Dinesh Divekar
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Saswatabanerjee
Partner - Risk Management
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Korgaonkar K A
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Nashbramhall
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Sushilkluthra@gmail.com
Consultant In Legal Matters
SAIBHAKTA
Retired From Air India
+4 Others

Thread Started by #Anonymous

I work for an MNC and last month I met with an accident in my company cab were in the driver was sleeping and the cab was badly damaged which led to me getting fattaly injured.
I see lot of negligence in part of my company transport.
I would like to seek compensation for the accident and negligence.I was bleeding like hell after the accident cause he hit a divider
18th May 2015 From India, Hyderabad
The company will have to pay for the medical treatment. As far as modification of car was concerned,the company can be held responsible for negligence in hiring a car with unauthorised modification.
18th May 2015 From India, Pune
Dear Anil,

From your small post, following points emerge:

a) Why the accident happened? Was it because of modification of the car or because of the negligence of the driver? What is the primary reason and what was the secondary reason? When the car was modified?

b) Accident (probably) happened because driver slept while driving. At what time the accident happened? How many hours driver had worked? Was his rash driving noticed any time earlier? Did anyone report it to the company's authorities?

c) Were you only injured or other passengers also were injured? What about driver? Was he injured?

d) Did company foot bill for the medical expenses? What about insurance? Are you covered under company's group insurance or ESI? What about your personal insurance?

e) While providing transport facility to the employees, most of the companies obtain indemnity bond from the employees. Has your company done that? Have you checked the provisions of the indemnity bond?

f) If you had fatal injuries after the accident then did traffic police investigate the matter? Have they booked the driver for negligent driving? Have they noticed the modification of the car?

g) You were injured fatally. Has the fatality resulted into permanent or partial disability? In that case company is liable to pay compensation under the provisions Workers Compensation Act (WCA). However, we have to check the provisions of the WCA on whether you are eligible for the compensation claim?

There are so many questions associated with your post. Unless we have complete information, we cannot give our comments. You are involved in the road accident but then accidents do happen in the factories also. However, employers are liable for compensation provided the claim is admissible under the provisions of WCA. Paying compensation on and above WCA may not be possible for every employer and for the fear of the accidents, nobody will run the factory or their businesses. While saying I also have complete empathy for you. Accident should never have happened. However, we need to have holistic approach towards to the industry or society as a whole.

Thanks,

Dinesh Divekar


18th May 2015 From India, Bangalore
If you were fatally injured, I wonder how you are able to write this post......
Fatal means resulting in DEATH.
While Divekar has given a detailed set of question, without which giving a reply is not possibles, I disagree to the last part of his post. If the employer is providing transport, then he is responsible for what happens in it. In fact any undertaking or indemnity is immaterial where the control and supervision, as well as choice of vehicle and driver is of the company and not the employee. Employee Compensation Act (earlier called WCA) is the law of the land and needs to be followed. If the employer can not do that, he should not be in business any more than those running sweatshops.
As for your query, since we do not have the fill information I would suggest you discuss this with a lawyer and then decide your course of action. You may also be entitled to compensation from insurance companies under the motor vehicles act.
18th May 2015 From India, Mumbai
Anil 8975,

The questions asked by Shri Dinesh are valid and need answers for proper understanding of the case.

When you put up a question in a public forum ,one should be ready to answer queries.

For example you have written ""I met with an accident in my company cab were in the driver was sleeping and the cab was badly damaged which led to me getting fattaly injured.""

This could give a feeling the car was stationery when it got hit as driver was sleeping and fatally injured means death also.

Or did driver fall asleep while driving??

Your two posts above do not address core issues which were raised by one Mr Dinesh a learned poster.

It would have been preferable if they were answered rather than the reply you furnished which does not add to learning or bringing us closer to point of satisfactory answer to your problem.

The problem you posed was can you get compensation.Now try and see whether your two communications/posts has lead you closer to an answer/reply which gives you guidance.

Notwithstanding your incomplete query-You are entitled for some compensation under MV Act,if you follow procedure of claim.

My advice would be keep posts relevant to query and avoid terming any learned member as immature and so on.

