Employees Compensation Calculation

CALCULATION OF COMPENSATION – an analysis LABOUR LAW II

Submitted by: ADITYA AMAR Submitted to: Prof.R. Bharath Kumar 2014006 SEMESTER VI

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY Visakhapatnam April 2017

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ACKNOWLEDGEMENT I have endeavored to attempt this project. However, it would not have been feasible without the valuable support and guidance of Prof.R. Bharath Kumar. I would like to extend my sincere thanks to him. I am also highly indebted to Damodaram Sanjivayya National Law University Library Staff, for their patient co-operation as well as for providing necessary information & also for their support in completing this project. My thanks and appreciations also go to my classmates who gave their valuable insight and help in developing this project.

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Table of Contents ACKNOWLEDGEMENT............................................................................................................2 Table of Cases:...............................................................................................................................5 Introduction:..................................................................................................................................6 Methodology:..................................................................................................................................7 Scope of Workers’ Compensation:...............................................................................................7 Workman – definition and application to the act:......................................................................8 Workmen Compensation- an analysis:......................................................................................10 Optimum Rules & Respect to Workmen’s Compensation Act, 1923......................................11 Connection between accident and employment........................................................................14 Death during the course of employment................................................................................14 Entitlement to claim compensation........................................................................................14 Injury must be physical injury...............................................................................................14 Liability for compensation......................................................................................................14 Basis for the calculation of compensation:................................................................................16 Compensation chart table:......................................................................................................16 Calculation of Compensation under WCA:..............................................................................17 Claiming Compensation:.............................................................................................................18 COMPENSATION UNDER EMPLOYEES STATE INSURANCE ACT, 1948....................19 Physical Rehabilitation............................................................................................................20 Rajiv Gandhi Shramik Kalyan Yojana..................................................................................20 Most Recent and Relevant cases:...............................................................................................24 1) Royal Sundaram Alliance vs Shri Manoj Laxman Patil..................................................24 2) Executive Engineer/Deputy vs Priyanka and Others.......................................................24 3) S.Alex vs M/S.Saidannaa Enterprises Pvt........................................................................25 4) Ved Prakash Garg vs Premi Devi & Ors...........................................................................26 5) Leesha vs The Secretary......................................................................................................27 6) M/S.Reliance General Insurance vs C.Anandakrishnan.................................................28 7) K.Lokaiah vs R.Mani Raju.................................................................................................29 8) Oriental Ins.Co.Ltd vs Dyamavva & Ors..........................................................................30 9) New India Assurance Co. Ltd vs Ajay & Anr...................................................................31 3

10) Against the Order/Judgment In Wcc vs By Advs.Sri.Avm.Salahudin..........................32 11) B Naveen, vs Mr Alla Bakash............................................................................................33 12) The Divisional Manager vs Shanthappa Bin Virappa Hanchi......................................34 13) Gajendra Singh vs S.G.Motors.........................................................................................35 14) M/S.The Oriental Insurance vs Smt Harinakshi W/O Late Ananda............................36 15) New India Assurance Co. Ltd. vs Smt. Usha Pandey & Others....................................36 Conclusion....................................................................................................................................38 Bibliography:................................................................................................................................39

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Table of Cases: 1) Oriental fire and General Insurance Co. Ltd vs. Union of India 2) Patel Engineering Co. Ltd vs Commissioner for WC 3) Danni Devi vs. Gurbaksh Singh 4) In Divisional Railway Manager, S.E. Rly vs M. Laxmibai, 5) Juthi Devi and others vs. pine Chemical Ltd and another 6) Champal vs. Daryavbai and others 7) State Bank of India v. Vijay Laxmi 8) T.N.C.S. Corporation Ltd. v. s. Poomalai 9) Divisional Personal Officer, Western Railway v. Asluya Segam 10) Leela Devi v. Ramlal Rahu, 11) Kalayni P. v. Divisional Manager, Southern Railway (Personal Branch), Divisional Office, Madras 12) Branch Manager, New India Assurance Co. Ltd. v. Siddappa 13) Zubeda Bano v. Maharashtra Road Transport Corporation, 14) Karnataka State Road Transport Corporation v. B.T. Somasekharaiah 15) Varadarajulu v Masaya Boyan 16) MaherunishaAhemad Khan Pathan and other v Employees State Insurance Corporation 17) Sathybhama v ESI Corpn 18) Sheela v ESI Corporation 19) Employees State Insurance Corporation, Calcutta v Abdul Salam and others 20) Regional Director, E.S.I.C. Ahmedabad v Batulbibi and another 21) Rajappa v Employees’ State Insurance Corporation

CHAPTER- 1 Introduction: The negligence of employer is what gives birth to the employer's breach of duty to take reasonable care for the safety of his employees that has been in difficulties. The statutory invention aimed at reducing the harness suffered by employees, as the operation of common law rules did not prove that satisfactory. 5

A workmen's compensation scheme was, therefore, devised not as a substitute for common law action but as an alternative system for compensating injury suffered at work. The fault principle which is crucial in a common law action, is absent in the scheme but the injured employee suffers a deliberate cut in the amount of compensation he may receive under the scheme in comparison with the damages he may be entitled to a common law for same injury. Lord James of Hereford explains the nature of workmen's compensation briefly as follows1 The main object was to entitle a workman who sustained injury whilst engaged in certain employments to recover compensation from the employer, although he (the employer) was guilty of no fault. The intention was to make ‘the businesses bear the burden of the accidents that arose in the course of employment, and relief from his liability is not found even if the injured workman be guilty of negligence. Workers' compensation statutes are designed to ensure that employees who are injured or disabled on the job are not required to cover medical bills related to their on-the-job injury, and are provided with monetary awards to cover loss of wages directly related to the accident, as well as to compensate for permanent physical impairments. The intent of these statutes is to eliminate the need for litigation by having employees give up the potential for pain and suffering related awards in exchange for not being required to proof tort (legal fault) on the part of their employer. The aim is not to measure income actually received by workers, but the value which labour contributes to net output along with other factors of production.

Methodology: The paper adopts doctrinal methodology approach, as it relies on primary and secondary sources of data. The primary sources include legislations on the subject area both local and international and the secondary sources are the relevant literature consulted on the area. The analysis in this paper is descriptive in nature.

1 Johnson v. Marshal Sons & Co Ltd (1906) AC 409, 412. 6

Scope of Workers’ Compensation: Workers compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence.

