: 251 :

CHAPTER -VII

LACUNA IN THE WORKMEN'S COMPENSATION ACT, 1923 INCLUDING THE LATEST

AMENDMENT :

The Workmen's Compensation (Amendment) Act, 1995 (Act 30

of 1995) which received the assent of the Hon'ble President of

India on the 19th August, 1995 and published in Sec. 1 of the

Gazettee of India Extraordinary dated, the 21st August, 1995 is

still having lot of lacunas despite special care taken to widen

the scope of payment of compensation to the workmen or their

dependants for sustaining bodily injury/death arising out of and

in course of the employment of the workman. The details of such

lacunas are enumerated below :

Section 2(d) Dependant :

The term Dependant is confined to a group of persons of

a particular heriditary which creates bottle neck for other

legal representatives of the deceased workman. Moreover, the

word wholly or in part dependant, on the earning of the workman

at the time of death of workman creates discrimination among the

other members of family who were dependant on the earnings of

the workman- irrespective of the fact to the extent to which they

were dependant. Such discrimination needs to be removed so as to

give a wide scope to the legal representative like that of Sec.

166 (c) of the M.V.Act, 1988.

 : 252 :

Apart from the above fact clear provision should be made

regarding disbursement of the Compensation amount in case of

death of sole dependant, subsequent to death of the workman in

view of the recent judgement of different High Courts - Hon'ble

Justice A. Pasayat (Orissa) held that in case of death of sole

dependant compensation amount is payable to the heirs of

dependant and not to the heirs of deceased workman^. .

SEC.2 (n) WORKMAN : The restriction imposed under this

sub-section i.e. workman means any person (1) other than a

person whose employment is of casual nature (ii) who is employed

otherwise than for the purpose of the employer's trad or

business should be removed. Unless and until this lacuna is

patched out by further amendment to Sec. 2(n) millions of

workmen who are struggling hard for earning their bread will

1. (i) 1997 OLR 473 (Orissa), National Insurance Co. Ltd. v. Ranjulata &
another.
(ii) 80(1995) CLT 458 (Orissa), National Insurance Co.Ltd. v. Ranjulata &
another.
(Hi) 1992 (1) TAC 202 (Orissa), National Insurance Co.Ltd. v. Sudarsan
Bhuyan,
(iv) 1988 ACJ 902 (Kej), Commissioner for Workmen' s Compensation vs Mohanam
(v) 1977 ACJ 143, Kaveri Structurals vs Bhagyam.
(vi) 1995 (1) TAC 540 (Kant) Proprietor; Radhakrishna Estate vs Mary.
(viii igjj ACJ 517 (Madras); B.M. Haheebullah Marciar v. Periaswami.

(viii) 1970 ACJ 366 (Bombay), Manubhai & Co. vs Babaji Rajaram.

(ix) AIR 1968 (Bombay), 328 Margarida v. M. Mackenzie & Co.

(x) 1985 ACJ 728 (Keral) P.R. Rani v. Dy . Labour Commissioner.

(xi) AIR 1937; (Cal.) 495; Pasupatti Dutta vs Kelvin Jute Mills.
(xii) Ref. Under Sec. 27 Workmen's Compensation Act; 1980; MPLI; 261.
 : 253 :

remain unattended and shall be deprived of getting compensation

in case they sustain injury or die in course of and arising out

of their employment.

The definition of workman under the Workmen's

Compensation Act though in true sense does not exclude

casual labourer yet the wording itself is confusing for which such
lacuna should be removed. The law appears to have

crystalised under that assumption. However, the Courts even

today have to decide whether he was entitled to claim

compensation. The ambit of the definition is very much widened

to absorb more and more number of employees even when their

employment is of casual nature. It is now settled that the

plea of casual employment is not allowed if the employer can

not prove that the employee has been engaged otherwise than for

the purpose of the employer's trade or business.

Certainly, Workmen's Compensation is not invented, it

2
evolved. It evolved on the sound lines for providing social

security. Therefore, the Courts have interpreted liberally and

included many types of employments.

As the word 'CASUAL' is incapable of precise definition,

its meaning is based upon the factual situation in -each case. It

is distinct from 'regular' intermittent and 'periodical

2. H.A. Somers & A.R. Somers; Workmen's Compensation Act; 1954.

 : 254 :

employment'. Further many Courts observed that the real test

should not be the duration of the service but the kind of

service done by the employee in order to determine the casual

nature of employment.

The plea of casual employment is more prevalent in

agricultural operations due to lack of systematic employments.

Some Courts have come forward to include agricultural labour

also under the definition of workman.

3
In Kochu Velu v. Joseph, coconut climber was held to be a

'workman' because of the regularity in his employment. A climber

was engaged to pluck coconuts from trees periodically. The

appellant fell down and became permanently invalid. It was held

that the employment was not of casual nature because the person

was regularly employed periodically. Further, carrying on the

avocation of agriculture was equated with carrying on the

business of agriculture. Therefore, the workman was put in both

the limbs of the definition and was held entitled to

compensation.

An agriculturist engaged a band of diggers to deepen a

well in his field. When the dynamite was used for digging, an

explosion occurred injuring a labourer whose right arm was

amputated. The agriculturist contended that he was a casual

3. 1980, H. LLJ, 220 (Kerala).

 : 255 :

labourer. Ramaswamy, J., held that he was a workman within

2(i)(n) applying also clauses XV and XVI of Schedule-II-Sitharama

4
Reddiar v. Ayyaswammi Gounder.

Based on the similar facts is Popatlal v. Bai Lakhu

Jetha^ An old well in a 'wadi' did not supply sufficient water

and the agriculturist wanted to deepen it. A labourer engaged by

him in the boring operation of the well was fatally injured when

a pipe fell on him from above. The Court observed that vital need

of agriculture was water and the employer would realise greater

yield of crops and thereby earn greater profits by digging wells.

The employer was held liable.

In England also in one case thatching of the roof of a

farm house was held to be for the pourposes of employer's trade

or business-Manton v. Cantwell.^

7
Similar to Kochu Velu Case is Smith v. Burtan" . A

person was taken into employment lasted as long as the season

continued. It was held to be a regular employment, continuous, in

the season and therefore it was not of casual nature.

If there is continuous service it cannot be treated as

casual. Where a person was engaged in unloading the wagon by a

contractor for about 8 months, the casual nature is lost

g
Arumugham v. Nagammal.

4. AIR 1956, Mad. 212.

5. AIR 1952, Sau. 74.
6. AIR 1936, Mad. 941.
7. (1913) 6 BWCC 160.
8. (1962) MPLJ, 454.
 : 256 :

Duration of the service is 'immaterial1. The emphasis

9
should always be on the nature and kind of service. In Scot
v. Workman]-0 a temporary cook was engaged while the permanent

cook was away for a holiday. She slipped on wet oil cloth in the

kitchen and susstained injuries which permanently incapacitated

her for work. She was paid weekly wages not by hour or day . A

close analysis was made between regular, permanent, stable

employment and casual employment. She was held entitled to

compensation as it was not casual employment.

The casual nature of employment is purely based on the

factual situation. The onus of proof is on the employer. He has

to prove that both the conditions are satisfied to exclude a

workman from the definition. It is sometimes difficult to trace

out the actual nature of the engagement. According to BEAUMONT,

C.J. there are some cases in which employment is obviously not

casual and other cases in which it is obviously casual. Between

these two extremes there are number of debtable judgement of

11
Indian Courts (Nadidsha Harmenji Sidha v. Krishna Bai') . In

that case a person engaged for painting and white-washing of a

large house with several floors and 30 rooms employed from day

to day, not for the whole job, was held to be casual.

Brevity of engagement is not the real test for

determining the casual employment. A workman who was temporarily

9. 1958-65 ACJ, 41 (Raj.).-

10. Ibid, 43.

11. (1908), 2 KB, 802.
 : 257 :

employed even for two days for the purposes of employers' trade

or business was entitled to claim compensation. A.A.Thaver Bros,

v. Madhu Mariammal, 12 a cooly working at unloading coal from a

ship got into a sampan to go ashore, it capsized when all the

passengers leaned on one side to avoid hot cinders thrown

overboard. The cooly was drowned.

If the engagement for the purpose of employer's trade or

business is proved it becomes immaterial whether he was casual

or not. When a contractor of a District Board Hospital engaged a

person for white-washing the walls and ceiling of the hospital,

he fell from a ladder and injured-held entitled to compensation -

Bachia Mistri v. Shanti. 13

The business of keeping the railway line in order was

held as important as selling of tickets and handling of the goods

- Periy akkal v. S.I.Rly. Co. Ltd. Trichonopoly. 14

In T.Vmyaka Mudalxar v. Mxndala Pottxamma 15 a Contractor

engaged a mason who was engulfed in earth and died. The Contracor

used to build houses and let them on rent. Held even though the

mason was not a casual employee as it was a subsidiary business

of the Contractor he was liable to pay compensation.

12. (1913), 6 BWCC, 183.

13. Per Hamilton & Jin, Knight v.Bucknili.
14. Ibid.
15. (1980), 57 F.J.R.,' 275.
 : 258 :

16
In Jathmal Manekji Sharma v. Saradamba Amma, the

brick layer arranged upon scaffoldin fell down,workman injured. The

employer was a hotel-keeper who used to repair and reconstruct

houses for letting them out. It was held to be a secondary

business of the hotel-keeper and therefore liable.

In Messers B.D. Ghodake & Sons. v. Mahaboob Sub Fakrusab

17
Devagini, the Karnataka High Court affirmed that both the

ingredients of casual nature and otherwise than for the purpose

of employer's business should be satisfied before one would be

excluded from the definition. In the instant case, a turner was

forced by the employer to tighten the belt because of urgency of

work. He stood on a stool to tighten the belt while the engine

was running. He sustained injuries while putting the belt on the

pully-held that he was entitled to compensation.

It is said that casual employment is something midway

between the regular employment of workman and simple engagement

18
for a single day - Per Hamilton, L.J. in Knight v. Bocknill.

However, daily wage workers were also held "Workmen"

under the Act. It is also settled that if the employer is in a

position to deduct daily wages from the payments of the employee,

19
it would not make an employment casual or temporary. Casual

16. (1980), 57 FJR, 154.

17. (1980), 57 FJR,- 17 1.
18 . See Vinayak Maduliar v. Poliamma,- AIR 1953,-Mad 432.
19. Dama Rout v. Samal Prasad Chandaka, 1986 ACJ, 410 (Orissa), see also
Meriam Beeviv. Town & Country Development Authority ; 1984 ACJ, 248(MP)
 : 259 :

employment, being a question of fact, diverse considerations must

weigh -Madanlal v. Mangilal. 20 Out of two houses of X, one house

used for leasing out and a lady was employed in connection with
the construction of the ground-floor. When she was collecting

construction material, the third floor varendah under

construction fell down and she was fatally injured. Changani, J.

held that it will be futile to attempt a formulae for judgement

21"
whether an employment was casual or not.

There may be continuity of employment though under

different engagement when the jobs were extended by the

employer. It may not change the character of casual nature -

Knight v. Bucknill. If a man is employed to clean windows at

irregular intervals it is a casual employment even though it

extended over a long period of time, Hill v. Begg. 22 If one is

engaged to clean windows once a month for four years without any

arrangement as to further work is still a casual employment -

Rightchings v. Bryant.