All the best.
18th May 2015 From India, Pune
1, Sir, I personally feel that to claim the compensation from employer under Employees' Compensation Act, 1923 on the basis of any type of negligence or omission on the part of employer or his contractor or agent (in this case Company Cab) is difficult, though not impossible. Kindly see Proviso to Section 3 of the said Act which creates exceptions and protects the employers in cases of accidents in some situations. The cases are filed in the court of law/authority created under said Act, but the injured employee or his dependents do not get any compensation. The employers put forth so many arguments and evidence in the court to probe the point that at no level the employer was responsible. In case of senior functionaries/officers, another plea is raised that the injured officer was not an "employee" within the meaning of said Act since the definition of "employee" is confined to a list as mentioned in Schedule-II of said Act. If it is proved that the injured officer was not an "employee", then he had no alternative except to file a civil suit for damages/compensation resulting into long procedure etc. Ultimately, it is the injured employee or his dependent who is to suffer.

2. The position is, however, different so far as accidents occurred in respect of such units and their employees who are covered under ESI Act, 1948 and rules/regulations framed thereunder. ESIC pays benefits to the injured/dependents, even though there may be some element of negligence or omission on the part of employee or employer. The main condition is that injured person should be an employee and such accident should have occurred in the course and out of employment. In respect of road accidents, the principle of notional extension of premises and time is applied and in case it is probed that there was no link to probe the accident due to and out of employment, the cases are rejected as that of accident and no compensation is paid. So therefore, in my opinion, the place, time and other factors as raised by Sh. Dinesh Divekar ji in his remarks as above are very relevant and important.

3. Since the initiator of this thread in his comments has not disclosed full facts, hence, in my opinion, Sh. Dinesh Divekar ji has rightly commented in his lengthy remarks as above covering all possible situations. I am contributing in this citeHR since more than one year and has always found the views of Sh. Divekar ji very useful and relevant to the situations as narrated by the initiator of the topic/thread. Though, the initiator of this thread has raised objections to the remarks of Sh. Divekar ji as above, but I am sure as and when he will initiate any action against the employer, he will be required to make his position clear in the court of law or before authority created under Employees' Compensation Act, 1923 or in civil suit for damages on all the issues as raised and pointed out by Sh. Dinesh Divekar ji.
18th May 2015 From India, Noida
This is one of the more amusing threads I think.
The OP posts a message claiming he had Fatal accident (he is therefore dead)
Then he says he is from an MNC (as if that makes any difference to us who are on the forum)
Gives partial information in a manner that makes the thread incomprehensible
And insults one of the senior members of the forum, by calling him frustrated and immature.
And he actually expects people to go our of the way and help him. Wow !!!

18th May 2015 From India, Mumbai
Saswata,
The forum is really interesting.
The posts give a full range of human emotions and needs.
Someone offers you quick money by mere copy pasting work,quick loans,some one wants to know how to escape the ill effects of lying or submitting fake certificates.
There are posts from people employed on HR who are well versed, but we have some who do not know /forgotten basics of HR; even at mid to senior level.
We have some posts where in one wants to get even with his company for alleged poor treatment.
I must admit I learnt a lot from learned posters while answering queries,but I have learned more about psychology of people in this forum.
One must grow from being a HR practitioner to HR leader.
HR needs to grow from just supporting the business by being a mere collector of resumes, hearing complaints, administering benefits or ensuring compliances to driving the business towards greater heights.
19th May 2015 From India, Pune
Total white was I did not get any help but people are fighting for one and another
19th May 2015 From India, Hyderabad
Yes .Indeed it is very surprising that Anil8975 who has joined only this year has made such an irresponsible comment on Dineshji ,a member since a long time ,who always writes in a very comprehensive way covering all possible aspects. Moreover the initial post and the follow up is devoid of any details.How can Anil8975 expect us to give him any advice ?
19th May 2015 From India, New Delhi
Dear Anil,
Could you kindly explain what you mean by "Total white was I did not get any help but people are fighting for one and another"? You should really consult a lawyer to check if you have sufficient evidence to claim compensation.
19th May 2015 From United Kingdom
Anil,
The members have genuinely been trying to be helpful
These queries are necessary for understanding the whole issue.
You cannot and should not expect answers from professionals without getting certain details which they feel necessary to answer the query.
When learned members answer they are putting their professional reputation on stake.
I would not like to be giving incorrect answers because i didn't have full picture about the question.
My sincere advice to you would be to desist from writing things like whitewash or immaturity etc.
i understand you had a problem with company cab,but getting angry at queries of those who want to altruistically help is totally avoidable.
19th May 2015 From India, Pune
Dear Queriest,

With my limited knowledge, answer to your query is as under:

You met with an accident while you were traveling in company offered vehicle. This is a road accident. But you were on duty.