CHAPTER- 2 Workman – definition and application to the act: Section 2(1) (n) of the Workmen’s Compensation Act, 1923 defines ‘workmen’ “Workman” means any person who is-

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(i) A railway servant as defined in 3[clause (34) of section 2 of the Railways Act, 1989 (24 of 1989)] not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) A master, seaman or other member of the crew of a ship, (b) A captain or other member of the crew of an aircraft, (c) A person recruited as driver, helper, and mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or; (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, includes a reference to his dependents or any of them. Section 2(1) (n) of the Workmen’s Compensation Act, 1923 defines ‘workmen’ for the purposes of awarding the compensation to workman or to his dependents. For this purpose, it differs with the definitions given in other labour and industrial legislations. A driver working in private or public sector is a workman. Even a substitute driver working for two days on a lorry is a workman within the meaning of this section. Example: A is the lorry owner. B is A’s lorry driver. For the purpose of this Act, B is the workman of A. This was decided in Oriental fire and General Insurance Co. Ltd vs. Union of India.2 Casual employees appointed for a particular purpose are not ‘workmen’ within the meaning of Section 2(1) (n). Daily rated workers are the casual workers. If a worker works only one day on daily wages, and dies, the employer is not liable. If a worker is appointed for six months or more, he is treated as a worker. In Patel Engineering Co. Ltd vs Commissioner for WC 3, a workman worked under a contractor on daily 2 7 (AIR 1975 AP 222) 3 (1978(1)LLJ 147 AP 8

rate. He was paid weekly. He worked for one month. The Andhra Pradesh High Court held that he was not a casual employee, but a worker within the meaning of Section 2 (1) (n). A person engaged to whitewash on wages is a workman. A person engaged to whitewash on contract is not a workman. Danni Devi vs. Gurbaksh Singh4. In Divisional Railway Manager, S.E. Rly vs M. Laxmibai,5 The Court held that a railway servant drawing less than 1000 per month is a workman. In Juthi Devi and others vs. pine Chemical Ltd and another6. In this case a watchman was appointed by a chemical factory. His duty was to watch and ward. He was assaulted by the thieves. Due to injuries he died. The dependents claimed compensation. The management raised objection that the watchman was not a worker, as he was not concerned with the manufacturing process of the industry. The High Court gave judgment in favour of the dependents and ordered the management to pay compensation. The High Court held that the workman was employed in a premise where manufacturing process intended to be carried on was not necessarily required to be actually connected with the manufacturing process. A watchman was not a contributor to the industry and therefore he was a workman. In Champal vs. Daryavbai and others7. In this case, A-the house owner had given construction of a wall on contract to B- a maistry. As per the agreement, B had to construct the wall and to take contracted amount @ square feet. While B was constructing, it was collapsed and he died. The High Court gave judgment that B was a worker and A was liable to pay compensation to dependents of B.

CHAPTER- 3

4 (1973 ACJ 492 Del.) 5 (1984 ACJ 545 Ori) 6 (1990) 2 TAC 689 J&K HC) 7 (1992) 65 FLR 589 MP 9

Workmen Compensation- an analysis: Workmen’s compensation is insurance paid by companies to provide benefits to employees who become ill or injured on the job. Through this program, workers are provided with benefits and medical care, and employers have the assurance that they will not be sued by the employee. A system of compensation for work-related injuries or death, paid for by employer compensation insurance contributions. It is a system of compensation for work related injuries or death, paid for by employer compensation insurance contributions. The enactment of the Workmen’s Compensation act, opened a new phase in the lives of the workmen to achieve the ideals of social security and natural justice. The various amendments to the Act, from time to time imposed fetters on the employees misdeeds to avoid their liability to pay compensation in the event of an injury or death suffered by a workmen in the course of employment. The aim of the Act is to pay compensation to workmen who sustain injuries by accidents arising out of and in the due course of employment. The amount of compensation payable to a worker under the Act is not dependent on the negligence of the employer or not a remedy for the employer’s negligence. It is in the interest of the workmen against the risks of an accident in the way of insurance. As Lord Atkin said;8 “Once you have found the work which he is seeking to do to be within his employment the question of negligence, great or small is irrelevant”. This Act overrides the old doctrines of assumed risks, common employment, contributory negligence, and the end of personal actions with the death of the workman. According to the provisions of the Act, the compensation paid to a workman is independent of any negligent or wrongful act on the part of his master or his master’s servant. This means the liability to compensation under the Act is outside the purview of the Law of torts. It is only a liability that arises out of the relationship of master and servant. The Act has its roots from the concepts of charity, sympathy and follows the ideals of social justice in order to keep pace with the principles of mankind or human rights.

8 Harris v. Associated Portland Cement Manufacturers Ltd (1939) AC 71, 76 10

Optimum Rules & Respect to Workmen’s Compensation Act, 1923. The master or employer is under legal obligation to certain duties of care towards his servant. If the employer fails to discharge his duties of care towards his workmen, he is liable for the injury caused to his servant during the course of employment. In India this is a statutory liability upon/ the employer under the Act. In accordance with the provisions of the Act, an employer is liable to pay compensation to a workman for a personal injury caused to him by accident and also for any occupational disease as contracted him. In case of personal injury caused to a workman by accident arising out of and in the course of his employment, the employer is liable to pay compensation. Personal injury means any damage caused to workman by accident arising out of and in the course of his employment, for which the employer is liable to pay compensation. Personal injury may be external or internal. This means the injury need not be physical or mental alone and also includes a psychological injury. Hence a nervous shock caused by an excitement and alarm resulting from a fatal accident to a fellow workman also constitutes as a personal injury. Further according to the Act, any psychological injury suffered by a workman mainly due to the progress of a disease unconnected with the employment may also amount to personal injury, if it is related to the work with which the workman was doing at the time of occurrence. In the absence of a precise legal term, the word has been the attention of the courts and has been given different types of expression. However, the word ‘accident’ should be construed and understood in its popular and ordinary sense. Accident means may mishap or an event which is not expected or intended. But self-inflicted injuries cannot be considered as resulted out of accident. According to the Act the words ‘arising out of and in the course employment’ connotes two different phrases. The phrase ‘in the course employment’ denotes the point of time, i.e., the injury must be caused during the time of working hours of employment. The expression ‘out of employment’ means an injury caused to a workman as a result of the accident happened during the course of employment. A woman was injured by the fall of a wall which had no connection with the woman's employment. But the immediate cause of the injury was the collapse of the shed in which she was working, and the collapse of the shed was due to the fall of the wall. The House of Lords upon an examination of the facts held that the accident arose out of her employment within the meaning the Workmen’s Compensation Act, 1923 and held that she was eligible for Compensation. To prove he injury arose ‘out of employment’, two conditions are 11

necessary. First one is that the injury must have resulted incidental to the duties of the service or inherent in the nature, or in the conditions of employment. And second is that at the time of injury the worker must have been engaged in the work of his master and must not be doing anything else for his personal benefit. It covers the whole of the time of a workman carrying out or discharging his duties connected to his employment of contract. It includes not only the actual work for the workman employed but also covers matters incidental to perform his duty. This means times during which meals are taken, the period of rest intervals, the word employment further includes the commencement of journey from his work spot straight away. In certain employments workers employed are exposed to certain types of diseases which are inherent with the nature of their work. Such type of diseases is to be considered as injury resulted out of and during the course of employment. If, an employee in any employment specified in third schedule to the Act, contracts any disease specified therein as a peculiar disease to that employment. In such cases if an employee suffers from any disease continuously net less than six months can be called as an occupational disease. The employer is liable to pay compensation, until and unless it is proved contrary and deemed to be an ‘employment injury’. The employer shall not be liable to pay compensation to a workman in any of the following case. If any injury resulting from the accident does not result in the total or partial disablement of a workman of period exceeding three days; if any injury to the workman, not resulting the death caused by an accident which is directly attributable to the workman having been at the time there of under the influence of drink or drugs or the willful disobedience of the workman to order expressly given, or to a rule expressly framed, for the purpose of security the safety of workman, or the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman; If the workman filed a suit in a civil court for damages against employer in respect of the injury; if the accident causing injury or death of a workman did not arise both out of and during the course of his employment. If a workman meets with an injury, the employer is liable to pay an amount of compensation on the basis of the following rules prescribed by the Act. The compensation is payable to a workman in the cases If the injury leads to; Death or Permanent total disablement, or Permanent partial disablement, or Temporary disablement whether total or partial. In The event of injury resulting in death of a workman, an amount equal 12

