) 1,500 x relevant factor (i.e. 197.06) =
2,95,590.00/- (total com pensation payable)
ii.) How much Compensation in case of injury
resulting in permanent partial disablement?
In the case of partial disablem ent of the w orker, the
am ount he is entitled to is the percentage of that for total perm anent
disablem ent, the percentage being given in the schedule of the
A ct. Schedule I
10
, part II, to the A ct contains a list of injuries said to
result in perm anent partial disablem ent and the corresponding loss
in earning capacity.
10
Schedule I of the A ct is attached as A nnexure 3
A
A
26
Examples:
Description of injury: % loss of earning capacity
A m putation through Shoulder joint.....................................90
Loss of all toes of one foot through a
m etatorso-phalangeal joint..................................................20
Loss of one eye, w ithout com plications,
the other being norm al........................................................40
The com pensation is calculated on the lines given in the exam ple
above for perm anent total disablem ent, substituting the percentage
of disability suffered and the appropriate ‘relevant factor’obtained
from the schedule IV
11
, as per the age of the concerned w orker.
iii.) Calculation of compensation for ‘non scheduled injury’
resulting in permanent partial disablement.
The problem arises w hen the partial disablem ent
resulting from the injury is not listed in the schedule.
Then a reasonable percentage is to be given, as decided
by the com m issioner.
Example: G irija, a child labourer em ployed in a silk tw isting and
reeling unit in M agadi suffered third degree burns w hen a vessel of
boiling w ater used for boiling silkw orm cocoons, overturned on
her during the course of w ork. The injury sustained is not m entioned
in the schedule. H ow is the loss of earning capacity ascertained?
In such cases of ‘non scheduled injuries’the procedure follow ed is
to obtain a certificate from a m edical practitioner w ho w ill certify
the percentage of disability suffered. The certificate w ill form the
basis for determ ining the loss of earning capacity, w hich is the labour
com m issioner ‘s duty. H ence, the percentage loss of earning capacity
m ay not be equal to the percentage of disability suffered. In som e
cases it could be m ore, w hich the com m issioner is to decide. U seful
case law s in this regard are:
1. The Karnataka H igh C ourt decision in O riental Insurance Ltd.
v. M oham m ed H anif 1995(6) Kar. L. J.696
2. Pratap N arain Singh v. Shrinivas and ors 1976 –I - LLJ- 235
3. Kashi N ath Prasad v. Tata Engg. and Locom otive C o.,
(1998)2TA C 452(A ll)
A
11
Schedule IV of the A ct is attached as A nnexure 6
27
Therefore it is very im portant to m ake sure that the certificate issued
by the doctor contains all the relevant details. These include:
! The percentage of disability suffered as a result of the injury
! W hether the disability suffered is perm anent in nature
In the case of an unscheduled injury occurring, once the percentage
of perm anent disability is ascertained by the doctor, the am ount of
com pensation due to the injured w orker can be got using the
calculation m entioned above. The 60 % disability m entioned in
that exam ple can be substituted for the percentage of disability
ascertained by the doctor for the unscheduled injury, and the
relevant factor obtained from the schedule IV, as per the age of the
concerned w orker (see annexure 6 for Schedule IV).
Example: G irija, the child labour em ployed in the silk reeling unit
m entioned above, w as certified by the doctor in the governm ent
hospital to be inflicted w ith 28% disability from the third degree
burns she suffered from her accident. H er salary w as Rs. 50/- per
day. In accordance w ith the A ct, for purposes of calculating
com pensation her salary w ill be as per the M inim um w age notified
for that em ploym ent, i.e., Rs. 65/- per day, w hich w orks out to Rs.
1950/- per m onth. Being below the age of 16 yrs, only 60% of the
w age w ill be applicable to her, i.e. Rs. 1170/-(as per the m inim um
w age notification for sericulture industry). C om pensation is
calculated as follow :
(i) Percentage of disability = 28%
(ii) Salary as per m inim um w ages A ct = Rs. 1950
(iii) 60% payable to child labour = Rs. 1170/-
(iv) Relevant factor for w orker of 14 years
(i.e. G irija’s age)= 228.54
(v) Therefore C om pensation is: 28/100 x 1170 x 228.54
(relevant factor) = Rs. 74,869.70
The accident occurred in 29th Septem ber 1998, w hereas
com pensation w as aw arded only in D ecem ber 2003. Therefore
interest @ 12% per annum w hich w as payable from the date of
the accident, w as calculated as follow s:
(i) 12/100 x 74,869.70 = Rs. 8984.36
(interest payable for one year)
28
(ii) Rs. 8984. 36 x 5(years) = Rs. 44, 921/-
(interest from Sept 1998 to Sept 2003)
+ Rs. 2246.09 (interest from O ct. to D ec. 2003)
Therefore total am ount due (principal + interest) = Rs. 12,2036.70
iv.) How much Compensation in case of
injury resulting in temporary
disablement? (Section 4(2) to 4(4))
In case of tem porary disablem ent, paym ents
equal to 25% of the w orkers w ages shall be m ade at half m onthly
intervals. C lause (d) of sub section 4(1) talks about com pensation
for tem porary disablem ent In case the disablem ent lasts for m ore
than 28 days then the em ployer should m ake the paym ent on the
16th day from the day of the disablem ent.
If the period of disablem ent lasts for less than 28 days then the
paym ent shall be m ade after the expiry of 3 days. This w ait for 3
days is to ascertain how long the tem porary disablem ent w ill last;
w hether it is likely to get over before 28 days or take longer.
In case the em ployer m akes any paym ent to the w orker before the
paym ent of this half m onthly or lum p sum am ount it shall be
deducted from this. (section 4 (2) (a))
This provision envisages a situation w here an
application is m ade w hen the w orker is still
undergoing treatm ent and recovering. W hile
this is possible, in Bangalore w orkers’
applications for tem porary disablem ent
com pensation are norm ally m ade only after they
recover from the injury and find them selves out of a job. Then they
m ake an application to recover the com pensation. In such cases,
the C om m issioner, grants a lum p sum adding up half-m onthly
paym ents for the period starting from the day of the accident up till
the date show n on the last m edical record (i.e. doctor’s. prescription,
case sheet, outpatient coupon, etc) that the w orker is able to
produce. In addition, the C om m issioner also grants 12% interest.
Therefore, in the event of suffering an injury-related disablement,
workers should maintain these medical records. Because it is on the
basis of this proof, that they get com pensation.
KAR
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29
Review of payments in case of temporary disablement
(section 6)
In the case of tem porary disablem ent w here half-m onthly w ages is
to be paid, there is provision for review of such am ount, by the
com m issioner. Either party, supported by an attested certificate of
a m edical exam iner can apply for the review to the com m issioner.
The review m ight lead to the increase, decrease or the end of the
half-m onthly w ages, depending on the condition of the w orker. In
case the tem porary disablem ent leads to a perm anent disablem ent,
then the review has the pow er to call for the lum p sum
com pensation to be paid to the w orker. The lum p sum the w orker
is entitled to is less any am ount that s/he has already received in
half m onthly paym ents.
In case of tem porary disablem ent, any w orker, receiving the half
m onthly paym ent, shall be required to subm it him self from tim e to
tim e for a m edical exam ination. A ccording to Rule 17 of the
Karnataka W orkm en’s C om pensation Rules, 1966, the w orker needs
only to subm it herself/him self for m edical exam ination only tw ice
in the m onth follow ing the accident and only once in subsequent
m onths, if the place is aw ay from the w orker’s place of residence.
30
1. Notice of accident to the employer
In the case of an accident or an accident
leading to death, a notice m ust be sent to the em ployer or any
other person w ho is em ployed to supervise w ork in the sam e
establishm ent as soon as is practicable after the occurrence of the
accident.
The notice from the aggrieved party can be served to the em ployers
either by sending the notice by registered post to the residence or
the office of the em ployer, or by entering such notice into the notice
book, m aintained at the prem ises of the office.
The state governm ent m ay require that a certain class of
establishm ents m ust m aintain a “notice book” w hich m ust be
accessible to all the em ployees at all tim es.
The notice m ust contain:
(a) The nam e and address of the person w ho died or w as injured,
and;
(b) In norm al language m ust state the cause of the injury, and;
(c) The date on w hich it occurred.
