The Workmen’s Compensation Act,1923

1. Introduction2. Doctrine of Assumed risk3. Doctrine of Common employment4. Doctrine of Contributory Negligence5. Doctrine of Notional extension6. Employers liability for compensation7. When is Employer not liable8. Rules for Compensation

Every workman or employee who is engaged for the purpose of the employers business and who suffers injury in accidents arising out of and in the course of his employment shall be entitled to compensation under the workmen’s compensation act. The Act covers all who are directly or indirectly involved in the establishments but does not cover the casual workers and members of armed forces of the country.

It is not that the employees could not claim compensation before the arrival of this act. He could and still can file a normal civil suit(case) against his employer and claim damages (compensation). At present, however, if one files a civil suit no claim can be made under this workmen’s compensation act and vice versa.

The problem with a normal suit in court was/is that the employer can be made liable to pay only if he is found guilty of negligence. Even when proved negligent the employer could escape taking the following defenses-

1. Doctrine of Assumed risk

2. Doctrine of Common employment

3. Doctrine of Contributory Negligence

Doctrine of assumed risk

This doctrine flows from the rule of ‘volenti non fit injuria’ which means that one, who has volunteered to take the risk of injury, is not entitled to damages if injury actually occurs. This principle is applicable in the legal field in general and the employers often use it to show that since the employee already knew the nature of job and the risks involved, by agreeing to the employment he has voluntarily exposed himself to it. So when and if the injury actually occurs the employer should not be forced to bear the compensation.

Assumption of risk signifies that the employee, in advance has considered and consented to relieve the employer from his obligation towards him. Even if at the time of joining he is not aware of the proportion of risk, on his continuance in the service the employee is deemed to have accepted the situation and freed the employer from his obligations.

Situations that encompass assumption of the risk have been classified in three broad categories.  

1. assumption of the risk signifies that the employee, in advance, has consented to relieve the employer of an obligation  toward him and he is ready to take a chance of injury from a known risk ensuing from the work. The consequence is that that employer is unburdened of all legal duty to the employees and, therefore, cannot be held liable in negligence. Example…a man joins work as a fire fighter knowing well that he shall be exposed to dangerous work.

2. A second situation occurs when the employee voluntarily enters into some relation with the employer, knowing that the employer will not safeguard the employee against the risk (In certain cases the employers also get a written agreement signed to that effect). Thus the employee was more or less consenting to the negligence, as in the case of riding in a car with knowledge that the steering apparatus is defective, which relieves the driver of the duty that would ordinarily exist.

3. In the third type of situation, the employee, knowing the risk previously created by the negligence of the defendant, proceeds voluntarily to confront it, as when he knows he has been provided with an article that is hazardous but still continues to use after the danger has been detected. Here, the plaintiff is deemed to have accepted the situation and assented to free the employer of all obligations.

In this above situations, on many occasions the courts have held that if there is no duty of care on behalf of the employer there cannot be any negligence on his part.

This acted as a very easy and good defence for the employer to avoid their liabilities. However, when workmen’s compensation act was brought in it has been made inapplicable to certain cases under the 1923 act.

DOCTRINE OF COMMON EMPLOYMENT

The doctrine of common employment saved the employer from liability when he could prove that the negligence causing the injury was caused by another of his employee only and he ( employer) himself is not responsible for it. For example….when a company’s vehicle meets with an accident and the workers travelling there get injured, if the company could prove that the accident was caused due to the negligence of the driver, i.e, their fellow employee the company could escape liability.

DOCTRINE OF CONTRIBUTORY NEGLIGENCE

A claim can be made against a person for compensation if any person had to suffer any injury or loss due the negligent act or omission of the former. For eg……say a person who had hired a car suffered an accident because the car was not maintained properly and the brakes failed. Here the rental agency has to pay compensation for their negligence. Thus a person can be made liable for negligence only in certain circumstances-----

1. There is a legal duty to exercise ordinary skill and care…..the same standard of skill and care which will be expected of a man handling the objects in question.

2. There has been a breach or violation of that duty ( the man in question should have done something he has not done)

3. This results into an injury for another person.In the above circumstance the person owing the duty of care can be sued for compensation. If we put it in an employer- employee situation then if say the employer is supposed to maintain a minimum standard of safety in his establishment and he has failed to do so. One workman suffers an accident due to this omission. Here, the workman can claim compensation. Now, the  employer can also argue that the employee contributed in some way to his own injuries or losses as he had not taken so and so precaution, say did not wear the safety shoes. A plaintiff who is found to be “contributory negligent” will be prevented from receiving a compensation. 

The courts recognize the concept of contributory negligence which means the failure by a person to use reasonable care for safety of himself or others, so that he is the author of his own wrong.

As can be easily seen the above three defenses made it impossible for the employees to obtain compensation. The Workmen’s Compensation Act, 1923 came to the rescue of workers in such a situation

EMPLOYER’S LIABILITY TO PAY COMPENSATION

The Workmen’s Compensation Act has made it easier for the workers/ employees to get compensation from their employers in case of death or injury. The defenses discussed above are not available to the employer under this act. The claimant has to, however prove the existence of the employer- employee relation [ read definition of employee from book]. In case of death of the employee it is the dependants who can claim[ read definition of dependants] .The first category, i.e., widow, minor legitimate son, unmarried legitimate daughter, widowed mother shall be considered dependant even if they were not actually depending on the employee for their subsistence. The next category, you read[ book] shall be considered as dependants only when they were actually depending on the employees earnings either wholly or partially.

