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Thursday, May 24, 2018

Employee Compensation Act [WC Act] - who should prove wages ? Insurer's appeal

Workers are exposed to many risks and there are beneficial legislations ..

Employees Compensation Act  [Workmen Compensation Act 1923 earlier] – provides for payment of compensation by the employer to his employees (or their dependents in the event of fatal accidents) in respect of personal injury due to accidents arising out of and in the course of their employment.   The enactment  aims not at compensating the workmen the wages but to provide compensation for the injury or death.  The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen.

This  Act extends to the whole of India. The act applies to factories, mines, docks, construction establishments, plantations, oilfields and other establishments which are explicitly mentioned in Schedule, however, it excludes establishments covered by the ESI Act.    The owner of the worksite or the Management of any workplace or the contractor who is undertaking some activity – all are responsible to their employees and have to provide compensation for any injury or death occurring during and in the course of employment.   They can shift the risk to the Insurers by taking a Policy upon payment of premium as appropriate.  

This is a standard policy product under Liability portfolio of Insurers (Both PSU & Private) – the policy provides insurance protection to policy holder (Employer) against any sums for which the insured would be liable towards  his employees under WC Act 1923, Fatal Accidents Act 1855 and Common Law. The foremost precondition is such injury / death occurs ‘arising out of and in the course of employment’ i.e.,  there should be causal  connection between such injury / death and the employment.

The Act mandates payment to worker by Employer but Insurance is not mandatory.  Irrespective of any insurance in place, or in the absence of that too, the employer is liable.  The contract between the Insurer and the employer covers liability arising under WC Act, but there would no direct relation between the worker and the Insurer and thus unlike Motor vehicle insurance, Insurers need not be direct parties in any dispute / adjudication before the Labour commissioner or Court.  Any liability on the employer, the employer has to defend, satisfy their liability and take reimbursement from the Insurer as applicable.  There can be differential terms and there can be situations where employer is liable, but insurers are not or are liable to a lesser / limited extent.  In earlier  days, there was ‘all or none clause’ where Insurers expressed denial of liability if the no. of employees on roll at the material time exceeded those numbers declared for insurance.  Now, many a Insurers have amended terms to provide for proportionate value of liability – aka concept of Under Insurance in terms of no. of persons or the amount of wages insured. The policy of Insurance is a contract between the Insurer and Insured (employer here) and should only interpreted on the terms it was concluded – and should not have bearing on the value of liability of the employer towards his employee. 

Here is an interesting judgement rendered by the Madurai Bench of Madras High Court in Feb 2018 in a case of 2012 involving United India Insurance Co.

       This Civil Miscellaneous Appeal has been preferred against the Order of 2012 -  passed by the Workmen Compenstion Commissioner of Labour, Madurai. The cause of action arose on 10.7.2009 when a person employed as a security guard died.  He was under contract of a security agency and placed on employment at a private bank.  The security Agency had taken WC policy with the PSU Insurer.  The dependents of the deceased filed for compensation under WC Act with the  Deputy Commissioner of Labour claiming compensation of Rs.2,39,700/-

As it could happen, the contractor (employer) did not appear before the Authority nor was represented.  The Bank and the Insurer contested the claim by filing counter statements. The Authority awarded a sum of Rs.2,54,185/- towards compensation, along with 12% interest / per annum.  The insurance Company depositedthe compensation and  filed the present CivilMiscellaneous Appeal before the Hon’ble High Court.  On the appeal R1 to 3 claimants and R4 employer were setex-parte, after service of notice.

The counsel for Insurers contended that the security guards were insured only to the extent of Rs.2000/- as monthly salary and the liability of the Insurer should be so limited to that extent.   But the Authority directed the Insurance Company to pay thecompensation in excess of its liability and hence, the appellant disputed the quantum of compensation awarded in the claim petition, by the CompetentAuthority. The counsel for the bank contended that there was no ‘employer – employee’ relation of the deceased with the bank and that only the contractor should be responsible for any compensation  as per clause 8 of the agreement, executed between that contractor and the bank. 