Q : w ould establishm ents (not covered by the
ESI A ct) m anufacturing garm ents com e under
this category?
A : Yes, they w ould.
If there is any law in force requiring the em ployer to give notice
regarding the death or serious bodily injury of an em ployee, the
em ployer shall do so, by giving the notice to the labour
com m issioner
12
w ithin seven days of such event, describing the
circum stances of the injury or death. This law is in force in Karnataka.
A ll references to C om m issioner in this booklet refers to the Labour
O fficer w ho handles W orkm ens’C om pensation cases.
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Q&A
CHAPTER 4.
Procedure to be followed when an accident occurs,
for receiving compensation
12
U nder this A ct, the com m issioner is a public servant as per the Indian Penal
C ode, and is appointed by the state governm ent by notification in the official
gazette. In practice, Labour officers are appointed under the Industrial D isputes
31
W ithin thirty days of such notice
being served, the em ployer
should reply as to the
circum stances of such death,
and w hether, in his opinion, he
is to deposit com pensation to
the com m issioner.
Commissioner’s powers in case of accident
resulting in death (S. 10-A)
Anyone can report to the Labour C om m issioner in case of a w orker
being killed in an accident.
If the em ployer feels that he is
responsible to do so, then he
m ust deposit the com pensation
w ith the com m issioner w ithin
thirty days after the notice is
served. If he feels in the contrary,
he m ust inform the
com m issioner of the grounds
under w hich he claim s such
exem ption.
O n claim ing such exem ption, the
com m issioner m ay inform the
dependants of the deceased
w orker, leaving it open to them ,
w hether they w ould w ant to
claim com pensation or not.
A
In case, the com m issioner is
aw are of a fatal accident, he has
the pow er to send a notice to the
em ployer (i.e. w ithout receiving
any application), requiring him to
subm it a statem ent w ithin a
m onth’s tim e.
32
2. Penalties (on Employer for not discharging duties under
the Act)
If an em ployer fails to
! send the com m issioner a statem ent; or report as required in
case of fatal accidents fails to do so, or,
! m aintain a notice book
S/he shall be liable to pay a fine, w hich m ay extend to five thousand
rupees. Such a proceeding cannot be m ade w ithout the previous
perm ission of the com m issioner, and the court shall not take
cognizance of any offence, if such m atter is not brought before the
court at least w ithin six m onths from the tim e that the com m issioner
becom es aw are of such offence.
3. Commissioner has the power to require further deposit in
cases of fatal accident (section 22-A)
! In the case of a fatal accident, w here the com m issioner feels
that the am ount deposited as com pensation is not adequate,
he m ay serve a notice to the em ployer stating his reasons,
and asking the em ployer to show cause as to w hy the am ount
deposited is adequate.
! If the em ployer fails to show cause, the com m issioner m ay
m ake the aw ard and direct the em ployer to pay the deficiency.
! The aw ard in such a case is norm ally on the basis of the
A ct (i.e. 50% of w ages m ultiplied by the relevant factor. See
exam ple in section on “H ow m uch should be paid?”).
4. Medical Examination (section 11)
In cases of injury not am ounting to death, on
serving notice of accident to the em ployer, the
em ployer m ay require the em ployee to undergo a m edical
exam ination free of charge. The injured w orker should subm it
him self to such m edical exam ination.
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A ct to do the job of conciliation and inspection. In Karnataka the State
governm ent by issuing a notification in the official gazette appoints som e labour
officers as ‘designated com m issioners for W orkm en’s C om pensation.’A nd hence
they perform the additional w ork of a claim s authority to hear and decide
claim s under the W orkm en’s C om pensation A ct. The com m issioner is appointed
for the com pensation of w orkers for a specific designated area; Bangalore
N orth is a designated area, sim ilarly Bangalore South etc.
33
! The tim e of the exam ination shall not be betw een 7 p.m .
and 6 a.m . unless the w orkm an specifically agrees.
! If the w orkm en’s condition is so bad that it is either im possible
or in advisable for him to leave his residence then the em ployer
cannot force him to get exam ined at any other place other
than his residence.
! A w om en w orker has a right to ask for the presence of
another w om en if a m ale doctor is exam ining her. (Rule 19)
If the w orker does not agree to subm it him self for a m edical
exam ination, by a qualified m edical practitioner, then he shall lose
his right to claim com pensation from his em ployer, and this right
shall be suspended till he refuses to appear for the exam ination. In
case the w orker does not subm it him self for the exam ination and
dies before doing so, the com m issioner m ay m ake an order to pay
com pensation to the dependants of the w orker.
Note: If the employer does not take the worker for a medical
examination, or if the worker is not satisfied with the employer’s
doctor’s medical certificate, he may approach any other registered
medical practitioner for a certificate. In case of different percentages
of disability being certified, it is up to the Labour Officer in the
claims proceeding to decide what to rely on, when judging the
loss in earning capacity of the worker.
5. Choice to enter into an agreement
(SECTION 28)
The em ployer and em ployee, have the choice
of entering into an agreem ent. The provision relating to agreem ents
under the W orkm en’s C om pensation A ct, relate to cases w here
the parties have arrived at an agreem ent prior to any hearing before
the court. It does not refer to any agreem ent reached by parties
betw een w hom there is an existing dispute before the court
regarding the quantum of com pensation. These agreem ents m ay
be for:
! the settlem ent of any lum p sum payable as com pensation,
(i.e., paym ent of a lum p sum (one-tim e) paym ent to convert
the em ployer’s liability for half m onthly paym ents, or
otherw ise) or;
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13
Legal disability is a disability, w hich can be enforced by law . A person under
a legal disability is one w ho is incapable of representing them selves, e.g.
m inor or a m entally challenged person.
34
KAR
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14
H eld by the G ujarat H igh C ourt in Bai Chanchalben v. Burorji Dinshaw
Sethna (1969) 2 LLJ 357
If in the agreement the employer states that the amount is an ex
gratia payment and the language of the receipt does not show
that the money given was in settlement of compensation, then the
employers liability to pay compensation still exists.
14
Registration of Agreements and consequences of not doing so(Section 29)
The Law requires that the em ployer registers such agreem ents w ith
the C om m issioner. Failing w hich, the em ployer w ill be responsible
to pay the full am ount and not the reduced am ount if any under
the settlem ent/ agreem ent. If the em ployer fails to register such a
m em orandum , the com m issioner m ay order the em ployer to pay
the entire am ount of com pensation that the provisions of the A ct
provide for.
In the agreem ent entered into the em ployer cannot pay less then
the principle sum due as per the provisions of the A ct. If s/he does
the agreem ent w ill not be registered. A com prom ise can only be
m ade in term s of the interest and penalty due from the em ployer.
In practice, in Karnataka several tim es the principle am ount it self is
not paid and as such agreem ents are not
subm itted for registration to the com m issioner,
they do not also com e up for scrutiny. The
practice is com m on in the construction industry.
In cases w here the agreem ent is placed before
the C om m issioner in Bangalore, no com prom ise is allow ed in the
principal am ount of com pensation payable in fatal cases. H ow ever
in non-fatal cases, com prom ise is often perm itted to the extent of
Rs. 2-3,000/-. The C om m issioners m ay them selves ‘appraise’the
w orker of the consequences of not com prom ising. I.e. the ensuing
litigation, and the tim e and m oney that s/he w ill have to incur,
w hich often influences the w orker to accept the lesser am ount.
In cases of com pensation payable to a w om en or person under a
legal disability the A ct requires that the sum be deposited w ith the
! any com pensation payable to a w om an or a person under
any legal disability.
13
In such a case a m em orandum is to be sent to the com m issioner,
w ho, after exam ining the genuineness of such a m em orandum ,
m ust register it in the m anner prescribed.
35
Note: This provision for registration and depositing payment with
the commissioner is to safeguard the interests of the women and
dependants from fraud or force. An unscrupulous employer may
pay a lesser amount to the deceased’s dependents. Similarly an
unscrupulous dependent may collude with the employer to deny
other dependents of their share. Therefore, in the case of payments
to women and dependents of deceased, an employer can enter
into agreement with them, however:
! Such agreement should be registered, and;
! The money should not be given directly, but deposited with
the commissioner.
H ow ever:
! N o m em orandum can be registered by the com m issioner
before the lapse of seven days from the tim e he had received
the notice of such accident.
