Everyone has been waiting for the safe rescue of the 41 workers trapped under the collapsed Silkyara Tunnel in Uttarakhand over the last 10 days. Current reports assure that the workers continue to be healthy and are likely to be rescued in another day. Given the likelihood of considerable physical and mental trauma these workers are facing, they should be entitled to due compensation. In this Weekly, we discuss some of the legal rights that the workers have in the current context.
Fair and adequate compensation to the employees who suffer from any loss or injury
The Employee’s Compensation Act, 1923 aims to provide fair and adequate compensation to employees who suffer from any loss or injury in the course of their jobs. This Act compels the employers to pay compensation to employees if there are any accidents while they are discharging their duties. Employers have to inform their employees about their right to compensation, either in writing or verbally.
Who can claim compensation under this Act?
According to this Act, employees and their dependents can claim compensation for any injury or accident resulting from their job. Section 2(1)(dd) and Schedule II of the Act define ‘employee’ as:
- A member of the crew of a ship or aircraft
- A person employed in any capacity in connection with a motor vehicle like driver, helper, mechanic, cleaner, etc.
- A person deployed abroad by any company
- An employee of the railways
- An employee engaged in any manufacturing, alteration, repair, transportation, or maintenance process
Different states like West Bengal, Kerala, Tamil Nadu, etc. also have their own specifications about who is an ‘employee’ under the different state amendment Acts and Rules. For the purpose of this Act, dependents include the worker’s immediate family and those who are wholly dependent on the earnings of the worker.
Members of the Armed Forces are not included as “employees” under this Act.
What are the conditions under which the employer must pay compensation?
Employers have to compensate the employees for the damages incurred based on the following conditions:
- The accident and injury must arise in the course of or due to the work done by the worker within the scope of their job.
- They have to establish that the injury was the outcome of the work done by them as a part of their job.
- It is not necessary that they were actually working at the time of the injury or death.
- If there is enough evidence to prove that there is a greater probability that the work has contributed to the injury, the employer will be liable to pay compensation.
- An express or implied contract of employment must be present for a worker to claim compensation.
- If the worker develops any occupational diseases specific to the course of the employment, as defined under Schedule III of the Act.
Under what circumstances can the employer be exempted from paying compensation?
The employer is exempted from paying compensation if:
- the injury incurred did not result in total or partial disablement of the worker for more than three days.
- the worker was under the influence of drugs or alcohol at the time of the injury or the accident.
- the worker wilfully disobeyed any safety order or removed any safety-guard specifically provided for their protection at the time of the injury.
What is the amount of compensation that can be claimed?
The Act gives the amount of compensation that workers are eligible to receive in the event of an injury or an accident.
- If the injury causes death
|50% of the worker’s monthly wage, multiplied by the worker’s age on the last birthday before which the compensation was due or Rs. 1,20,000; whichever is more
- If the injury causes total disablement
|60% of the worker’s monthly wage, multiplied by the worker’s age on the last birthday before which the compensation was due or Rs. 1,40,000; whichever is more
- If the injury causes some form of permanent disablement
|The amount will be proportional to the loss of earning capacity caused by the injury as specified in Schedule II of the Act.
- If the injury causes temporary or partial disablement
|25% of the monthly wages of the employee payable on a half-monthly basis
When can such claims for compensation be made?
A worker suffering injury or accident must give a notice of it in writing “as soon as it is practicable”. The Act does not define this phrase and it largely depends on the circumstances. The notice must contain the following details:
- The name and address of the employee
- The date of the accident
- The cause of injury
Any claim for compensation must be made within two years of the date of the occurrence or within two years of the date of death as the case may be. The Act states that the compensation must be paid as soon as it becomes due. The employer has to pay a penalty for any delay in paying the compensation.
Which other laws facilitate compensation in case of injury incurred by employees?
Besides the Employees Compensation Act, workers are also entitled to different forms of social security benefits like medical benefits, maternity benefits, disability pensions under the Employees State Insurance Act, 1948.These will be extended to the dependents in case of the death of the worker.
Read more about the rights of workers in India here.