The Court opined that there was no dispute that the deceased had been employedas a security guard, by the 4th respondent and on the ill-fated day, he was in the course of employment. It was further not disputed that the deceased never joined in the bank.  A policy of insurance taken by the contractor covering 10 employees in this cadre   for the period 2007-08 was also produced as evidence.  The premium had been paid reckoning the total cash wages ofRs.28,80,000/- was paid to 120 employees in the cadre of security guard by the contractor.  The counsel for the appellants calculated the monthly wages ofthe deceased security guard in this case as Rs.2,000/- per month  hence, contended that the insurer is liable to pay only to paya sum of Rs.1,59,600/-, by fixing the monthly salary of the deceased as Rs.2000/- towards the loss of income of Rs.2,51,885/- due to death of the employee and that the balance amount of compensation of Rs.92,285/- is to bepaid by the 4th respondent (Contractor).

The Court held that no record or document was produced by the insurance company to show the name of 120 security guards with the amount of wages / salary furnished by the employer / 4th respondentto the Insurance Company at the time of taking out policy and held that the appellant Insurance Company    failed to prove the fact that the deceasedwas getting the salary of Rs.2000/- per month, as contended by the appellantherein.  It was further stated that this  Court cannot presume the monthly wages of 120 numbers of employees each for Rs.2000/-, without any record from the Insurance Company also.

                The respondents  1 to 3 here had  pleaded in their claim petition thatthe deceased was getting a sum of Rs.3000/- per month and claimed
compensation of Rs.2,39,700/-, but P.W.1 has deposed during her examination that the deceased was getting monthly salary of Rs.5000/-.  However, no proofwas filed for the monthly salary either Rs.3000/- or Rs.5000/- per monthreceived by the deceased.  The Authority had assessed and fixed the monthlyincome of the deceased as Rs.3150/- in the absence of proof of monthly salaryof the deceased, as per G.O.No.38, Loabour and Employment Department, dated 09.11.2005. 

As the contractor remained ex-parte there was no evidence in the form of employment records / salary slip – the Court concurred with fixing of monthly salary of Rs.3150/-, as per the said Government Order.  The Court held that in the given circumstances and also the failure on thepart of the Insurance Company to produce the relevant records to show thenames of the employees with amount of salary each  at the time of getting thepolicy, this Court is not inclined to interfere with the order passed by theDeputy Commissioner of Labour, Madurai, 2009 awarding a sum of Rs.2,54,185/- along with interest at the rate of 12%per annum. The Appellate authority dismissed the CMA and directed the Insurance Company / appellant to deposits theabove amount as ordered.

The Insures may feel aggrieved in having to satisfy an award where wages were reckoned at a higher figure than the value that was purportedly insured for.  However, the lack of evidence and not properly steering the case to its logical conclusion coupled with the absence of the contractor – all lead to a different direction. In the end, there are lessons to be learnt for all Insurers in underwriting these policy, on the documents /vital information to be collected at the time of underwriting, the conditions that are to be incorporated in the policy, the documents to be produced in the event of a claim and the way such legal matters are to be steered.

With regards – S. Sampathkumar
20th  May 2018.

Wednesday, May 23, 2018

TN X (SSLC) results announced ~ SYMA boys do well 2018

Old timers will recall that the First Public Examination for the students used to be at Class XI – those who passed would join PUC in College and those days, the State First used to secure a little over 400 out of 500 -  a time when securing more than 80% was considered the ultimate !! ..  recall that in 1977, MK Raman of our school (The Hindu High School, Big Street, Triplicane)  secured 407/500 and was State 4th – photo of him with a beaming smile appeared in newspapers .. .. Those were the times when Newspapers would roll out special editions containing the Roll No. of those Candidates who passed the Examination.  It was ‘all numbers’ and those Special Supplements would sell like hot cakes…….. students, parents, near and dear would be elated to see their Registration No. appearing on the newspaper – it was a time to celebrate and so they would buy toffees and distribute ! – simple life …

            The Tamil Nadu Secondary School Leaving Certificate (SSLC) or Class 10th exam results were declared today, May 23, 2018. The pass percentage of this year is 94.5 %.  A total of 10,01,140 students appeared for the exam this year which is a drop from last year's 10.25 lakh students who took up the exam last year. Sivaganga, Erode and Virudhunagar districts have topped with pass % of 98.5; 98.38 & 98.29 respectively.  It is reported that 96.4 per cent girls qualified the exam; while it was 92.5 per cent boys passing out. 