to forty percent of the monthly wages of the deceased workman multiplied by the relevant factor or specified in the second column of Schedule IV or an amount of eighty thousand rupees, whichever is more? In the event of injury resulting in permanent total disablement, an amount of equal to fifty percent of the monthly wages of the injured workman multiplied by the relevant factor specified in the second column of Schedule FV or an amount of ninety thousand rupees, whichever is more? In the event of injury resulting in permanent partial disablement the amount of compensation relates to the percentage of the loss earning of the workman caused by the injury as specified in part II of Schedule I. If the injury as specified in Schedule I, the amount compensation shall be such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury? In other words, the percentage of compensation will be proportionate to the loss of earning capacity is concerned, which is a question of fact will be decided by the compensation court. In the event of injury resulting in temporary disablement whether total or partial, the amount of compensation payable to the workman’s will be hall monthly payment of the sum equivalent to twenty-five percent of the monthly wages of the workman to be paid in accordance with the provisions of Section 4(2). This amount of compensation shall be payable on the sixteenth day. From the date of disablement where such disablement last for a period of twenty eight days or more; or after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty eight days. Then compensation is paid thereafter as half monthly during the disablement or during a period of five years, whichever period is shorter. On the ceasing of the disablement before the date on which any half-monthly payment falls due that amount shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.

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CHAPTER- 4 Connection between accident and employment The deceased employee while travelling by public transport to his place of work met with a fatal accident. Nothing has been brought on record that the employee was not obliged to travel in any particular manner under the terms of the employment nor he was travelling in the official transport. Held, no casual connection between accident and employment could be established. Hence, the claimant is not entitled to any compensation;9 Death during the course of employment If the deceased employee met with his death while he was going to his place of work and the death has arisen during the course of employment, then the employer is liable for compensation10. Entitlement to claim compensation Where death was accelerated on account of stress and strain of the working condition, it is not necessary that there should be a direct connection between the cause of death and the nature of duties. Even if a causal connection between the two can be shown then the dependents of the deceased would be entitled to claim compensation from the employer11. Injury must be physical injury Injury sustained by a workman must be a physical injury on account of accident.12 Liability for compensation (i) In order to attract section 3 (1) of the Act, following three conditions must be fulfilled:(a) Personal injury; (b) Accident; and (c) Arising out of and in the course of employment.13 9 State Bank of India v. Vijay Laxmi, 1998 LLR 319 10 T.N.C.S. Corporation Ltd. v. s. Poomalai, 1995 LLR 63 (Mad): 1995 I LLJ HC MDS (378) 11 Divisional Personal Officer, Western Railway v. Asluya Segam, 1994 LLR 11 (Raj) 12 Leela Devi v. Ramlal Rahu, 1990 LLR 213 (HP). 14

(ii) It is no doubt true that in order to succeed in an application for getting compensation under section 3 of the Act the following points are required to be established:(1) That the accident must arise out of and in the course of the workman’s employment; (2) There must be causal connection between the injury and the accident and the work done in the course of the employment; (3) The workman has to say that while doing a part of his duty or incidental thereto it has resulted into an accident. It is necessary that the workman must be actually working at the time of the injury or the accident. Therefore, the three factors, that there must be injury, which must be caused in an accident, it must be caused in the course of and out of the employment must be established.14

13 Kalayni P. v. Divisional Manager, Southern Railway (Personal Branch), Divisional Office, Madras, 2004 LLR 207 (Mad HC): 2004 1 LLJ 49. 14 Branch Manager, New India Assurance Co. Ltd. v. Siddappa, Major, 2004 LLR 731 (Kant HC).

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CHAPTER- 5 Basis for the calculation of compensation: The basis for calculation of compensation is monthly “wages”; In Zubeda Bano v. Maharashtra Road Transport Corporation,15 “Batta” does not amount to “wages” for computing compensation “Batta” paid to a workman per day to cover special expenses incurred by him due to nature of his employment does not amount to “wages” for the purposes of computing compensation; Compensation chart table:16 (a) Where the death results from the injury :

An amount equal to 50% of the wages of the deceased workman multiplied by the relevant factor or an amount of Rs 1, 20,000/-

(b) where permanent or total disablement results from the injury

whichever is more. An amount equal to 60% of the wages of the deceased workman multiplied by the relevant factor or an amount of Rs 1, 40,000/-

(c) where permanent partial disablement results from the injury

whichever is more. Based on the percentage of loss of earning capacity caused by the accident if the injury is specified in part II of Schedule I, and in case the injury is not specified in Schedule, percentage as assessed by the qualified Medical Practitioner.

(d) where temporary disablement, whether total or

A half monthly payment of the sum equivalent to

partial results from the injury

25% of monthly wages of the workman to be paid.

15 1990 LLR 287 (Bom) 16 Section 4 of WCA,1923. 16

If the injury of the workman results in his death, the employer shall, in addition to the compensation, deposit with Commissioner a sum of two thousand Rupees for payment to the eldest surviving dependent of workman towards funeral expenditure.

Calculation of Compensation under WCA: (1) Monthly Wages: is the amount of wages deemed to payable for a month’s service duly taking the average for 12 months. (Presently max is 8,000/-) (2) Factor for lump sum payment is based on completed years of age. Age not more

factors

than

19 30 45 55

Age not more

factors

than

225.22 207.98 169.44 135.56

20 25 46 58

Age not more

factors

than

224 197.06 166.29 124.70

25 40 50 60

216.91 184.17 153.09 117.41

Formula for calculation of compensation under WCA: = Monthly wages X %age X Age factor Monthly wages =

Maximum is taken as 8,000/-

Completed age = 46 Years, (Age factor 166.29 Compensation= 8000 X 50/100 X 166.29 = Rs 6, 65,160/In the case of death, maximum compensation payable is Rs 10 lakhs. The difference from the amount already paid and Rs ten lakhs will be paid with the approval of General Manager. Power of Commissioner to award more compensation

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The Commissioner has power to award compensation more than what is claimed by the workman if the facts do warrant such an award.17

Claiming Compensation: In the event of injury caused to accident the workman has to use the following procedures prescribed under Section 10 of the Act, to claim Compensation for the damage suffered. A workman or his dependents must give a notice to the Commissioner after the injury caused to accident within two years of the occurrence of the incident in the event of death. The workman also should give a notice to the employer. If there is more than one employer, the notice can be given to any one of them or to any person responsible discharging duties on behalf of the employer. The notice must contain the name and address of the workman; the cause of injury; and the date of the occurrence of the incident. The notice to the employer may be delivered personally, or may be sent by registered post or by making an entry in the notice book, if such a book is maintained by the employer. The State Government may direct any prescribed class of employers to maintain a notice-book in their premises at which the workmen are employed. Such a notice-book shall be readily available to any injured workman employed on the premises or to his representative. No claim for compensation shall be entertained unless a notice is given as stated above to the employer. However, such a notice of issue can be excused on the following grounds. If the workman died at the premises or of employment within the vicinity of the premises without having left the premises or If the employer comes to know about the death of a workman from any source whatsoever may be; or If the commissioner is satisfied that the failure to give notice was not intentional and due to sufficient reason.

