What can be done when a workman is injured or dead in a work place? What can be his or his family claims?

workmen if any injury or death

In India we have so many laws relating to labour and industrial relations such as The Industrial Disputes Act,1947,The Employees Provident Funds and Miscellaneous Provisions Act,1952,The Minimum Wages Act,1948 etc. These Acts provide numerous benefits to the employees otherwise called as workmen and also laid down conditions regarding the safety measures,working hours of workmen,facilities which have be to provided at the work place and many more. Now,we may have a question that what if a workman got injured in his work place ? Whether he can claim for his injury or not ? If yes,where can he claim for his injury ? The answers for the above questions can be seen in The Employees’ Compensation (Amendment) Act,2017 and the Employees’ State Insurance Act,1948.Let us see what are the claims and benefits  available to the workmen if any injury or death occurred at his work place.

Compensation to workmen under The Employees’ Compensation (Amendment) Act,2017:

This Act provides compensation to the employees or his dependants who suffered injuries or death which is caused by accident arising out of or in the course of employment.The main object of this Act is to make employers liable for the injuries or death caused to his employees during the course of employment which has been carried out for his purpose at the time of accident.Earlier this Act was named as The Workmen’s Compensation Act,1923 and it excluded the persons who were under administrative or clerical position.In 2009,the Act was renamed as The Employees’ Compensation Act which replace the word ‘workmen’ with the word ‘employees’ and it also includes the person working under the clerical position.

To claim compensation under this Act,the following four conditions[i] must be satisfied :

  • Personal injury must have been caused to the workmen,
  • Such injury must have been caused by an accident,
  • The accident must have arisen out of and in the course of employment,and
  • The injury must have resulted either in death of the employee or in his total or partial disablement for a period exceeding three days.

If the employee is dead due to such accident arising out of or in the course of employment,then his dependants[ii] can claim the compensation under this Act.And an employee can get compensation if he suffers from any injury resulting from occupational diseases also[iii].

How compensation is calculated under The Employees’ Compensation (Amendment) Act,2017:

First of all,any fatal accident occurred to the employee must be notified to the Commisioner appointed by the State Government and he will determine the amount of compensation payable under this Act after taking all the relevant facts into consideration.In case of death resulting from the injuries caused by the accident,then the compensation will be calculated on the basis of average monthly wages of the employee.And in case of injuries not resulting to death,then the compensation will be calculated on average monthly wages and also on the type of disablement caused by the accident.With regard to disablement,it can be classified into two types such as partial disablement[iv] and total permanent disablement[v].The test of disablement lies on the reduction on earning capacity of the employee.In general,the incapacity to do the work which the employee was doing at the time of accident results in partial disablement and the incapacity to do any work by the employee after the accident results in total permanent disablement.

When an employee cannot claim compensation under this Act ?

As laid down by section 3 of The Employees’ Compensation (Amendment) Act,2017 an employer need not pay any compensation to the employee who suffered injuries or dead if he is under the influence of drinks or drugs at the time of accident (or) if he willfully disobeyed the order given for the purpose of safety (or) willfully disregarded or removed the safety devices despite having the knowledge about the same.If an employee has already claimed compensation under any other equivalent Act or proceedings for the injury,then he cannot claim compensation for the same injury under this Act[vi].Since Claims Tribunal under Motor Vehicles Act is not a ‘Court of law’,it shall not be covered under the purview of section 3(5)[vii].In addition to this,under the doctrine of added peril the employer is not liable to pay any compensation to an employee if he suffers any injury at work place due to accident.As per this doctrine,any injury occurred at the time of doing any other work which is not assigned to the employee by the employer will not fall under the purview of this Act.Therefore,the concept of paying compensation will come into force only if the employee suffers any injury at the time of performing his duty assigned by the employer[viii].And if the injury is not caused by accident then it will become self inflicted injury which cannot be provided compensation under this Act.

Unlike the proceedings in Torts,the defence of Volunti non fit injuria,Contributory negligence[ix],Inevitable accident and Negligence of Co-worker are not available in the proceedings under this Act.

