Author: Ritesh. warikallamath, III year of B.A.,LL.B from school of law,christ university, bangalore.
ABSTRACT
A company, factory or any industry’s success depends on its employees who put everything there for work; hence it is the duty of these companies to look after their employees, and this main responsibility of such is with the employer of the company who basically employs and allots the work.
The employees compensation act 1923 is a legislation or an act done by the legislatures who understood the importance of these employees who work and suffer injuries or even death in some cases because of the work they have been employed for, this act basically gives rules or law under which an employee can claim for compensation from the company because of the accident that occurred during the work allotted by the employer, but there are certain doctrines which have evolved to understand the nature of liability as in which side is the liability on employer or employee to understand this they are 3 doctrines which are considered by any court those are doctrine of added peril, doctrine of contributory negligence, and doctrine of notional extension. The author has in the present paper analyzed how these doctrines are used to understand the nature of liability with respect to the employees compensation act 1923 through case laws.
Keywords
Doctrine of added peril, doctrine of contributory negligence ,doctrine of notional extension and employees compensation act 1923.
Introduction
Employees compensation act 1923 replaced workmen compensation act and is basically legislation enacted by the government so that the employees can claim compensation from the employer for the injury or death of the employee during the doing the work allotted, the requirement under the act to claim compensation is that employee should get injury while doing the work allotted and at the work place and is adjudicated by the tribunal 1st , the tribunal decides the compensation based on the seriousness of injury occurred due to the incident , in case of death employee any person who is a dependent according to section 2(d) of the work men's compensation act 1923 can claim the compensation.
There are certain doctrines that are considered to understand the liability under the act that is whether the employer should be held liable or not. The 1st doctrine is the doctrine of added peril, to understand this 1st we need to understand meaning of the term added peril which is a workmen who has done the act which is not in contract of service and such an act or work which he has done results in danger to the workmen so it is basically an employee doing the work for which he was not allotted but while doing if any damage while doing the work relates to injury to the employee then the employers wont be held liable , this is the defence usually used by employers.
Moving to next doctrine that is doctrine of contributory negligence to under what this 1st we need to understand what is negligence which is basically there is a duty to take reasonable care and when that duty is breached it falls under the ambit of negligence so the doctrine of contributory negligence is where the injury caused to the employee is partly mistake of employer and partly of employee so the compensation will be reduced considering how much negligence was on part of employee this is doctrine of contributory negligence and the final doctrine used to understand the nature of liability is doctrine of notional extension this is basically when there is a connection between the accident and place where the employee is working and that work has been allotted by the employer then the employer is payable under employee compensation act.
There are certain other cases under the act when the employer is not liable to pay compensation-
If the injury does not end in the entire or partial disablement of the employee for a period exceeding three days.
If the injury, not leading in death or permanent total disablement, is caused by an accident which is directly attributable to The employee having at the time of the accident is under the influence of drink or drugs ,The willful disobedience of the employee to an order if the rule is expressly given or expressly framed, for the purpose of securing the safety of employees; or The willful removal or disregard by the employee of any safety guard or other device which has been provided for the purpose of securing the safety of employees.
Doctrines through judicial decision
Doctrine of added peril: this doctrine is usually used as a defense and the requirement under this is that the injury caused to the employee should be the result of work which was not allotted by the employer and that he was doing with his own will as such.
For example: consider B employed A to work on pipelines under the road, so instead of doing that he was doing some road construction work which led to a car accident then the B is held liable as he allotted the work of pipelines and not road construction as such, and the work allotted by B was no where incidental to the work done by A, hence.
Now to understand whether a death is because of added peril or not, we can refer to R.B. Moondra And Co. Vs Bhanwari And Anr where it was held that the relevant question to make in determining whether the death was triggered by added peril is whether the thing was in the course of employment and incidental to it.
If it was done in the employer's best interests and was done carelessly or negligently. If the answer to the above questions is yes, the accident is considered out of and in the workplace ,accident would be said to be out of and in the course of employment and the plea of added peril would fail.
If the response is no, and it is discovered that the thing was beyond the field of employment, i.e., anything about which the worker willfully revealed himself not about the employer's company but about his own, it would not be out of employment and would be a case of added peril.further to understand the principle of added peril we can also refer to Bhurangya Coal Co. Ltd. vs Sahebjan Mian And Anr in which it was mentioned The theory of added peril states that if an employee, when doing his employer's work, does something he is not normally asked to do and which entails additional risk, he cannot hold his employer responsible for the risks that result.
As a result, this doctrine only applies while the worker is conducting his or her duties at the time of the accident.
Doctrine of contributory negligence: contributory negligence is basically where the employee didn’t exercise his duty of reasonable care, hence there being partly negligence on both sides that is employer and employee due to which the compensation is reduced.
For example: if A has hired B to clean chimney and B has agreed to it after some time B dies the widow claimed compensation from A, the reason for death was strain on lungs so the widow was like it was because of the smoke around the chimney but later A got to know B also used to smoke a lot hence the strain on lungs can be for both acts hence this comes under contributory negligence.
But it is not sure whether the weather compensation can be reduced or not as in the case of P.C.Abdulla Kutty v C.Janaki. It was held that the compensation payable to the widow cannot be reduced on the ground of contributory negligence
Doctrine of notional extension: When there is a causal connection between the accident and the place where the employee is working, compensation is payable for the injury or death of the person according to the Employees Compensation Act.
This is the Doctrine of Notional Extension of the workplace, for example An employees B to drive a taxi, B while dropping a customer gets hit by a car hence B claims compensation from A , now applying the doctrine of notional extension of workplace B was doing his duty and while he was in the course of employment hence there is connection hence A would be liable to pay compensation to B.
In the case of Leela Bai & anr vs Seema Chouhan & Anr,the bench noted that there can be appropriate extensions in both time and job, and the employee can be considered in the course of employment even before or after arriving at his workplace, where they clarified more about the doctrine of notional extension.
Moreover, further in the case of daya kishan joshi & Anr vs Dynemech systems pvt. Ltd When an employee was killed in a car accident while returning from field work that was needed by his job, the court determined that it was a necessary situation and that the accident occurred as a result of his employment, so they applied the doctrine of notional extension.
The same doctrine was also applied in the case of Manju Sarkar & ors vs Mabish Miah & ors. When an employee was killed in an accident while repairing a vehicle, the court ruled that the accident occurred during the course of work and enforced the same standard.
Conclusion and suggestion
Employee compensation act 1923 is a necessary legislation for the employees to claim compensation but these can be misused and the employees may try to claim compensation simply even though there is no mistake committed by the employers hence to understand itself these 3 doctrines have been introduced that is doctrine of added peril , doctrine of contributory negligence and doctrine of notional extension.
All these doctrines have been very well explained and interpreted by the hon’ble courts hence so that the nature of liability is understood and the act is not misused these doctrines are present, but one of these doctrines too have some negative effect that is the doctrine of contributory negligence where the compensation to be reduced is not sure and is based on hon’ble court as it has been clearly mentioned in several judgment that if there is no contributory negligence then still it has no effect on employees compensation act which is wrong hence needs to be corrected.