Employer’s Liability and Workmen Compensation Calculation under Workmen’s Compensation Act 1923
Under section 3 of the Workmen’s Compensation Act 1923, Employer’s liability can be laid down in following heads:-
(1) If personal injury is caused to a workman
(2) By accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.
(3) Provided that the employer shall not be so liable in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days
(4) Provided that the employer shall not be so liable :-
i. The workman having been at the time thereof under the influence of drink or drugs or
ii. The wilful 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 the wilful removal or disregard by the workman of any safety guard or other device he knew to have been provided for the purpose of securing the safety of workman.
iii. If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment that will be deemed as INJURY BY ACCIDENT UNDER SECTION 3(2).
iv. if a workman whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment then employer is liable.
v. if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment
1. Contracts any disease specified therein as an occupational disease peculiar to that employment. The contracting of the disease shall be deemed to be as injury by accident within the meaning of this section and unless the contrary is proved the accident shall be deemed to have arisen out of and in the course of the employment
2. Provided that if it is proved
a. That a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment
b. During a continuous period which is less than the period specified under this sub-section for that employment; and
c. That the disease has arisen out of and in the course of the employment the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section
3. Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C as the case may be as an occupational disease peculiar to the employment and that such disease arose out of the employment the contracting of the disease shall be deemed to be injury by accident within the meaning of this section.
If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment the contracting whereof is deemed to be an injury by accident within the meaning of this section and such employment was under more than one employer all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may in the circumstances deem just.
Save as provided by sub-sections (2), (2A) and (3) no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury –
(a) If he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) If an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act
SCHEDULE III:-
LIST OF OCCUPATIONAL DISEASES
PART A
(1) Infectious and parasitic diseases contracted in an occupation where there is a particular risk of contamination.
(a) All work involving exposure to contracted in an occupation health or laboratory work;
(b) All work involving exposure to veterinary work;
(c) Work relating to handling animals, animal carcasses, part of such carcasses, or merchandise which may have been contaminated by animals or animal carcasses;
(d) Other work carrying a particular risk of contamination.
(2) Diseases caused by work in compressed air. All work involving exposure to the risk concerned.
(3) Diseases caused by lead or its toxic compounds. All work involving exposure to the risk concerned.
(4) Poisoning by nitrous fumes. All work involving exposure to the risk concerned.
(5) Poisoning by organo phosphorus compounds. All work involving exposure to the risk concerned.
PART B
(1) Diseases caused by phosphorus or its toxic compounds. All work involving exposure to the risk concerned.
(2) Diseases caused by mercury or its toxic compounds. All work involving exposure to the risk concerned.
(3) Diseases caused by benzene or its toxic homologues. All work involving exposure to the risk concerned.
(4) Diseases caused by nitro and amido toxic derivatives of benzine or its homologues. All work involving exposure to the risk concerned.
(5) Diseases caused by chromium, or its toxic compounds. All work involving exposure to the risk concerned.
(6) Diseases caused by arsenic or its toxic compounds. All work involving exposure to the risk concerned.
(7) Diseases caused by radioactive substances or radiations. All work involving exposure to the substances and ionising action of radioactive ionising radiations.
(8) Primary epitheliomatous cancer of the skin, caused by tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products or residues of these substances. All work involving exposure to the risk concerned.
(9) Disease caused by the toxic halogen derivatives of hydrocarbons (of the aliphatic and aromatic series). All work involving exposure to the risk concerned.
(10) Diseases caused by carbon disulphide. All work involving exposure to the risk concerned.
(11) Occupational cataract due to infra-red radiations. All work involving exposure to the risk concerned.
(12) Diseases caused by manganese or its toxic compounds. All work involving exposure to the risk concerned.
(13) Skin diseases caused by physical, chemical or biological agents not included in other items. All work involving exposure to the risk concerned.
(14) Hearing impairment caused by noise. All work involving exposure to the risk concerned.
(15) Poisoning by dinitrophenol or a homologue or by substituted dinitrophenol or by the salts of such substances. All work involving exposure to the risk concerned.
(16) Diseases caused by beryllium or its toxic compounds. All work involving exposure to the risk concerned.
(17) Diseases caused by cadmium or its toxic compounds. All work involving exposure to the risk concerned.
(18) Occupational asthma caused by recognised sensitising agents inherent to the work process. All work involving exposure to the risk concerned.
(19) Diseases caused by fluorine or its toxic compounds. All work involving exposure to the risk concerned.
(20) Diseases caused by nitroglycerine or other nitroacid esters. All work involving exposure to the risk concerned.
(21) Diseases caused by alcohols and ketones. All work involving exposure to the risk concerned.
(22) Diseases caused by asphyxiants carbon monoxide, and its toxic derivatives, hydrogen sulfide. All work involving exposure to the risk concerned.
(23) Lung cancer and mesotheliomas caused by asbestos. All work involving exposure to the risk concerned.
(24) Primary neoplasm of the epithelial lining of the urinary bladder or the kidney or the ureter. All work involving exposure to the risk concerned.