I have been posting about our full-time tuition centre SYMA Growth providing quality tuition free to under-privileged children.    SYMA Growth students hand-picked from lower strata of society  have done well.  In Engligh  Medium 22 students passed - out of 24 ;  3 of them secured more than 400 marks. B.Manikandan 450 is our centre first. 13 students got above 300.  In    Tamil medium 18 students passed of 20. 300 to 400 - 9 students.

As you may know now, there is no State level ranking !!! -  State-level ranks will not be released this year as well to ensure that students don’t get disheartened by an unhealthy competition. “We have done away with the ranking system as even one mark will cause serious distress,” said School Education Minster KA Sengottaiyan. Students, who have not done well in the exams, should not get too stressed, Sengottaiyan said, adding that those in need of counselling or help can use the 14417 helpline. He said that parents, who notice unusual behaviour or sadness in their wards, should use the helpline immediately.  But is that not a disincentive to those who perform well .. .. .. because DD / KX1 / MI / RCB failed to qualify should we not speak of champions CSK ? 

At our SYMA Growth, a couple of years – all   21 students of Tamil medium passed; in English medium 29 out of 31 passed; unfortunately the two who failed – failed in Tamil language.  Growth topper secured 490 – toppers of NKT Boys High School and National Girls High School were from our Growth ~ that way, there is lot of scope for improvement.

We rededicate ourselves and would start functioning in the 11th year of operations of SYMA Growth ~ the quality tuition centre for poor and downtrodden. Applications have already been issued and the last date for returning the completed forms is drawing to a close in a couple of days.  We will scrutinize the applications, conduct a private interview and select the deserving candidates. Welcome you all to visit our Educational centre and provide us suggestions and support.  

No words can describe our gratitude to the management of NKT Boys Higher School.  We thank the NKT Management for providing us the infrastructure and all the support.  We thank  the Head master of the School Mr S Venkatadri.  We pray to Almighty for continued success of this project and look forward to continued support of you all.  The success is due to the blessings of Lord Parthasarathi who guides us in all our steps.  We must place on record our thanks and gratitude to those teachers who taught these students with great dedication, commitment and devotion.  Our Coordinator Mrs Thara and the team who assisted her also deserve special appreciation. .  A Big Thank you to all of you  who have been supporting us in all our endeavours.

Together We will strive to make the society better place for all of us. ~ and very very special thanks to M/s  Manpower Inc for their sponsorship.  Gratitude is due to  Mr PV Venkatesan of Manpower.

With regards – S. Sampathkumar
23rd May 2018

Faf innings .. and how did CSK win ???

They kept saying in IPL T20, no target is safe ! ~ yet at Wankhede seemingly small target was daunting – best of CSK fans would have thought of switching off and going to bed ~ yet the result was to their liking. 

In IPL, no side had   lost a wicket off the very first ball of a playoff match before today. Sunrisers Hyderabad provided the first such instance with Shikhar Dhawan getting dismissed by Deepak Chahar.  ~ and Harbhajan Singh bowled none  in the match – only the second time he did not bowl a single over even though the opposition innings lasted for full 20 overs. The  other such instance for him came while playing for Mumbai Indians against Rajasthan Royals in 2010 when he got injured while batting and was thus unable to bowl.

Chennai Super Kings grabbed a win by 2 wickets against Sunrisers Hyderabad in a nail-biting finish in Mumbai on Tuesday and made their way into the finals. Chasing a target of 140 in 20 overs, CSK were in complete trouble  after being reduced to 62/6 in the 13th  over but senior pro Faf du Plessis anchored his side to their seventh final in the Indian premier league. CSK  needed 23 runs in the last two overs,  Shardul Thakur who came in at number 10 dominated Siddarth Kaul. Kaul gave away 17 runs in this over while Thakur struck 15* eventually. That makes CSK’s 7th entry into IPL final. No other side has reached the final more than four times.