If is now settled that the word casual is not a term of

23
precision, and it is a 'colloquial word' and it is inadvisable,

if not impossible to attribute any hard and fast definition of

24
the term. Now, a piecerate worker was held to be a workman in

S ,B.Gurubaksh Singh v. Dhani Devi. 25 A contractor constructing

20. 1985, ACJ 371, P & H.

21. K.Saraswathi v. S.Narayan Swamy; 1985 ACJ,' 38 (Mad.).
22. Rama Swamy v, Poonagranam,' AIR 1954/ Mad. 218,
23. See per V.R.Krishna Ayer,' J. about Employees State Insurance Act in the
same context. Royal Talkies v. ESI Corporation (1978); 53 FJR 319.
24. Ibid.
25. (1980) 57 FJR, 275.
 : 260 :

D.T.U. Quarters engaged Gokul Ram for white-washing. He was paid

Rs.6/~ per one thousand square foot for completed work. The cost

of material supplied to him being adjusted against the payment.

The platform on which he was working collapsed. He fell down and

died. Gokul Ram was held to be a 'workman*.

A number of cases can be cited in favour of the liberal

interpretation of the definition by the Courts. This trend is

certainly encouraging and it deserves to be supported. A casual

labourer should not be excluded from the definition of workman if

there is any possibility for inclusion. The understanding of the

phrase "otherwise than for the purposes of employer's trade or

business" is also considerably improved during the recent years.

This welcome trend should be studied in the light of the recent

developments in the definition of 'employee' under the Employees'

State Insurance Act, 1948. The full-bench decision of Karnataka

and Punjab and Haryana High Courts in E.S.I. Corporation v.

26
Svwarna Saw Mills' and E.S.I. Corporation V. Oswal Woollen
27
Mills Ltd. respectively emphatically speak out that a casual

employee can claim benefits under the Act. 1923, should not lag

behind by unreasonable emphasis on casual nature of employment.

Turning to the other side, the Courts liberally

2 8 It is true
interpreted the words 'employers' trade or business.

26. (1980) 57 FJR, 154.

27. (1980) 57 FJR, 171.
28. Supra note 18.
 : 261 :

even if it is for a subsidiary business. A person engaged in

demolition of projected portion of a cloth show room was held to

29
be engaged for employer's trade or business.

30
In Ganesh Foundry Works v. Bhagwanti, the deceased

used to do odd jobs in his spare time. Once he was engaged for

rectifying electrical defect at the foundry where he was injured

and died. It was held that the job was within the ambit of

employer's trade or business. Likewise, a substitute driver on a

lorry was held to be a workman as he was engaged for the

31
purposes of employer's trade or business. A person who was

engaged in transporting oil barrels was held to have been

engaged for the purposes of trade or business of the employer

who had a business of purchasing and selling oil. 32

Thus, the trend is certainly encouraging as the Courts

have adopted liberal interpretation.

Naturally, definitions of this nature in a social

security legislation should be subjected to persistent

examination,and improvement. Thus, the definition of 'workman'

is to be widened in accordance with the change of circumstances

and situations - otherwise, the very purpose of the enactment

29. Supra note 19.

30. 1985 ACJ 371 (P&H).
31. Supra note 21.
32. Supra note 22.
 : 262 :

would be curtailed. The definition should be amended so as to

cope up with the modern hazards created by the technological

advancements spreading to every industrial and agricultural

operation. The decision makers should not feel helpless as in

33
the case of Pattammal v. Janakirama Rounder.

Nevertheless, Schedule II which is so crucial in

determining 'workman* is to be treated as exhaustive and not

illustrative. It is the duty of legislatures, preferably central

to keep things moving for answering new situations.

Conspicuously, .today under mass insurance schemes a person is in

a position to receive compensation in case of death or

disablement, though being unemployed. Is it not the responsibi­

lity of the Courts and Legislatures to treat as unfortunate

employee better ? Obviously, the courts have to liberally

34 Thus, the
interpret the definition in favour of the workmen.

urge for widening the definition of 'workman' must be properly

dealt with which can include the supervisors, clerks, and

persons whose employment is casual in nature and employed for

any purpose not even for the purpose of employer's trade or

business.
ACCIDENT ARISING OUT OF AND IN COURSE OF :

According to a finding of the International Labour

Organisation (I.L.O.) "Every year throughout the world, some

1,00,000 industrial workers die as a result of employment

33. 1975,Lab. IC, 984.

34. Proprietor;Pure Dhansal Coal v.' Debendra nath Bhattacharya
AIR 1968, Pat 24 ■ (1968), 2 Lab,- LJ 332 : 1968 Lab. IC 38
16 FLR 338: ■ *
 : 263 :

accidents and occupational diseases and an estimated 50 million

persons suffer non-fatal employment injuries. But in addition to

suffering employment accidents and occupational diseases cause

considerable economic losses., both for the individual and his

35
family and for society as a whole." It has been reported that

an estimated 10,000 workers are injured and 33 killed every year

for every 1,00,000 workers are engaged in chemical industry in

36
India. Besides, with the growing chemical and pharmaceutical

industries, mining and mineral development programmes,

environmental pollution coupled with the improper planning and

insufficient facilities to forecast, prevent and face the

industrial hazards well in time, the number of accidents in the

coming years may increase progressively.

The Workmen's Compensation Act, 1923 (hereinafter called

"the Act") is based on the doctrine of occupational risk

comprising of personal injuries and 'occupational diseases'

caused to workmen by accidents arising out of and in the course

of employment. The risks inherent in work are the consequences of

37
the normal development of human activity and hence such

attention is required to eliminate the accidental risks and to

establish new vistas in the working world.

The term 'accident' has not been statutorily defined

under the Act. No importance has been given to it if it does not

35. The I.L.O. and World of Work/ 1984/ p. 25.

36. Andhra Law Times (Journal), Vol.I, III, Part-IV, 1986/ p.25.
37. I.L.O. & Social Insurance, 1936, p,27.
 : 264 :

cause any physical injury to the workman. The Judge- raent law has

ornamented the small word 'accident' and brought to it a new and

meaningful shape. Today the term 'accident' can no longer be

considered as unimportant.

In the present dayever-changing and dynamic society it

is always a welfare step to evaluate the performance of different

laws, especially those which are aimed at achieving social

justice. The Workmen's Compensation Act, 1923 which has been

founded on the small brick-' accident' - is no more an exception

to this general version. Further in view of the manifold increase

in hi.tech industrialisation the area of 'accident claim' has

become more-' sensitive from the point of view of employers,

workmen and also the Government. In the absence of a clear-cut

statutory definition of the term 'accident' the legal battles may

embitter the concerned parties and strain the industrial

relations.

In view of the above, the research scholar feels it

pertinent to look into the various dimensions of the term

'accident'. The present article is an effort in this direction.

The term 'accident' contemplated in the Act is assigned

a meaning separate and distinct from the general or dictionary

one. Not all accidents that may occur to workmen are accidents

within the meaning of the Act. It is those accidents which occur

out of and during the course of employment and cause some

 : 265 :

personal injury resulting in the loss of physical or earning

capacity of the workmen. The important conditions for

constituting an incident as an accident and also for claiming the

consequent compensation under the Act are :

1. that it must occur during the course of employment,

2. that it must arise out of the employment,

3. that it must result in bodily injury to the workman

making him disabled, whether temporarily or

permanently, or fully or partially to attend to his

work, or

4. that it must result in the loss of earning capacity of

the workman, and

5. that it has been brought to the notice of the employer

(as per Section 10 of the Act) or the Commissioner for

Workmen's Compensation (as per Section 10 - A of the

Act) as the case may be :

A series of case laws have been evolved on each of the

conditions while determining the liability of employers to

payment of compensation on the principle of 'notional extension'

by different High Courts and also the Supreme Court.

It is now sell-settled that the term 'accident' for the

purpose of law relating to compensation includes any injury

38
which is not designed by the workman himself.

38. Supra note - IS, Chapter - I.

 : 266 :

Contractin of any one of the diseases specified in Schedule III

of the Act is deemed to be an accidental injury caused by an

accident arisen out of and in the course of employment as per

39
Section 3(2). These diseases are called occupational diseases.

Therefore, the principle is that in order to make the employer

liable to pay compensation the death or injury suffered by the

workman must be the consequence of an "accident arising out of

40
and in the course of his employment".

Burden of proof is on the workman to show that the

accident has arisen out of and in the course of employment

though it may be inferred when the fact proved justifies the

inference.4^ The court may also fall back upon circumstantial
42
evidence to arrive at the inference. Where the death of a

workman was caused by an accident arising out of and in the

course of employment, it is no defence to plead that there was

wilful disobedience of any order expressly given or rules framed

43
for the purpose of securing the safety of the workman.

Speaking on the nature of the term 'accident' the

Madhya Pradesh High Court held that it should be understood in

the popular and ordinary sense as denoting an unlooked for mishap

or an untoward event which is not expected or designed. The test

whether an occurrence is unexpected so as to be an accident is

39. Dr. S.K.Puri, An introduction to Labour and Industrial Laws,' 1986/

Edn. p. 207.
40. Bai Shakri v. New Manekchowk Mills Co.Ltd., 1958-65/ACJ 53 (Guj.).
41. M. Bhawaraju v. Savitri/ 1976 (32)/ FLR 108-*.117
42. Supra note - 14, Chapter-I.
43. R.B. Moondra & Co. v. Bhanwari, 1971, ACJ 438 (Raj.).
 : 267 :

whether 'it is unexpected by the person who suffers from it and

not whether it would be expected medical men or persons other

. 44
than the deceased or injured person.

Accident can occur externally to a man like an

explosion in a mine, a collision tripping over floor obstacles,

fall of a roof or a man falling down from a ladder and/or they

may occur internally like strain causing rupture, bursting of an

aneurism, failure of the muscular action of the heart, exposure

to a draught causin child, exertion

in a stokehold causing
45
apoplexy, shock causing neurasthenia etc. In cases of internal

accidents, 'accident1 and 'injury' coincide, and it is hardly

possible to distinguish in time between accident and injury.

The Gujrat High Court had elaborately discussed the

true nature of the accident and held that there would be cases

where a series of tiny accidents, each producing some

unidentifiable result and operating cumulatively to produce the

final condition of injury, and in order that it may constitute an

accident within the meaning of Section 3, it is not necessary

that the workman should be able to locate it. The Rajastan High

Court opined that a bite by snake or poisonous insect during the

course of employment would also result in the accident for the

purpose of claiming compensation under the Act. 46 - The common

factor in all cases of the occupational diseases peculiar to his

44. Sundar Bhai v. General Manager firdance Factory 1976, .ACJ 346 (M.P)
45. Fire Coal Co. Ltd., v. Young (1940) 2, All. ER 85.
46. Union of India v. Harphool, { FLR (1988), 347.
 : 268 :

employment in different situations for the payment of

compensation under the Act. It is also a means of achieving the

aims and objectives of the Act in protecting the workmen from

physical as well as financial hardships arising from accidents.

Where an injury is caused by natural force without

human intervention and in circumstances where no human foresight

can provide any possibility to think of the occurrence of such

an injury is known as accident by natural forces. Any accident

caused by such natural forces is also termed as an accident by

an 'act of God1 or 'vis major'. Precisely an act of God means "an

operation of natural forces so unexpected that no human foresight

47
or skill could be reasonably be expected to anticipate it.