Now though neither the term accident nor injury has been defined in the act, compensation can be claimed for the resulting disablement which might be partial or total and temporary or permanent. The criterion is generally measured on the basis of the level of incapacity to work or move so as to result in a loss of the earning capacity of the workman.Temporary partial disablement- reduction of earning capacity of a workman in the job he was in at the time of accident. Permanent partial disablement- reduction of earning in every employment he could otherwise take up at that time.Total Disablement- incapacitates workman for all work he was capable of performing resulting in 100% loss of earning. Loss of one hand for a carpenter held to be total disablement. It might be permanent or temporary (for the time being).

NATURE OF LIABILITY-

1 the compensation is not calculated on the degree of injury or suffering but the loss in earning of the workman/employee. 2. injury must have been caused by accident.(includes mental injury like nervous shock, strain etc as well as bodily injury)3. accident should have arisen out of and in the course of employment.

4 accident will mean something unexpected and not designed. Should not be self-inflicted injury.5 liability does not depend on the employer’s negligent act. He is always liable to pay ( certain exceptions apply)6. compensation payable in case of death or disablement for a period exceeding 3 days or injury from occupational diseases.

ARISING OUT OF AND IN COURSE OF EMPLOYMENT

As per the Act, the employer is liable to pay compensation if the worker is injured by accident that:1. arises out of (i.e. while engaged in work), and;2. in the course of his employment (i.e. during work hours),or3. Injury is the result of any occupational disease, and;4. such an injury results in disablement of the worker.

If three conditions are met, the employer of an establishment covered by the Act, is bound to pay compensation. While the second condition, i.e. during work hours is easy to prove, the first condition (i.e., the accident occurred while engaged in work) has been difficult to establish in certain cases. Example: A bus was on its last trip for the day. Some assailants entered the bus, sprayed chilli powder on the passengers and shot the conductor dead. It occurred during work hours, but could such an act be termed as an injury ‘arising out of the course of work’? In this particular case, it was argued – successfully - that such an incident is a contingency that can arise during the course of duty. He was exposed to that particular risk by reason of his employment.

‘Arising out of’ employment means that the employment should have caused the accident. There has to be a causal connection. Though it is not important that the connection should be a direct one it should be a distinctive connection and not a vague one. The workman should have been exposed to the risk of that particular accident owing to his employment only and not otherwise. A boy served tea in his usual round. While returning to the factory canteen he was struck by a bullet and died. The death of the boy was held to be an accident arising out of and in the course of employment.

The three tests for determining whether it arose out of employment are

1. Injury must have resulted from some risk incidental to the duties of the service, or inherent in the nature or condition of employment.

2. That accident occurred at the place where he was performing his duties; and

3. At the time of injury workman must have been engaged in the business of the employer and must not be doing something for his personal benefit

“In course of” covers the period of time during which the employment continues. Compensation is payable if accident occurs within the period of employment. Employment commences when employee reaches his place of work and ceases when he leaves the place. But there are several exceptions to the above rule. Doctrine of NOTIONAL EXTENSION also applies.

DOCTRINE OF NOTIONAL EXTENSION

IT refers to the notional extension of the employers premises. The general rule is that the employment does not begin until a person has reached the place where he has to work and does not continue after he has left the place of work. However, now it is subject to the theory of notional (in theory/not real) extension of the employers premises.

As mentioned above too, the sphere of workman’s employment is not necessarily limited to the actual place where he does work only. Now the question is how far law shall extend the employers premises. Doctrine of notional extension says- the expression “in the course of his employment” speaks not only about actual work but also any other engagement natural or necessary to it, thereby extending reasonably both—

1. The hours of work2. The work place

1. When workman uses transport provided by the employer, the time during which he is using that transport is included in course of employment.

2. The time during which workman is in the premises should also be included. An employee of the railways was knocked down by a train while coming back from work by crossing the platform area of the railway station. Held accident occurred in course of employment.

3. If workman reaches place of work before time but it is necessary and not too early or at the time of accident was doing something to equip himself for work (wearing the uniform, etc), he is in course of employment

4. If the workman with the knowledge and permission of the employer is coming to work at a reasonable time and reasonable manner and meets with a fatal accident then this must be held as arising out of and in course of employment.

5. The period of rest (lunch breaks, etc) during period of employment is in course of employment. But if workman goes outside the premises during that time and there meets with an accident he won’t be covered.

Read the case laws from book

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EMPLOYER’S NON LIABILITY

WHILE the Act provides:-

An employer is liable to pay compensation:-

(i) if personal injury is caused to a workman by accident arising out of and in the course of his employment;

(ii) if a workman employed in any employment contracts any disease, specified in the Act as an occupational disease peculiar to that employment.

However, the employer is not liable to pay compensation in the following cases:- 

(A) If the injury does not result in the total or partial disablement of the workman for a period exceeding three days.

(B) If the injury, not resulting in death or permanent total disablement, is caused by an accident which is directly attributable to:-

(i) the workman having been at the time of the accident under the influence of drink or drugs; or

(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen; or

(iii) the willful removal or disregard by the workman of any safety guard or other device which has been provided for the purpose of securing safety of workmen.

(iv) the disease is not directly related to the injury or occupation

(v) the employee has filed for compensation under any other Act or provision.

The burden of proving that the worker had willfully and intentionally disobeyed the order which where expressly given is with the employer. This benefit of non liability is not available in case of death of the worker or permanent total disablement.

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