WORKMEN’S COMPENSATION ACT, 1923

INTRODUCTION

This is one of the early legislations This is one of Social Security legislations

providing for times when a person is not working

This is a fantastic piece of legislation, till then burden of proof for claim of compensation lay with the workman, this Act reversed the position, now the employer is to prove if he denies claim

DEFINITIONS COMPENSATION- means as provided for by

this Act

DEPENDANT- (i) widow, minor legitimate or adopted son,

unmarried legitimate or adopted daughter and widowed mother

(ii) if wholly dependant on the earnings of the workman at the time of death, son or daughter who has attained the age of 18 years and who is infirm

(iii) if wholly or in part dependant on the earnings of the workman at the time of death,

(a) widower (b) parent other than widowed mother et al

EMPLOYER

PARTIAL DISABLEMENT- means where the disablement is of temporary

nature, such disablement as reduces the earning capacity of a workman in the employment he was engaged at the time of accident resulting in the disablement, and

where the disablement is of permanent nature, such disablement as reduces the earning capacity in every employment which he was capable of undertaking at that time provided that every injury specified in Part II of Schedule I is deemed to result in permanent partial disablement

TOTAL DISABLEMENT- means

such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of accident resulting in such disablement

provided that permanent total disablement is to be deemed to result from every injury in Part I of Schedule I or combination of injuries specified in Part II where the aggregate percentage of loss of earning capacity amounts to one hundred percent or more

WORKMAN- means any person who is

(i) railway servant not permanently employed in any office and not employed in any capacity as is specified in Schedule II

(ii) crew of a ship, aircraft, motor vehicle, a person recruited for work abroad by a company and employed in capacity specified in Schedule II and it is registered in India, or

(iii) employed in any capacity specified in Schedule II

N.B. if workman has died, his dependant(s)

WORKMEN’S COMPENSATION

Section 3(1)- Employers liability for compensation

If personal injury is caused to a workman by accident arising out of and in the course of employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter

Provided the employer shall not be so liable (a) if injury does not result in total or partial

disablement for a period not exceeding three days

(b) if injury, not resulting in death or permanent total disablement, caused by accident directly attributable to

(i) workman having been at that time under the influence of drink or drugs, or

(ii) wilful disobedience of the workman to order expressly given or rule expressly framed for securing safety of workmen

(iii) wilful removal or disregard by the workman of safety guard provided to him

(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as occupational disease peculiar to that employment, or

whilst in service of an employer for a continuous period of not less than six months under him in any employment specified in Part B of Schedule III, or

whilst in service of one or more employers for a continuous period as Central Government may specify in any employment specified in Part C of Schedule III

contracts any disease specified therein as occupational disease peculiar to that employment,

the contracting of the disease is to be deemed to be an injury by accident, unless contrary is proved, arisen out of and in the course of employment

provided that if it is proved that the workman contracted the occupational disease in any employment in Part C within the specified period and the disease has arisen out of and in the course of employment

provided further that if it is proved that the workman having served in any employment in Part B or part C for a continuous period specified therein contracted the occupational disease after the cessation of service and the disease has arisen out of and in the course of employment

the contracting of the disease is to be deemed to be an injury by accident within the meaning of this section

(2A) If workman employed in any employment specified in Part C under more than one employer, all the employers are to be liable to pay compensation in such proportion as the Commissioner may deem just

(3) Central Government may add to Schedule

(4) Except as provided in (2), (2A) and (3) above no compensation is payable unless disease is directly attributable to a specific injury

(5) No compensation is payable under this Act if workman has gone to Civil Court and no suit is maintainable in any court of law if he has claimed compensation before a Commissioner or if he and his employer have agreed for compensation under this Act

Section 4- Amount of compensation (a) where death results- 50% of monthly

wages x relevant factor or Rs 80000 whichever is more

(b) where permanent total disablement results- 60% of monthly wages x relevant factor or Rs 90000 whichever is more

- For relevant factor Sch 4 is to be referred - If monthly wages > Rs 4000, Rs 4000 (c) where permanent partial disablement

results- if injury specified in Part II of Sch I compensation for permanent total disablement x % loss of earning capacity

- if injury not specified in Sch I compensation for permanent total disablement x % loss of earning capacity as assessed by qualified medical practitioner

- Aggregate of compensation not to exceed compensation for permanent total disablement

- loss of earning capacity is to be correctly assessed

(d) Where temporary disablement results from injury- half monthly payment of sum equivalent to twenty five per cent of monthly wages, to be paid in accordance to Section (2) i.e.