Lightning earthquakes, extraordinary high tide, cold burst,

tornadoes, severe gale, frostbite, sun stroke etc. are called

natural forces. In such cases employer is liable to pay

compensation to the injured workman, only if the workman is able

to fulfil the statutory requirements under sub-section (1) of

Section 3 of the Workmen's Compensation Act, 1923 (the Act). The

following are the conditions to be satisfied before liability

could be fixed upon the employer. The injury must be (i) personal

injury, (ii) caused by an accident, (iii) arising out of, and

(iv) in the course of his employment. In addition to the said

conditions the essential fact to be proved in cases of accidents

by natural forces in particular is that there is an

47. Winfield on Tort.

 : 269 :

'extraordinary act of nature' and the workman is specially

exposed to such natural forces and the accident is connected with

the employment. Then only accident will be considered as an

accident within the purview of sub-section (1) of Section 3 of

the Act and employer will be made liable to pay compensation.

Injuries by natural forces may take place directly due

to operation of natural forces or by an agency or an event under

Enlish law, a distinction has been made between a case where the

accident has occurred by operation of the forces of nature by

themselves and a case where the accident has occurred by

creation 0f the forces of nature by themselves and a case where

the accident has occurred by operation of the forces caused by nature

themselves and a case where the accident has taken place by the

intervention of some event which has been affected by the

operation of natural forces. In the first category of cases, what

must be established is that the workman has been exposed either

to a special or peculiar risk or risk which is incidental and

which arises out of the nature and the terms and conditions of

his employment. In the latter category, all that is necessary to

be proved on the part of the workman is that he was at the

particular spot, because of the employment. In other words, his

employment required him to be at that spot while he was taken to

that spot in the performance of his duties, natural forces

operated upon some agency such as, scaffolding falling or a wall

crashing or a building collapsing, it is not necessary for the

 : 270 :

workman to prove that he was exposed to any special danger or

special risk by reason of his employment. The distinction seems

to have been based on forces of nature being the immediate cause

48
or causa,causans or the forces being the remote cause. Halsbury

also remarked that .... injuries directly due to the personal

operation of natural forces, for example, a stroke of lightening

do not arise out of the employment unless by reason of his

employment, the workman was especially exposed to such risks. 49

These principles enunciated in English cases have been applied in

India. It is, therefore, very essential at this place to bear in

mind some of the landmark English cases before dealing with the

Indian.cases relating to accidents by natural forces. In Andrew

50
v. Failsworth Industrial Society, the deceased man, who was a

bricklayer, was killed by lightning while working on a

scaffoldin at a height of about twenty -three feet from the

ground on a building. It was held by Lord Collins, M.R. in this

case that".... if there is under particular circumstances in a

particular vocation something appreciably and substantially

beyond the ordinary normal risk which ordinarily people run, and

which is necessary concomitant of the occupation the man is

engaged in, then I am entitled to say that the extra danger to

which the man is exposed is something out of his employment. 51 In

52
Killy v. Kerry Country Council, where a workman employed in a

48. 1967 ACJ, 348 (Bombay), Para 15.

49. Halsbury's Law of England, 2nd Edn., Vol.34, p.637, Para 11.77,
50. (1904), 2 K.B. 32.
51. Ibid.
52. (1908) 42, LT, 23.
 : 271 :

road was killed by lightning, it was held that he was not

entitled to compensation on the ground that the accident did not

arise out of his employment. It was observed in this case that

the nature of employment did not expose him to any kind of extra
53
or special danger. Warner v. Couchman is the other important

case relating to accident by natural forces. In this case a

journey man baker, whose right hand and arm had been injured by

frostbite while out on his rounds with his employer's carton on a

cold day, claimed compensation for his injury as an accident

arising out of his employment Cozens-Hardy, M.R. who delivered

the judgement of the majority held that "...even assuming that

there had been ,'an accident' there was no peculiar danger to

which' the applicant had been exposed beyond that which other

drivers of vehicles or persons engaged in outdoor work on that

day had experienced and consequently that the accident had not

arisen out of the employment. In Lawrence v. George Matthews

54
(1924) Ltd." the deceased workman was employed as a commercial

traveller by the appellants. He was to devote the whole of his

time to the business of the appellants, while so travelling by a

motor cycle after completion of his business on his way home, he

was struck on the road by a,falling tree which was blown by a

severe gale and was and was injured. Held by Sankey and Russell,

LJJ, that the accident arose out of the employment on the ground

that the deceased's employment brought him to a spot which owing

53. (1912) AC 35.

54. (1924), 1 KB 1.
 : 272 :

to the existence of tree, had a quality that resulted in danger.

The fact that fall of tree was caused by forces of nature was

immaterial, as regard could only be had to the immediate cause of

the accident namely, the falling of the tree. In Thom—or Simpson

55
v. Sinclair (Sinclair's Case), the injury was caused by the

fall of a wall while the woman worker had gone there in the

performance of her duties. House of Lords held that the accident

arose out of her employment and the principle is well settled by

Lord Shaw.

"...In short my view of the statute is that the

expression 'arising out of the employment' is not confined to the

mere 'nature of the employmnt' . The expression, in my opinion,

applies to the employment as such - to its nature, its

conditions, its obligations, and its incidents. If by reason of

any of these the workman is brought within the zone of special

danger and so injured or killed it appears to me that the broad

words of the statute 'arising out of the employment' apply.

Similarly, in Brooker v. Thomas Borthwick & Sons

(Australasia) Ltd.^ a building a Nelson, Newzealand,

collapsed owing to a severe earthquake and the debris there from

fe'll upon three men who were 'workers' within the provisions of

the. Workmen's Compensation Act, 1923 .'Two of them being at work on

the premises where they were employed, and the third being in the

55. (1917) AC 127.

56. (1933) AC 669.

 : 273 :

public street in the performance of his duty as a hotel porter.

While working he lost his balance owing to the earthquake and

fell down a steep incline on the premises here he was employed.

It was held that in each case the accident to the worker was one

"arising out of the employment" within the meaning of sub-section

(1) of Section 3 of the Act. In this case the aspect that the

workmen were especially exposed to risks incidental to

earthquakes by reason of their employment was not given

importance. Lord Atkin delivering the judgement of their

Lordships remarked that ... it is only necessary here to state

that the earthquake was exceptionally severe". 57

In the light of the principles enunciated in English

cases, how the Indian cases pertaining to accidents by the

natural forces have been decided, is briefly estimated here

taking into consideration a couple of recent landmark cases for

58
discussion. Thus m M.J.George v. Sumathi, the deceased workman

Gopalan wasa member of the crew of a fishing boat of the

appellant. The boat capsized in storm while engaged in fishing at

sea. The worker lost his life by drowning. The widow of the

deceased filed on behalf of herself and her minor children an

application under the Workmen's Compensation Act (the Act). The

employer contended that the deceased was not a worker employed by

him, but was in fact his partner, and the accident did not arise

out of and in the course of employment. The Commissioner held

57. Ibid.

58. 1975 ACJ, 513, Kerala.

 : 274 :

that the deceased was not a workman and dismissed the

application without deciding the other questions. This order was

challenged by the widow in appeal before the Kerala High Court

which held that the deceased was workman and remitted the case to

the Commissioner for disposal of the matter afresh on the various

issues involved. The case was heard by the Commissioner and he

held that the deceased was a workman and awarded compensation of

Rs.7,000/-. This order was challanged by the employer before the

Kerala High Court under Article 226 of the Constitution. The

employer contended that Gopalan lost his life by an act of God,

namely, the storm and the employer could not be held liable in

respect of such accidents. He further contended that the accident

which caused the death of Gopalan did not arise out of and in the

course of employment and therefore the employer had no liability

to pay compensation.

But the writ petition was dismissed and Kochu Thommen,

J. who delivered the judgement held that the workman lost his

life as a result of an accident which arose out of and in the

course of employment and the employer was liable to pay

compensation in accordance with the provisions of the Act. The

learned Judge also held that a petition under Article 226 was not

maintainable as the statute provided under Section 30 for a right

of appeal.

59 .
Amar Nath Goel v. Mayur Syntax Ltd. xs the other

landmark case, for the present context. In this case, the

59. 1990 ACJ 93 (Delhi).

 : 275 :

plaintiff as usual was working in the factory premises of the

defendant, his employer. While he was working a portion of the

office building collapsed resulting in. the death of three

persons. The plaintiff sustained grave and serious injuries.

Plaintiff took treatment and resumed his duties as he had

no other source of income to maintain his family though he had

considerable run down state of health but joined duties

apprehending that the defendant may remove him from job if he

remained absent for longer period. His services were terminated.

The plaintiff made a claim against the defendant for damages for

wrongful and malicious removal from service. Defendant contended

that the collapse of wall was due to unforeseen viz major

circumstances which were beyond human control and described as

'act of God'. The unforeseen circumstance according to the

defendant is that the wall was struck by lightning which led to

the collapse.

The important question to be solved here is that

whether the collapse of the factory or part thereof resulting in

injuries to the .plaintiff was an act of God absolving the

defendant of its liabilities. In order to prove the plea of 'act

of God' the defendant is to establish that the circumstance which

led to the collapse of the wall was such which could not be

foreseen and contemplated, the defendant has also to establish

that it had taken all reasonable care while constructing the

portion of the building which collapsed. The defendant failed to

 : 276 :

prove that collapse was on account of the act of God, and no

evidence was produced that it had exercised due care while

constructing the wall. Therefore, it was held that accident took

place out of and in the course of employment within the meaning

of Section 3 of the Act and the defendant's plea of act of God

was not accepted to escape from liability and thus held that it

was liable to pay damages to the plaintiff. But in Mariambai Adam

60
Fakir v. Mackinnon Machenzie & Co. Ltd. the deceased died due

to heat exhaustion not by heat stroke. He was exposed to such

heat condition because of the nature of his employment to serve

on the ship of the respondent. It was contended by the respondent

that the heat exhaustion is a natural cause and is not due to any

injury arising out of employment. But it was observed that the

accident was not due to general weather conditions and no

extraneous agency operated to bring about the injury which led to

his death and held that the accident happened in the course of

employment but not 'out of employment' and also not by the force

of natural agency and hence he was not entitled for compensation

under the Act.

In the light of the above discussion it is submitted

that when a workman meets with an accident during.the course of

his employment, his employer must be made liable to pay

compensation to the injured workman or to the dependants of the

deceased workman. In such cases workman should not be insisted to

60. 1967; ACJ 348, Bombay.

 : 277 :

show that he was specially exposed to such natural forces or to

show that the accident was 'out of employment' because it may not

be so easy for a workman to prove so and such an- approach gives

wide scope to the employer to excape from his liability. Thus,

the interest of victimised worker will go-, in such cases the

situation must be viewed liberally and

employer must be made
61
liable to pay compensation as in Sinclair 's case, since the

workman presents himself at the place of accident because of his

employment.

1 DISABLEMENT & LOSS OF EARNING CAPACITY :

In order to claim compensation under the Workmen's

Compensation Act, 1923, a personal injury caused to a workman

should result either in his death or disablement. Such an injury

should also result in the loss of earning capacity of the

workman. Strictly speaking the whole scheme of the Act revolves

round two concepts, namely, 'disablement' and the consequent

'loss of 'earning, capacity'. But surprisingly, neither the term

'disablement' as such, nor the term 'loss of earning capacity'

has been defined precisely and these have to be established in

each case in the light of the provisions of 'Section 2(1) (g)

dealing with 'partial disablement', Section 2(1)(1) dealing with

'total disablement' and Section 4 dealing with rates of

compensation for different disablements read with Schedule I

providing a list of personal injuries the causing of which can be

61. Supra note - 13, Chapter - I.

 : 278 : -

deemed to have resulted in total or partial/permanent or

temporary disablement respectively.

