Harsh Kumar Mehta
Consultant In Labour Laws/hr
Hr & Administration
Head - Outsourcing
Labour Law Index
As regards ESI,you've not indicated whether you have communicated to the ESI & Factories inspectorate regarding the accident. It's mandatory to file a report from your side.
As regards compensation it'll be paid by ESIC based on disablement suffered and you need not pay any compensation. But we have heard of instances wherein the employer is harassed despite the employee being covered under ESIC.
Trust matter is clarified
3rd April 2017 From India, Madras
3rd April 2017 From India, Kolkata
You are aware that accidents happen due to unsafe act or unsafe condition. In your post you have stated that the accident could have happened due to unsafe act by the employee. If the following unsafe conditions have been addressed you need to find out then how did the accident actuall happen.
Unsafe conditions investigation
1) Did the sensor in the press that senses human parts of the body while it is in operation fail in this instance?
2) Are the sensors that allow only dual hand operation located apart so that they cannot be operated by a single hand?
3) Are the sensors located at a reasonable height so that it cannot be operated using a hand and leg?
4) Is there any gap to access the press beyond the sensor as a result of which it did not sense the human hand?
5) If there is a gap for operational reasons was the employee aware that he should not access the press beyond the sensor?
6) Is there an emergency stop button that ceases the press in case of such an emergency?
7) If there was an emergency button was it functional?
8) If there was an emergency stop button and it was functional, was the employee who met with the accident aware of such a provision and are other co - workers aware of it?
9) Does your company give a safety training to employees before deploying them on machines?
10) Are the Do's and Dont's emphasised to the employees at the beginning of every shift?
A thorough AIR (Accident Investigation Report) has to be done internally with a view to prevent further accidents.
In my opinion many accidents happen to employees who are working in organisations as Temporary Operator Trainees (TOT's). These youngsters join companies to earn a livelihood.
In some companies these TOT's are from other states and do not understand the local language. So it becomes difficult to educate them on aspects relating to safety.
It would be prudent on part of employers to identify persons who can educate them in the language known to them.
Maintain an internal record of accidents and analyse the causes to minimise/ prevent accidents.
4th April 2017 From India, Madras
1. Not observing safety by the management of the factories in installation of plant and machineries;
2. Sudden and unanticipated failure of system parts; and
3. Failure of part of employee due to overriding safety rules
Any fatal accident needs to be suomoto reported to The Factory Inspector and ESIC voluntarily and on the first available opportunity but certainly within one working day.
In case of employee covered under ESIC, all claims are settled by ESIC at their level. However when the Medico-legal report is sent by ESIC to police, The police start investigating and also files a F.I.R. and may or may not instigate the employee to demand more from the employer so that they also get a pie in the cake depending upon the relation of the employer with the police.
However, if the factory management has investigated the reason of accident and/or CCTV clipping are available and are provided to the inspecting officer, the intensity of case gets diluted depending upon the reason of accident either at employee level or police level or at court level and there are no chances of big payout to employee and police due to cohesive pressure tactics.
But there is a need to be careful in all such cases.
We are also affected person in one such case.
4th April 2017 From India, Jodhpur
The same is to see, that the safety of the workers has been looked into, the safety training was provided, the safety instructions, were in a way, displayed that the worker was able to understand them. He was not working without supervision and safety gears.
So, even having all the rules and gadgets will not help, the person has to actually follow them, if he has not followed, then how was he allowed to work, what was the supervisior, safety officer, Production incharge doing??? So yes, the FIR is on. ESIC will give the medicines and also the salary for the medical leaves, but later, you will have to take care of his rehabilitation.
4th April 2017 From India, Mumbai
4th April 2017 From India, Mumbai
2. Another senior/expert has advised in the words" Supreme court has given Judgement in this regards that if Factory Inspectorate is investigating police authorities can not take any action." I think, it will be more better if some judgments of Hon'ble Supreme Court are uploaded in this thread for our guidance and up-dating the knowledge.
3. I may further submit that as per section 35 of Cr.P.C, Emergency Incharge of any Hospital is required to send the report of accidents to the Police Authorities and it is for Police Authorities to investigate the matter as per their own procedure and law. In one of case titled: Y.P. Mehrotra And Ors. vs State Of U.P. And Anr. on 13/11/1987, Hon'ble Allahabad High Court had decided similar case with following words:
"In Mam Ram v. Union of India A.I.R. 1980 S.C. 2147 Section 5 of the Code is discussed by Krishna Iyer, J. Broadly speaking there are three components to be separated firstly, the Code generally governs matters covered by it; secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail; and thirdly, if there is a specific provision to the contrary, then that will override the special or local law. The provisions of the Act and the Rules do not cover the same area as is earmerked by the Code. We have already emphasised that the provisions of the Act and the Rules are confined to breaches of the provisions contained therein. They provide for punishment of the offences committed for violating their provisions. Section 5 of the Code will apply not only when the field of operation of the Act and the Rules completely cover the field of operation of the Code but also when their provisions lay down a contrary rule in the entire field altogether nullifying the provisions of the Code for the purpose of investigating, inquiring into and launching a prosecution for an offence punishable under Section 304-A of the Indian Penal Code. This is not so. An offence under Section 304-A of the Indian Penal Code and an offence under the Act and the Rules operate in different fields. They flow in different channels. This position is clarified by Section 4 of the Code which enjoins that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code."
6th April 2017 From India, Noida