Half monthly payment is to be payable on the sixteenth day

(i) from date of disablement where disablement lasts for a period of twenty eight days or more, or

(ii) after the expiry of waiting period of three days,

from date of disablement where disablement lasts for a period of less than twenty eight days; and thereafter half monthly during the disablement or during a period of five years whichever period is shorter

provided from lump sum or half monthly payments, payment and allowance received during period of disablement prior to receiving lump sum or first half monthly payment is to be deducted, and half monthly payment is not to exceed difference of half of monthly payment before accident and half of monthly payment after accident

(3) On ceasing of disablement before the date half monthly payment falls due, proportional payment is to be paid for that half month

(4) If injury results in death, employer is to, in addition to compensation, deposit with the Commissioner Rupees two thousand five hundred towards the expenditure of the funeral of the workman

Section 4A(1)- Compensation is to be paid as soon as it is due

(2) Employer is to be bound to make payment based on the extent of liability he accepts depositing it with Commissioner or making it to workman

(3) Where employer is in default in paying compensation within one month from date due the Commissioner is

(i) direct the employer to pay in addition to arrears simple interest at rate of 12% p.a. and

(ii) penalty not exceeding 50%

Section 5- Monthly wages

(a) If workman was in service for past 12 months - 1/12th of total wages

(b) If workman was in service for less than a month – average monthly wages of workman doing same work under the same employer

(c) Average daily wages x 30

Section 6(1)- Review- Half monthly payment, either under agreement or order, may be reviewed by Commissioner, on application by employer or workman accompanied by certificate by qualified medical practitioner that there has been change in the condition of workman or subject to rules if not accompanied by certificate

(2) Half monthly payment, on review, may be continued, increased, decreased or ended or if accident has been found to have resulted in permanent disablement, be converted to lump sum less amount already received

Section 7- Commutation of half monthly payment may, by agreement or if half monthly payments have been continued for not less than six months on application by either party to the Commissioner, be redeemed by lump sum agreed by them

Section 8- Distribution of compensation-Compensation for injury resulting in death and compensation payable to a woman or a person under a legal disability is necessarily to be deposited with the Commissioner

Section 9- Compensation not to be assigned, attached or charged

Section 10(1)- Notice and claim- No claim for compensation is to be entertained by the Commissioner unless notice of accident is given in manner provided within two years of accident or death

Two years is to be counted from the first day as follows

- If accident is contracting of occupational disease, the first day of continuous absence of the workman because of it

- In the event of partial disablement, the first day he gives notice

- Want of, defect or irregularity in giving notice does not bar the claim

Section 10A- Power to require from the employer statements regarding fatal accidents – The Commissioner is to require statement from the employer within thirty days

Section 10B- Report of fatal accidents and serious bodily injuries - within seven days

Section 11- Medical examination - If notice of accident has been given and employer has arranged free medical examination within three days, workman is to submit for it. Workman receiving half monthly payment, if required is to submit. If workman refuses, his right to compensation is suspended

Section 12- The Principal Employer is to pay compensation in contract

Section 14A- Compensation is to be first charge on assets transferred by employer

Section 16- Returns as to compensation

Section 19(1)- Reference to Commissioners- Questions of liability, whether a person is workman, amount and duration of compensation, nature and extent of disablement are to be decided by commissioner

(2) No Civil court has jurisdiction on these matters

Section 20- Appointment of Commissioners Section 21- Venue of proceedings and

transfer- Any matter under this Act is to be done by and before the Commissioner for the area in which

(a) accident took place resulting in injury, or (b) workman or dependant resides, or (c) employer has registered office provided no matter is to be processed before

any other Commissioner without giving notice to Commissioner of the area in which accident took place

(1A) If Commissioner, other than Commissioner with whom money has been deposited, proceeds with the matter he is to call for transfer of records and moneys

(2) Commissioner, for more convenience in dealing, may transfer matter to any other commissioner provided parties agree

Section 22(1)- Form of application Claim of compensation is to be made before

Commissioner (2) No application, other than made by

dependant(s), is to be made before Commissioner unless and until question has arisen between parties in connection therewith which they have been unable to settle by agreement

(3) Application is to be accompanied by fee and is to contain, in addition to particulars prescribed

(a) Concise statement of circumstances, relief and order applicant claims

(b) Date of service of notice, and if not served, the reasons

(c) Names and addresses of the parties

(d) Except in the case application is of dependant, concise statement of matters on which agreement has and those on which agreement has not been come to

(3) If applicant is illiterate or unable to furnish required information in writing, application, if he desires, is to be prepared under direction of Commissioner

Section 22A(1)- Power of Commissioner to require further deposit in cases of fatal accident- Commissioner may by notice stating his reasons call upon employer to show cause why he should not make deposit

(2) If employer fails to show cause to his satisfaction he may make award determining total amount payable requiring him to deposit

Sections 23-31 Powers and procedures of Commissioners- Commissioner is to have all powers of Civil Court following its prcedures

Sections 32-35- Rules