However, in the absence of a precise definition of the

term 'disablement' as such, classification of it as 'total' and

'permanent' and 'temporary', and defining the same in terms of

'loss of earning capacity' in 'any employment' and 'every

employment' as explained in Section 2(1)(g) and incapacitation

for 'all work' as specified in Section 2(1)(1) is a

subject-matter of controversy. As it is not so easy to say as to

what are the different employments in which the injured workman

could have been engaged and capable of holding earning capacity

prior to the occurrence of the accident, defining the important

term 'disablement' and the above classified manner in fact,

serves no fruitful purpose. Such a definition would not only

impose an additional burden on the adjudicating body but also

create an unnecessary confusion in the minds of. the lay workmen

who are the real beneficiaries. Similarly, the 'definition of

'total' and 'partial' disablement ^appearing simultaneously in

Section 2(1)(g) and 2(1)(1), appears to be defective and

inadequate. The present article is an attempt to discuss the law

on 'disablement' in the light of the above findings and to

suggest appropriate measures to reform the same.

Clause (g) of sub-section (1) of Section 2 defines the

phrase 'partial disablement' in the following manner

 : 279:

"Partial disablement' means, where the disablements of

a temporary nature, such disablement as reduces the claiming

capacity of a workman in any employment in which he was engaged

at the time of the accident resulting in the disablement, and,

where the disablement is of a permanent nature, such disablement

as reduces his claiming capacity in every employment which he was

capable of undertaking at that time".

Clause (1) of Sub-Section (1) of Section - 2 defines

the phrase 'total disablement' in the following words.

Total disablement' means such, disablement, whether of

a temporary or permanent nature, which incapacitates a workman

for all works which he was capable of performing at the time of

the accident..."

Based on the above two provisions, disablement may be

classified as follows

(1) Total disablement,

(2) Partial disablement,

(3) Permanent disablement, and

(4) Temporary disablement.

Similarly, Section 4 of the Act which provides rates of

compensation classifies disablement into the following four

types, namely :
 : 280 :

1. Permanent total disablement,

2. Permanent partial disablement,

3. Temporary total disablement, and

4. Temporary partial disablement.

In fact the disablement for the purpose of the Act is to be

assessed based on the percentage of loss of earning capacity in

terms of each and every injury caused to a workman while on the

job. Where the loss of earning capacity is 100 per cent or more

the consequent disablement is total though it may be permanent or

temporary. Similarly, where the loss of earning capacity is less

than 100 percent, the resultant disablement is partial, though it

may be permanent or temporary.

Loss of earning capacity is the basis for calculation

of compensation for work injuries under the Workmen's

Compensation Act. The main principle governing the compensation

is not dependant on the suffering caused to the workman or

expenses incurred by him on his treatment, but on the difference

62
of his wage earning capacity before and after the accident. The
63
Calcutta High Court expressed the view that what is to be

estimated is the 'loss of earning capacity' by the injury which

is entirely different from the 'loss of physical capacity". What

a workman gets as bounty or as grace from his employer is not a

62. 5.K.Puri, Labour & Industrial Laws, 6th Edn. 1986,- p.19.

63. Agent East India Railways v. Mauria Cecil Ryan, AIR 1937, Cal. 526. See
also Sarjeroad Unkar JadaY v.Gurinder Singh, 1990, ACJ 719 (Bombay).
 : 281 :

64
measure of his earning capacity, but its loss. For assessing

earning capacity the question is not whether the injured person

is offered a' job by his employer but whether, despite the

disability he has suffered, would be generally get the same

wages.^ Loss of earning capacity is not necessarily coextensive

with the loss of physical capacity and the former does not

determine the latter. 6 6 Loss of physical capacity may be

relevant in assessing to what extent there is loss of earning

capacity from every employment,^ which the workman was capable

of undertaking at the time of the accident or re-employment in

which he was engaged at that time.

It is, therefore clear that no arithmetical

relationship exists between the amount of disability and the

amount of diminution in earning capacity. Similarly view was

taken by the Bombay High Court when it held that it is the loss

of reduction in the earning capacity and not the loss or

reduction in the earning that is to be taken into consideration

68
for assessing disablement. However, it is very difficult to

ascertain the different employments wherein a disabled workman

could be capable of holding earning capacity prior to the

occurrence of the accident. It all depends upon the nature of the

employment, market demand and the skills and efficiencies of

64. Ram Naresh Singh v. Lodhan Colliery Co. Ltd. 1973 Lab. IC 1956.
65. George v. Thankan, 1980, ACJ 318 (Kerala).
66. Commissioner for Port of Calcutta v. Prayag Ram, AIR 1967 Cal.7.
67. Calcutta licensed Mazdoors v. Mohd. Hossain, 1969, ACJ 92,(Calcutta),
AIR 1969, Cal. 378, see also Sarat Chatterjee & Co. v. Mohd. Khalil,
1979, ACJ 106 (Cal.).
68. Balasahib - Maka Saheb v, Mohanlal Shah, 1983, TAC 649 (Bombay).
 : 282 :

the workman and it is a matter of fact to be decided by the

Commissioner based on the evidence before him.

The following discussion provides more details in

respect of the nature and extent of the term 'disablement' which

can be studied .1 under two major heads, namely (1) total

disablement, and (2) partial disablement.

Total disablement is further divided in two parts,

which is detailed below.

Total disablement for the purpose of the Act can be

studied in the following two categories, namely (a) permanent

total disablement, (b) permanent partial disablement.

PERMANENT TOTAL DISABLEMENT :

69
As discussed above proviso to Clause (1) of

Sub-Section (1) of Section 2 contemplates that total disablement

shall be permanent or temporary. The disablements that result

from every injury specified in Part I of Schedule I are deemed to

70
be permanent total disablement with a 100 per cent loss of

earning capacity. Where there is a loss of 100 percent or more

earning capacity on the aggregate of the injuries specified in

Part II of Schedule I, it also amounts to be permanent total

disablement.

The phrase 'incapacitates a workman for all work'

appearing in Section 2 (1) (1) does not mean any and every work

69. Substituted by Act. 65 of 1976.

70. Part I of Sch.I, read with sec.2(1) and sec.A- of the Act Contemplates,
six types of permanent total disablities.
 : 283 :

which a workman can do. It means such work as is reasonably

capable of being sold in the market. It also does not mean

'incapacitated to work'. If there is any incapacity where by a

workman cannot get employment for any work which he could

undertake at the time of the accident, it can be said to be total

permanent disability . It has connection not only to the physical

incapacity, but also the loss of earning capacity of a workman.

For instance, where a 100 per cent loss of earning capacity is

caused to a workman as per percentages specified against the

employment injuries in Part II of Schedule I, it does not mean

that the physical capacity of the workman is also reduced by 100

71
percent. Incapacity to work includes inability to get work,

therefore, inability to get any work due to the disablement

amounts to total disablement under the Act.

Thus, total disablement must be of such a nature that

the person concerned is unable to do not only the work which he

was doing at the time of the accident, but also any other work.

The preposition 'for* appearing in Clause (1) of Section 2(1)

makes it manifest that the incapacity to which that Clause refers

is not physical incapacity but incapacity to secure employment

produced by the injury which caused the disablement. According to

72
Lord Macnaughton, the injury for which the statute gives

compensation is not mutilation or disfigurement or loss of

physical power, but loss or diminution of the capacity to earn

71. G.Saran K.D. Srivastava, Commentaries on Workmen's Compensation Act,

1923, 4th Edn, 1987, p. 56.
72. Ball v. William Hunt & Sons. Ltd. 1912, AC 496.
 : 284 :

wages as the earning of wages depends mostly on' the demand for

the labour of the workman and not on his physical ability to

work. Therefore, what is required to be taken into consideration

is not only the nature of injury, but also the nature of the work

which the workman was capable of undertaking at the time of

accident and its ability to work.The employer's willingness to

employ him in any other alternate employment may have relevance".

Where a truck driver lost the use of his right hand and
73
broke one of his ribs which could not be repaired despite all

the medical attention, where an employee after the accident was

incapacitated from carrying on even the duties of a smaller

post, 74 where the company had discharged the employee on the

ground that the injury has reduced him unfit for any kind of
75
work, where the employer had dismissed the injured workman on
the ground of total disability, 7 6 where a carpenter lost his left

hand above the elbow, 7 7 where an ordinary labourer was disabled

due to the injury to the spinal cord 78 and was not able to do any

work pertaining to locomotion and he could not even stand and

work due to the injury to the spinal cord, where the claimant who

was a driver at the time of accident and was rendered unfit to do

the job of driving, 79 where a coconut climber, lost his left hand

73. Canara Public Conveyance Co. v. Usman Khan (1969) | LLJ 826.
74. Supra note - 63.
75. Hutti Gold Mines Co. v. Ratnam (1965), 2 LLJ/ 20,. Mysore.
76. Brahma Metal & Genl. Engg. Factory v.' Bghadur Singh, AIR 1955,All. 182.
77. Pratap Narayan Singh Deo, v. Srinivas .Sabat/ 1976 ACJ 141 (SC).
78. Rukhiya Bai v. George D. Cruz (1961), 1 LLJ, 75.
79. Babu Khan v. Kamal Sethi, 1988 (56) FLR 460 (HP),' see old Punam bhai
Khodabhai Parmar v. General Const. 1984, ACJ 739 (Guj).
 : 285 :

80
fingers when he fell down from the tree, the disablement caused

to the workman was held to be total. In an English case,

81 it was

held to be a permanent total disablement where an injury did not

result in the loss of earning capacity, but the workman was not

able to sell his labour due to the visible disability which

destroyed his earning capacity altogether.

TEMPORARY TOTAL DISABLEMENT :

Unlike the permanent total disablement, temporary total

disablement is not clearly explained under the Act. No

significant case-law has been reported in this respect. From a

reading of Section 2(1)(1) and Schedule I, it can, however, be

inferred that where there is a loss of 100 percent or more

earning capacity which may not last forever is temporary total

disablement. In other words, the total disablement which is not

permanent in character is temporary total disablement. The stress

should be on the nature of disability, i.e. whether it is

temporary or permanent while its extent being equal to 100

percent or more loss of earning capacity.

Partial disablement as per Section 2(1)(g) can be

divided into two categories, namely (a) permanent partial

disablement, and (b) temporary partial disablement.

80. 1984 ACJ 630 (Keral).

81. Supra note - 72.
 286 :

PERMANENT PARTIAL DISABLEMENT :

Section 2(1)(g) of the Act defines permanent partial

disablement as a disablement of permanent nature and reduces the

earning capacity of the workman in every employment which he was

capable of undertaking at that time. Besides, as per the same

section, every injury, specified in Part-II of Schedule I, shall

be deemed to result in parmanent partial disablement. Part II of

Schedule I provides in all a list of 48 different kinds of

injuries which can be deemed to result in permanent partial

disablement with their respective percentages of loss of earning

capacity. In addition, instances of permanent partial

disablements other than those specified in Schedule I are also

contemplated under the Act.