15
! The com m issioner m ay at any tim e alter the registration. A nd
if he has reason to believe that the agreem ent has been
reached due to fraud or undue influence, he m ay refuse the
m em orandum sent by the em ployer, and can pass an
appropriate order, including an order to pay the com pensation.
6. Distribution of compensation
(including in case of worker’s death, and
payment of compensation to women
workers / persons under legal disabilities).
M oney given by em ployer to w orker is only considered as
‘com pensation’under this act if it is given through the com m issioner.
! O nce the com pensation is deposited w ith the C om m issioner,
in case of the injured party being a w orkm an, the
C om m issioner can directly pay the m oney to him (s.8(6)).
! In case of paym ent m ade to a w idow and other heirs of a
w orker w hose injury resulted in death, any such lum p sum
paym ent already paid to the dependent of the deceased by
15
The w ait for seven days is to give tim e for objections in case of fraud etc.
W&A
com m issioner. A ny direct paym ent m ade to such persons is
considered to be no paym ent of com pensation under law .
36
the em ployer cannot be deducted from actual am ount of
com pensation payable. (Section 8).
16
! Rule 11 of the Karnataka Rules provide that
all w orkm en covered by the A ct m ay register
w ith their em ployer and the com m issioner the
nam es and addresses of their dependants.
In case of death of a w orker, in an inquiry for the distribution
of com pensation, if no other person m akes a claim the
com m issioner m ay presum e the persons registered by the
deceased w orker are the dependants.
17
! A fter the com pensation is deposited w ith the com m issioner,
he m ay, if he thinks fit, call the dependants, to appear before
him , to decide how m uch com pensation each one gets.
! The receipt given to the em ployer by the C om m issioner on
paym ent of such com pensation is proof enough of giving
com pensation to the w orker and the burden is no longer on
the em ployer.
! The practice in Karnataka is that 50% is given to the w idow ,
if any, of the deceased and the rest is distributed equally am ong
the dependants m entioned in section 2(d) of the A ct
(m entioned above).
! A fter such hearing is done, and if the com m issioner finds that
there is no dependant, then he m ust return the m oney to the
em ployer. A lso, if there is any balance am ount, the
com m issioner m ust return the sam e to the em ployer.
! The em ployer m ay dem and a detailed account of the
distribution of com pensation.
! W here any lum p sum com pensation deposited w ith the
C om m issioner is payable to a w om an or person under legal
disability, it m ay be invested or otherw ise dealt w ith by the
C om m issioner for the benefit of such persons (s.8(7)). U nder
Rule 10 of the Karnataka Rules, the C om m issioner m ay invest
the com pensation due to the deceased w orkm en’s dependents
only in (a) G overnm ent securities, or; (b) G overnm ent Savings
Bank, or; (c) Post O ffice Savings Bank. This Rule also applies
16
Kathelena Dias v. H.M. Coria and sons A IR 1951 C al 877 follow ed in 1989
Lab IC 1399
17
In discussion w ith the labour officer it appears that this provision is not in
use, although as it is ‘law ’it m ay be found useful by som e w orkers.
KAR
I N F O
37
w here com pensation is payable to a w om an w orker/ persons
under legal disabilities (i.e., w orkers w ho haven’t yet attained
adulthood).
Note: How much of compensation money is given in cash and how
much is invested is entirely at the discretion of the Commissioner.
But it fair to say that more investments are made in case of women
workers than men, although the Commissioner may also invest the
compensation amount in case of workmen. Also, in the case of
women beneficiaries, a larger percentage of the compensation
amount is invested and the remaining is given as cash, compared
to men. This is decided entirely on a case-to-case basis.
Comment: These provisions for (a) paying full am ount of
com pensation regardless of any paym ents already m ade; and (b)
not giving com pensation directly; are exam ples of the ‘protectionist
approach’(as opposed to the ‘Rights based approach’) that the
legislature has in m aking law s covering/dealing w ith w om en w orkers
(considered to be persons under legal disabilities). A t the sam e tim e,
it cannot be forgotten that w om en w orkers are often m ore
vulnerable, and could be exploited.
Revision of compensation paid to dependants
O n account of neglect of children on the part of a parent or on
account of the variation of the circum stances of any dependent or
for any other sufficient cause, the com m issioner m ay m ake orders
w ith regard to changes in the com pensation payable to the
dependants. This m ay be done on an application to the
com m issioner or by the C om m issioner acting on his ow n on the
basis of inform ation received by him .
What if employer does not accept the extent
of compensation?
Essentially, com pensation is to be paid as soon as it falls due, i.e.,
w hen the accident occurs - at the latest w ithin 30 days. In case the
em ployer does not accept the extent to w hich com pensation is
being claim ed, then the em ployer is to pay the am ount of
com pensation to the extent of responsibility he accepts, at the
earliest. H e is to do so by depositing the am ount at the office of the
com m issioner or w ith the w orker.
By doing so, the w orker, how ever, is not prevented from m aking a
further claim before the Labour com m issioner for the rem aining
am ount of com pensation.
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38
Procedure in brief to be followed when an accident occurs
(see p. 30)
The em ployer and em ployee, have
the choice of entering into an
agreem ent for: the settlem ent of
any lum p sum payable as
com pensation, I.e., paym ent to
convert the em ployer’s liability for
half m onthly paym ents, or
otherw ise (com pensation for total/
partial disability).
The C om m issioner for W orkm en’s
C om pensation has pow ers to act by
him self, w ithout receiving a notice,
if he com es to know of any accident
w here a w orker w as injured. S/he
m ay issue a notice to the em ployer
asking w hat the cause of the injury
w as and w hether the em ployer
thinks s/he is liable to pay
com pensation.
In cases of injury not am ounting to
death, on serving notice of accident
to the em ployer, the em ployer m ay
require that the injured w orker
should subm it him self to a m edical
exam ination
In the case of an accident or an
accident leading to death, a notice
m ust be sent to the em ployer or any
other person w ho is em ployed to
supervise w ork in the sam e
establishm ent as soon as is
practicable after the accident
occurs. The notice can be served to
the em ployers either by sending the
notice by registered post to the
residence or the office of the
em ployer, or by entering such
notice into the notice book.
The com m issioner’s pow er to
determ ine how m uch each
dependant gets is discretionary. In
Karnataka, the practice is that 50%
is given to the w idow if any, of the
diseased w orkm an, and the rest is
equally distributed am ongst the
other dependants.
In such a case a m em orandum (of
the settlem ent) is to be sent to the
com m issioner, w ho, after
exam ining the genuineness of such
a m em orandum , m ust register it in
the m anner prescribed.
In cases of com pensation payable
to a w om an (w ho m ay be a w orker
or dependent of a deceased
w orkm an) or person under a legal
disability the A ct requires that the
sum be deposited w ith the
com m issioner and not paid directly
to the w om an/ person under a legal
disability, even though an agreem ent
can be entered into w ith her.
39
In cases w here the em ployer does not pay com pensation
after notice has been issued and after the lapse of 30
days from the date of the accident., or w here the
em ployee and em ployer fail to arrive at an agreem ent, an application
can be m ade to the labour officer by the w orker. The proceedings
before the Labour officer are quasi-judicial in nature.
In case of w orkers’injuries, the governm ent has the responsibility
of disposing w orkers claim s, in a speedy w ay. N o technical procedure
is follow ed in w orkm en com pensation cases. H ow ever, as the
em ployer has to be heard, and the m atter m ay need to be
investigated, there is som e m inim um procedure follow ed. A s it w ill
take aw ay from the governm ent’s tim e, a Labour C om m issioner is
appointed to discharge this responsibility. To enable him /her, the
rules provide that few provisions of the C ivil Procedure C ode m ay
be used to em pow er the C om m issioner to dispose of the cases
18
.
i. Who can make the claim? (section 10(1))
The injured em ployee or som eone on his
behalf can file a claim before the com m issioner
for w orkm en’s com pensation. In reality m ostly a law yer files the
claim .
N ote: W hile a m atter is pending for settlem ent before the
com m issioner, the em ployer’s liability to pay com pensation is not
suspended. It is the duty of the em ployer to pay the com pensation
at the rate prescribed under this A ct as soon as injury is caused to
the em ployee.
ii. Who should the claim be made to? (s. 19)
In the event that the em ployer does not pay com pensation for
accidents sustained by his w orkers w hile at w ork, a claim can be
m ade to the labour com m issioner, of the area w here the accident
took place. In case of a fatal accident the claim can be m ade w here
the claim ant ordinarily resides, or w here the em ployer has his
registered office.