17 Karnataka State Road Transport Corporation v. B.T. Somasekharaiah, 1994 LLR 251 (Karn) 18

CHAPTER- 6 COMPENSATION UNDER EMPLOYEES STATE INSURANCE ACT, 1948

The section 46 of the Act envisages following six social security benefits:(a) Medical Benefit : Full medical care is provided to an Insured person and his family members from the day he enters insurable employment. There is no ceiling on expenditure on the treatment of an Insured Person or his family member. Medical care is also provided to retired and permanently disabled insured persons and their spouses on payment of a token annual premium of Rs.120/- . (b) Sickness Benefit (SB) : Sickness Benefit in the form of cash compensation at the rate of 70 per cent of wages is payable to insured workers during the periods of certified sickness for a maximum of 91 days in a year. In order to qualify for sickness benefit the insured worker is required to contribute for 78 days in a contribution period of 6 months. 1) Extended Sickness Benefit (ESB) : SB extendable upto two years in the case of 34 malignant and long-term diseases at an enhanced rate of 80 per cent of wages. 2) Enhanced Sickness Benefit : Enhanced Sickness Benefit equal to full wage is payable to insured persons undergoing sterilization for 7 days/14 days for male and female workers respectively. (c) Maternity Benefit (MB) : Maternity Benefit for confinement/pregnancy is payable for three months, which is extendable by further one month on medical advice at the rate of full wage subject to contribution for 70 days in the preceding year. 19

(d) Disablement Benefit 1) Temporary disablement benefit (TDB) : From day one of entering insurable employment & irrespective of having paid any contribution in case of employment injury. Temporary Disablement Benefit at the rate of 90% of wage is payable so long as disability continues. 2) Permanent disablement benefit (PDB) : The benefit is paid at the rate of 90% of wage in the form of monthly payment depending upon the extent of loss of earning capacity as certified by a Medical Board (e) Dependents’ Benefit (DB) : DB paid at the rate of 90% of wage in the form of monthly payment to the dependents of a deceased Insured person in cases where death occurs due to employment injury or occupational hazards. (f) Other Benefits: Funeral Expenses: An amount of Rs.10, 000/- is payable to the dependents or to the person who performs last rites from day one of entering insurable employment. Confinement Expenses: An Insured Women or an I.P.in respect of his wife in case confinement occurs at a place where necessary medical facilities under ESI Scheme are not available. In addition, the scheme also provides some other need based benefits to insured workers. Vocational Rehabilitation: To permanently disabled Insured Person for undergoing VR Training at VRS. Physical Rehabilitation: In case of physical disablement due to employment injury. Old Age Medical Care :For Insured Person retiring on attaining the age of superannuation or under VRS/ERS and person having to leave service due to permanent disability insured person & spouse on payment of Rs. 120/- per annum. Rajiv Gandhi Shramik Kalyan Yojana : This scheme of Unemployment allowance was introduced w.e.f. 01-04-2005. An Insured Person who become unemployed after being insured three or more years, due to closure of factory/establishment, retrenchment or permanent invalidity are entitled to :20



Unemployment Allowance equal to 50% of wage for a maximum period of up to one year.



Medical care for self and family from ESI Hospitals/Dispensaries during the period IP receives unemployment allowance.



Vocational Training provided for upgrading skills - Expenditure on fee/travelling allowance borne by ESIC.

Incentive to employers in the Private Sector for providing regular employment to the persons with disability: 

Minimum wage limit for Physically Disabled Persons for availing ESIC Benefits is 25,000/-.



Employers' contribution is paid by the Central Government for 3 years.

Benefits & Contributory Conditions: An interesting feature of the ESI Scheme is that the contributions are related to the paying capacity as a fixed percentage of the workers’ wages, whereas, they are provided social security benefits according to individual needs without distinction. Cash Benefits are disbursed by the Corporation through its Branch Offices (BOs) / Pay Offices (POs), subject to certain contributory conditions. Further court said in the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. 21

In the case of Varadarajulu v Masaya Boyan18 court held that the worker had no other means to go to the work place other than to use the employer’s lorry. So, accident happening while in lorry is in the due course of employment In MaherunishaAhemad Khan Pathan and other v Employees State Insurance Corporation,19 a workman while returning home was assaulted by a mob during communal riots and died. It was held that the place of accident need not necessarily be located within the limits of the factory premises so long as the accident falls within a zone which can be notionally deemed to be the zone of the factory for the propose of the Act by recourse to the theory of notional extension. Therefore court held death was employment injury within the meaning of Section 2(8) of Act. In Sathybhama v ESI Corpn,20 a woman employee while returning home was hit by a scooter on public road in front of the factory gate. It was held that theory of notional extension cannot be reduced to a mathematical formula of distance and time. Decision would depend on the facts and circumstances of each case. In the present case considering both the point of time as that of distance the theory of notional extension shall apply and the injury sustained is an employment injury. In Sheela v ESI Corporation,21an employee of M/s. Electronic Product of India, Chandigarh left his house at about 8.30 a.m. to join his duties at 9 am. He died at bus-stand while waiting for the local bus. It was held that the employee died while he was going to his place of work. The theory of notional extension will apply and the death occurred in the course of employment. In Employees State Insurance Corporation, Calcutta v Abdul Salam and others,22 the respondent No. 1 was an employee of the petitioner came to resume his duty after a gap of about 4 years but he was not allowed to join duty in spite of producing medical certificate and at that point of time the respondent No. 1 being a paralytic patient had an accidental fall resulting in injury for which 18 AIR 1954 Madras 1113 19 (1995) II LLJ 1 (Gujarat) 20 (1992) I LLJ 831 (Kerala) 21 (1991) II LLJ 247 (Punjab & Haryana) 22 (2003) I LLJ 765 (Calcutta) 22

he claimed benefit as permissible under the Employee’s State Insurance Schemes. The claim was opposed by the petitioner. It was held that at that relevant time respondent No. 1 was not in employment and hence the injury was not out of and in the course of employment. Therefore, no benefits could legally be claimed under the Employee’s State Insurance Act, 1948. In Regional Director, E.S.I.C. Ahmedabad v Batulbibi and another23, the workman of a textile mill while on duty had gone to canteen during the short recess to take tea, where he died of cardiac infraction. His widow and son claimed compensation. It was held that the death arose out of and in the cases of employment because the recess period is not so long as to disrupt the continuity of the employment. If the recess was indeed short, the liberty of an employee to go away does not in reality mean anything, since he could not have gone so far as to snatch the continuity of his employment. In Rajappa v Employees’ State Insurance Corporation 24, an employee of the KIMCO was attacked by some persons and his left hand was cut off while he was on his way to home after finishing the work in the factory. The corporation met all the expenses when he was under treatment. It was held that where employment is not a contributing factor to create any incident or accident or to accelerate causes of death or personal injury of employee, a claim cannot be made for compensation under the Act. The condition precedent to a liability under Act is causal connection or association extension has to apply to the factual situation pertaining to the particular case. In the present case there is no relationship between the assault causing injury to the employee and the employment.

