Q-4: Define Accident. How it results in partial or total disablement under the workmen compensation acts.
Ans: ACCIDENT [Sec. 3]
The word ‘accident’ in Section 3 of the Workmen’s Compensation Act is used in the popular and ordinary sense as denoting an unlooked for mishap, or an untoward event, which is not expected or designed. The word accident is used to express accidental injury and in contradistinction to the expression 1willful or ‘willful disobedience. Accidental injury includes any injury not expected or designed by the injured workman himself, even though there may be negligence. To decide whether an occurrence is an accident it must be regarded from point of view of the workman who suffers from it, and if it is unexpected and without design on his part, it may be accident although intentionally caused by another.
ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT [Sec. 3]
The expression ‘accident arising out of and in the course of employment1 has been used in Section 3 of the Workmen’s Compensation Act in connection with the determination of employer’s liability for the payment of compensation to a workman who suffered injuries or to the dependents of a workman who died while on duty. This expression is the only basis for deciding the entitlement or otherwise for compensation for injuries suffered by a workman. Hence it is essential to understand in clear terms the meaning of this expression.
The expression arising out of and in the ‘course of employment’ means that an injury to a workman should occur while he is doing the work which is part of his employment i.e., the accident should take place during the course the workman is performing some duty to his employer under the contract of his service or doing any other work under the orders of someone superior to him. The expression, therefore, requires that in order to fasten the liability on the employer two things must be proved, namely:
- That the accident occurred in the course of employment, and
- That the accident arose out of employment.
The employee in order to bring the case under the Workmen’s Compensation Act must show the following:
- He was at the time of the injury engaged in the employer’s business.
- He was employed in furthering employer’s business.
- He was not doing something for his own benefit or accommodation.
- Harris, a workman while returning from his duty was crushed by an engine, held he met with an accident in the course of his employment.
- Arshad a watchman, in the course of his duty lifted G. I. Pipe in order to keep it in a safe place was injured, the injury was taken to have been received in the course of his employment.
- Amir, a boy returning to the factory canteen after having served tea in his usual round was struck by a bullet and died, held, death arose out of and in the course of employment.
DIFFERENT REMEDIES OPEN TO WORKMAN
A workman has the following alternate remedies open to him:
(a) File a claim under the Workmen’s Compensation Act
(b) Action for damages at Common Law .
(c) Claim under the Employer’s Liability Act
(d) Compensation for negligence under Fatal Accident Act.
Remember that the workman or his dependents can choose any one of the aforesaid alternative actions available to him or them. He cannot put his employer in double jeopardy. Again, he cannot choose an alternate subject to success.
COMPENSATION UNDER EMPLOYER’S LIABILITY ACT. 1938
A worker who is not covered by Workmen’s Compensation Act can only claim Compensation under this act and the worker is employed on monthly wages exceeding Rs.3000 and he is not included in Schedule II to the Workmen’s Compensation Act. The workmen while claiming compensation under the Employer’s Liabilities Act will have to face the defences which are open to an employer under the common law and they should be ready to bear all the length of time and heavy expenses.
COMPENSATION UNDER WORKMEN’S COMPENSATION ACT-1923
Under this Act only such workers are entitled to claim compensation who are employed on monthly wages and are getting upto Rs. 3,000 and are included in the Schedule II to Workmen’s Compensation Act In this case the employer is not allowed to take shelter of the defences available under common law or under the Employer’s Liability Act 1938.
DEFENCES OPEN TO EMPLOYER
Under the pre-1923 system of awarding compensation to a workman or his dependents the employer used to escape liability by pleading the following three defences:
(a) Doctrine of Common Employment
According to the doctrine of common employment the employer was held liable for any casualty if the same could be attributed to his (employer) negligence. Thus where a workman suffered injuries or died as a result of any act or omission of a fellow worker, the employer was not considered responsible.
(b) Defence of Assumed Risk
The defences of assumed risk was based upon the concept that the workman while accepting the employment knew fully the dangers of employment and voluntarily agreed to be himself responsible for any calamity incidental to such employment. It used to be argued that the wages paid to tht workman-represented compensation both for the labour he expended and the dangers he asSunted. Hence the workman had no right to any further compensation for any injury arising but of his employment.
(c) Contributory Negligence
Under the principle of contributory negligence the injury was regarded as the result wholly or partly of the injured workman’s own contributory negligence. It was pleaded that if the workman; while performing his duties had been careful the accident would not have occurred.