W&A
A
CHAPTER 5.
Legal Remedies (adjudication)
18
These provisions are: to take evidence on oath; enforce attendance of
w itnesses; and com pel production of docum ents and other required objects
m ay be used by the C om m issioner to dispose of his/her cases.
40
In Karnataka, unlike A ndhra Pradesh and Tam il
N adu, the claim s authority is a ‘labour officer’-
an authority junior to the ones in the states
m entioned w here the A uthority is an officer not
junior than the level of the assistant labour
com m issioner.
iii. Time period within which the claim should be made
(section 10)
A ll such claim s have to be m ade w ithin tw o years of the occurrence
of the accident, or death of the w orker. The com m issioner can refuse
to hear the m atter if no notice w as issued to the em ployer on the
occurrence of the accident and no claim m ade to the com m issioner
w ithin tw o years. If there is a delay in m aking such a claim it is
possible for the delay to be excused by the com m issioner, but the
w orker should give sufficient reason. A s the A ct is a ‘Beneficial A ct’,
delays and technical short com ings are not given im portance unlike
crim inal and civil cases.
What is ‘Sufficient Reason’?
Example # I: A s a result of an accident arising out of w ork, a
w orkm an sustained m ultiple fractures on both his legs and had to
be operated upon tw ice. H e rem ained under treatm ent for three-
and-a-half years. The court held that there w as sufficient cause to
condone the delay.
Example # 2: In a M adras H igh C ourt case
19
it w as held that “...
the cause for the delay i.e., illiteracy, m inority of children, nature of
em ploym ent in its totality is sufficient reason to condone the
delay….”In this case the w idow of the deceased w orkm an 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 w orker 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 w orker to take
leave, then the period of lim itation shall be from the date that the
w orker gives notice to his em ployer of his condition.
iv. Form of application (section 22)
! The com m issioner shall not be liable to entertain an application
for com pensation unless it is given in the prescribed form at,
19
Laxm i and others vs. D eputy com m issioner of Labour of M adras and
A nother 1998 I LLJ158(M ad) (D B)
KAR
I N F O
41
W&A
i.e. it m ust be m ade w ith the follow ing details being
furnished
20
:
(a) a statem ent in ordinary language w ith regards to the
circum stances under w hich the application is being
forw arded and the relief or order w hich the applicant
claim s
(b) in case the claim for com pensation is m ade against the
em ployer, the application should m ention the date w hen
the notice of such accident w as m ade to the em ployer,
and if there w as any delay in doing so, the reason for
the delay;
(c) The nam e and address of the parties.
! A ll applications for claim s for com pensation m ust be m ade
to the com m issioner w ith the appropriate accom panying fee.
The fee is Rs. 2 for every Rs. 1000 of com pensation claim ed.
If the w orker is unable to pay this am ount an application can
be filed for exem ption till the final order is passed;
! In case of application m ade by/on behalf of dependants of
the deceased w orker, the photographs of the dependants
should be fixed on the application.
A role that can be played by A ctivists is to gather
evidence at the tim e of the occurrence of the
accident, or as soon as possible thereafter, as to
the fact of w orker’s em ploym ent w ith that particular em ployer and;
the fact that the injury occurred during the course of w ork. This is
crucial if a claim is being m ade before the labour officer later on.
Som etim es the em ployer denies that s/he em ployed the w orker
and secondly, that the accident occurred in the establishm ent
prem ises during the course of w ork.
Example: G irija, the child w orker em ployed in a silk reeling and
spinning factory suffered burns w hen a tub of boiling w ater fell on
her. Subsequently w hen a claim w as m ade, the em ployer denied
that the w orker w orked for him , and also denied that the accident
occurred at his w ork prem ises. The case w as com plicated by the
fact that there w as no record of em ploym ent kept by the em ployer
show ing that he em ployed the w orker. Further there w as no person,
other than the w orker’s relatives, w ho w ere available to testify before
the labor officer about having w itnessed the accident.
20
Sam ple form of A pplication for C om pensation by W orkm an see A N N EXU RE 7
4
2
He does not work for
me. In fact, I don’t even
know who he is!
43
The norm in m ost em ploym ents covered by W C A is for
appointm ents to be m ade orally. In such situations, w orkers should
try to seek docum entary evidence by w ay of registrar of w ages. If
the em ployer is not m aintaining the register, then according to the
Karnataka H igh C ourt, an ‘adverse inference’should be suffered
by the em ployer. Therefore, in such cases of absence of m aintenance
of a w ages register, the co- w orkers statem ent w ould be sufficient
evidence.
21
Som etim es co-w orkers are not w illing to give evidence for fear of
losing their jobs. In such cases, other docum entary evidence should
be looked for. This could be for e.g., the w orker ‘s bank passbook,
or a letter sent to the em ployee at the office address (can happen
in the case of m igrant w orkers or other w orkers living in slum s).
22
What did Girija’s lawyers do? An important legal strategy for all
Workmen’s Compensation cases.
A strategy that could be very effective, depending on the
circum stances is to check w hether a crim inal com plaint has been
registered and at w hat stage it is. N orm ally w hen the w orker is
taken to a governm ent hospital after the accident for treatm ent,
the hospital authorities have a legal duty to m ake a report to the
police. For exam ple, the em ployer m ay be crim inally liable for not
m aking adequate provisions for the safety of the w orkers engaged
in w ork at his prem ises and thus guilty of crim inal negligence.
There are tw o benefits of this approach; if the em ployer’s guilt is
proven in the crim inal proceedings, this helps trem endously in
proving his/her liability in the case before the labour officer deciding
the w orkm en’s com pensation case. Secondly, it puts pressure on
the em ployer to settle the m atter.
In case the w orker m aking the application dies before the final
outcom e of the case, there is nothing to prevent his legal heirs
from continuing the application. There is no tim e fixed w ithin w hich
such legal heirs m ust com e on record to continue such application
originally filed by the deceased applicant.
21, 22
A s per M uralidhara, Labour A dvocate and State secretary A ITU C , and S.
Bajaj , V.V. G iri Institute, respectively speaking at a w orkshop on ‘Role of
D epartm ent officers and their pow ers and functions for disposing of cases
under the W orkm en’s’C om pensation A ct. Paym ent of G ratuity A ct and
M inim um w ages claim s under the M inim um W ages A ct’on 18 Feb 2005.
44
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v. Appearance and Record of Evidence (sections
24 and 25)
! The parties m ust m ake their appearance before or to the
com m issioner. A registered legal practitioner/ trade union
m em ber/ inspector or other person appointed by the
G overnm ent for this purpose can represent the w orker or
can represent the parties if the necessary.
Note: Sometimes the employer absconds, and successfully evades
the summons to appear before the Commissioner and submit his
written statement (proving that he is not liable to pay compensation).
Then the practice is for the Commissioner to print the summons in
the State gazette publication and paper publication (a widely
circulated local newspaper), OR paste a copy of the summons on
the employer’s premises. Even after this, if the employer refuses to
appear, the case will proceed without him and s/he will have to
suffer the possible consequence of an adverse order.
! The com m issioner m ust m ake a m em orandum , recording the
substance of the evidence given by each of the w itnesses.
This m ust be w ritten in his ow n hand and m ust be signed by
him , and this m em orandum w ould be a part of the official
record.
Note: In this connection, if neither the worker or the employer are
able to produce any documents supporting their respective claims
as to how much wages was paid to the worker, the practice in
Bangalore is the Labour Officer will support the worker’s claim.
! A rgum ents w ill be presented by both parties after w hich
an order is issued by the com m issioner
! The com m issioner m ay, if he thinks it being fit, refer such a
m atter to the H igh C ourt.
vi. What happens if the employer delays
in paying of compensation? (Section 4-a)
C om pensation is to be paid as soon as the injury is caused to the
w orker. If the em ployer does not pay the com pensation am ount to
the disabled w orker w ithin a m onth from w hen the com pensation
fell due, then the com m issioner on application can give relief to
the w orker in the follow ing w ay:
(a) The com m issioner can direct the em ployer to pay the
com pensation to the w orker, plus sim ple interest at the rate
A
45
of 12% , or any other rate, not exceeding the rate of a
scheduled bank, or as published in an official gazette; and
(b) If the com m issioner feels that there w as no justification for
the delay in paym ent to the w orker, he m ay order the
em ployer, in addition to the sim ple interest, to pay a penalty
of not greater than 50% of the com pensation to be paid.
