ANALYSIS OF PERSONAL INJURIES (COMPENSATION INSURANCE) ACT, 1963

ANALYSIS OF PERSONAL INJURIES (COMPENSATION INSURANCE) ACT, 1963

Author: K.V.Dishanth,

      3rd Year, School of Law,
Christ (Deemed to be) University.

INTRODUCTION

Personal injury, as the name suggests is an injury to a person’s mind or body. A personal injury claim, is a claim for recovering compensation by filing a case when the injury is sustained, only in cases wherein the complete cause of such injury was the other party. The Personal Injuries (Compensation Insurance) Act, 1963, was brought into force with the primary purpose of serving as an indemnity against any injuries caused to the person of any person covered under this Act. The Act comprises of 24 sections and has to be read with and in accordance to The Personal Injuries (Emergency Provisions) Act, 1962 and The Personal Injuries (Compensation Insurance) Scheme, as provided under Section 8 of The Personal Injuries (Compensation Insurance) Act, 1963.

To claim for a personal injury, a legal case can be filed in a civil court or it can be resolved through informal settlement, i.e. arbitration and mediation. There also exists a time limit within which a person can file for such a claim, which starts from when the person to whom the injury is caused, sustains the said injury or finds out about the injury. This proviso was added post cases wherein the plaintiff/person who suffered injury was made aware of it only after some symptoms started showing up, which resulted in a chronic disease. This law has developed over the years, since its enactment by way of judicial interpretations and commentaries as opposed to development by way of enactment of amendments to the same. The same is because, this act provides for a large amount of control over actions of the employer with respect to creation and use of Personal Injuries (Compensation Insurance) Fund, which has been specifically set up by way of Section 13 of The Personal Injuries (Compensation Insurance) Act, 1963.

ANALYSIS

For the purposes of this Act, in accordance with Section 2(a) of this Act, an employer includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means the latter person while the workman is working for that person. This is a wide and inclusive definition provided in the act so as to provide for the employees who were previously denied compensation based on technicalities above included. Section 3 of The Personal Injuries (Compensation Insurance) Act provides for the inclusivity of the workmen to whom this act applies to, viz. workmen specified under rule 126AA of the Defence of India Rules, 1962 or under rule 119 of the Defence of India Rules, 1971; workmen employed in any factory defined under Section 2, clause (m) of the Factories Act, 1948; workmen employed in mines as defined under the Mines Act, 1952; workmen employed in major ports; workmen employed in plantations as defined under section 2, clause (f) of the Plantations Labour Act, 1951 and any workmen employed in employment specified by a notification made by the Central Government in the Official Gazette. The reason for this list of workmen that this applies to is limited to the above mentioned persons as this act specifically seeks to compensate for personal injuries of persons for whom other statutes or enactments does not cover, which means that if there exists an act with provisions made specifically for personal injuries sustained during the course of that employment, the said provisions will be applicable.

The compensation for personal injury of workmen, given under section 3 of the act, is payable by the employer as provided in section 4 of the Act. According to this section, the compensation is payable by the employer, with accordance to the provisions of the Scheme, provided that the employer has taken the necessary insurance policies and has diligently paid for the premium when due. However, if in cases wherein the employer is exempted from the availing of insurance, in accordance with the provisions of section 9(1) or section 10(2), the Central Government has to assume and discharge on behalf of the employer to pay compensation, which is binding on the Government. Section 7 of the Act further provides for the amount of compensation that has to be awarded for different cases and situations of personal injuries. This section differentiates between permanent and temporary partial and complete disablement, which, after classification, is compensated to in accordance with the Schedule, which provided for detailed specific injuries. For the purposes of this act, disablement refers to the employee not being able to do the amount of work as he would have done had he not been injured. This Act also empowers the Central Government to create and maintain a Scheme that is to be called The Personal Injuries (Compensation Insurance) Scheme, wherein provisions are made by the Central Government with respect to the various provisions and effects of the Act, in relation to employers of workmen to whom this Act applies, and the liabilities of insuring the same. Section 9 provides for the compulsory insuring of the possible personal injuries by the employer, in certain insurance businesses as prescribed under Section 12, by way of payment of specified premiums. If the employer fails to pay for the premium, this section also provides for penalties that can be imposed on the same, i.e. fine which may extend to two thousand rupees and fine extending to one thousand rupees for every day of failure to procure insurance after the conviction. Section 13 provides for the creation and use of the Personal Injuries (Compensation and Insurance) Fund, which is to be filled by way of premiums,
or by way of payments made for offenses under section 18, by way of compensation awarded by way of section 545 of CrPC and by any penalties or fines in prosecution of cases under this Act. This fund is further used by the Central Government to discharge of any liability it has by itself or on behalf of the employer. If the fund is deemed less that amount required, the necessary appropriations are to be made from the consolidated fund of India. The Central Government is thus required to publish either annually or before, an account of all sums received into or paid from the fund. If the employer fails to insure for the same, section 16 provides for the payment of the said compensation from the Fund. The Central Government has also been vested with the power to recover these amounts from the employer as arrear of land revenue for payment into the fund. In cases wherein the compensation awarded to a workmen under this act, by way of remedies through another act, the provisions of this act are to be satisfied if in case the compensation payable to the workmen is less than that of the amount provided in the Schedule[1]. There was also another case where the claimant lost his right keg below the knee and also serious injuries were sustained to the left leg, due to negligent driving by the respondents. In this case, permanent disability was set at 50% but the amount of compensation awarded by the Motor Vehicles accidents claims Tribunal was inadequate and less than amount specified in the Schedule. The Court, in accordance with the provisions of the act increased the amount of compensation payable to the claimant[2].

CONCLUSION

The remaining sections of the act all provide for the same thing, the power of the Central Government to control all actions and decisions relating to the Personal Injuries Compensations. This means that the central government has been vested upon immense power by this act decide the appropriations of compensations for cases of personal injuries of workmen, and also to bar legal proceedings against the Central Government or agent of the Central Government (under section 20) which is arbitrary. As Personal Injuries are very much plausible in the due course of employment of workers mentioned under section 4 of this act, there must exist a much stricter implementation of the same. With respect to this Act, the Central Government was given unjustifiable amount of power, which the enactment tried to justify by way of insertion of section 24, which states that once the provisions of the Scheme or the Act are modified or amended by the Central Government, it has to be laid before the Parliament for approval. However, this section says that the amendments must be laid before the Parliament within 30 days of making of such amendment or change. This gives room for corruption again as it enables the Central Government to misappropriate and exploit the powers conferred on it by this Act. Thereby, the primary suggestion to improve better reach and scope of this Act would be to limit the powers of the Central Government, so as to enable the respective State Government to make rules for each state based on the variables such as standard of living, minimum wage rate, life expectancies etc. Another way to ensure stricter implementation would be by increasing the role of the employers in making sure that, as much as possible, personal injuries do not occur in the course of employment, by incentivizing the employer for availing of insurance and prevention of harmful work environments.

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[1]Hanumanth Reddy and Anr vs. Jaswanth Singh Bhatia and Ors. [I ( 1997 ) ACC 549]
[2]Mogili Venkateswarlu vs. Miriyala Balaramaiah and Anr [1997 ( 1 ) ALD 152]

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