(25) Snow blindness in snow bound areas. All work involving exposure to the risk concerned.
(26) Disease due to effect of cold in extreme cold climate. All work involving exposure to the risk concerned.
(27) Disease due to effect of cold in extreme cold climate. All work involving exposure to the risk concerned.
PART C
(1) Pneumoconioses caused by sclerogenic mineral dust (silicosis, anthraoosilicosis, asbestosis) and silico-tuberculosis provided that silicosis is an essential factor in causing the resultant incapacity or death. All work involving exposure to the risk concerned.
(2) Bagassosis. All work involving exposure to the risk concerned.
(3) Bronchopulmonary diseases caused by cotton, flax hemp and sisal dust (Byssinosis). All work involving exposure to the risk concerned.
(4) Extrinsic allergic alveelitis caused by the inhalation of organic dusts. All work involving exposure to the risk concerned.
(5) Bronchopulmonary diseases caused by hard metals. All work involving exposure to the risk concerned.
(6) Acute Pulmonary Oedema of High Altitude. All work involving exposure to the risk concerned.
AMOUNT OF COMPENSATION UNDER THE ACT:-
Subject to the provisions of this Act the amount of compensation shall be as follows namely:-
(1) Where death results from the injury an AMOUNT EQUAL TO FIFTY PER CENT OF THE MONTHLY WAGES OF THE DECEASED WORKMAN MULTIPLIED BY THE RELEVANT FACTOR (As Specified in Schedule IV given below); or AN AMOUNT OF EIGHTY THOUSAND RUPEES whichever is more;
(2) Where permanent total disablement results from the injury an AMOUNT EQUAL TO SIXTY PER CENT OF THE MONTHLY WAGES of the injured workman MULTIPLIED BY THE RELEVANT FACTOR (As Specified in Schedule IV given below); or an amount of NINTY THOUSAND RUPEES whichever is more.
Explanation I : For the purpose of clause (a) and clause (b) relevant factor in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the fits column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his birthday immediately preceding the date on which the compensation fell due;
Explanation II: Where the monthly wages of a workman exceed Four thousand rupees his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be Four thousand rupees only;
(3) Where permanent partial disablement results from the injury in the case of an injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and in the case of an injury specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
It Means in case injury is specified under Part II of Schedule I, the amount of compensation shall be Percentage of the compensation which would have been payable in case Permanent Total Disablement as specified there in as loss of earning capacity by the injury. So if in schedule I Part II there is an injury covered that shows 30 % loss of earning capacity. Then the compensation will be 30 % of the amount that was derived from POINT (1) or (2).
If the injury is not covered under the schedule then a qualified medical practitioner will derive the loss of earning capacity.
Where more than one injury has happened then the percentage of loss of earning capacity shall be AGGREGATE OF ALL PERCENTAGE SPECIFIED IN RESPECTIVE INJURY. BUT IT CANNOT BE GREATER THAN 100 %.
Explanation I : Where more injuries than one are caused by the same accident the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II : In assessing the loss of earning capacity for the purpose of sub-clause the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
(4) Where temporary disablement whether total or partial results from the injury a half monthly payment of the sum equivalent to twenty five per cent of monthly wages of the workman to be paid in accordance with the provisions of sub-section (2).
(5) The half-monthly payment referred to in this clause shall be payable on the sixteenth day - from the date of disablement where such disablement lasts 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; and thereafter half-monthly during the disablement or during a period of five years whichever period is shorter : Provided that there shall be deducted from any lump sum or half monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half monthly payment as the case may be; and no half monthly payment shall in any case exceed the amount if any by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident. Explanation : Any payment or allowance which the workmen has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.
On the ceasing of the disablement before the date on which any half monthly payment falls due there shall be payable in respect of that half monthly a sum proportionate to the duration of the disablement in that half month. If the injury of the workman results in his death the employer shall in addition to the compensation under sub-section deposit with the Commissioner a sum of one thousand rupees for payment of the same of the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.
(6) Notwithstanding anything contained in sub-section (1) while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India the Commissioner shall take into account the amount of compensation if any awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by the amount of compensation awarded to the workman in accordance with the law of that country.
(7) Compensation under section 4 shall be paid as soon as it falls due. In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(8) 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 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; and if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty:
(9) Provided that an order for the payment of penalty shall not be passed under clause for Penalty without giving a reasonable opportunity to the employer to show cause why it should not be passed.
(10) Explanation.—For the purposes of this sub-section, “scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). Payment of compensation either to the workman or to deposit it with the Commissioner.
(11) In this Act and for the purposes thereof the expression “monthly wages” means the amount of wages deemed to be payable for a month’s service (whether the wages are payable by the month or by whatever other period or at piece rates), and calculated] as follows, namely
i. where the workman has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;
ii. Where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality;
iii. In other cases [including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b)]], the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period. Explanation.— A period of service shall, for the purposes of 8 [this section] be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.
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