Thus, the real test to be adopted for finding out as to

what constitutes a permanent partial disablement is to see

whether the earning capacity of the workman has been reduced in

every employment which he was capable of undertaking at the time

of the accident. It is for the employer to decide whether the

injured workman is incapacitated so that his earning capacity is

reduced in every employment in his organisation, or elsewhere. In

case of Scheduled injuries the reduction of earning capacity is

predetermined by the statute itself based on the nature of

personal injury, and no further investigation is needed to find

out the loss of earning capacity.82

82 Supra note - 67.

 : 287 :

Where a blacksmith fitter has lost the index and middle

fingers, the Allahabad High Court held that for knowing the true

nature of the disablement in all such cases the Court should

consider whether he has been incapacitated from undertaking any

other employment, and whether in that other employment, the rest

of the hand, namely , the thumb and the other two fingers could
be utilised.^

Where a railway servant working as a A-l post lost one

eye and two teeth as a result of collision of two engines, and it

was certified that he will be unfit not only for A-l post but

also for B - post, but was fit for C-2 post and was offered a C-2
84
post, it was held that the disablement was permanent partial

disablement, but not permanent total disablement although the

workman had refused the C-2 post. But where a driver on

amputation of his left leg up to knee made a statement that he

was neither able to do any work nor could secure any work outside

the High Court of Bombay refused to interfere with the findings

of the Commissioner for assessing the extent of permanent

disablement.^

TEMPORARY PARTIAL DISABLEMENT :

Section (l).(g) of the Act contemplates that where the

disablement is temporary in nature which reduced the earning

capacity of a workman in any employment in which he was engaged

83. Upper Doab Sugar Mills Ltd., v. Daulat Ram; AIR 1936; All. 493.
84. General Manager, GIP RLY. v. Shankar, AIR 1950; Nagpur 201.
85. Iqbal Shauddin Ansari v. Gazia Salauddin Ansari; 1980 (40)
FLR 400, (Bombay).
 : 288 :

at the time of the accident is temporary partial disablement. The

disablement shall not last for a- longer period. The

difference between the temporary partial disablement and

permanent partial disablement is that in the former case such

disablement should reduce the earning capacity of the workman in

any employment in which he was employed, i.e. the employment in

which he was engaged and sustained the injuries by the accident,

and whereas in the latter case, the disablement should reduce the

workman's earning capacity in every employment which he was

capable of undertaking at the time of accident. As already

stated, it is very difficult to say what are the different

employments in which the disabled workman was capable of holding

earning capacity prior to the occurrence of the accident. It is

for the Commissioner to decide these issues.

For temporary partial disablement the compensation to

be offered is half-monthly payment unless it is converted into a

lump sum payment for any of the stipulated reason.

TOTAL DISABLEMENT VIS-A-VIS PARTIAL DISABLEMENT :

The question whether there is partial or total

disablement is dependant upon the consequences of injuries and.

not on whether the injuries are one specified in the Act. The

test laid down by the Mysore High Court in this regard is whether

after the employee sustained the injury, he became incapacitated

for all work which he was capable of performing at the time of

 : 289 :

the accident. If it is so the disablement is total. The opinion

of the medical officer is not conclusive proof. The employer is

the correct person to make the best estimates of the total or

O£
partial disablement. In fact the problem of distinction between

the total disablement and partial disablement arises in cases

only where the injuries caused are not covered in Schedule I.

Sometimes a physical injury may be treated as total

disablement when no work is available to workman, and sometimes

as partial disablement when his services are saleable. Such a

situation leads to make a distinction between 'incapacity for

work' and 'incapacity to work'. In such a case it is very

difficult for the courts or the Commissioner to decide the nature

of the disability and the quantum of the compensation to be

awarded if the injury so caused is not covered under Schedule I.

PERMANENT TOTAL DISABLEMENT VIS-A-VIS PERMANENT

PARTIAL DISABLEMENT :

There is quite a noticeable distinction between

permanent total disablement and permanent partial disablement. In

the former case the disablement is 100 percent and the workman

will be incapacitated from all work which he was capable of doing

at the time of the accident. Such disablement does not last for

any limited period i.e. it prevails foreover, or at least must

prevailup to the period of superannuation of the injured workman.

86. Sukhai v. Hukum Chand Jute Mills Ltd., AIR 1957, Cal. 601.
 : 290 :

Whereas in case of permanent partial disablement the disablement

is permanent but not 100 percent. However, there is one

noticeable similarily between these two types of disablements,

namely that both are permanent in nature.

TEMPORARY TOTAL DISABLEMENT VIS-A-VIS TEMPORARY PARTIAL DISABLEMENT

There is also considerable distinction between a

temporary total disablement and temporary partial disablement.

The disablement would be temporary if it reduced the earning

capacity only in respect of the employment that the workman was

doing at the time of the accident, and would be permanent if it

affects in respect of every kind of employment of which he was

then capable to do. In order to constitute what is temporary

total disablement, the discretion is given to the Commissioner

who has to make use of the available evidence to come to an

appropriate conclusion.

From the foregoing discussion it looks obvious that

there is lot of confusion and complication in understanding the

term 'disablement' and interpretation in the context of payment

of compensation to the injured workman. In case of non-scheduled

injuries its interpretation will be still problematic and

time-consuming. The following observations will make this point

more precise.
 : 291 :

The definition of 'permanent' and 'temporary'

disablement in Section 2(1)(g) appears to be rather strange in

the sense that the terms 'Permanent' and 'Temporary' are always

understood as relating to a certain 'time span' i.e. 'permanent'

relates to all times whereas 'temporary' relates to a limited

span of time. But that is not the way in which these two terms

are defined in Section 2(1)(g) . In terms of time span, a

disablement for the entire duration of the life of the workman is

perhaps rather irrelevant for the purpose of the Act, because the

life span of a workman as such should be confined to his service

till superannuation. In this sense, any disablement that lasts

for the entire period of service of the workman should be

considered as permanent disablement. Any disablement for a

duration less than that of his superannuation should be treated

temporary. Then the question is now to fix the limits temporary

disablement. Under Section 3(1), an employer is liable to pay

compensation for total or partial disablement which does not last

longer than three days. The crucial point of any legal disability

under the Act starts after three days. Then how long after the

initial three days period should be considered as 'temporary'

Under Section 4(2), the liability to pay compensation extends up

to a maximum period of five years only even if the temporary

disablement lasts longer.

Section 2(1)(1) refers to total disablement whether

permanent or temporary, but without defining, what is total

permanent disablement and what is total temporary disablement. If

 : 292 :

the words 'permanent' and 'temporary' used in Section 2(1)(1) are

to be understood in the sense they were used in Section 2(1)(g),

then permanent total disablement would be disablement that

incapacitates a worker in every employment that he is capable of

undertaking. This makes Section 2(1) meaningless and

self-contradictory because total disablement itself has been

defined as incapacitation for all work which he was capable of

performing at the crucial time. There is no conceivable

distinction between 'all employment that he was capable of

undertaking' in Section 2(1)(g), and ' all work that he was

capable of performing in Section- 2 (1)(1),. Thus, total

disablement itself has been defined in Section 2(1)(1) read with

Section 2(1)(g) in terms of total permanent disablement. Then if

total disablement is defined in terms of total permanent

disablement, then what is 'total temporary disablement' ?

From the above discussion it is evident that the

definition of 'total1 and 'partial' disablement in Section

2(1)(g) and 2(1)(1) is ill-drafted and defective. The confusion

was worse confounded by the clubbing of partial permanent

disablement and partial temporary disablement in the definition

in Section 2(1)(g). Instead, the 'partial' and 'total' should

have been defined in terms of 'reduction' in earning capacity'

and 'incapacitation' respectively without bringing in the

question of permanent and temporary disablement which should have

been defined separately. The distinction between temporary and

permanent disablement in terms of 'any employment that he was

 : 293 :

capable of undertaking' serves no purpose but runs c.ounter to the

established connotation of the two terms in terms of time span.

Hence it is proposed that these two definitions of the two terms

in terms of time span. Hence it is proposed that these two

definitions should be redrafted more felicitously keeping in view

the following three distinctions :

(1) total and partial disablement in the context of

injuries specified in Schedule III.

(2) permanent and temporary disablement in terms of the

duration of employment, i.e. whether it lasts till

superannuation or for a lesser period, and

(3) Whether the disablement effects his earning capacity in

the employment in which he was engaged at the time of

the accident or for all work or employment that he was

capable of undertaking or performing at the relevant

time.

The proviso b(ii) to Sec.3(i) of Workmen's Compensation

Act states that the employer shall not be liable in respect of

any injury not resulting to death or permanent disablement caused

by an accident which is directly attributable to the wilful

disobedience of the workman

(i) to an order expressly given or

(ii) to a rule expressly framed for the purpose of

securing the safety of the workmen.

 : 294 :

In the case of
Proprietor Pure Dhansal Coal v.

87
Debendra nath Bhattacharya
AND

In the case of Management, Balajee Cotton Mills Ltd.

M-.C Manickam - it was held that

1. If the injury has not resulted in the death of the

workman, proviso (b) to Section 3(1) would apply.

2 . Sub-Clause (ii) of Clause (b) of the proviso exonerates

the employer from liability for the injury caused by an

accident if the injury has not resulted in the death

of the workman. In addition -

(a) there must be a wilful disobedience of an order

or rule by the workman, and

(b) such order or rule must have been made or framed

expressly for the purpose of securing the safety

of the workman; and

(c) the accident is directly attributable to such

wilful disobedience.

3. (a) The use of the expression "wilful disobedience"

(i) comprehends within its scope of deliberate and

intended disobedience, and

(ii) involves the doing of something -

87. Supra note - 34.

88. Management Balaji Cotton Mills Ltd. v. M.C.Manickam (1981),' 94

LW 149 : 1981, ACJ 236
 : 295 :

1. with the knowledge or a certainty that it is

likely to result in a serious injury, or

2. with reckless disregard of the consequences,

(b) in other words the idea intended to be conveyed

by the use of this expression is that it is

diametrically opposed to the idea of 'accident'.

4. In the present case :

(a) the respondent workman was not only fully aware

of the consequences of his intended act, but had

been warned by the prominent display of order

that a running machine should not be meddled

with. In spite of it, he choosed to clean the

carding machine while it was running which

brought about the accident.

(b) in other words, he had, by his won imprudent

act, invited the accident and, therefore, could

not claim compensation from the employer on the

footing that the injury had been sustained in

spite of his obedience to the order or warning

given that the running machine ought not be

meddled with.

This proviso does not mean that if the workman had disobeyed

such a rule at the time of the accident, the accident could not

have arisen out of and in the course of his employment by that

reason alone. For instance, if the workman had been guilty of

wilful disobedience to such a rule and he had met with an

 : 296 :

accident resulting in death, this particular proviso would not

apply. Under that circumstance, it can not be said that the death

had not been, caused by accident arising out of and in the course

of the employment.

(Proprietor, Pure Dhansal Coal Co. v. Debendra Nath

Bhattacharya.^

The words occuring in Section 3(1)(b) (ii), have been

the subject of some judicial pronouncements. In Ardeshir v.

90
Agent, G.I.P. Railway, , the Privy Council considered the phrase
91
(wilful neglect' as follows:

"In support, of this view reference may be made to the

case of R. v. Downes and R.v. Senior in the Matter Qf which cases

Lord Russel interpreted the expression 'wilful neglect' as

meaning that the act is done deliberately and intentionally and

not by accident or inadvertence, but so that the mind of the

person who does the act goes with it".