According section 17A of The Employees’ Compensation (Amendment) Act,2017,it is the duty of the employer to inform the employee of his/her right to compensation under this Act at the time of employment and failure to inform this right to the employees will attract penalty under section 18A of the Act.

Benefits under The Employees’ State Insurance Act,1948 :

This Act has been enacted to provide benefits to the employees as well as to their family members in the form of insurance.Under this Act,every employee working in a factory or establishment as notified by the Central/State Government has to contribute a part of his salary to the Employees’ State Insurance Fund.Same like employees,employers must also contribute a part to such funds constituted under this Act.The rate of contribution to be made by the employees and employers will be notified by the respective Governments from time to time.

Under this Act,six types of benefits will be provided to the insured employees and his/her dependants.They are as follows :

  • Sickness Benefit – Provided in the form of periodical payment on the submission of medical certificate which has to be signed by the medical practitioner or any other person specified under this Act.
  • Maternity Benefit – This is also payable in form of periodical payment to the insured woman in case of confinement or miscarriage or sickness arising out of pregnancy or premature birth.
  • Disablement Benefit – The insured employee can avail this benefit if he suffers from injury arising out of employment.Occupational diseases also fall under the category of employment injury.
  • Dependants’ Benefit – If any insured employee died as a result of injury caused by the accident arising out of or in course of employment,then his/her dependants will receive periodical payments for such periods and at such rate as may be prescribed by the Central Government.
  • Medical Benefit – This benefit is available to the insured employees and his/her family members where they can avail treatment in the hospitals or dispensaries established for such purpose under this Act.
  • Funeral Expenses – The funeral expenses are payable to the person who incurs the funeral expenses of insured employee and such payment shall not exceed the amount as prescribed by the Government.

Bar on receiving benefits:

As like The Employees’ Compensation (Amendment) Act,2017 section 53 of The Employees’ State Insurance Act,1948 imposes prohibition against the insured employees or his/her dependants from receiving compensation or benefits under The Employees’ Compensation Act and also under any other law being in force or from the employer or any other person.But the Court held that the mere fAct of receiving some amount of compensation from the The Workmen’s Compensation Act,1923 (now it is called as The Employees’ Compensation (Amendment) Act,2017) wouldn’t disentitle him to get dependant’s benefit under this Act[x].

Conclusion:

It is very clear that if an employee got injured at his work place,he can claim compensation under the above mentioned Acts and in addition to that he can avail certain other benefits also.Not only the employees but also their dependants can enjoy certain benefits subject to the conditions as prescribed by the statute.The Parliament is also revising the rate of compensation and amount of benefits payable from time to time in order to ensure effective remedy to the employees and his dependants.The Acts also provide appropriate remedies if there is any failure in payment of compensation or benefits to the respective persons.Hence the employees must be aware of their rights as well as duties imposed by the statute before engaging themselves in any employment.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i]The Employees’ Compensation (Amendment) Act,2017, S 3.

[ii]The Employees’ Compensation (Amendment) Act,2017, S 2(1)(d).

[iii] The Employees’ Compensation (Amendment) Act,2017, S 3(2)

[iv]The Employees’ Compensation (Amendment) Act,2017 S 2(1)(g).

[v]The Employees’ Compensation (Amendment) Act,2017, S 2(1)(l).

[vi]The Employees’ Compensation (Amendment) Act,2017, S 3(5).

[vii]Gayathri Devi V. Tanti Ram,AIR 1976 HP 75.

[viii]Bhurangya Coal Co. V. Sahebjan,AIR  1956 Pat 299.

[ix]P.C.Abdulla Kutty V. C.Janaki,AIR 1953 Mad 837.

[x]Bhajan Ram V. E.S.I.Corporation,71 Punj LR 641.

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I am Sangeethaa N S from Sastra University,Tamil Nadu pursuing B.Com.,LL.B(Hons).I am a person who always have perfection in whatever I do.Company Law,Labour Law and Criminal Law are my spheres and other than that I love to read Family Law.Apart from academics,singing and reading are my hobbies and love to watch movies of any language.Besides the field of law,I am a story writer and also a poet.Sometimes I give motivational speech which I believe,to be a great stress burster.I always want to attain a position which is soaked with power and knowledge and will definitely reach my ambition with great passion.