23 (1988) II LLJ 29 (Gujarat) 24 (1992)II LLJ 714 (Karnataka) 23

CHAPTER- 7 Most Recent and Relevant cases: 1) Royal Sundaram Alliance vs Shri Manoj Laxman Patil25 Facts: The applicant, who was a driver have lost the vision of his right eye and the movement of his right leg. Issue: Whether it amounts to partial or total disablement and the amount of compensation? Reasoning: It has to be borne in mind that the occupation of the driver involves skill and alertness to operate the motor vehicle, free movements to apply accelerator, brakes, and clutch and change gears simultaneously, giving of signals. Claimant's incapacity to earn as Driver which was his sole occupation to earn his livelihood is relevant fact in this case. The evidence on record indicates that the applicant cannot bend his right at hip joint, knee joint and ankle joint, apart from having lost the vision of his right eye. There is also no dispute that the applicant was a driver and as a result of this disability sustained, is unable to perform duties as a driver. 25 https://indiankanoon.org/doc/66453525/, last visited on 09/04/2017 at 04:04 a: m. 24

Judgment: There is no dispute in this case that the applicant suffered permanent disability to the extent of 60% on account of loss of vision of the right eye and movement of the right leg. 2) Executive Engineer/Deputy vs Priyanka and Others26 Facts: He was working under the directions from the contractor along with other employees and had been asked to climb the electric pole on 27.05.2008 on which a transformer had been mounted for rectifying the fault. In the process of discharging his duties, he got electrocuted and fell down from the pole and he received severe shock and burn injuries due to the electric current and received some injuries due to fall on the ground and was moved to the Government Hospital, Loharu, where he was declared dead. Resultantly, inquest proceedings under Section 174 Cr.P.C. and post mortem was conducted which proved the fact that he had died due to electrocution and resultantly, the claim was filed for `15,00,000/- after serving the legal notice. Issue: Whether the principal-employer is liable to pay the amount of compensation when the employee died while working under the supervision and on the premises of the principal employer and his right for indemnification? Reasoning: From the evidence on record also, it is evident that it was the categorical case of the claimants and duly supported by the employees of the Nigam also that deceased was working under supervision of the said J.E. Even the said J.E. appeared as AW-5 and had stated that the tender work had been issued and the work was going on under the supervision of the contractor on one feeder on which the deceased was working where he was in charge. Judgment: It is apparent that the Commissioner is correct in coming to the conclusion that the contractor engaged the deceased Sunil Kumar and other employees for work of the Nigam and thereafter had rightly shifted the burden of proof upon the said contractor. Keeping in view the documentary evidence on record regarding the repair of the work which was being taken from the contractor, it was rightly held that he was doing work and received fatal injuries during the course of employment with the contractor and the Nigam and, therefore, the fatal injuries were received in the course of his employment which resulted in his death. Accordingly, the question of law is answered against the appellants and they are held liable to pay the amount of compensation being the principal employer and in view of the fact that there was a mistake on their part which led to the death of the employee. 26 https://indiankanoon.org/doc/191596368/, last visited on 09/04/2017 at4:15 a: m. 25

3) S.Alex vs M/S.Saidannaa Enterprises Pvt.27 Facts: Mr.S.Alex, aged about 24 years, was engaged by the first respondent as Loadman in Swaraj Mazda Goods Carrier Van bearing Registration No.TN 22 AD 2812 and while he was on duty on 27.07.2007, the said vehicle met with an accident at GST Road, near Vandalur Railway Gate by the rash and negligent driving of the driver of the vehicle and dashed behind the bus, as a result, he sustained grievous injuries and immediately taken to Chengalpattu Government Hospital and admitted as inpatient from 27.07.2007 to 28.07.2007 and taking treatment as outpatient till date. Therefore he filed the claim petition before the Deputy Commissioner of Labour-II, Chennai in W.C.No.285 of 2008 claiming a compensation of Rs.6, 00,000/- on the ground that the accident occurred during the course of his employment. Issue: What is the actual date for accrual of interest on the compensation arrived at under the Employees Compensation Act, whether it falls due after thirty days from the date of accident or only after thirty days from the date of determination/adjudication of the compensation/claim? Reasoning: Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due. Judgment: This Court hereby directs the second respondent Insurance company in each case to deposit the interest at the rate of 12% per annum on the compensation awarded to the appellant/claimant after thirty days from the date of accident till the date of deposit i.e., from 27.07.2007 in the case of Mr.S.Alex.

4) Ved Prakash Garg vs Premi Devi & Ors28 Facts: The appellant is the owner of a motor truck on which deceased Prakash Chand was working as a driver, is the sole heir and claimant for compensation. Between 20th and 21st 27 https://indiankanoon.org/doc/120378046/, last visited on 09/04/2017 at 04: 30 a: m. 28 https://indiankanoon.org/doc/729146/, last visited on 09/04/2017 at 05: 00 a: m. 26

August 1992 the said truck met with an accident on Kalka- Simla national highway in the State of Himachal Pradesh. It resulted in instantaneous death of driver Prakash Chand. It is the case of the appellant insured owner of the truck that he informed respondent no.2-insurance company which had insured the appellant against risks arising out of the use of the insured motor vehicle. That he was insured comprehensively for all risks and the insurance company was supposed to have immediately contracted the legal representatives of the deceased driver and should have paid the compensation to the bereaved family which it failed to do. Issue: Where an employee receives a personal injury in a motor accident arising out of and in the motor vehicle of the employer, whether the insurance company, which has insured the employerowner of the vehicle against third party accident is liable to pay? Reasoning: In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section Act on the conjoint operation of Section 3 and Section 4A sub-additional amount of compensation y way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4(3) Judgment: Accordingly it must be held that the respondent insurance company will be liable to meet the claim of the appellant- insured in Appeals Nos. 15698-15699 of 1996 to the extent of Rs. 88,548/- in Claim Case No.2 of 1992 with interest thereon at the rate of 6% per annum of from the date of accident till the date of payment. But the respondent- insurance company will not be liable to meet the claim of penalty of Rs.44,274/- imposed on the appellant-insured along with the interest of 6% per annum on the said amount of Rs. 44,274/-. The awards of the Commissioner will stand modified accordingly. They will obviously remain untouched so far as they are against the employers. It will be open to the claimants to enforce their claims of penalty amounts with proportionate interest thereon against employers concerned. 5) Leesha vs The Secretary29 Facts: The case of the petitioner is that she had suffered severe injuries in the bomb blast that occurred on 17.04.2013 at 11th Cross, Malleswaram, Bangalore, near the office of the Bharathiya Janatha Party. She was shifted to the K.C. General Hospital for treatment and was subsequently 29 https://indiankanoon.org/doc/69917192/, last visited on 09/04/2017 at 05:20 a:m. 27

shifted to M.S.Ramaiah Memorial Hospital and has undergone operations which led to prolonged treatment. In spite of such treatment she has suffered more than 50% disability. The petitioner contends that she was a student of Maharani Lakshmi Ammanni College pursuing her Bachelor of Computer Applications and presently though she has completed the course she is unable to secure employment due to the disability. Even while she was undergoing the course she has suffered a lot of hardship as she had to repeatedly go for medical checkup which affected her studies. The petitioner further contends that her father who is the only earning member is a daily wager who is not able to meet the medical expenses and the other expenses. Hence a representation was made to the first respondent seeking compensation. Issue: whether the respondent is liable to pay the compensation of Rs.1, 25, 00,000/- for the 100% disability? Reasoning: In matters of the present nature the compensation will be as per the Scheme formulated for that purpose, as per which the payment has already been made to the petitioner in compliance of the interim direction of this Court. Despite the same if the petitioner is to claim damages by alleging negligence against the State and contend that the bomb blast occurred due to such negligence, such consideration cannot be made in a writ petition under Article 226 of the Constitution but will have to file a suit and tender evidence in that regard to prove such allegation and to quantify the damages. Judgment: The first respondent is directed to consider the representation dated 05.01.2015 in so far as providing a job to the petitioner on compassionate grounds and for payment of the medical expenses, in the manner as indicated above. The job shall be provided to the petitioner as expeditiously as possible, but not later than three months from the date on which a copy of this order is received. This writ petition is accordingly disposed of with no order as to costs. 6) M/S.Reliance General Insurance vs C.Anandakrishnan30 Facts: The respondent was riding a motorcycle bearing Registration No.TN-43 C-0388, from North to South direction, keeping to the left side of the road, near an electric crematorium, Sathy Road, Coimbatore, an Eicher lorry bearing Registration No.TN-30 AH-1314, insured with Reliance General Insurance Co. Ltd. /appellant herein, which came in the same direction, while overtaking a motorcycle, dashed against the right side of the motorcycle. The motorcyclist was 30 https://indiankanoon.org/doc/65701796/, last visited on 09/04/2017 at 05:40 a: m. 28