92
In the case of Urmila Dasi v. Tata Iron Steel Co.

Kulwant Sahay, J. pointed out that "A reckless or rash

act is not which exempts the employer from liability to pay

compensation. What is necessary is a wilful disobedience of a

rule expressly framed".

89. Supra note - 34.

90. AIR 1928, SC 24.
91. (1875) 1, QBD 25 and (1899), IOB 283.

92. AIR 1928, Pat. 508.

 : 297 :

93
In the case- of Tiku Kahar v. Equitable Coal Co. Ltd.

the Court said "A man does a thing wilfully when he does it

intentionally because--- he expects some benefit to himself, either

some convenience or on easy way of doing a piece of work and so

forth".

94
In the case of Bhutnath Dal Mills v. Tirath Mistry.,

Harries, C.J. of the Calcutta High Court, considering the

expression 'wilful' disobedience is reported to have said "It is

to be observed that to come within this provision of the Act, the

workman must be in wilful disobedience of an order; mere

disobedience is not sufficient, disobedience may be resulted of

forgetfulness or the result of the impulse of the moment. Such

would not be sufficient, as the statute only exempts the employer

from liability when the disobedience is wilful, that is

deliberate and intended".

Lord Loreburn in the case of Johnson v. Marshall Sons &

95
Co. Ltd. is reported to have said "We are not dealing with

negligence, but with something far beyond it" and "it is the

misconduct itself, and not the consequences, that must be

serious" (Ibid). The word 'wilful' imports that the misconduct

was deliberate, not merely a thoughtless act on the spur of the

moment". (Ibid).

93. 124 IC, 496, AIR 1930, Cal. 58.

94. 1 FJR 154, AIR 1949, Cal. 295.
95. 1906 AC 409, 22 FLR, 565.
 : 298 :

In upholding an award made by the Country Court Judge,

96
in the case of Whitehead v. Reader is reported to have said "To

make the grindstone work and so to be able to sharpen his tools,

the carpenter may well be said to have been his master’s business

when he tried to replace the band, and that on the impulse of the

moment he should have forgotton the order as not to touch the

machinery is not unnatural and may well be regarded as a denial

act and not as being wilful misconduct on his part. I am not able

to gather from the facts of the case that the replacing of the

band was an act of the workman's part so remote from his ordinary

duties that it could not be fairly said to be one arising out of

and in the course of his employment".

In the case of Estler Bros. v. Phillips 97 the workman

was employed on a machine which it was part of his duty to clean.

He had seen other men cleaning the machine while stationary only.

A notice which the man had seen, prohibited him from cleaning a

machine while it was in motion. He was standing at the back of

the machine on a platform only used when cleaning the machine and

was cleaning the machine while in motion when his coat sleeve was

caught and twisted round the shaft. His right leg was drawn into

the machine and severely lacerated and he became wholly

incapacitated. The Country Court Judge found that the workman was

acting within the scope of his employment though disobediently

and award compensation on the ground that the accident arose out

96. (1902), 2 KB 48
97. (1922) 15, BWCC, 291.
 : 299 :

of and in the course of the workman's employment. The House of

Lords held that there was evidence to support the finding and

that there was no misdirection and upheld the award.

In Urmila Dasi v. TISCO Ltd. the Commissioner also

found that the accident arose out of and in the course of the

employment of the deceased. The Commissioner however, upheld the

contention of the respondent that it was fully exempted by the

provisions of Sub-Section (1), Clause (b), Sub-Clause (ii)

Section 3, which provides that the employer shall not be liable

in respect to any injury to workmen resulting from the accident

which is directly attributable to the wilful disobedience of the

workmen to an order expressly given or to a rule expressly

framed, for the purpose of securing the* safety of workmen. The

Court held that this finding was not a finding of fact which

would disentitle the claimants to compensation. The Court held

that "a reckless or a rash act is not an act which exempts the

employer from liability to compensation. What is necessary is a

wilful disobedience of a rule expressly framed". On facts the

Court found that there has been no wilful disobedience of the

relevant rule and relief on Johnson v. Marshall Sons & Co. 98 and

quoted the following passage from the speech of Lord Loreburn :

No doubt it was misconduct to enter the lift when not

in charge of a load, for that was a disobedience of orders

lawfully given. It was wilful in the sense that the main

98. Supra note - 95.

 : 300 :

presumably entered of his own accord/ but the word 'wilful' I

think, imports that the misconduct was deliberate, not merely, a

thoughtless act on the spur of the moment."

Referring to facts of the case, the Court said :

"The act of the deceased in running across the track

cannot be said to be a wilful act of disobedience of a rule. It

was an act of impulse a thoughtless act, done on the spur of the

moment, and I am of opinion that the learned Commissioner was

wrong in law in holding that there was a wilful disobedience of

the rule by the deceased workman. As was pointed out in the case

cited above, the onus to prove wilful disobedience lay on the

respondent company, and the evidence produced on behalf of the

respondent fails short of discharging this onus".

The Commissioner had found as a fact that the workman

brought on the accident upon him because he was disobeying a rule

in taking the 'short-cut' but the Court' found that the immediate

cause of the accident was the high speed at which the engine was

running and therefore, although the workman might have been

guilty of contributory negligence, the real and actual cause of

the accident being the speed of the engine, the employer could

not escape the liability. In support of the view, the Court

99
relied on the case Radley v. . N.W.Rly.Co. where the House of

Lords held that though a plaintiff may have been guilty of

99. (1876) 1 AC 754.

 : 301 :

negligence and although that negligence may, in fact, have

contributed to the accident which is subject of the action, yet

if the accident could in the result, by the exercise of ordinary

care and diligence, have avoided the mischief which happened the

plaintiffs negligence will not excuse him.

The disobedience of an employee to an order given by

the employer, for the purpose of securing the safety of the

workman has to be wilful before the employer can escape his

liability to pay compensation.100

An employer is liable even if accident is caused

resulting from negligence or violation of regulations by the

employee as seen in the case of

101
Lingam Seetharamiah v. Dijam Bhramarambha

If the appellant was working without putting on a

goggles,it was the duty of the Supervisor or any other officer

to warn the workman not to work without a goggles,and it was only

if such an order was flouted by the workman that the respondent

could claim protection under Section 3(l)(b)(ii) of the Act.

1 02
(Arya Muni v. Union of India (1965).

In order to claim compensation the employee has to

show not only that at the time of the^ accident he was in fact

employed on duties of his employment, but further that the

100. Madho Ram v. Brijlal Sharma, 1966, Cal. LJ 817; 31 FJR 131;
Arun Muni v. Union of India (1965), 1 Lab. LJ 24 (All) 1964, 9 FC LR 17
1964 All LJ 613.
101. 1969 Lab 1C 118 (AP), 1969, Fac LR 15.
■i nn
 : 302 :

immediate act which led to the accident was within the sphere of

his duties and not foreign to them. In case of death of an

empoloyee due to accident, if it has arisen out of and in the

course of his employment, it is no defence to plead that there

was wilful disobedience of any order or rule expressly given or

framed for the purpose of securing the safety of the workman.

"Clause (b) of the proviso to sub-section (1) of

Section 3 is limited to those cases where injury has not resulted

in death. This is quite evident from the language of the section

itself and if any authority is needed, I may refer to Thomas v.

103
Ocean Coal Co. Ltd. where the facts were that the workman was

a hitcher in a coal-mine, his duties being inter alia, to help in

getting full trams into and empty trams out of the cages. His

proper place of work was on the loading or full tram side of the

pit bottom, but he was expected to help in cases of emergency, in

dealing with empty trams on the other side of the pit. On April

17, 1931, he crossed the pit bottom to see to the working of

empty trams and then ran back across the shaft bottom towards his

proper working side to be ready to receive a cage when it

landed. So to cross the shaft bottom was expressly prohibited by

a regulation made under the Coal Mines Act, 1911. Before the

workman could get fully across the shaft bottom, the decending

cage struck and killed him. On a claim for compensation by his

widow, it was held, on the construction of English Workmen's

Compensation Act,1923, that :-

103. 1932 All ER 158, 102 LJ KB 142.

 : 303 :

"In considering whether the case came within Section

3(1) of the Workmen's Compensation Act, 1923, it must first be

ascertained, disregarding the prohibition contained in the

regulation, whether the workmen's death was due to an accident

arising out of and in the course of his employment : if it did,

the effect of the prohibition in removing the accident from that

category could be annulled if the later conditions in the

sub-section as to the act being done by the workman for the

purposes of and in connection with his employer's trade or

business were fulfilled.

In the present case, the accident certainly arose out

of the workmen's employment and it also arose in the course of

that employment since he had been engaged to work on both sides

of the pit and desired to expedite that work. His contravention

of the regulation did not put him outside the sphere of the

employment, and, so, his act was done for the purpose of and in

connection with the employer's business, and, therefore, his

widow was entitled to compensation".

The view expressed in this English case was approved

later on in Noble v. Southern Railway Co. 104 where the facts

were that the deceased, a fireman employed by the respondents,

was ordered to proceed from an engine-shed to a railway station.

The permitted routes for this journey did not involve walking

along the railway lines, and several warnings had been issued by

104. (1940) 2, All ER 383; 109 LJKB 509.

 : 304 :

the respondents to their staff forbidding them to walk along the

lines unless they were using a permitted route. The deceased

proceeded to walk along the lines and was killed by a train. It

was held that :

1. As the evidence established that the deceased was

acting for the purposes of and in connection with his

employer's trade or business, and was acting within the

sphere of his employment, the accident ‘must be deemed

to have arisen outof and in the course of his

employment, although the act was in contravention of

the employers' rule.

2. The widow was therefore, entitled to recover

compensation.

DOCTRINE OF NOTIONAL EXTENSION ; UNDER THE WORKMEN'S

COMPENSATION ACT, 1923 : Plays a pivotal role while ascertaining

liability of an employer to pay compensation to the dependants of

the deceased workman because of the personal injury arising out

of and in the course of employment. It is very essential to

estimate the broad meaning and scope of the doctrine since it is

having wider application in larg number of cases in the present

industrial field. An attempt is, therefore, made in this Thesis

to examine the scope of the doctrine in the light of the

important decided cases. Notional extension is nothing but

extension of employer's premises so as to include the area which

the workman passes and repasses in going to and leaving the

workspot.
 : 305 :

For the application of the doctrine, in many places it

is the main problem to answer the question that when does an

Employment begin and when does it end. These factors depend upon

the facts of each case.But the courts have agreed that the

employment does not necessarily end when the 'down tool' signal

is given or when the workman'leaves the actual workshop where he

is working. As there is a notional extension both to the entry

and exist by time and space, the scope of such extension depends

on the circumstances of the case. Many landmark cases are,

therefore, examined to estimate the scope of the doctrine.

105
In B.E.S.T. Undertaking v. Agnes, , the claim for

compensation was made by the widow of a deceased driver employed

by a public transport undertaking operating in the city of

Greater Bombay. The driver after finishing his day 's work was

returning to his house. He was travelling for such purpose in a

bus belonging to the undertaking. The bus met with an accident

(collided with a stationary lorry), as a result of which the

driver was thrown out of the bus and as a result of injuries

sustained thereby , he expired within six days. Under the rules

of the undertaking, the driver was permitted to travel in such-

buses not as a member of the public but only in his capacity as

an employee of the undertaking. On the above facts, the court

decided by majority that the user by the driver of the buses

belonging to the undertaking to go to the depot from his house

105. 1958-65, ACJ 473 SC.