It is not a fatal injury as stated you.

Since you were traveling in company offered vehicle, it's establishes that you were on duty / notional extension. This accident is definitely out of and in the course of employment and therefore your employer is liable to pay you compensation under the EC Act when your injury resulted in total or partial disablement for a period exceeding three days.

Your employer is liable to meet with your medical expenses without any limit.

Since your accident is a road accident, you are entitled to get compensation under Motor Vehicle Act upon the Accident Information Report filed by police to Claims Tribunal. If you have received any compensation under EC then the compensation awarded under Motor Vehicle will be adjusted accordingly. (LLR Supreme Court 295).

I hope your query is answered.
19th May 2015 From India, Mumbai
Dear Korgaonkar,
You have given an excellent reply to a short query.
My first reply was also that he was entitled to get reimbursement of medical expenses.
But giving additional details would have been ideal.
20th May 2015 From India, Pune
Hi,

Generally in such case, the driver / cab are not owned/employeed by MNC. They are hired from external agencies with a contract, & the contracts do not include the monitory compensation to the traveler from any accidents.

If the accident is due to negligence of driver, then there would be a police case & penalties resulting may / may not be in form of monitory compensation to the traveler.

Of course, the MNC would be able to provide the compensation through personal & accident policy for the employee. This will be based on the intensity of injuries & permanent or partial disability.

Has this accident happened on a highway (between Airport & your residence), or while commuting to company (between Office & your residence).

This would define which insurance would be able to provide compensation.

Going forward, I agree with Dinesh that, accidents happen. Company does not intend for this to happen.

If there were previous cases of negligence from driver from the same cab agency (Sleepiness, rash driving, near misses) with yourself or with colleagues reported, then you can put up your case for "negligence from admin & safety department" to the higher management. Depending on the safety rules someone from management can also lose his/her job on this.

Companies can surely make easy rules with the cab agency to avoid such incidents like:

1. Driver duty hours restricted.

2. Condition of driver/cab to be checked before start of journey.

3. As far as possible, avoid night travel (e.g.: going to airport in midnight can be avoided by providing hotel at airport for the night).

4. Compulsory feedbacks after each ride / periodic regular journeys.

5. Blacklisting agencies, which show inclination to break these rules; And changing the contracts with such cab agency timely.

Dear Anil8975,

Have you posted the original question as "Anonymous"?

If you really seek help / support from the open forum, then you have to provide detailed information about the incident. Also, this support will never be in black & white as you will hear all kinds of opinions. Which ones to accept & which ones to ignore is up to you.

If you have already made up your mind that "you are entitled to 'automatic' monitory compensation", then I would say that you have ignored the risk while getting in the cab in the first place.

I agree that there has to be some compensation for the discomfort, but in order to obtain it, you have to face the processes & put down the facts. Do not consider that MNC will become sentimental about your accident & just pay you compensation without verifying the same questions.

Best Regards,

Amod Bobade.
20th May 2015
Dear Amod Bobade ji,

Thank you very much for appreciating my reply to the queriest. But your above quoted statement is contradictory to my said reply. And therefore, I have to repeat here that there is a well set law and that is too, a special law viz. Employee Compensation Act 1923 and according to this law, the employer is liable to pay compensation in case of employment injury.

Only in following circumstances, employer is not liable to pay compensation:

1. If the injury does not result in total or partial disablement for a period exceeding three days.

2. If the injury does not result in death which is caused by an accident which is directly attributed to:-

(i) If an employee have been at the time thereof under the influence of drink or drugs;

(ii)Disobedience of employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee; or

