Labour Law I Unit 4 KSLU II SEM Answers previous papers PDF

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II SEMESTER KSLU

LABOUR LAW 1 QUESTION ANSWERS UNIT 4 BASED ON THE PREVIOUS QUESTION PAPERS PREPARED BY MAHESHABABU M G

Question:

1. Discuss the liability of the employer to pay compensation under the Workmen compensation Act. (Jun 2017) 2. Discuss the liability of the employer to pay compensation under the Workmen’s Compensation Act, 1923. (Dec 2014) 3. When an employer is liable to pay compensation under the Employees Compensation Act 1923? (Jun 2016) 4. Discuss the liability of the employer to pay compensation under the Workmen Compensation Act. (Dec 2017) 5. Discuss the liability of the employer to pay compensation under the Workmen Compensation Act. (Jan 2011) 6. Explain the employer’s liability under the Employees’ Compensation Act, 1923 for personal injuries. (Jun 2019_2018 batch) 7. Explain employer’s liability under the Employees’ Compensation Act, 1923 for personal injuries. (June 2019 2018 AND 2019 BATCH) 8. Explain the circumstances under which an employer is liable to pay compensation under the Employees Compensation Act, 1923. (Dec 2019 2018 AND 2019 BATCH) 9. What is personal injury? When is the employer not liable to pay compensation for personal injuries by accident under Workmen’s Compensation Act? Discuss. (Jun 2013) 10. ‘Accident arising out of employment is deemed to have occurred in the course of employment’. – Discuss with reference to decided cases. (Jun 2014) 11. Explain in detail the provisions relating to employee’s liability for compensation. (Jun 2011) 3. Liability of Employer to Pay Compensation (Rega) According to Salmond, an eminent jurist, rights and duties are correlative. It means the right of one person becomes the duty or liability of another. Similarly, the liability or duty of the Employer to pay compensation becomes the right of the workman to claim compensation. Under the Workmen's Compensation Act, the liability lies primarily upon the Employer to pay compensation to the workman, who suffers injury as a consequence/result of an accident. Chapter II of the Act containing Sections 3 to 18-A (including Sections 4-A, 10-A, 10-B, 14-A, 15-A and 15-B) lays down the provisions relating to liability of Employer to pay compensation to the workman, who m et with an accident out of and during the course of employment. Section 3 of the Act imposes liability on the Employer to pay compensation to the workman. According to Section 3, an employer is liable to pay compensation, if the following conditions are satisfied 1. There must be a personal injury caused to a workman. 2. The personal injury must have been caused by an accident. 3. The accident must have arisen/occurred out of and in the course of (during the course of) employment; and 4. The injury out of accident results into death or disablement (total or partial, permanent or temporary for a period exceeding 3 days; and 5. The employer is held liable in respect of occupational diseases contacted to the workmanSection 3 (i) runs as follows -

(1) If personal injury is caused to a workman 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: Provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to (i) the workman having been at the time thereof 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 given, or to a rule expressly framed, for the purpose of Securing the safety of workman, or (iii) 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. The words 'injury’ and 'accident' in Section 3 imply the existence of some external factor to cause death or disablement from internal ailment of the body. (i) Personal Injury: The term 'personal injury' literally means infliction pain in human body. It is not merely a physical or bodily injury but also includes mental or psychological injuries like nervous shock. An employer is held liable for the personal injuries caused to the workman by an accident arising out of and in the course of employment. (ii) Accident: Mere proof of personal injury is not enough to claim compensation under the Act. The claimant (the workman or his legal heir) must prove that the workman sustained personal injury as a consequence of an accident. The term accident is not defined. In its popular sense it means some unexpected event or happening without design or an untoward event. Under Section 3, accident includes not only such occurrence as collisions, tripping over floor obstacles, falls of roof but also less obvious ones causing injury like strain, causing rupture, exposure to drought, causing chill, or due to attack of others etc. If a workman collapses and dies of heart failure as a result of the ordinary strain or exertion of his employment, the employer is liable to pay compensation for personal injury by accident. The liability of employer is limited and is subject to fulfillment of the above Stated conditions viz. (iii) Accident arising out of and in the course of employment : The employer to be held liable to pay compensation to the workman, the accident must have been arisen/occurred out of and in the course of employment. The above phrase comprises of two parts namely (i) arising out of and (ii) in the course of; or during the course of. To claim the compensation under the Act, the above two conditions must be present conjunctively. These two conditions will co-exist if the following questions are answered in affirmative (a) whether at the moment of the accident the employee was obliged to present on that site by the express or implied term of contract of his service;