Interest and penalty can be levied by the com m issioner only on
application by the w orker after a claim s proceedings has been
com pleted and the w orkm en’s com pensation com m issioner has
passed an order aw arding com pensation to the w orker. In
consonance w ith principles of natural justice
23
, the em ployer has
to be given the opportunity of being heard by the com m issioner
before he passes such an order directing the paym ent of penalty.
In Karnataka, in practice penalty is not levied
often, norm ally the labour officer only im poses
interest. In rare cases w here the em ployer
w ilfully doesn’t deposit the m oney, the
authorities, after observing the behaviour of the
em ployer m ay im pose a penalty.
Is the insurance company liable to pay interest and penalty in cases
of delay in payment of compensation?
The Suprem e C ourt has held
24
that if com pensation is not paid
w ithin one m onth from w hen if fall due, then the paym ent of
interest is alm ost autom atic. It is considered part and parcel of the
liability to pay com pensation. H ence w hen the em ployer takes
insurance coverage for any liabilities arising under the W orkm en’s
C om pensation A ct, the insurance com pany w ill have to pay the
com pensation as w ell as interest on it. The C om m issioner for
W orkm en’s C om pensation m ay calculate the interest either from
the date of the accident or else from the date of passing the order
for com pensation. It is w ithin his/her pow ers to do either.
Regarding the paym ent of penalty, it w as held that as the delay
w as due to the personal fault and negligence of the insured
em ployer, he and not the insurance com pany w ould have to pay
the penalty.
23
‘N atural Justice’refers to conventions evolved by the law courts to ensure
justice and to prevent the m iscarriage of justice.
24
In Ved Prakash G arg, A ppellant, v. Prem i devi and O rs., Respondents, 1998
001 LLJ 363 SC
KAR
I N F O
46
H ow ever, the Suprem e C ourt w ent on to approve a decision of the
Karnataka H igh C ourt
25
. In that particular Karnataka case, the
insurance policy taken by the em ployer expressly excluded the
paym ent of interest and penalty in the event of any com pensation
payable under the W C A , and so the H igh C ourt held that the
insurance com pany w as not liable to pay interest in addition to
com pensation. Therefore it depends on the term s and conditions
of the insurance policy taken.
vii . Appeal (section 30)
A w orker can appeal against any decision can be m ade in the high
court, this can only be done so under certain circum stances, and
only if the com m issioner allow s the appeal, w hich is determ ined by
his certificate allow ing so, attached along w ith the appeal. The
conditions to m ake an appeal are m entioned in A nnexure 2
Bar against double remedies ( section 3 (5))
O nce an injured w orker, initiates action against, or
reaches an agreem ent w ith, an em ployer the said w orker cannot
initiate a sim ultaneous proceeding in a civil court in respect of the
sam e injury (but s/he can in a crim inal court). Sim ilarly if the w orker
institutes a suit for com pensation, for injury sustained during the
course of w ork, in a civil court, then s/he cannot then apply to the
labour com m issioner under this A ct. Therefore the w orker can chose
the type of rem edy s/he w ants i.e. either under the W C A , or civil
court or M otor Vehicles A ct ( incase of a m otor accident), but s/he
cannot apply for m ore than one rem edy.
If a w orker has m ade an application before the
M otor Vehicles A ccidents C laim s Tribunal
(M VC T), it is possible to subsequently w ithdraw
it from that forum and m ake another application
under the W orkm en’s C om pensation A ct. The
only requirem ent being that s/he m ust prove that
no com pensation w as taken through the M VC T.
A
25
O riental Insurance C om pany Ltd. V. Raju 1994 A C J 191
KAR
I N F O
47
ANNEXURE 1
M ethod of C alculating M onthly W ages (Section 5)
The calculation of m onthly w ages varies from situation to situation.
They are as follow s:
If the w orker has been in service for over a year prior to the accident,
then the m onthly w ages is calculated as that to be one-tw elfth of the
w ages the w orker collected in the past year (section 5 (a)).
Note: the above covers only those cases where workers have been in
continuos employment under the same employer for 12 months
preceding the accident. A worker might be in receipt of a retainer by a
particular set of employers and have been periodically employed by them
over the whole of the preceding year, yet section 5(a) will not apply
here.
If the w orker, prior to the accident had w orked for less than one m onth,
then the m onthly w ages is to be the sam e am ount that a person of
the sam e ability, doing the sam e kind of w ork in the sam e locality gets
as his m onthly w age (section 5 (b)).
The m ethod of calculating the m onthly w ages for a daily wage w orker
is given under section 5(c). A ccording to the section, the total w ages
earned by the daily w age w orker in the ‘last continuous period’of w ork
is m ultiplied by thirty, and then divided by num ber of days in that period.
By ‘last continuous period’it is m eant the last thirty days w orked.
Keeping in m ind that the daily w age w orker does not necessarily get
w ork on a regular basis, this period of w ork m ay not be ‘continuous’in
the norm al sense of the w ord. There m ay be cases w here the w orker
gets w ork for 5 days, then has no w ork for the follow ing eight days
before getting w ork again. A s long as the period of absence from w ork
is not m ore than fourteen days, the last thirty days of w ork can be
taken into account for calculating the m onthly w age.
It is also not necessary that the w orker w as em ployed by only one
em ployer during that period. The em ployer w ho s/he w as w orking for
at the tim e of occurrence of the accident w ill be liable to pay the
com pensation.
The m onthly w ages of a piece rated w orker can be w orked out by
using either of the m ethods given in section 5. C lause (b) or (c) of the
said section can be used for a piece rated w orker w ho has w orked for
less than a m onth. In com puting m onthly w age, the payable w ages
should be taken into account.
48
ANNEXURE 2
The conditions for appeal are:
! A n order aw arding as com pensation a lum p sum w hether by
w ay of redem ption of a half-m onthly paym ent or otherw ise
or disallow ing a claim in full or in part for a lum p sum ;
! A n order aw arding interest or penalty;
! A n order refusing to allow redem ption of a half-m onthly
paym ent;
! A n order providing for the distribution of com pensation
am ong the dependents of a deceased w orker, or disallow ing
any claim of a person alleging him self to be such dependent;
O R
! A n order refusing to register a m em orandum of agreem ent,
registering the sam e, or providing for the registration of the
sam e subject to conditions:
Such an appeal should be filed w ithin sixty days.