thrown away and sustained grievous injuries. In this regard, a case in crime No.379/2011 under Sections 279 and 338 IPC was registered against the driver of the Eicher lorry bearing Registration No.TN-30 AH-1314 on the file of Traffic Inspector (West), Central Police Station, Coimbatore. The motorcyclist/first respondent, sustained fracture, vertebrae crushed injuries. At the time of accident, he was aged 27 years. Contending inter alia that he suffered 100% disability and thus lost his earning capacity, he filed MCOP No.625 of 2012 on the file of Motor Accident Claims Tribunal, (Special Subordinate Judge), Coimbatore, claiming compensation of Rs.40,00,000/-. Issue: whether the insurance company would be liable to pay compensation amount? Reasoning: The Claims Tribunal held that the driver of the Eicher lorry bearing Registration No.TN-30 AH-1314, was negligent in causing the accident and having regard to the age of the first respondent/injured, nature of injuries, avocation, income and the extent of disability assessed and applied multiplier method, awarded compensation of Rs.44, 73,000/- with interest, at the rate of 7.5% per annum, from the date of claim till realization Judgment: The Tribunal has awarded Rs.21, 67,000/- under the head medical expenses. Fixing the life expectancy of the injured and requirement of an attendant for the rest of his life time, the Tribunal has awarded Rs.3, 00,000/- under the head attendant charges. In addition to the above, the Tribunal has awarded Rs.50, 000/- towards pain and suffering. The Tribunal has awarded Rs.1, 00,000/- under the head loss of amenities and enjoyment of life. That apart, the Tribunal has awarded Rs.10, 000/- for extra nourishment and Rs.10, 000/- for transportation. There is no award for loss of income during the treatment period and conventional damages. The appellant-Insurance Company, is directed to deposit the entire award amount, with proportionate accrued interest and costs, less the statutory deposit, to the credit of MCOP No.1921 of 2011, on the file of the Motor Accidents Claims Tribunal (Special Subordinate Court), Coimbatore, within a period of six weeks from the date of receipt of a copy of this judgment. The Tribunal shall deposit the amount in a Nationalized Bank fetching maximum interest proximate to the residence of the first respondent/injured.

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7) K.Lokaiah vs R.Mani Raju31 Facts: The factual matrix is that on 10.01.2006 while the deceased G.Subramanyam Raju, as a rider along with his friend Lokaiah(claimant in O.P.No.174 of 2007) as a pillion rider were going on a Hero Honda Splendor motor cycle supra on the extreme left side and when they reached near Vethala Thaduku village, Narayanavanam Mandal, at about 2.00 A.M., the tractor supra being driven by the rash and negligent driving of its driver dashed to the motor cycle, due to which the rider Subramanya Raju died on the spot and Lokaiah received grievous injuries. The driver of the tractor took Lokaiah to Community Health Centre, Puttur and taking advantage of the injuries of Lokaiah, prepared a false complaint and obtained signature of Lokaiah and lodged a complaint before Narayanavanam police station against the deceased to escape from punishment. Said Lokaiah after regaining consciousness, filed a private complaint against driver of Tractor. Issue: Whether the compensation granted by the tribunal is utterly low or not? Reasoning: Even in case of negligence of the victim once claim is maintainable under Section 163-A to plead and prove, there is no duty on the claimant/s and they can ignore their negligence and maintain a claim, but for the controversy as to does it take away the opposite party’s right to plead and prove under the common law but for such deviation is only to the extent of exempting the complainant from duty to plead and prove to avail quick relief. Judgment: While setting aside the dismissal order of the tribunal and by granting compensation of Rs.4,48, 000/- towards their 50% liability (out of total compensation of Rs.8,94,600/-) with interest at 7.5% p.a. from the date of petition till realization. Both the respondents are directed to pay the above compensation for the policy covers the risk. Any other available remedies if at all Insurance policy of bike covers the risk to claim are left open to approach appropriate forum. Enhancing the compensation awarded by the tribunal of Rs.57, 000/- to Rs.1, 00,000/- so also the rate of interest from 6% to 7.5% from the date of petition till realization, by holding that the respondents to pay the same and claim by filing execution from the owner and Insurer of the bike also for 50% liability for the equal contribution to the accident.

31 https://indiankanoon.org/doc/195141676/, last visited on 09/04/2017 at 06: 04 a: m. 30

8) Oriental Ins.Co.Ltd vs Dyamavva & Ors32 Facts: Yalgurdappa B. Goudar was employed as a Pump Operator in the Mechanical Engineering Department, and posted in the Old Power House, of the Mormugao Port Trust, Mormugao (for short, ‘the Port Trust’). While discharging his duties in his aforesaid capacity during the course of the second shift on 19.4.2003, while pillion riding on a motorcycle bearing registration mo.GA 02 L 8479, he was hit by a tipper bearing registration no.TM 07 V 4548. Consequent upon the injury suffered by Yalgurdappa B. Goudar in the said accident, Yalgurdappa B. Goudar died on the spot. The aforesaid tipper was insured with the Oriental Insurance Company, i.e., the appellant herein. Issue: whether the employer is liable to pay compensation under the Workman Compensation act? Reasoning: On the language of Section 167 of the Motor Vehicles Act, and going by the principle

of

election

of

remedies,

a

claimant

opting

to

proceed

under

the

Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act 1988. Chapter X of the Motor Vehicles Act 1988 deals with what is known as 'no fault" liability in case of an accident. Judgment: The court hereby affirm the determination rendered by the Motor Accidents Claims Tribunal, Bagalkot, and the High Court in awarding compensation quantified at Rs.11,44,440/- to the claimant. The Motor Accidents Claims Tribunal, Bagalkot, as also, the High Court, ordered a deduction therefrom of a sum of Rs.3,26,140/- (paid to the claimants under the under Workmen’s Compensation Act, 1923). The said deduction gives full effect to Section 167 of the Motor Vehicles Act, 1988, inasmuch as, it awards compensation to the respondents-claimants under the enactment based on the option first exercised, and also ensures that, the respondentsclaimants are not allowed dual benefit under the two enactments.