(b)

whether he was there in his capacity as an employee or merely as a member of the public; (c) whether he was at that time under the control or direction of the employer or was acting as a completely free man; (d) whether his presence at the spot was incidental to his employment; and (e) whether there was a proximate connection between the employment and the accident. Before discussing the phrase ‘arising out of and in the course of’, it is necessary to know the meaning of the term 'employment' as follows: Employment- Meaning: The term 'employment' differs from the word 'work', since the former (Employment) has a wider meaning. The workman is deemed to be in the course of employment, when he is actually engaged in doing a work, in discharge of his duty and also while doing an act connected to the work. The concept of employment implies three elements: an emp lo ye r, an employee and a contract of employment between them. In other words, employment means a contract of service between the e mpl oye r and employee wherein the employee agrees to serve the e mpl oy er under his control and supervision. Employment under the p res ent Ac t is not limited to actual work or place of work but ex tend s to a ll things which the workman is entitled by the contract of employment expressly or impliedly to do. To justify any claim for compensation existence of a contract of employment express or implied between the employer and the injured workman is necessary. The expression 'arising out of and in the course of/during the course of comprises of two terms viz., "arising out of' and "in the course of (or during the course of). The former suggests the cause of accident, while the latter points out to the place and circumstances under which the accident take place and the time, when it (accident) occurred. Bombay Municipal Corporation vs. Ganapathy, (1976 Lab I.C. 1472): In this case, the Court explained the distinction between 'arising out of employment' and Mn the course of employment'. The two are distinct and independent. The former, "arising out of employment" is narrower than the latter, "in the course of employment". Arising out of: The expression "arising out of conveys the idea that there must be some sort of connection between the employment and the injury caused to the workmen as a result of the accident. 'Arising out of Employment' means the accident is the direct result and is immediately connected with the employment. Accident arising out of employment occurs in the course of employment. But the accident in the course of employment may not occur out of employment (E.g., Theory of Notional Extension). The burden of proof is on the part of workman. Relevant case in this point is Indian News Chronicle Ltd. vs. Mrs. Lazarus (1952, 3 FJR, 190). In this case, the workman in the course of his duties, had ~ to go frequently into heating room and thereafter to cooling room. One night, he went to cooling room and got pneumonia and died. It was held that the injury was one arising out of employment and the employer was held liable to pay the compensation. State of Rajasthan vs. Ram Prasad and Another, {2001) I LL.J. 177 (SC): In this case, the workman died due to natural lightning while working at the site. It was held by the Supreme Court that in order that a workman may succeed in his claim for compensation it is not doubt true that the accident must hae casual connection with the employment and arise out of it, but if the workman is injured as a result of natural force of lightning though it in itself

