Employee Accident Outside Work: Do We Need to File an ESI Report? Seeking Advice

One of our employees, while going back home, met with an accident. Do we need to provide an accident report to the ESI? Kindly provide suggestions.

Thanks & Regards,
C.M. Mohla

You need to provide an accident report along with statements from two witnesses.

Regards,
Ashe

If the employee is covered under the ESI Act, then he would definitely be entitled to benefits from ESIC. However, you need to send Form No. 16, an intimation of the accident. Please submit the accident report and obtain a copy of the FIR from the police.

Thank you.

How are we supposed to get witness statements when it is outside the office premises and we only came to know about it 3-4 days after the accident? Kindly advise.

Thanks & Regards,
C.M. Mohla

Nexus Between Accident and Employment

There should be a nexus between the circumstances of the accident and the employment. Whether the accident occurs within or outside the territory is not important. If it is sufficiently proved that the injury to the employee was by an accident arising out of and in the course of employment, no matter when and where it occurred. A mere road accident on a public road while the employee was on his way home or to the factory cannot be said to have its origin in his employment in the factory. Referring to Regional Director ESI v Francis de Costa, 1997LLJI34c. So in your case, sir, I don't think you have to pay ESI benefits. But do wait for some seniors to share their views on this.

Understanding Section 51E of the ESI Act

This case falls under Section 51E of the ESI Act. The accident shall be deemed an employment injury if the nexus between the circumstances, time, and place of the accident is established. It is up to the employee to establish this with the ESIC. The employer should also help the employee. You should notify this provision to the employee.

Since the inclusion of Section 51E, the case referred to by Mr. Mukherjee is not relevant. If the employee is not covered as an Insured Person (IP), the employer will be liable under the Employee Compensation Act if the employment is covered under Schedule 11 of the EC Act.

Regards,
Varghese Mathew
Labour Law Adviser
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Steps to Take After an Employee Accident

The first thing you need to do is obtain an FIR from the police station where the accident occurred. Then, prepare all the details of the accident, such as the place, time, date, and purpose of traveling. After that, fill out Form 16 and submit it to the local ESI office branch.

Please also remember to take a sketch copy of the accident scene from the police station.

If you are planning for reimbursement, kindly let me know, and I will guide you accordingly.

Thank you.

Understanding Accident Coverage for Employees

There is ample case study and court judgment on any accident happening outside the premises of a factory. Basically, if an accident occurs on the way to an employee's house, either coming to duty or going home after duty, or if the employee has been sent on some duty, it should be that the route taken is the normal route and it should fall within a 1 km radius from the factory. It should have happened within one hour from the time of leaving the house and after leaving the premises of the factory; then the nexus is established as circumstances to be termed as "notional extension." Otherwise, it does not qualify as an accident that has taken place during and in the course of employment. Wherever it is not covered under ESI, then the WCA Act will come into play.

Importance of Personal Accident Policy

Every company should cover all its employees under a separate Personal Accident Policy other than ESI or WCA Act invariably. Getting a Panchanama as a witness is the job of the police before filing the FIR. One caution in this case: if the employee claims under the MV Act, then he...

I appreciate your comments. However, can you provide a reference to the judgment regarding notional extension if the accident happened within a 1 KM radius from the factory? Can it be claimed in the absence of the insertion of such provisions in the Act?

Understanding Section 51E of the ESI Act

I agree with Mr. Methew that the case in hand will fall under Section 51E of the ESI Act. This section, inserted by Act 18 of 2010 and applicable from 1.6.2010, provides that:

“An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if the nexus between the circumstances, time, and place in which the accident occurred and the employment is established.”

Employer's Responsibility Regarding Form 16

However, I don't think there is any requirement to send Form 16 for the employer in such a case. No employer is supposed to go to the police station, obtain the FIR, and then submit Form 16. Although it is still a grey area and there are no clear-cut guidelines so far on the subject.

Reference to Regulation 68 of ESIR, 1950

You may please refer to Regulation 68 of ESIR, 1950, which provides the duty of the employer as to when and in what manner an accident report is to be sent. In such a case, it is not necessary for the employer to send a report in Form No.16. It is the duty of the employee concerned to establish the nexus of the accident with the employment. However, the employer may furnish details of employment on demand of the ESI authorities.

Regards,
PKJAIN

Accident Report Requirements Under Regulation 68

Regulation 68 permits accident reports in the form under the Factories Act if it contains all the details. Therefore, the legal requirement is to have a report with all the necessary details regardless of the form. Section 51(e) was incorporated in 2010, but the regulation under it is yet to be made. Instead of providing details only when asked by the BO, it is advisable to send the report in Form 12 in the interest of your employees.