 : 306 :

and vice versa is by way of a proved necessity and gives rise to

an implied obligation on his part to travel in the said buses, as

a part of his duty. The majority has made a remarkable approach

with a noteworthy opinion regarding the scope of the doctrine of

notional extension and its extension to a city trnsport service

premises. The majority said that :

"....though the doctrine of reasonable or notional

extension of employment developed in the context of specific

workshops, factories or harbours, equally applies to such a bus

service, the doctrine necessarily will have to be adopted to meet

its peculiar requirements. While in case of a factory, the

premises of the employer which gives ingress or egress to the

factory is a limited one, in the case of a city transport

service, by analogy , the entire fleet of buses forming the

service would be the 'premises'.

Hence, it was held that in the instant case, a driver

when going home from depot or coming to the depot uses the bus,

any accident that happens to him is an accident in the course of

his employment.

But in certain cases where workman meets with an

accident on public road or a public place, there may be some

reasonable extension of the doctrine in both time and place of

work to ascertain whether he is in course of employment or not.

 : 307 :

Thus in Saurashtra Salt Manufacturing Company v. Bai Valu

*| f\ C
Raja, the workman employed in a saltworks used to cross a

creek in a boat along with the other members of the public and on

payment of charges for the purpose of going to the workshop.

There was no arrangement by the saltworks with the ferrywalas

for its workmen to be ferried to and from the workspot. A boat

carrying such workmen capsized while it was crossing the creek.

The question arose as to whether the accident to the

workmen could be considered to have arisen out of and in the

course of their employment. Here the following principles were

observed by the court to come to a conclusion.

(1) As a rule, the employment of a workman does not

commence until he has reached the place of employment and does

not continue when he has left the place of employment.

(ii) It is now well settled that this is subject to the

theory of notional extension of employer's premises so as to

include an area which the workman passes and repasses in going to

and in leaving the actual place of work.

There may be some reasonable extension in both time and

place and a workman may be regarded as in course of his

employment even though he had not reached or had left his

employer's premises.

106. AIR 1958, SC 881.

 : 308 :

(iid) The facts and circumstances of each case will

have to be examined very carefully in order to, determine whether

the accident arose out of and in the course of the employment of

a workman, keeping in view at all times this theory of notional

extension.

(iv) It is well settled that when a workman is on a

public road or public place or on a public transport he is there

as any other member of the public and is not there in the course

of his employment.

Applying these principles scientifically and logically

the question was answered in the negative. Thus it was held that

the moment a workman left point B in a boat or left point A (for

crossing the creek) but had not yet reached point B, he could not

be said to be in the course of his employment and any accident

happening to him on the journey between these points could not be

said to have arisen out of and in the course of employment.

M.Bhawaraju, proprietor, Asoka Talkies, Rajahmundry v.

.107 .
Y.Savitri is another appropriate case to mention here. In this

case, the workman after he started from his house after taking

his dinner, during his interval to reach his workspot, met with

an accident on a public road. The window of the deceased filed a

suit for compensation against the employer. The question in this

case is that where does an employment begin and where does it

cease. To answer this question, the court has followed all the

107. Supra Note - 41. -

 : 309 :

principles mentioned under previous case i.e. AIR 1958 SC 881 and

held that it is not possible to say that the accident in

question arose out of and in the course of employment of the

workman concerned.

At this juncture, it is very essential to mention the

well recognised limitations

prescribed by Lehiri, CJ. in

Saurashtra Salt Manufacturing Co.'s Case. 108 the applicationn of

the theory of notional extension of the sphere of work to a place

outside the place of employment.

He remarked that

"It is necessary to show the proximity of the place of

accident to the place of employment. Then only an accident is

considered to be an accident in the course of employment. In the

principle of proximity of the place of accident, the place of

work is immaterial for applying the theory of notional extension

of the sphere of work to a place outside the place of employment.

In order to come within the theory of notional extension, the

place of accident must be one at which the workman could not be

present except by virtue of his employment.

Commissioners for the Port of Calcutta v. Kaniz

109
Fatema. is the best case where the above mentioned limitations

to the doctrine are applied . In this case the deceased workman

met with accident in the public street while he was on his way

108. Supra note - 106.

109. AIR 1961, Cal. 310.

 : 310 :

to join his duty. It was held that the accident did not arise in

the course of employment. The fact that the place of accident was

very near to the place of work must be held irrelevant as the

accident took place on a public street. At the time of accident

the deceased workman was not engaged in discharging any

obligation or duty owned by him to his employer under the

contract of employment. The place of accident could in no sense

be regarded as an extension of the place of employment.

After finding the facts, applying the above principles

to the facts of the instant case an opinion was drawn by the

court that the deceased workman met with an accident in the

public street while he was on his way to join his duty and thus

it was held that the accident did not arise in the course of

employment. It is therefore, recognised under the doctrine of

notional extension that when an obligation is present on a worker

to discharge his duty and he meets with accident it is an

accident in the course of employment. This principle is well

established in Chairman Cochin Dock Labour Board P.J.

110
George, . In the instant case an employer was obliged to travel

by a particular means of transport to reach and to leave the

business premises. He met with an accident while so travelling.

It was held that if the presence of the workman concerned at the

particular point was so related to the employment so as to come

to the conclusion that he was acting within the scope of th_

employment that would be sufficient to deem the accident as

110. 1976 (1), LLJ 65.

 : 311 :

having occurred in the course of employment. Similarly Dudhiben

Dharamshi v. New Jahangir Vakil Mills Ltd.111 is a noteworthy

case where the scope of the doctrine of notional extension is

applied to both the conditions i.e. in the course of employment

'and' arising out of employment in an accident to a workman. In

this case a workman was knocked down by a cyclist while he was

standing near the main entrance gate only about 10-15 feet away

trying to get access in the mill so that he could attend the

second shift starting at 3.30 P.M. He was present there at that

fatal hour of 3.20 P.M. at that fatal place of 10-15 feet

distance from the main gate. There was sufficient proximity both

in time and place with the employment of workman in this case.

Remarkable observations were made in this case. Thus in the

present case it is mentioned that "a workman would not be in the

course of employment from the moment he left his home and was on

the way of his work, but certainly he was in the course of his

employment when he reached this particular point or area of only

10-15 feet of the main entrance which was the entry gate

specified by the mill company and had come there to obtain access

at 3.20 P.M. at that particular time at which the mill expected

him to come up so that the second shift may punctually start at

3.30 P.M. Therefore, it was ascertained that the area clearly

case as per that decision within the theory of notional extension

because of the sufficient proximity both in time and space when

the workman was obtaining access through the specified mill gate

for the purpose."

111. 1976 ACJ 136 (Guj.).

 : 312 :

The other important observation made here in this case is that it

considered that is called as 'incident of employment' because,

instead of the entire route being prescribed as in other transit-

cases, in the present case the entry gate and timings had been

specified by the employer so that the worker could properly

leave and enter from the gate facilitating search by the watchman

at the particular time, when there was a change-over of the

shift. The employee would be under a duty to obey his rule of

remaining present five minutes before the shift commences inside

the compound', and t.c enter by this specified gate for this

purpose. Therefore, he came within the zone of employment when he

carried out these incidental orders. On the basis of these

observations it was held that the dependants of the workman were

clearly entitled to get compensation under the Act, as both the

conditions in the course of employment and 'arising out of the

employment' had been fulfilled under the application of the

doctrine of notional extension.

It can, therefore, be concluded that the scope of the

doctrine of notional extension must be still further extended by

the legislation to provide socio-economic justice to the helpless

dependants of the deceased workmen. Such a wide extension of the

scope of the doctrine is a must in the modern industrial age

where many fatal accidents are quite common in day to day lives

of industrial workmen.
 : 313 :

The parliament has enacted Act No.30 of 1995 titled as

the Workmen's Compensation (Amendment) Act, 1995, with a view to

amend the Workmen's Compensation Act, 1923. The Act endeavours to

take care of the inadequate amount of compensation being paid to

the workman end his dependants under the Act. This write-up

proposes to deal with the issue whether this Act in fact and in

spirit provides just and adequate amount of compensation.

THE QUANTUM OF COMPENSATION PAYABLE UNDER THE ACT :

At present, the compensation is computed according to

the foremulae prescribed in Section 4 of the Act. This section is

reproduced hereinunder :

4. Amount of . compensation - (1) Subject to the

provisions of this Act, the amount of compensation shall be as

follows below

(a) Where death results an amount equal to forty

from the injury percent of the monthly wages of

the deceased workman multiplied

by the relevant factor, or an

amount of twenty thousand

rupees, whichever is more.

(b) Where permanent total an amount equal to fifty

disablement results percent of th’e monthly wages
of the injured workman multi­
from the injury
plied by the relevant factor;
or an amount of twenty four
thousand rupees whichever
 : 314 :

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 first

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

last birthday immediately preceding the date on which the

compensation fell due.

Where the monthly wages of a workman exceeds one

thousand rupees, his monthly wages for the purposes of Clause

(a) .and Clause (b) shall be deemed to be one thousand rupees

only.

(c) Where permanent (i) in the case of an injury

partial disablement specified in Part II of
results from the Schedule I, such percentage
injury 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

(ii) in the case of an injury not 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.
 : 315 :

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 boon payable if permanent total

disablement had resulted from the injuries.

In assessing the loss of earning capacity for the

purpose of such Clause (ii), the qualified medical practitioner

shall have due regard to the percentage of loss of earning

capacity in relation to different injuries specified in Schedule

I.

(d) Where temporary disablement, a half-monthly payment of

whether .total or partial, the sum equivalent to twenty
results from the injury five percent of wages of
workman, to be paid in acco­
rdance with the provisions
of sub-section (2).

(2) the half monthly payment referred to in Clause (d)

of sub-section (1) shall be payable on the sixteenth day

(i) from the date of disablement where such disablement

lasts for a period of twenty eight days or more, or

(ii) After the expiry of a waiting period of three days from

the date of disablement where such disablement lasts for a period

 : 3 16 :

of less than 28 days, and thereafter half monthly during the

disablement or during a period of 5 years, whichever period is

shorter.

Provided that -

(a) There shall be deducted from anylump 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

priorto the receipt of suchlump sum or of the first

half-monthly pay ment, as the case may be, and

(b) 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 accidents.

EXPLANATION :

Any payment or allowance which the workman has received

from the employer towards his medical treatment shall not be

deemed to be a payment or allowance received by him by the way

of compensation within the meaning of Clause (a) of the proviso.

(3) 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-month a sum proportionate to the

duration of the disablement in that half-month".'

(Emphasis supplied)
 : 317 :

According to Schedule IV of the Act, the minimum

relevant factor to be multiplied is 99.37 and maximum 228.54,

Accordingly , the following minimum and maximum amount , of

compensation is payable to the workman or h is dependants in case

of the eventualities given hereunder :

Event Amount of compensationi payable

Minimum Maximum

(a) Death Rs.20,000/- Rs.91,416/-

(b) Permanent total

Disablement Rs.24,000/- Rsl ,14,270/-

At ’ present the Act enables the Commissioner for

Workmen''s Compensation to direct the employer to pay, in addition

to the amount of arrears, simple interest, the rate of six

percent per annum on the amount due provided the same has not

been paid within one month from the date it fell due. The

Commissioner may, if he is of the opinion that there was no jus­

tification for the delay recover a further sum not exceeding 50%

of such amount from the employer by way of penalty. Funeral

expenses are payable upto fifty rupees and the same is

deductible from the amount of compensation.