49
ANNEXURE 3
SC H ED U LE I
[See Sections 2(1) and 4]
Part I
List of injuries deemed to result in permanent total disablement
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
1 Loss of both hands or am putation at higher sites 100
2 Loss of hand and a foot 100
3 D ouble am putation through leg or thigh, or am putation
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 claim ant
unable to perform any w ork for w hich eyesight is
essential 100
5 Very severe facial disfigurem ent 100
6 A bsolute deafness 100
Part II
List of injuries deemed to result in permanent partial disablement
1 A m putation throug shoulder joint 90
2 A m putation below shoulder w ith stum p less
than [20.32 cm s] from tip of acrom ion 80
3 A m putation from [20.32 cm s] from tip of acrom ion
to less than [11.43 cm s] below tip of olecranon 70
4 Loss of hand or of the thum b and four fingers of one
hand or am putation from [11.43 cm s] below tip of
olecranon 60
5 Loss of thum b 30
6 Loss of thum b and its m etacarpal bone 40
7 Loss of four fingers of one hand 50
8 Loss of three fingers of one hand 30
9 Loss of tw o fingers of one hand 20
10 Loss of term inal phalanx of thum b 20
10 A G uillotine am putation of tip of thum b w ithout loss
of bone 10
Amputation cases–lower limbs
11 A m putation of both feet resulting in end-bearing stum ps 90
12 A m putation through both feet proxim al to the m etatarso-
phalangeal joint 80
13 Loss of all toes of both feet through m etatarso-phalengeal
joint 40
14 Loss of all toes of both feet proxim al to the proxim al inter-
phalangeal joint 30
15 Loss of all toes of both feet distal to the proxim al inter-
phalangeal joint 20
16 A m putation at hip 90
50
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
17 A m putation below hip w ith stum p not exceeding
[12.70 cm s] in length m easured from tip of great
trenchanter 80
18 A m putation below hip w ith stum p exceeding [12.70 cm s]
in length m easured from tip of great trenchanter but not
beyond m iddle thigh 70
19 A m putation below m iddle thigh to [8.89 cm s] below knee 60
20 A m putation below knee w ith stum p exceeding [8.89 cm s]
but not exceeding [12.70cm s] 50
21 A m putation below knee w ith stum p exceeding [12.70cm s]50
22 A m putation of one foot resulting in end-bearing 50
23 A m putation through one foot proxim al to the m etatarso-
phalangeal joint 50
24 Loss of all toes of one foot thorugh the m etatarso-
phalangeal joint 20
O ther injuries
25 Loss of one eye, w ithout com plications, the other being
norm al 40
26 Loss of vision of one eye, w ithout com plications or
disfigurem ent of eye-ball, the other being norm al 30
26 A Loss of partial vision of one eye 10
A. Fingers of right or left hand
Index finger
27 W hole 14
28 Tw o phalanges 11
29 O ne phalanx 9
30 G uillotine am putation of tip w ithout loss of bone 5
Middle finger
31 W hole 12
32 Tw o phalanges 9
33 O ne phalanx 7
34 G uillotine am putation of tip w ithout loss of bone 4
Ring or little finger
35 W hole 7
36 Tw o phalanges 6
37 O ne phalanx 5
38 G uillotine am putation of tip w ithout loss of bone 2
B. Toes of right or left foot
Great toe
39 Through m etatarso-phalangeal joint 14
40 Part, w ith som e loss of bone 3
Any other toe
41 Through m etatarso-phalangeal joint 3
42 Part, w ith som e loss of bone 1
51
S. N o. D escription of Injury Percentage
of loss of
earning
capacity
Two toes of one foot, excluding great toe
43 Through m etatarso-phalangeal joint 5
44 Part, w ith som e loss of bone 2
Three toes of one foot, excluding great toe
45 Through m etatarso-phalangeal joint 6
46 Part, w ith som e loss of bone 3
Four toes of one foot, excluding great toe
47 Through m etatarso-phalangeal joint 9
48 Part, w ith som e loss of bone 3
Note –– Complete and permanent loss of the use of any limb or member
referred to in this Schedule shall be deemed to be equivalent to be loss of that
limb or member.
52
ANNEXURE 4
SC H ED U LE II
[See Sections 2(1)
]List of persons who, subject to the provisions of Section
2(1)
, are included in the definition of workmenThe follow ing persons are w orkm en w ithin the m eaning of Section 2(1)
and subject to the provisions of that section, that is to say, any person w ho is–
(i) em ployed, otherw ise than in a clerical capacity or on a railw ay, in
connection w ith the operation, [, repair] or m aintenance of a lift or
a vehicle propelled by steam or other m echanical pow er or by
electricity or in connection w ith the loading or unloading of any
such vehicle; or
(ii) em ployed, otherw ise in a clerical capacity, in any prem ises w herein
or w ithin the precincts w hereof a m anufacturing process as defined
in clause (k) of Section 2 of the Factories A ct, 1948 (63 of 1948), is
being carried on, or in any kind of w ork w hatsoever incidental to or
connected w ith any such m anufacturing process or w ith the article
m ade, [w hether or not em ploym ent in any such w ork is w ithin such
prem ises or precincts] and steam , w ater or other m echanical pow er
or electrical pow er is used; or
(iii) em ployed for the purpose of m aking, altering, repairing,
ornam enting, finishing or otherw ise adapting for use, transport or
sale of any article or part of an article in any prem ises w herein or
w ithin the precincts w hereof tw enty or m ore persons are so em ployed;
[Explanation. For the purposes of this clause, persons em ployed
outside such prem ises or precincts but in any w ork incidental to, or
connected w ith, the w ork relating to m aking, altering, repairing,
ornam enting, finishing or otherw ise adapting for use, transport or
sale any article or part of an article shall be deem ed to be em ployed
w ithin such prem ises or precincts; or]
(iv) em ployed in the m anufacture or handling of explosives in connection
w ith the em ployer’s trade or business; or
(v) em ployed in any m ind as defined in clause (j) of Section 2 of the
M ines A ct, 1953 (35 of 1952), in any m ining operating or in any
kind of w ork, other than clerical w ork incidental to or connected
w ith any m ining operation or w ith m ineral obtained, or in any kind
of w ork w hatsoever below ground; or
(vi) em ployed as the m aster or as a seam an of––
a. any ship w hich is propelled w holly or in part by steam or
other m echanical pow er or by electricity or w hich is tow ed or
intended to be tow ed by a ship so propelled; or
b. any ship not included in sub-clause (a) of tw enty-five tons
net tonnage or over; or
53
c. any sea-going ship not included in sub-clause (a) or sub-clause
(b) provided w ith sufficient area for navigation under sails
alone; or
(vii) em ployed for the purpose of––
a. loading, unloading, fuelling, constructing, repairing,
dem olishing, cleaning or painting any ship of w hich he is not
the m aster or a m em ber of the crew , or handling or transport
w ithin the lim its of any port subject to [the Ports A ct, 1908 (15
of 1908) or the M ajor Port Trusts A ct, 1963 (38 of 1963)], of
goods w hich have been discharged from or are to be loaded
into any vessel; or
b. w arping a ship through the lock; or
c. m ooring and unm ooring ships at harbour w all berths or in pier;
or
d. rem oving or replacing dry dock caisoons w hen vessels are
entering or leaving dry docks; or
e. the docking or undocking of any vessel during an em ergency;
or
f. preparing splicing coir springs and check w ires, painting depth
m arks on lock-sides, rem oving or replacing fenders w henever
necessary, landing of gangw ays, m aintaining life-buoys up to
standard or any other m aintenance w ork of a like nature; or
g. any w ork on jolly-boats for brining a ship’s line to the w harf;
or
(viii) em ployed in the construction, m aintenance, repair or dem olition of–
–
a. any building w hich is designed to be or is or has been m ore
than one storey in height above the ground or tw elve feet or
m ore from the ground level to the apex of the roof; or
b. any dam or em bankm ent w hich is tw elve feet or m ore in
height from its low est to its highest point; or
c. any road, bridge, tunnel or canal; or
d. any w harf, quay, sea-w all or other m arine w ork including
any m oorings of ships; or
(ix) em ployed in setting up, m aintaining, repairing or taking dow n any
telegraph or telephone line or post or any overhead electric line or
cable or post or standard or fittings and fixtures for the sam e; or
(x) em ployed, otherw ise than in a clerical clerical capacity, in the
construction, w orking, repair or dem olition of any aerial ropew ay,
canal, pipe-line, or sew er; or
(xi) em ployed in the service of any fire brigade; or
54
(xii) em ployed upon a railw ay as defined in [clause (31) of Section2 and
sub-section (1) of Section 197 of the Railw ays A ct, 1989 {24 or 1989)]
either directly or through a sub-contractor, by a person fulfilling a
contract w ith the Railw ay adm inistration; or
(xiii) em ployed as an inspector, m ail guard, sorter or van peon in the
Railw ay M ail Service, [or as a telegraphist or as a postal or railw ay
signaller], or em ployed in any occupation ordinarily involving outdoor
w ork in the Indian Posts and Telegraphs D epartm ent; or
(xiv) em ployed, otherw ise than in a clerical capacity, in connection w ith
operation for w inning natural petroleum or natural gas; or
(xv) em ployed in any occupation involving blasting operations; or
(xvi) em ployed in the m aking of any excavation in w hich on any one day