32 https://indiankanoon.org/doc/73769857/, last visited on 09/04/2017 at 06:15 a: m. 31

9) New India Assurance Co. Ltd vs Ajay & Anr33 Facts: The admitted facts are that respondent No.1, Ajay son of Sheokaran, aged 19 years was working as a Cleaner on a truck bearing registration No.HR-38C-5496 owned and driven by respondent No.2, Ashok Kumar son of Khem Chand. This truck was loaded with potatoes and was coming from Agra to Jind on the intervening night of 16/17.05.2006, when at a distance of 5 K.Ms from Rohtak on Jhajjar side at about 3.00 A.M., a container truck loaded with motorcycles came from the opposite side and struck on the back side of the body of the truck in which both the respondents were travelling, which resulted in losing the balance because of which it turned turtle on the left side on the unmated portion of the road. Since respondent No.1 was sitting on the left side of the truck in the Cabin, being the Cleaner, he suffered serious injuries in the left arm, including elbow. Respondent No.2, Ashok Kumar, Driver-cum-owner of the truck, alongwith owner of a nearby hotel, shifted him to PGIMS, Rohtak. Since the doctors were on strike, only first aid to Ajay-respondent No.1 was provided and then respondent No.2 shifted and got him admitted to S.K.M.Hospital, Rohtak. He remained admitted there from 17.05.2006 to 21.05.2006, where several operations were conducted on his left arm, which was followed by further visits for his treatment. Issue: Whether a workman would be entitled to compensation, treating him to be 100% functionally disabled despite the physical disability having been assessed by the doctor to be less? Reasoning: Although the medical evidence does not indicate with regard to the loss of earning capacity but there is even no evidence on record on behalf of the appellant, which would indicate that respondent No.1 is unable to perform any other work, especially when the work being performed by him is neither purely of a technical nature nor is it of a skilled nature. The evidence, which has come on record in the form of pleadings and statement of respondent No.1, is that he is unable to do any work nor is he working. Rather, he states that the follow up treatment is in progress and further operations would have to be performed. Judgment: The appellant has failed to challenge this statement in cross-examination and in the absence of any evidence to the contrary, the plea of the counsel for the appellant that respondent

33 https://indiankanoon.org/doc/162018505/, last visited on 09/04/2017 at 06:40 a: m. 32

No.1 can perform some other work cannot be accepted in this case. In view of the above, the appeal stands dismissed. 10) Against the Order/Judgment In Wcc vs By Advs.Sri.Avm.Salahudin34 Facts: The appellant had in the application dated 30.6.2002 filed by him under section 22 of the Act averred that he sustained personal injuries in the course of his employment under the first opposite party when the driver of a lorry bearing registration No.KL 9F-8766 reversed it under the impression that the laterite stones carried in the lorry had been unloaded and in that accident he fell into a well and sustained serious injuries. He had further stated that he was immediately taken to Medical College Hospital, Kozhikode and was discharged only on 17.6.2002. The appellant had also stated that he is still bedridden and continuing the treatment. Issue: whether the injuries suffered by the employer can be awarded with the compensation? Reasoning: The case sheet was accordingly produced and it was marked as Ext.X1. After considering the rival contentions and the evidence on record, the court below held that Ext.X1 would show that the applicant had sustained injuries even prior to 16.5.2002 and therefore the case set out by him that he sustained severe injuries and he came paraplegic on account of the injuries sustained in the accident cannot be believed.

Judgment: The court below was, in opinion, justified in coming to the conclusion that prior to 16.5.2002, the appellant had sustained serious injuries when he fell from a height and therefore, it cannot be held that he sustained injuries in the course of his employment under the first opposite party. 11) B Naveen, vs Mr Alla Bakash35 Facts: The appellant was working as a driver in the auto rickshaw bearing Registration No.KA02/2189 belonging to the first respondent herein and he was getting salary of Rs.4, 000/- p.m. On 03-03-2005, while he was driving the auto rickshaw as per the instructions of the owner of the auto rickshaw, on Rajajinagar Main Road, a rider of the motorcycle came in a rash and negligent manner without seeing the signal light. In order to avoid the accident, he applied the break suddenly. In view of that the auto rickshaw turned turtle and he fell down and sustained grievous 34 https://indiankanoon.org/doc/88081038/, last visited on 09/04/2017 at 07:00 a: m. 35 https://indiankanoon.org/doc/139581159/, last visited on 09/04/2017 at 07:20 a: m. 33

injuries. Immediately after the accident, he was shifted to NIMHANS thereafter he took treatment in Narayana Hrudayalaya. Inspite of the best treatment, he could not be recovered. He has become permanently disabled to do any work. The accident occurred during the course and out of employment. The auto rickshaw was insured with the second respondent herein. Hence, both respondents 1 and 2 are liable to compensate the claimants. Issue: whether the appellant is entitled for the compensation for the injuries he suffered? Reasoning: Under the Employees Compensation Act, the duty casts upon the claimant to prove that there is relationship of master and servant between the claimant as well as the owner of the auto rickshaw. Unless those conditions are fulfilled, the claimant cannot claim compensation under the Employees Compensation Act. In the instant case, no complaint has been lodged before the jurisdictional police. Judgment: The WCC, after appreciating the oral and documentary evidence produced by the parties held that the claimant has failed to prove that he has sustained injuries in the road traffic accident and has failed to prove the relationship of master and servant between him and the owner of the offending auto rickshaw and dismissed the claim petition. On re-appreciation of the oral and documentary evidence of the parties, the court find there is no infirmity or irregularity in the judgment and award passed by the WCC. The appellant has not made out a case to interfere with the said judgment and order passed by the WCC. Accordingly, the appeal is dismissed. 12) The Divisional Manager vs Shanthappa Bin Virappa Hanchi36 Fact: He was working as a Hamali in a tempo bearing Registration No.KA-27/6148 belonged to the 2nd respondent herein for last six months. On 7.1.2007, as per instructions of the owner of the vehicle, after loading cotton bales at Attikatte, the claimant was proceeding towards Ranebennur. At that time, the vehicle was stopped in the middle of the road due to heavy loading since the same was proceeding upgradient. The driver of the tempo requested the claimant and another hamali Rudresh to push the tempo from backside. While doing so, in view of sudden jerk of the tempo, the cotton bales loaded in the tempo fell on the claimant. Due to that, he sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Navodaya Hospital, Davanagere for treatment. Prior to the accident, the owner of the vehicle was paying him salary of Rs.4, 000/- per month and bata of Rs.50/- per day. At the time of accident, he was 36 https://indiankanoon.org/doc/104538922/, last visited on 09/04/2017 at 07:45 a: m. 34

aged about 34 years. In view of the injuries sustained and permanent disability, he cannot do the work as hamali. The police have registered a case in Crime No.1/2007 against the driver of the tempo. The accident occurred during the course and out of employment. Issue: Whether the owner of vehicle and insurance company is liable to pay compensation and what would be the amount of compensation? Reasoning: The Commissioner for Workmen Compensation taking into consideration the income of the claimant at Rs.3, 000/- per month, taking 60% thereof and disability to an extent of 45% as assessed by the doctor since the claimant had sustained fracture of shaft of tibia and fibula, applying the relevant factor 199.40, having regard to the age of the claimant awarded compensation of Rs.1, 61,514.00 with interest at 12% p.a. Since the insurance policy was in force as on the date of accident, the liability was fastened on the Insurance Company to compensate the claimant. Judgment: In view of mal-union of fractured portion, the doctor assessed the loss of earning capacity to an extent of 45%. The claimant is a hamali by profession. In view of fracture of tibia and fibula, he cannot carry weight on his head. Though the claimant claimed that he was earning Rs.4, 000/- per month and bata of Rs.50/- per day, no document was produced to substantiate the same. In view of that, the Commissioner for Workmen Compensation has taken the income of the claimant as Rs.3,000/- per month, taking 60% thereof and loss of earning capacity to an extent of 45% as assessed by the doctor and applying the relevant factor 199.40 awarded compensation of Rs.1,61,514/-. The compensation awarded is just and fair compensation. A hamali working in a tempo statutorily covers under Section 147(1) of the Motor Vehicles Act read with Rules 100 of Motor Vehicle Rules. Hence, the Insurance Company is liable to compensate the claimant. In view of the said findings, the court find that there is no infirmity or irregularity in the judgment and order passed by the Commissioner for Workmen Compensation. The appellant has not made out a case to interfere with the judgment and order.

