All the replies really educated.. I would also like to share here that in our company too, its the similar kind of rule. One can go into their home during lunch hour and similarly total shift hours are 9 while working hours (deducting 1 hour for lunch) becomes 8 which is as per law. Hence, if someone is going out from the factory premises, then that person will be responsible for his acts and whatever happens to him will not be a liability of the organization.
But a responsible organization will definitely oversee this and help her employee but technically, there stands no liability.
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Simple solution is, if the number of employees are few hundreds, place an "EMPLOYEE MOVEMENT REGISTER". Educate employees to write time out and time in.
You will be in the safer side. Consider that Movement register as their Out of office permission.
Good (and Big) companies have a Standing Committee which enquires into all such cases where accidents are caused " during or arising out of and in the course of duty "
The Committee examines the case, along with witnesses and documents to arrive at a decision whether compensation is admissible or not.
Hope you are well-versed with the terminology " arising out of and in the course of duty ".
This case relates to the latter; as it was lunch time.
The committee or if you are the lone HR; then you should look for answers to the following :
- Do you have any canteen facility?? Or is it absolutely imperative to go out for lunch ??
- The spot where the accident took place - was it on way to the USUAL PLACE OF LUNCH ?? Or the employees were going to some other, out-of-the-way place for lunch ??
- How did the accident occur ?? Was it a two or four wheeler that he was driving ?? Did he comply with all Safety norms (like for 2 wheeler - wearing helmet; 4 wheeler - seat belt; driving within speed limits etc) ??
- Did the accident occur due to his carelessness ??
- On which route the accident took place ??
- Did the employee have any plans to come back after lunch ?? In case the accident happened at an out of route place; was the employee planning to take an unannounced half day leave and leaving for the day ???
These answers would help one arrive at a proper and correct decision.
This may fall under Workmen compendation Act...As per Act, the employer is liable to pay compensation if the worker is injured by accident that:
1. arises out of (i.e. while engaged in work), and;
2. In the course of his/her employment (i.e. during work hours),and;
3. Such an injury results in disablement of the worker.
If three conditions are met, the employer of an establishment covered by the Act, is bound to pay compensation. Work timings includes the lunch hour and to my knowledge no where it is clearly defined about this scenario.
My View : Since Lunch timing is part of office hours ( During work hours), employer is liable if they have not defined any process and not informed to the employees in this regard. The process suggested by Mr. Raj Kumar is also good.
I would also suggest to discuss with statutory consultant to have the clear view.
Just to add...These days most of the organizations are taking Group Personal Accident policy with all 4 tables and it is a 24 worldwide coverage. This is a very good benefit to cover the employees.
2. Permanent total disablement
3. Permanent Partial Disablement
4. Temporary total disablement
Thanks and Regards
Niroja p HR
Also since I am not aware of the exact laws / rules of ESIC I would request any expert to comment on the coverage of ESIC. As many members here have pointed out that an incident / accident arising during duty hours only is payable by company, and arising out of duty hours is not payable, which is wrong i am just 99% sure that i am right but the 1% would be confirmed by some ESIC expert or Mr.Sandeep Sharma, or Mr.Raj Kumar.
First I would like to mention the following points;
Any insurance policy would have its own terms and conditions which would be different and unique from other policies.
In case of life insurance the conditions under which the death should happen are defined and only when the condition is fulfilled the insurance becomes payable to benefitiary. For eg, in some life insurance cases, death by accident while in inebriated condition or suicide is not allowed for reimbursement.
Similarly many other insurance policies define their own terms and conditions, and in all cases the COMPANY never pays the money, it just processes the claim and forwards with their insurance partner to pay. In deserving cases wherein cashless hospitalization is not possible company can pay the bill and later claim from insurance company on humanitarian grounds.
As per my knowledge no insurance policy / ESIC policy defines applicability as per the working hours, it is all based on course of employment means as long as the person is employed with the company the insurance policy should be honored then whether incident occurs in lunch time, or after office hours or on sunday or republic day, this i want all members to understand.
If you look at your vehicle insurance policy it mentions a period of one year till midnight hours of next year, which means the insurance is payable even if accident happens at night or early morning 3 am or 4am, and no one can question you why you were driving so early or so late night.
So first understand how insurance policy works and then depending on the case you yourself decide whether it fulfills all conditions for claim and if some condition is not fulfilled then company can itself pay whole claim on humanitarian grounds. Asking whether lunch time is paid or unpaid will never make you educated about insurance and claims, because tomorrow when in your company a person has accident in night time you will post another query saying night time is paid or unpaid, so in any insurance company policy there are specific conditions.
Thanks for raising some pertinent and important issues.
It takes at least 6 hours of Classroom sessions; hours of essential readings and recommended readings and a few evaluation sessions to cover the issues of Employees Compensation Act and the terms like " Arising out of and in the course of employment" with examples.
unfortunately; here we have to grapple with INSTANT GYAAN !!
As correctly pointed out by you :
- During duty hours or Out of Duty hours; has no application in the Act.
A person who is sent on a tour or is travelling in the night; is not in duty hours; however, he will get compensation.
The critical term is "in the course of employment" !! The employee is not travelling in the night for the Fun Of It, but because he is in the course of his official duties.
Similarily; employees on tour. staying in hotels and getting injured due to a fire in hotel at night; are also eligible for compensation - though it may not be any duty hours at midnight.
Hope the above examples would clarify the concept and its applicability.
- Similarly, paid and unpaid hours have no meaning here.
Incidentally, Lunch hour is excluded from the (eight) hours of work.
It is always in addition to the Working Hours !!
Also; to qualify for Paid Hours; does the employer pay salary for time taken to have Lunch ?? It would indeed be a very benevolent employer and one of the " Best Places To Work" !!!
To conclude, it has been rightly pointed out that for the sake of humanity, such cases (death or disablement) are dealt with sympathy; and the benefit is allowed to the family so that they do not suffer the consequences. This is a practice adopted in all good, established companies.
Starting from home to place of work, during the work and returning from place of work to home is considered as work time only. If an employee meets with an accident during such time, it should be considered as an accident arising out of and in the course of his employment. This is called the theory of notional extension. However, if the employee does not return home in the normal way and goes some where else and meets with an accident or if an employee violates any of the safety regulations (going in a two wheeler without wearing helmet etc.,) then the company can contest that they are not responsible Likewise, if there is a normal practice that the employees go out of the work place during rest hours to have something in the nearby shop, it should be considered as an induastrial accident only.
But, beyond anything, if anything happens to an employee during the working hours or while travelling, it is the fundamental responsbilty of the employer to take care of such employee for their treatement on a humanitarian concern.
The company can very well try to enforce a discipline to ensure that the employees dont go out of the campus during break timings.
Thanks and regards,
As per me Yes.
As it is included in our total working hours for 9-10 hours we work and moreover,its included on payroll basis too when it is calculated for 1 day.
It might be different case again if the employee goes for a personal work during the same time after or before having lunch.