(iii) Willful removal or disregard by employee of any safety guard or other device which he knew to have been provided for the purpose of securing safety of employee.
20th May 2015 From India, Mumbai
Fatal =
Obsolete fated;
destined;
inevitable;
important in its outcome;
fateful;
decisive:
the fatal day arrived;
resulting in death
something that is capable of causing death. Certain cleaning products, drugs, for instance.
----May be he is trying to highlight the severity of the accident. We should not mind it.
As many have suggested, he, as an employee is entitled to medical exp, compensation, leave as it appears the incident/ accident has occurred (i) in the course of employment and (ii) caused by employer provided vehicle.
So I find no impediment in making a claim to the Employer, Owner of the Cab and the Insurance Co. to be supported with documentary evidences like FIR, photos taken at the scene of accident, eye witnesses' evidences, hospital records, bills & reports etc.
Possibly, if any disability has resulted or loss of parts of body/senses-hearing, eye sight etc or caused any incapacity to perform duty/normal living he should be compensated as per law.
20th May 2015 From India, Bangalore
""Do not consider that MNC will become sentimental about your accident & just pay you compensation without verifying the same questions. ""
Dear Korgaonkar,
what you said is settled law and provisions of WCA necessitates payment of compensation,but Amod Bobade is not wrong when he says "verifying the same questions"- i.e.Company will verify before payment.
Payment of compensation may not be automatic,but after certain checks are done.
On the lighter side,original querist has dropped out of discussion.
20th May 2015 From India, Pune
Dear Nathrao, The original querist ,it appears , was never serious to know what our learned members wanted to say.He had a preset notion and did not want any other answer ! S K LIMAYE
22nd May 2015 From India, New Delhi
Dear Mr. Keshav, Nathrao,

Thank you for clarifications on my (may be) somewhat ambiguous statement. Not being education in 'legal' field, sometimes the choice of words may not be very precise... :-)

What I wanted to say was, that the MNC is not the Indian government (With all due respect), which declares monitory relief almost immediately, upon any mishap. There is a difference in relief money & compensation money & there are different processes for that.

The questioner thinks that during his duty hours, company should take care of "everything" automatically. That, the personal level interventions are not needed. We see many cases of incidents, where work ethics are broken, illegal immigrations happen, corruption is supported, under the name of "this is requirement of my company". These all cases are very much personal, but we think that we are doing them for company, so company should be responsible for it.

If went wrong, many company related things can have very grave effect on personal life.

I travel many times for my work. Every time I personally ask the cab driver if he is sleepy. Once I even had demanded to change the cab for this reason. I ask him to stop for any tea/smoke breaks as per his comfort. Everytime he stops, I check that the area is safe to stop. If it does not feel so, I deny to stop there. I even fire the driver, if I see him driving rash, as it is my life that depends on it & not the company profit.

But I have seen many times, that travelers think of drivers like machines assigned to the work of delivering them.... especially employees returning from abroad, that they want to reach home at earliest, & try to push the driver without required breaks from driving.

I am not saying that it is not driver's fault in this case, but MNC will always take impartial view as the concerned employee & the cab company, both are hired by the MNC.

Being emotional to either side will only complicate the matters, & hence the company will stick to processes & rules.

Best Regards,

Amod Bobade.
22nd May 2015
If you are using a company provided vehicle during the course of performance of company duties,the grievous injury sustained by you, not attributable to any negligence on your part, should be duly compensated by the company.Apart from free medical treatment,you are entitled to compensation as per relevant provisions of Employee's Compensation Act.
22nd May 2015 From India, Bokaro
Without referring to the merits of the queriest, I thought it relevant to quote the extracts of the decisions referring to law pertaining to injuries through accident sustained by an employee in vehicle provided by employer. However, the claim of compensation is also admissible under WC Act, ESI Act, where those enactments are applicable.

What is the usual common law principle based on the law of tort. The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. The Apex Court held that the concept of owner’s liability without any negligence is opposed to the basic principles of law. The mere fact that a person died or a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner:

a) In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Another, the Apex Court held that the compensation awardable under Section 92-A of the MV Act was without proof of any negligence on the part of the owner of the vehicle or any other person which was clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident.

b) Supreme Court of India

Reshma Kumari & Ors vs Madan Mohan & Anr on 2 April, 2013

“Before we refer to the provisions contained in Sections 163A and 166 of the 1988 Act, it is of some relevance to notice the background in which the Parliament considered it necessary to bring in the provisions of no fault liability on the statute. It so happened that in Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. , a three-Judge Bench of this Court while considering the question whether the fact of injury resulting from the accident involving the use of a vehicle on the public road is the basis of a liability and that it is not necessary to prove any negligence on the part of the driver, held that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. This Court held that the concept of owner’s liability without any negligence is opposed to the basic principles of law. The mere fact that a person died or a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner….. This Court said “…. that proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case”.