The workman or his dependants can not sue the employer

for a larger sum of compensation than that, prescribed under the

Act in any "Court of Law or under any other Law for the time
 : 318 :

being in force. Of course, if th e claimant chooses the forum

under the MOTOR VEHICLES ACT, 1988, or under the RAILWAY ACT,

1989, then the compensation may be paid to him in accordance with

the provisions of the respective enactments and in such an event

no compensation can be paid to him under the workmen's

compensation Act, 1923. There is also no provision for award of

ad-hoc compensation in the Workmen's Compensation Act.

AMOUNT OF COMPENSATION PAYABLE AFTER THE AMENDMENT :

(a) In sub-section (1) Clause (a), for the words

'forty percent' and 'twenty thousand rupees' the words 'fifty

percent' and 'fifty thousand rupees' shall respectively be su

bstituted".

(b) in sub-section (1) Clause (b), for the words 'fifty

percent' and 'twenty-four thousand rupees', the words 'sixty

percent' and 'sixty thousand rupees' shall respectively be

substituted; and

(c) In Explanation II, for the words 'one thousand

rupees' at both the places where they occur, the words 'two

thousand rupees' shall be substituted. Accordingly , the

following amount of compensation would payable in case of the

death of the workman to his dependants and in case, of permanent

total disablement to him.

 : 319 :

Event Amount of compensation payable

Minimum Maximum

(a) DEATH Rs. 5 0,000/- Rs.2,28,540/-

(b) Permanent total

Disablement Rs. 6 0,000/- Rs.2,74,248/-

In addition to the above amount of compensation the Act

awards rupees one thousand for payment towards the expenditure of

the funeral of the deceased workman. The amount would be payable

to the eldest surviving dependant 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".

The Act also provides that the Commissioner/ where

there is default on the part of employer in payment of

compensation within one month from the date it fell due, shall

direct the employer in addition to the amount of the arrears, to

pay simple interest at the rate of twelve percent 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. A 'scheduled bank' would mean a Bank for the time

being included in the Second Schedule to the Reserve Bank of

India Act, 1934. The interest so awarded would be payable to the

 : 320 :

workman and in case of the deceased workman to his dependants.

Where the Commissioner is of the opinion that there was

no justification for the delay in paying the compensation by

the employer, after giving him a reasonable opportunity to show

cause why a penal order should not be passed, shall direct the

employer, in addition to the amount of the arrears, and interest

thereon, to pay a further sum not exceeding fifty percent of

such amount by way of penalty. The amount of the penalty so

levied would be credited to the State Government.

The interest due on the award amount is payable by

insurer whereas the penalty due on the award amount is payable by

the employer even if the employer is duly insured by the

Insurance Company, the interest due is automatic hence, it can be

charged without any notice to the party who is found liable for

the same. But for imposition of penalty due care should be given

in order to issue show cause and here the party in default of

the payment of compensation within 30 days from the date of

accident where the employer or insurer as the case may be accepts

the same or within 30 days from the date of award by the

Commissioner where the employer or insurer does not admit the

liability. The Supreme Court in Ved Prakash Garg and Others v.

112
Premi Devi and others held "Insurance Company will be liable

to meet the claim for compensation alongwith interest as imposed

on insured employer- However additional amount of compensation

112. 1998 (1), TAC 215 (SC).

 : 321 :

by way of penalty imposed on insured employer will be paid by

the employer alone.

COMPENSATION UNDER THE MOTOR VEHICLE ACT :

It may be seen that under the Motor Vehicle Act, 1988

(as amended vide Act No.54 of 1954 w.e.f. 14th Nov. 1988 the

amount of interim compensation payable to the injured or the

legal representatives of the deceased on the principles of no

fault of the owner of the vehicle or of any other person (which

obviously should include the victim himself), is to the

following extent

Event Amount of Interim Compensation

Payable

Minimum (where the Maximum (where the

annual income of the annual income of
victim was nil) the victim was from
Rs.3,000/— to
Rs.40,000/-

(a) Permanent total

disablement. Rs. 25,000/- Rs.60,000/- to
Rs. 800000/-

(b) Death Rs. 50,000/- Rs.50,000/- to

Rs .5,33,334/-

In addition to the above ad-hoc compensation, the

following ad-hoc damages are also payable under the Motor Vehicle

Act
 : 322 :

(a) In case of death -

(i) Funeral expenses Rs. 2,000/-

(ii) Loss of consortium Rs. 5,000/-

{If beneficiary is spouse)

(iii) Loss of Estate Rs. 2,500/-

(iv) Medical expenses -

Actual expenses incurred Not exceeding
before death supported Rs.15,000/-
by bills/vouchers

(b) Injuries and disabilities

(i) Pain and suffering

Grievous Injuries Rs. 5,000/-
Non-grievous injuries Rs. 1,000/-

(ii) Medical expenses - actual

expenses incurred and
supported by bills/vouchers
as one time payment

(iii) Loss of income, if any, for actual period of

disablement not exceeding fifty -two weeks.

It is submitted that though having flaw but the law at

the moment is that the compensation under the Motor Vehicles Act

is t.o be computed by multiplying the annual loss of income by the

multiplier applicable to the age on the date of determining the

compensation. But when this formula is resorted to, one would

arrive at a different sum than provided in the Table of the

Schedule. The Parliament while enacting Act, No;54 of 1994 took

support from the Workmen's Compensation Act, 1923. The award of

 : 323 :

compensation, discussed hereinabove, under the Motor Vehicle Act

is interim and still higher compensation can be awarded to the

claimants on the basis of fault of the tortfeasor.

COMPENSATION PAYABLE UNDER OTHER ENACTMENTS :

The carriage by Air Act, 1972, provides that the

minimum liability of the carrier for each passenger shall be

rupees five lakhs if the passenger is 12 or more years of age and

rupees two lakhs and fifty thousand, if he is below 12 years on

the date of accident. The carrier and the passenger may agree to

a higher limit of liability. The liability of the carrier

mentioned herein above is on no fault principle, and this limit

would not forbid the claimants to claim higher compensation if

they can prove that the damage was resulted out of an act or

omission of the carrier. The law provides Rs, 5,00,000/- for

accident in internal air carriers and Rs. 2,50,000/- francs in case

of international air carrier.

The Railway Accidents (Compensation) Rules, 1990 have

been made by the Central Government in exercise of their power

under Section 129 of the Railways Act, 1989. These rules provide

compensation to be paid in case of the death of a passenger as

well as a railway servant on duty would be two lakh rupees and

in case of injuries sustained by him the amount would vary from

Rs.16,000/- to Rs.2,00,000/-. The age of the victim and his earning

are not material for the award of compensation under the Railway

s Act. The claimant may claim compensation under any other law
 : 324 :

including the Workmen's Compensation Act, 1923, but he can not

claim compensation more than once in respect of the same

accident. Accordingly , the victim of railway accident can claim

higher amount: of conipon :;,i L i on if available to him under any other

1 aw.

Ours is a polity based on the rule of law and is

governed by the spirit contained in the Constitution of India.

Our Constitution secures justice - social, economic and political

eguality of status and the dignity of the individual. It

positively prohibits discrimination and arbitrary administration

of laws. The Constitution further directs the Government to

endeavour to secure a decent standard of life to all workers,

whether agricultural, industrial or otherwise, and ensure that

opportunities for securing justice are not denied by reason of

economic and other disabilities. At the same time it also directs

the Government to secure a uniform civil code. The Supreme Court

113
in Olga Tellis v. Bombay Municipal Corporation has held that

the right to livelihood is a fundamental right embraced by

Article 21 of the Constitution 1 of India. The death or permanent

disablement of an earning member of the family is almost likely

in all cases to seriously infrienge right to livelihood of

claimants who may be widow of the deceased and minor children 'and

aged parents lacking earning capacity. These provisions of the

Workmen's Compensation Act have to be read as conferring a

statutory right on them to prevent their destitution and physical

extinction. Let us see whether the amended law is in accordance

with our basic law.

113. Supra note - 21, Chapter - 1.

 : 325 :

Wherever there is an award of compensation certain

basic principles are followed so that a real and not an illusory

relief reaches the claimant. So far as this law is concerned, it

provides an upper ceiling of wages at. Rs.2,000/- per month and so

far as the multiplication to the relevant factors is concerned it

is fixed at the maximum of Rs. 1,200.00. This means that the

annual loss,is considered at Rs.14,400/-. If we retrace the law

introduced in November, 1994, in the Motor Vehicles Act, 1988, we

would find that the entire annual income of the victim has been

taken into account for award of ad-hoc compensation. The second

schedule of the said Act deals with the victim of accident arisen

out of the use of the Motor Vehicle and takes into account the

entire annual income of the victim up to Rs.40,000/-. Of course,

in case of the death of the victim the compensation is reduced by

one-third the same being considered as his personal expenses. It

is noteworthy that workman or his dependant can also opt to file

his claim application under the Motor Vehicles Act if his cause

has arisen out of the use of the motor vehicle and claim

compensation under the provisions of the second schedule of the

said Act. In such an event, in a permanent disability case, the

amount of compensation would be up to Rs. 8,00,000/- on ad-hoc

basis, whereas under the Workmen's Compensation Act, it would be

only Rs. 2,74,248/-.

Secondly, the Motor Vehicles Act provides damages for

funeral expenses of Rs.2,000/- on ad-hoc basis, whereas the

Workmen's Compensation Act awards Rs.1,000/- under this head.

 : 326 :

Beside this, the Motor Vehicles Act awards damages for loss of

estate, pain and suffering and medical expenses about which the

Workmen's Compensation Act is silent.

It is important to note that the above comparison of

the Motor Vehicles Act with the Workmen's Compensation Act is

relevant as the former Act has taken support from the latter Act.

But on the application of both the Acts on the Workman one is

compelled to say that the Workmen's Compensation Act is

discriminatory and violative of the spirit contained in the

Constitution. To align this Act with the Constitution the actual

wages of a workman without any deduction should be taken into

account and the minimum compensation payable should not be less

than the amount arrived at by multiplying the relevant factor of

99.37 to the minimum wage of the victim applicable under the

Minimum Wages Act, 1948 , on the date of the cause of action.

However, only in death cases maximum redaction of the

compensation upto one third may be provided. The other damages

under the Act should also be specified to do justice with the

labour class who is by and large poor and is in need of help of

the State, which has been bestowed with a duty by the

Constitution in explicit terms. There would be no harm to take

support from the Motor Vehicles Act, especially of its amending

Act of 1994 (Act 54 of 1994) to provide a real, adequate and

analogous amount of comopensation under the Workmen's

Compensation Act.
 : 327 :

At last, it would be appropriate to take note of the

fact that the compensation poayable under the Motor Vehicles Act

stems out of a nominal consideration known as premium for

insurance against third, party risks. The amount of compensation

payable under this scheme could be any amount assessed by the

Court. The small payment of premia under the scheme has proved to

be a big way towards social security. It cannot be denied that

the workman's contribution towards the employer in all

probabilities must be in manifolds when compared to the premia

payable under the Motor Vehicles Act. A scheme, one like the

Motor Vehicles Act, should be introduced to protect the interest

of the workers, agricultural, industrial or otherwise, where the

E.S.I. scheme is either not available or not applicable. Suet a

scheme would also save the employer who may otherwise get ruired

by making the payment of compensation under the Workmen' s

Compensation Act to the workman.

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