has no connection with employment of deceased Smt. Gita, the employer can still be held liable if the claimant shows that the employment exposed the deceased to such injury. In the present case the deceased was working on the site and would not have been exposed to such hazard of lightning had she not been working so. Therefore, the appellant was held liable to pay compensation. Trustees, Port of Bombay vs. Yamunabai, (AIR 1952, Bom. 382): In this case, a bomb placed in the premises of a workshop by some unknown person exploded and caused injury to a workman. It was held that the workman was not responsible for placing of the bomb, and the injury due to its explosion was caused at the time and place at which he was employed, therefore the injury was the result of an accident arising of his employment. The rule is that if a particular accident would not have happened to a workmen had he not been employed to work in the particular place and condition, it would be accident arising out of the employment. In the course of or during the course of employment: The a cci de nt must arise out of an d in the course of an e mp loy me nt. Therefore, the personal injury by accident must arise both out of as well as in th e course of a workman's employment. The e xp re ss ion 4 in t he c our se of employment' means in the currency of the employment. The test is in the course of discharge of duties in ci den tal to the contract of service. The employee must show that he was a t the time of the accident engaged in employer's business or in furthering with business and was not doing something for his own b ene fit or accommodation, that he was doing something in discharge of his duty to his employer directly or indirectly imposed upon him by his co ntr act of service (Sakinabibi v. Gujarat State Road Transport Corporation 1992 Lab IC 365). It is wider than arising ou t of employment. It means du rat ion of employment (period of time) in which the em plo yme nt continuous. The duration of employment commences, when he reaches the of employment and ends, when he leaves the place of employment- Following instances illustrate on this point: (i) All movements of the workman from one place to another whether within the premises or outside the premises in connection with the employment. (ii) Tea break, lunch break, break for rest etc. (as held in Pruce vs. Davey). (iii) If the employer provides transport to and fro from home and place of work, the journey or transit period comes under in the course of employment (Holmes vs. Great Northern Rly.) The relevant cases on the point are given below Bhayabhai vs. Central Railway: In this case, the workman was to repair clocks in various railway stations. He was stabbed in a railway compartment. Held that the death was caused out of and in the course of employment. Gowri Kinkar Bhagar vs. Radha Krishna Cotton Mills: In this case, a workman went out and interfered with other machinery and lost his legs. Held that it was arising out of and in the course of employment. Public Works Department vs. Kaunsa (1967) I L.L.J. 344 (M.P): In this case, one Gokul, a gang jamadar while going to collect salary of the labourers from the office of the P.W.D. was murdered on the way, at a place where he sat down to take his meals near a well. He was found dead at a considerable distance where other members of his gang were actually

working on the road. It was held to be an accident arising out of Gokul’s duties. Neime Bibi vs. Lodhne Colliery Co., (1920) Ltd, (7977) II LLJ 69 (Cal.): In this case, a workman, on completion of work and on his way home, was done to death within the premises of the employer. It was held in the circumstances of the case that the accident was in the course of and arising out of employment and as such the employer was liable to pay compensation. Dudhiben Dharamshi vs. New Jehangir Vakil Mills Ltd Bhavnagar., (1977) II L.L.J. 194 (Guj.): In this case, a worker standing 10 feet away from the entry gate before start of the shift was knocked down by a cyclist and died. The dependents of the deceased were held entitled to compensation as the accident arose in the course of employment and out of employment. National Iron & Steel Co. vs. Manorama, (AIR J 953, Eal. 143): A boy was employed to supply tea to workmen. In return, he died when police open fired to attack a mob. Held that the accident arose out of and in the course of employment. State of Rajasthan vs. Smt. Kanta., (1989) II L.L.J. 135 (Raj.): In this case, a driver in the irrigation Survey Sub-Division was on election duty all the 24 hours and he was found dead. It was held that he died in the course of employment. It was further held that unless it is established by cogent evidence from the employer that the employee has not died in the discharge of his duty, it will be presumed that the employee died in the course of employment. Bai Shakri vs. New Manekchowk Mills Company Ltd., (1961) I L.L.J. 585: In the case, the deceased was employed in th e weaving department of a mill. His duty hours commenced from 3 p.m. Before starting his work, he had gone to see a friend i n an ot her department. There he suffered a heart attack at 3.20 p.m. and was admitted in a hospital as an indoor patient for about a month. Then he left his employment and died after sometime. It was held that "it could not be said that the workman died as a result of the injury caused by accident arising out of and in the course of his employment. (iv) Death or Disablement: To claim compensation under the Act, it must be proved/established that the accident must result in the death or disablement of the workman. The word 'disablement literally means "an act or contingency which reduces the earning capacity of a workman or which renders a workman unfit to work”. The disablement may be total or partial, temporary or permanent. (v) Occupational Diseases: In certain industries, workers employed in certain occupations arc exposed to certain diseases. Certain diseases are inherent to certain occupations in the industries. Such diseases are called 'occupational d ise as es' . Contracting of anyone of the diseases specified in Schedule III of the Act is deemed to be an accident injury caused by accident out of and in the course of employment. These diseases are called occupational diseases. Schedule III is divided into three parts, namely Parts A, B and C. Section 3 (2 to 4) of the Workmen's Compensation Act, 1923 lays down the provisions relating to the occupational diseases enlisted under Schedule III of the Act, which comprises of 3 parts namely A, B and C as follows Part A: It includes Anthrax, compressed air illness, nitrous fumes, insecticides etc. For diseases under Part A, no specified period of employment is necessary. The disease under Part A, is deemed to be an