In an article entitled “NO FAULT LIABILITY UNDER MOTOR VEHICLE ACT 1988” on law-projects.blogspot.com/.../no-fault-liability-under-motor-vehicle.html, it is summarised:

“The chapter X(section 144) of the motor vehicles act , 1988 (section 146 and section 177) recognizes liability without fault in certain cases .section(144) provides that in the case of death of victim , a fixed sum of Rs. 50,000 (Rs. Fifty thousand ) section (142 ) , and in the case of his permanent disability a fixed sum of Rs. 25,000 (Rs Twenty Five thousand ) can be claimed as compensation section (140) even if the owner or the vehicles is not at fault section (140) . It follows that the defense of contributory negligence or any other defence is also not allowed when the fixed sum of amount is claimed under this section (144) . This section therefore attaches strict liability of the owner or on their behalf of the insurance company . However , if the claim exceeds the aforesaid fixed sum of amount , then the plaintiff has to establish fault on the part of the owner of the vehicle under section 140 of the act (146) and (177) .The excess of amount claimed under section (141) shall be in addition to the fixed sum amount paid under section (140) after making adjustment section (140). Apart from that ,payment of solatium in cases of hit and run accidents has been established by the central government in those cases where the person died or was grievously hurt section (142) and the identity of the vehicle involved cannot be ascertained in spite of reasonable efforts section(140) . The payment of compensation payable out of such solatium fund will be Rs. 25,000 in case of death and Rs. 12,500 in case of grevious hurt section(140) . It may be added that the provisions of the motor vehicle act shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the workmen’s compensation act 1923 resulting from an accident of the nature referred to in sub-section (144) of section 140 and for this purpose , the said provisions shall , with necessary modification be deemed to from part of that act (144) . Similarly compensation for death is also payable by of carrier of air under the carriage by AIR Act “

Thanks

Sushil
22nd May 2015 From India, New Delhi
To add,

I was driver a car, alone on a busy road, when I stopped the car for the vehicles ahead of mine moves further, my car was hit by a private bus and this bus hit by another pvt.lorry. Due to the sudden impact of hit to my car from behind my car was pushed to the right and my car hit the divider, car's door opened, I fell unconscious inside my car. People around that place took me to the nearby hospital and was given first aid and later I was shifted to another specialty hospital and was saved except with a broken femur which was refixed with modern surgical procedures. I was out of action for a couple of months and regained my strength to the extent of 90-95%. In the meantime, police filed FIR, claims were made against the owners & insurance companies of those bus and lorry (unfortunately my car's insurance just expired, in fact I was proceeding to the insurance co. only on that fateful day for renewal as I have to physically show the car to insurance co. as there was a break. Friends I wish all of you should take care of valid insurance cover for your vehicles, don't compromise under any circumstances. Also Mr.Nitin Katkari estimated atleast 40% of vehicles on road has no valid insurance cover, this does not include mine as I never default on this ever since thereafter). After prolonged proceedings in the courts, I was compensated adequately by the courts, which included compensation towards losses for leave availed, cost of medical treatment and certain amount of token interest. My documents were very adequate to qualify for an award in my favour. I felt it's reasonable and it's more or less adequate. This is my own experience. Going by this, obtaining favourable orders for claim of compensation, medical cost is not that difficult, may be you can cut short the delay in settlement by using fast track courts and/or Lok Adalats etc. to speed up the settlement. But the question remains would the compensation received/to be received really bring back/compensate totally the lost health conditions in us. Sometimes one gets saved miraculously on other occasions escaped fatality with major losses. Even I was also on official duty in other city (can be easily argued as 'in the course of employment'). My co. though did not compensate for the loss but reimbursed the cost of treatment and granted special leave. But cases like the query is slightly different. Even here also compensation is sure but how about the injury sustained and loss of health conditions ? should settle for compensation only ??
4th June 2015 From India, Bangalore
Most vital point on road-have valid license and valid insurance.
Most of the problems arise from not having these two documents.
Most of us are nt like the famous cine star who drove drunk,without license and got away (practically)
4th June 2015 From India, Pune
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