of the preceding tw elve m onths m ore than [tw enty-five] persons
have been em ployed or explosives have been used, or w hose depth
from its highest to its low est point exceeds [tw elve] feet; or
(xvii) em ployed in the operation of any ferry boat capable of carrying m ore
than ten persons; or
(xviii) em ployed, otherw ise than in a clerical capacity, on any estate w hich
is m aintained for the purpose of grow ing [cardam om ,] cinchona,
coffee, rubber or tea, and on w hich on any one day in the preceding
tw elve m onths tw enty-five or m ore persons have been so em ployed;
or
(xix) em ployed, otherw ise than in a clerical capacity, in the generating,
transform ing, transm itting or distribution of electrical energy or in
generation or supply of gas; or
(xx) em ployed in a lighthouse as defined in clause (d) of Section 2 of the
Indian Lighthouse A ct, 1927 (17 of 1927); or
(xxi) em ployed in producing cinem atograph pictures intended for public
exhibition or in exhibiting such pictures; or
(xxii) em ployed in the training, keeping or w orking of elephants or w ild
anim als; or
(xxiii) em ployed in the tapping of palm -trees or the felling or logging of
trees, or the transport of tim ber by inland w aters, or the control or
extinguishing of forest fires; or
(xxiv) em ployed in operations for the catching or hunting of elephants or
other w ild anim als; or
(xxv) em ployed as a driver;
(xxvi) em ployed in the handling or transport of goods in, or w ithin the
precincts of–
a. any w arehouse or other place in w hich goods are stored, and
in w hich one any one day of the preceding tw elve m onths
ten or m ore persons have been so em ployed, or
55
b. any m arket in w hich on any one day of the preceding tw elve
m onths [fifty] or m ore persons have been so em ployed; or
(xxvii) em ployed in any occupation involving the handling and m anipulation
of radium or X-rays apparatus, or contact w ith radioactive substances;
or
(xxviii) em ployed in or in connection w ith the construction erection,
dism antling, operation or m aintenance of an aircraft as defined in
Section 2 of the Indian A ircraft A ct, 1934 (22 of 1934); or
(xxix) [em ployed in horticultural operations, forestry, bee-keeping or
farm ing] by tractors or other contrivances driven by steam or other
m echanical pow er or by electricity; or
(xxx) em ployed, otherw ise than in a clerical capacity, in the construction,
w orking, repair or m aintenance of a tube-w ell; or
(xxxi) em ployed in the m aintenance, repair or renew al of electric fittings in
any building; or
(xxxii) em ployed in a circus;
(xxxiii) em ployed as w atchm an, in any factory or establishm ent; or
(xxxiv) em ployed in any operation in the sea for catching fish; or
(xxxv) em ployed in any em ploym ent w hich requires handling of snakes for
the purpose of extraction of venom or for the purpose of looking
after snakes or handling any other poisonous anim al or insect; or
(xxxvi) em ployed in handling anim als like horses, m ules and bulls; or
(xxxvii) em ployed for the purpose of loading or unloading of any m echanically
propelled vehicle or in the handling or transport of goods w hich
have been loaded in such vehicles; or
(xxxviii) em ployed in cleaning of sew er lines or septic tanks w ithin the lim its
of a local authority; or
(xxxix) em ployed on surveys and investigation, exploration or gauge or
discharge observation of rivers including drilling operations,
hydrological observations and flood forecasting activities, ground
w ater surveys and exploration ; or
(xl) em ployed in cleaning of jungles or reclaim ing land or ponds in w hich
on any one day of the preceding tw elve m onths m ore than tw enty-
five persons have been em ployed; or
(xli) em ployed in the cultivation of land or rearing and m aintenance of
live-stock or forest operations or fishing in w hich on any one day of
the preceding tw elve m onths m ore than tw enty-five persons have
been em ployed; or
(xlii) em ployed in installation, m aintenance or repair of pum ping
equipm ent used for lifting of w ater from w ells, tubew ells, ponds,
lakes, stream s and the like; or
56
(xliii) em ployed in the construction boring or deepening of an open w ell
or dug w ell, bore w ell, bore-cum -dug w ell, filter-point and the like;
or
(xliv) em ployed in spraying and dusting of insecticides or pesticides in
agricultural operations or plantations; or
(xlv) em ployed in m echanised harvesting and threshing operations; or
(xlvi) em ployed in w orking or repair or m aintenance of bulldozers, tractors,
pow er tillers and the like; or
(xlvii) em ployed as artist for draw ing pictures on advertisem ent boards at
height of 3.66 m etres or m ore from the ground level; or
(xlviii) em ployed in any new spaper establishm ent as defined in the W orking
Journalists and O ther N ew spaper Em ployees (C onditions of Service)
and M iscellaneous Provisions A ct, 1955 and engaged in outdoor
w ork.]
(xlix) em ployed as divers for w ork under w ater.]
Explanation–In this Schedule, “the preceding tw elve m onths”relates in any
particular case to the tw elve m onths ending w ith the day on w hich the accident
in such case occurred.
57
ANNEXURE 5
SC H ED U LE III
(See Section 3)
List of Occupational Diseases
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
PART A
1. Infectious and parasitic diseases (a) A ll w ork involving exposure
contracted in an occupation to health or laboratory w ork;
w here there is a particular risk
of contam ination. (b) A ll w ork involving exposure to
veterinary w ork;
(c) W ork relating to handling
anim als, anim al carcasses, part of
such carcasses, or m erchandise
w hich m ay have been
contam inated by anim als or
anim al carcasses;
(d) O ther w ork carrying a
particular risk of contam ination.
2. D iseases caused by w ork in A ll w ork involving exposure to
com pressed air. the risk concerned.
3. D iseases caused by lead or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
4. Poisoning by nitrous fum es. A ll w ork involving exposure to
the risk concerned.
5. Poisoning by organo phosphorus A ll w ork involving exposure to
com pounds. the risk concerned.
PART B
1. D iseases caused by phosphorus or A ll w ork involving exposure to
its toxic com pounds. the risk concerned.
2. D iseases caused by m ercury or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
3. D iseases caused by benzene or its A ll w ork involving exposure to
toxic hom ologues. the risk concerned.
4. D iseases caused by nitro and am ido A ll w ork involving exposure to
toxic derivates of benzene the risk concerned.
or its hom ologues.
5. D iseases caused by chrom ium or its A ll w ork involving exposure to
toxic com pounds the risk concerned.
58
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
6. D iseases caused by arsenci or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
7. D iseases caused by radioactive A ll w ork involving exposure to
substances and ionising radiations. the action of radioactive
substances or ionising radiations.
8. Prim ary epitheliom atous cancer of A ll w ork involving exposure to
the skin caused by tar, pitch, the risk concerned.
bitum en, m ineral oil, anthracene,
or the com pounds, products or
residues of these substances.
9. D iseases caused by the toxic A ll w ork involving exposure to
halogen derivatives of hydro- the risk concerned.
carbons (of the aliphatic and
arom atic series).
10. D iseases caused by carbon A ll w ork involving exposure to
disulphide the risk concerned.
11. O ccupational cataract due to A ll w ork involving exposure to
infra-red radiations the risk concerned.
12. D iseases caused by m anganese or A ll w ork involving exposure to
its toxic com pounds. the risk concerned.
13. Skin diseases caused by physical A ll w ork involving exposure to
chem ical or biological agents not the risk concerned.
included in other item s.
14. H earing im pairm ent caused by A ll w ork involving exposure to
noise. the risk concerned.
15. Poisoning by dinitrophenol or a A ll w ork involving exposure to
hom ologue or by substituted the risk concerned.
dinitrophenol or by the salts of such
substances.
16. D isease caused by beryllium or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
17. D iseases caused by cadm ium or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
18. O ccupational asthm a caused by A ll w ork involving exposure to
recognised sensitising agents the risk concerned.
inherent in the w ork process.
19. D iseases caused by flourine or its A ll w ork involving exposure to
toxic com pounds. the risk concerned.
20. D iseases caused by nitorglycerine A ll w ork involving exposure to
or other nitroacid esters. the risk concerned.
59
S. N o. O ccupational D isease Em ploym ent
(1) (2) (3)
21. D iseases caused by alcohols and A ll w ork involving exposure to
ketones. the risk concerned.
22. D iseases caused by asphyxiants: A ll w ork involving exposure to
carbon m onoxide, and its toxic the risk concerned.
derivates, hydrogen sulfide.
23. Lung cancer and m esotheliom as A ll w ork involving exposure to
caused by asbestos. the risk concerned.
24. Prim ary neoplasm of the epithelial A ll w ork involving exposure to
lining of the urniary bladder or the the risk concerned.
kidney or the ureter.
25. Snow blindness in snow bound A ll w ork involving exposure to
areas the risk concerned.