Faf du Plessis, playing only his fifth match of the season, repaid his captain's faith by playing an innings MS Dhoni himself will be proud of. Chasing 140 CSK were in all sorts of troubles due to  excellent bowling, but du Plessis took the game deep, induced a few errors from the opposition captain, and capitalised on small mistakes here and there. Carlos Brathwaite bowled the 18th  over, with 43 to get, ahead of Sandeep Sharma and Shakib Al Hasan. Du Plessis hit that over for four, six and four to give an excellent match its final momentum shift.

Earlier, CSK bowled to plan and pinned Sunrisers down to 139. Incidentally, it was Brathwaite whose hitting in the final few overs - 43 off 29 - gave Sunrisers something to bowl at.  Du Plessis faced just six balls in the Powerplay. He looked inconspicuous during the collapse. Even as Bravo and Jadeja and Chahar fell to make it 92 for 7 after 15 overs, du Plessis kept knocking it around. In between, he hit Shakib for a four and a six in the 14th  over to stay in touch with the game.

Questions had been  raised when Chennai Super Kings used their right-to-match card on Faf du Plessis and let go of a gun death bowler in Andrew Tye. And then, du Plessis played only four games before Tuesday. Come the playoffs,  MS Dhoni needed more experience and turned to the South Africa captain. And du Plessis answered all the questions with a vintage 67* that had most of the traits of a Dhoni special: manoeuvring the middle overs, taking the match deep even as wickets tumbled at the other end, and sealing it with a six.

In the first eight overs of CSK's chase of 140, du Plessis faced just nine balls for five runs. He watched fellow opener Shane Watson, Suresh Raina, Ambati Rayudu and Dhoni fall around him in that period. After Siddarth Kaul had removed Raina and Rayudu off successive balls, Rashid Khan stormed through the gate of Dhoni with a ripping wrong'un. Rashid proceeded to have Dwayne Bravo nicking behind with a sharp legbreak. When Deepak Chahar joined du Plessis, CSK were 92 for 7 with the asking rate reading 9.60. By then, du Plessis had moved to 38 off 31 balls. Rashid and Bhuvneshwar had one over each left, while Kaul had two. Williamson was left to choose among Shakib Al Hasan, Sandeep Sharma and Carlos Brathwaite for the other over.

Du Plessis survived an lbw call off Rashid after a successful review and helped bring down the equation to 43 off 18 balls. Williamson took a punt on Brathwaite and du Plessis launched a calculated assault on him, hitting him for four boundaries in the 18th  over. He anticipated slower balls from Brathwaite, maintained a stable base, and unleashed smooth swings. Du Plessis hit 27 off 11 balls from Brathwaite at a strike-rate of 245.45. After Shardul Thakur squirted a brace of edged boundaries and loft off Kaul in the 19th over, CSK needed six off the last. Du Plessis was up against Bhuvneshwar Kumar, one of the best death bowlers in the IPL. He read the slower ball from Bhuvneshwar and nailed it over his head to lead CSK into their seventh IPL final with five balls and two wickets to spare.

After steering Chennai Super Kings into their seventh IPL final with an unbeaten 67 off 42 balls, Faf du Plessis said the key to his innings was seeing off Rashid Khan's spell.  "It's nice to contribute since I haven't played much," du Plessis said at the post-match presentation. "Yesterday, I was just reflecting on my past games, and took some confidence from that mentally. I just entered the changing room now, and asked the boys, 'how did we win this, guys?'

~ and that is the Q most would be asking !!

With regards – S. Sampathkumar
23rd May 2018.

Tuesday, May 22, 2018

Nadal comes back to win at Rome ~ temperament of Pliskova

There were days when Triplicanites could easily identify every league Cricketer playing at Marina ground ! ~ and tell history of them too .. .. those days we were fascinated to see a Singh playing at Marina – and my neighbour coolly added – it was Satwender Singh whose brothers Kripal Singh & Milkha too played at a higher level and their Ram Singh was one of the leading all rounders of his time, playing 2 unofficial tests !!!

Tennis followers might well know the twins Bob & Mike Ryan – and the attractive Pliskova sisters -  Karolina Pliskova and her  identical twin sister Kristyna.  For easy identification,  we have the tattoos,” Karolina said.  Karolina sports two tattoos – on her left thigh and left arm – while her sister has one. “She is a lefty and I am right-handed, and we have different hair.  Karolina was in news for wrong reasons !!