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13) Gajendra Singh vs S.G.Motors37 Fact: The deceased-Inder Singh was working as a Clerk in S.G.Motors, Jhansi Road, Gwalior in the year 1997. On 10/11.6.1997 Inder Singh died while on duty. On this date, he fell down in the well and had lost his life. Issue: whether the family of the deceased will be awarded with the compensation under the workman compensation act? Reasoning: The application filed on behalf of the appellant was dismissed by the Commissioner, Workmen's Compensation Act for the reason that the death of Inder Singh had occurred while the deceased was working as a Clerk. Therefore, he is not covered in the definition of the 'Workman' under Section 2(1) (n) of the Act. Aggrieved by dismissal of the claim application by the Commissioner, Gwalior, the present appeal has been filed by the appellant/claimant under Section 30 of the Act. Judgment: The appellant contended in the claim petition filed under Section 10 of the Act deceased Inder Singh, son of the appellant, was employed as a clerk, therefore, it is clear that the deceased was not working as 'workman' within the ambit of the provisions of the Act. 14) M/S.The Oriental Insurance vs Smt Harinakshi W/O Late Ananda38 Fact: Ananda was working as a conductor/cleaner in Mahindra Pick-up vehicle bearing Registration No.KA-21/7040 belonging to 4th respondent herein. On 12-02-2009, at about 3.30 p.m., while the deceased was traveling in the said vehicle from Balnadu to Patrakodi of Kedila village, due to the rash and negligent driving of the said Jeep, the door of the said jeep got opened and the deceased Ananda was thrown out of the said Jeep and fell on the Tar Road. Due to that, he has sustained grievous injuries. Immediately after the accident, he was shifted to Mahaveera Medical Center, Puttur. However, he succumbed to the injuries he has sustained in the accident. In the claim petition it was contended that at the time of accident the deceased was aged about 33 years and earning Rs.6, 000/- p.m. huge money has been spent for the treatment and funeral expenses. Hence sought for compensation of Rs.10, 00,000/. The Tribunal has awarded compensation of Rs.7, 90,000/- with interest at the rate of 6% p.a. 37 https://indiankanoon.org/doc/68122144/, last visited on 09/04/2017 at 08:05 a: m. 38 https://indiankanoon.org/doc/68910891/, last visited on 09/04/2017 at 08:25 a: m. 36

Issue: whether the employer and insurance company is liable to pay compensation and what is the portion of amount the insurance company is liable to pay? Reasoning: The deceased had completed SSLC examination by securing 37%. It is not the case of claimants that deceased had acquired further qualification to work as Business Process Executive. The tribunal notwithstanding this discrepancy has determined the income of deceased at Rs.8, 000/- per month. The tribunal after deducting 50% of same towards personal and living expenditure of the deceased has awarded compensation by applying multiplier appropriate to the age of the mother of deceased. Judgment: There is no dispute with regard to quantum of compensation awarded by the Tribunal. The liability of the appellant (insurance company) is restricted to Rs.4, 19,840/- with interest at the rate of 6% p.a., and the remaining compensation amount with interest at the rate of 6% p.a. has to be paid by the owner of the vehicle. 15) New India Assurance Co. Ltd. vs Smt. Usha Pandey & Others39 Fact: The claim petition was filed by widow on her behalf and on behalf of two minor children of the deceased who died in the vehicular accident. It was the stand of the claimants that on 31.1.1991 Arun Kumar Pandey was going by his cycle when he reached near police station Naubasta, a tanker bearing Tanker No.UHJ-8361 being driven rashly and negligently dashed with Arun Kumar Pandey resulting into the death of said Arun Kumar Pandey. The driver of the truck was nabbed on the spot. An FIR was lodged against the driver of the truck and charge sheet was also laid against him. Issue: Whether the compensation granted by the tribunal of Rs.2,40,000/- with 12% interest in case of death is excessive or not? Reasoning: The compensation awarded for the death of the sole breadwinner, cannot said to be so excessive so as to call for any interference by this Court. Judgment: The Tribunal while considering the totality of compensation as the deceased was aged 30 years give multiplier of 16 and that is how Rs.1,60,000/- was ordered under the said Act. The Tribunal did not give any amount under the head of future loss of income and added certain other amount and awarded a sum of Rs. 2, 40,000/- to the claimants. While considering the rate 39 https://indiankanoon.org/doc/119415424/, last visited on 09/04/2017 at 08:50 a: m. 37

of interest it is true that the normal rate of interest should have been 9% but considering the totality and facts and circumstances and the fact that no future prospect is considered. The rate of interest is also maintained.

CHAPTER- 8 Conclusion: The Employees compensation laws protect and are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. The ECA provides benefit for dependents of those workers who are injured or killed because of work related accidents or illness. It also protects employers and fellow workers by limiting the amount an injured employee can recover from employer and by eliminating the liability of co-workers in most employment. For instance, ECA covered both employees at the federal and State levels. The employees who are injured or become ill on the job are covered by state worker’s compensation laws. In every state, employers are required to have worker’s compensation insurance though there are a few exemptions. Benefits include payment for lost wages and payment of medical bills. However, you will only be paid a portion (usually two-thirds) of your 38

salary. The first step in filing a claim is to notify your employer. Your employer should be able to supply you with the forms needed to file a claim. Thus this is a very positive step on the part of the workers and for the survival of a viable worker’s compensation system will require continued vigilance by both federal and state.

Bibliography: 1) Aggarwal, S.L. Labour Relations Law in India, Atma Ram and Co, Delhi, 1970. Ahmad, E., et al (eds.), Social Security in Developing Countries, Clementon press, Oxford, 1991. 2) Bhatacharya, V.R., Some Aspects of Social Security Measures in India, Metropolitan Book Co., Delhi, 1970. 3) Bhatnagar, Deepak, Labour Welfare and Social Security Legislation in India, Deep & Deep Publication, New Delhi, 1985. 4) Chauhan, Seva Singh, Labour Welfare Administration in India, Kanishka Publishers, Distributors, Delhi, 1993.

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5) Choudhary, R.N., Commentary on the Workmen’s Compensation Act, 1923, Orient Publishing Company, New Delhi, 2003. 6) Giri, V.V., Labour Problems in Indian Industry, Asia Publishing House, New Delhi 1971. Kuchhal, S.C., The Industrial Economy of India, Chaitanaya Publishing House, Allahabad, 1984. 7) Kumar, Anil, Labour Welfare and Social Security, Deep & Deep Publication, New Delhi, 2003. Memoria, C.B., Social Problem and Social Disorganization in India, Kitab Mahal, Allahabad, 1980. 8) Mishra, S.N., Labour and Industrial Laws, Allahabad Law Agency,Allahabad,1997.

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