26. D isease due to effect of heat in A ll w ork involving exposure to
extrem e hot clim ate. the risk concerned.
27. D isease due to effect of cold in A ll w ork involving exposure to
extrem e cold clim ate. the risk concerned.
PART C
1. Pneom oconioses caused by A ll w ork involving exposure to
sclerogenic m ineral dust (silicosis, the risk concerned.
anthraoosilicosis, asbestosis) and
silico-tuberculosis provided that
silicosis is an essential factor in
causing the resultant incapacity
or death.
2. Bagassosis. A ll w ork involving exposure to
the risk concerned.
3. Bronchopulm onary diseases caused A ll w ork involving exposure to
by cotton, flax hem p and sisal dust the risk concerned.
(Byssinosis).
4. Extrinsic allergic alveelitis caused by A ll w ork involving exposure to
the inhalation of organic dusts. the risk concerned.
5. Bronchopulm onary diseases caused A ll w ork involving exposure to
by hard m etals. the risk concerned.
6. A cute Pulm onary O edem a of high A ll w ork involving exposure to
altitude. the risk concerned.
60
ANNEXURE 6
SC H ED U LE IV
(See Section 4)
Factors for working out lump sum euivalent of compensation
amount in case of permanent disablement and death
C om pleted years of age Factors C om pleted years of age Factors
on the last birthday of on the last birthday of
the w orkm an im m ediately the w orkm an im m ediately
preceding the date on preceding the date on
w hich the com pensation w hich the com pensation
fell due fell due
(1) (2) (1) (2)
not m ore than 16 228.54 41 181.37
17 227.49 42 178.49
18 226.38 43 175.54
19 225.22 44 172.52
20 224.00 45 169.44
21 222.71 46 166.29
22 221.37 47 163.07
23 219.95 48 159.80
24 218.47 49 156.47
25 216.91 50 153.09
26 215.28 51 149.67
27 213.57 52 146.20
28 211.79 53 142.68
29 209.92 54 139.13
30 207.98 55 135.56
31 205.98 56 131.95
32 203.85 57 128.33
33 201.66 58 124.70
34 199.40 59 121.05
35 197.06 60 117.41
36 194.64 61 113.77
37 192.14 62 110.14
38 189.56 63 106.52
39 186.90 64 102.93
40 184.17 65 or m ore 99.37
61
ANNEXURE 7
FO RM 8
[See Rule 21]
Format of Application for Compensation by Workman
To
The C om m issioner for W orkm en’s C om pensation.
.....................................................................................................
.....................................................................................................
.....................................................................................................
Residing at ....................................................................applicant
Versus
.....................................................................................................
.....................................................................................................
.....................................................................................................
Residing at...........................................................O pposite Party.
It is hereby subm itted that–
(1) The applicant, a w orkm an em ployed by the
opposite party on the ......... day of .......19...........
received personal injury by accident arising out of
an in the course of his em ploym ent.
The cause of the injury w as (here insert briefly in
ordinary language the cause of the injury)
............................................................................
............................................................................
............................................................................
(2) The applicant sustained the follow ing injuries,
nam ely
............................................................................
............................................................................
............................................................................
62
(3) The m onthly w ages of the applicant am ounted to
Rs.................. the applicant is over/ under the age
of 15 years..............................
(4) * (a) N otice of the accident w as served on the
................... day of ...............
(b) N otice w as served as soon as practicable.
(c) N otice of the acident w as not served (in
due tim e by reason of
.................................................................
(5) The applicant is accordingly entitled to receive–
(a) half m onthly paym ent of Rs.......................
from the........... day of ....... 19..... to........
(b) a lum psum paym ent of Rs. .......................
(6) The applicant has taken the follow ing steps to
secure a settlem ent by agreem ent, nam ely
............................................................................
but it w as proved im possible to settle the
questions in dispute because.................................
............................................................................
* You are therefore requested to determ ine the follow ing
questions in dispute nam ely–
(a) W hether the applicant is a w orkm an w ithin the
m eaning of the A ct.
(b) W hether accident arose out of and in the course
of the applicant’s em ploym ent
(c) W hether the am ount of com pensation claim ed is
due, or any part of that am ount.
(d) W hether the opposite party is liable to pay such
com pensation as is due.
(e) etc., (as required).
D ate A pplicant
63
ANNEXURE 8
W hen the C om m issioner is deciding w hether an injury resulted
from an accident that ‘arose out of and in the course of em ploym ent’
for the purpose of aw arding com pensation, as a general rule,
em ploym ent of a w orker does not begin until he has reached the
place of em ploym ent and does not continue w hen s/he has left it.
But this is subject to the theory of ‘notional extension’both in tim e
and place, and a w orker m ay be regarded as in the his/her course of
em ploym ent even though s/he hasn’t reached or has left the
em ployer’s prem ises.
In recent tim es, the courts have been relying on a lim ited idea of
‘notional extension of the w orkplace’. Thus they have not been
including accidents that occurred w hile the w orker w as on route to
his/her place of w ork, w ithin the am bit of accidents that have arisen
“out of and in the course of w ork” w hich w as the earlier
jurisprudence and w as necessary in order to claim com pensation.
In Commr. Kovilpatti Municipality, Kovilapati v. Tamilarasan and anr.
1998 LLJ (002) 0683 –M ad., a w orker w as attacked by som e
m iscreants on his w ay to w ork and died as a result of injuries
sustained. The M adras H igh C ourt relying on the Suprem e C ourt
judgem ent in Regional Director v. Francis Decosta 1996 Lab I C 2720
(a judgem ent w hich dealt w ith an em ployee covered under the
Em ployee’s State Insurance A ct) held that the deceased w as on the
road as a m em ber of the public and w as definitely not there in the
course of his em ploym ent and hence his dependants w ere not
aw arded com pensation. A s per the judgem ent in Francis Decosta,
the em ploym ent of the w orker does not com m ence until he has
reached his place of em ploym ent.
Subsequently som e H igh C ourt decisions have expanded the
expression ‘arising out of and in the course of em ployem ent’in a
m anner w hich is beneficial for w orkers. Presented below are a few
judgem ents in brief:
In another M adras H igh C ourt judgem ent of that year - Mgmt. Of
Pannimedu Estate, Tata Tea Ltd. P.O. Valparai v. Chandra 1998 (002)
LLJ 0693 M ad. the C ourt held that the w om an w orker w ho w as
assaulted and injured in that case w as entitled to com pensation.
The court ruled that as the incident occurred w hile she w as near
64
the m uster to get assigned to her place of w ork, it m ust be held to
have occurred on account of the risk w hich is in the course of
em ploym ent and hence is com pensable( i.e. com pensation can be
paid).
Sim ilarly, in M.L. Aneja’s case 1999 (002) C LR 0062 Raj. The
Rajasthan H igh C ourt held that w here injury is caused to a w orker
by any person including a co w orker w ithin the m aster’s prem ises
(unless the m aster has no reasonable apprehension of the assailant’s
entry) the accident m ust be held to have occured ‘in the course of
and arising out of em ploym ent’. Even though this w as not w hat
m ay traditionaly be considered an hazard that im plicit in and
connected to the nature of the w ork. In this case the em ployee w as
stabbed by another em ployee. H ow ever, the em ployee did not get
com pensation because being a clerk he did not com e w ithin the
definition of ‘w orkm an’under this A ct.
In a 1999 O risa H igh C ourt judgem ent - Steel Authority of India,
Rourekela, Appellant v. Sabitri Nayak 1999 (002) CLR 0062 ORI the
court held that the deceased w orkm en’s w ife, Sabitri N ayak, w as
entitled to com pensation as a dependant of the deceased. The court
held that as the death occurred due to the strain and stress
undergone during em ploym ent, it is deem ed to arise out of and in
the course of em ploym ent. In this case the deceased w orker fell
from the bus w hile on his w ay to w ork. W hile such an injury norm ally
does not result in death, the w orker had heart problem s due to
w ork- related stress and the fall caused a heart attack.
Further, a person m ay be ‘in the course of his em ploym ent’not only
w hen he is actually discharging his duty to his em ployer. It also
includes m atters w hich are incidental to it. Therefore, in cases w here
a w orker m eets w ith an accident during periods of rest, or acts
w hen the w orker is satisfying bodily needs of food, drink and even
tobacco the injury can be regarded as being in the course of
em ploym ent.
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