accident arisen out of and in the course of employment, unless contrary is proved. Part B: It covers poisoning by lead, phosphorous mercury, benzene, arsenic, radium etc. For claiming compensation against the disease under Part-B, the workman must have been in service for a continuous period of not less than 6 months. Part C: Silicosis, asbestosis, bagassosis etc., are covered under this list. To claim compensation against a disease under Part C, the workman must have been in continuous service for the period as the Central Government may specify from time to time. In case the workman was working under different employers, the employers have to compensate proportionately as fixed by the Commissioner.

What is personal injury? Explain the labiality for compensation under Workmen's Compensation Act 1923. Personal injury ordinarily refers to the psychological injury. Personal injury does not mean only physical or bodily injury, it also includes nervous shock a mental injury or strain which causes a chill. It is a term broader than bodily injury. In the year 1961 Punjab HC defined personal injury. In Indian News Chronicle V/S Mrs. Lazarus, a workman employed as an electrician had frequently to go to the heating room from a cooling plant, was attacked by pneumonia & died after a short illness of 5 days. The Punjab HC held that injury caused by an accident is not confined to physical injury & the injury in the instance case was due to his working & going from a heating room to a cooling plant as it was his indispensable duty .In case of personal injury caused to a workmen by an accident arising out of & in the course of employment unless the right to compensation is taken away u/sec 3(5) , the employer becomes liable to pay the compensation as soon as the aforesaid personal injury is caused to the workmen . Employers liability for compensation u/sec 3 of the act, to pay compensation is limited & is subject to the provision of the Act under sub sec (1) of sec 3 the liability of the employer to pay compensation is dependent upon the following conditions; Personal injury must have caused to the workmen. _ Such injury must have been caused by an accident. Such accident must have arisen out of & in the course of employment & _ The injury must have resulted in death of the workmen or partial disablement for a period exceeding 3 days. The employer shall not be liable to pay compensation in the following cases _ If the injury did not result in total or partial disablement of the workmen for a period exceeding 3 days. _ For a period not exceeding 3 days in respect of injury not resulting in death, or permanent total disablement the employer can plead a. That the workman was at the time of accident in the influence of drugs or drinks.

b. The workmen willfully disobeyed an order expressively given, or a rule expressively framed for the purpose of securing the safety of workmen & c. That the workmen having known that certain safety guards or safety devices are provided for the purpose of providing safety of workmen wilfully disregarded or removed the same. The employer can succeed only if he is attributable to any one of the following factors. The employer is also liable to compensate in cases of occupational decease, u/sub sec (2) of sec 3 of the Act. The list of Occupational deceases is contained in the Sch III of the Act; the decease must be contracted due to employment, specified u/schIII. To support any claim for compensation in case of occupational deceases in part A no specified period of employment is necessary for deceases in part B, the employees must be in continuous service of the same employer for a period of 6 months. In the employment specified in that part & for the decrease in part C , the period of employment would be such as is specified by the central govt for each such employment whether in the se...