Regards,
Varghese Mathew

Accident Reporting Requirements Under ESI and Factory Act

The answer to the query is that there are no requirements for sending any accident report if the accident takes place outside while returning after attending duty under the ESI Act. The employer is not under any legal obligation under the Act, and it is very clear. The provisions of the Factory Act also do not impose any obligation to report if the accident occurs outside the duty period.

Regards,
pkjain

Understanding "Accident" in the ESI Act

The word "accident" is not defined in the ESI Act, rule, or regulation. Therefore, we have to rely on its general meaning. Under Section 51.E, an accident occurring outside is considered an employment injury (subject to conditions) as defined in the Act. Regulation 68 places an obligation on the employer to send a report of the accident if it comes to their notice.

Regards,
Varghese Mathew

I am not fully in agreement with the interpretation of Mr. V. Mathew. The employer is not under a legal obligation to send an accident report if the accident occurred outside the employment place while going after duty unless the nexus is established with the employment after examining the circumstances, time, and place of the accident, as mentioned in sec. 51E of the ESI Act. Because the benefit to the IP is ultimately to be granted by the ESI authorities, they are the proper authority to evaluate it and advise the employer. Therefore, the employer is not supposed to fill and send an accident form in such cases unless advised by the authorities.

Suppose after filling the accident form, the claim is rejected by the ESI, and by virtue of the employer's admission that it happened during the course of employment, the employee would not claim compensation from the employer. Although it is a grey area and there are no clear-cut rules/provisions on the issue, filling the accident form in such matters is not advisable for any employer.

Regards,
PKJAIN

Accident Reporting to ESI Authority

Any accident should be reported to the ESI authority without considering its benefits. The crucial factor in an accident is whether it occurred in the course of employment. Every day, taking the same route to and from the office is considered to be in the course of employment.

Consider this: if the company provides a bus for transportation, and it is involved in an accident, what will happen? ESI will inquire whether the individual was on employment at the time of the accident. In the case of Workers' Compensation, it is deemed to be in the course of employment. However, if the accident results in death, what will happen?

If you have any further questions, please feel free to contact me.

Regards,
Siddhartha Guhathakurta
GM- HR (Labor Advisor)
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Sorry, sir, I still do not agree with your contentions that every accident should be reported, even if it does not have any nexus with employment. There is a difference in informing ESI and filling out the accident form.

Regards,
pkjain

Insurance and Compensation for Employee Accidents

If the company has a Medi-claim Policy, then irrespective of the fact of the accident, he can get reimbursement/payment through the Insurance Company as per the Policy. Moreover, the ESI Act/WCA are not applicable to all categories of employees. Further, the said Act will be applicable in the instant case, provided the accident has taken place during the course of employment or was incidental to employment. There should be some nexus between the employment and the cause of the accident. FIR and other formalities should be completed in time to pay the compensation. In this connection, the court decision referred to very nicely by one of the experts above will be very helpful. He may be requested to refer to the relevant case law so that it can be studied in more depth.

In addition to the above, on humanitarian grounds, a deviation could be made from the company's policy with the specific approval of the Competent Authority. The best course would be to place the matter before the Board of Directors for an appropriate decision or to seek its post-fact approval by obtaining in-principle approval from your M.D./C.M.D.

I am seeking advice from colleagues and seniors. Thank you in advance for your guidance.

Employee Accident and Compensation Query

One of our employees, while coming to the office for the night shift, met with an accident. He is covered under medical insurance, and the coworker who witnessed the incident promptly reported it to HR & Admin. He was admitted to the hospital and underwent surgery due to multiple fractures. The doctors recommended three months of bed rest. At the time of the accident, the employee had completed one year of service with the company.

Management ensured that his medical costs, as per the policy eligibility, are compensated and also provided him with one month's pay by adjusting his eligible leaves.

Questions on Salary and Leave Entitlement

I have two questions:

a. Does the company have to pay his full salary until he recovers and is fit to resume work, i.e., for the next two months?

b. Is there an upper limit on the leave that can be extended to him? If salary payment is required, is there a ceiling?

Legally, are we obligated to pay his salary, and if so, for how long or how many months are we supposed to pay someone who is bedridden due to an accident while coming to work?

At the employee's request, we are considering offering him a work-from-home option once he is able to sit up and work. Currently, he is in bed and unable to do so.

Please provide your valuable advice.

Thanks & Regards,
Vijaya

Accident Report Submission

Sir, mere ek weaver ka duty aate time road accident ho gaya aur us din Sunday hone ki wajah se accident form nahi bhar paya, lekin aaj Monday ko FIR or witness ke statement ke bina kaise bhara ja sakta hai. Pls bataye.