How  to explain what transpired in the third set of Rafa’s 6-1, 1-6, 6-3 win over Alexander Zverev in Rome on Sunday?   With Rafa down 1-3 in the third set and seemingly out of answers against Zverev, a storm conveniently swept across the Foro Italico, forcing a prolonged delay in play. When that delay was over, Nadal had answers again. He charged through the last five games for his eighth title in Rome, and reclaimed the No. 1 ranking in the process.  Zverev had a real chance at victory, up an early break in the third set, before rain threw a curveball into the match, allowing Nadal to reset and win the final five games. It was a high-quality final, with several long, grueling rallies bringing the Italian crowd to their feet in appreciation of the effort and impressive shot-making of both players. There were 24 rallies that went at least double digits (10 shots), totaling 313 shots in the court by both players.  Perhaps what made Rafa win was his temperament and firm belief that he could win though he was almost out of the match ~ and he remained cool !

Rafael Nadal may have stumbled in his bid to sweep all four “Big Titles” on clay, a feat he accomplished in 2010 when he won the Rolex Monte-Carlo Masters, the Mutua Madrid Open, the Internazionali BNL d'Italia and Roland Garros. Nadal fell to Dominic Thiem in the Madrid quarter-finals earlier this month. But the 31-year-old Spaniard has still added two more Big Titles – a combination of Grand Slam, ATP World Tour Masters 1000 and Nitto ATP Finals crowns – to his haul as the European clay-court season enters its final three weeks.  Nadal came out on top in a matchup of this year's top two clay-court players Sunday, beating defending champion Zverev 6-1, 1-6, 6-3 Sunday to win a record-extending eighth Italian Open title. Coming a week after a loss in the Madrid Open quarterfinals to Dominic Thiem, Nadal has his confidence back entering the year's second Grand Slam in Paris, which starts next Sunday.

"It's been an amazing week," Nadal said. "It was tough losing in Madrid so to come back and win the trophy here is great." Perhaps the question heading into next week's French Open should be: "Who can take a set off Rafael Nadal?" instead of "Who can beat Nadal?'" The Spaniard, dubbed the "King of Clay," is the white-hot favorite to land a record-extending 11th title at Roland Garros. Take this stunning statistic: Nadal owns a 79-2 win-loss record at the French Open, where the best-of-five set format makes the 31-year-old even harder to defeat. He's only lost to Sweden's Robin Soderling in the fourth round in 2009 and Novak Djokovic in the quarterfinal in 2015.

But if there is to be a monumental upset at the French Open, who might be on the other side of the net?  There could be a sudden blackhorse, which doesn't include the absent Roger Federer.  As great athletes age, the first thing we look for is evidence of physical decline. The cliche is to talk about the “half-step” that has been lost, rather than inquiring about their psychological state. Yet even sporting legends can be worn down mentally by the accretion of small failures over the years, and the fear that certain opportunities may never come around again. Grey matter is as susceptible to the march of time as muscle fibre.

 “It is not a question of tennis,” Nadal said once after his  defeat by his compatriot Fernando Verdasco in Miami. “The thing is the question of being relaxed enough to play well.  Recently, World No 5 Karolina Pliskova lost her cool over a line call and bashed a hole into the umpire’s chair with her racket after suffering a 3-6, 6-3, 7-5 defeat by Maria Sakkari in the Italian Open second round.

Pliskova had argued heatedly with umpire Marta Mrozinska after her smash was called out when serving at 30-30 and 5-5 in the final set, and her Greek opponent won the game before serving out the match.  The Czech exchanged a brief word with Sakkari at the net before approaching Mrozinska with an outstretched hand before withdrawing it and repeatedly smashing the chair with her racket.

Pliskova’s twin sister Kristyna, who also ranks in the world’s top 100, slammed Mrozinska on social media. “The worst i have ever seen @wta and i hope this lady Marta Mrozinska will never ever judge any match of me or Karolina again #blacklistforever,” the 26-year-old wrote on Twitter.

With regards – S. Sampathkumar
22nd May 2018.