Seeking Advice: Is It Fair for a Company to Demand No Further Claims After a Work Accident?

I am a senior citizen man. My younger son had an accident at a steel-making company while working and unfortunately passed away. He had been working with that company for the last 3 years and 6 months as an engineer, earning a salary of more than $25,000. The company has a group accidental insurance policy, and I have submitted all the necessary documents for the death claim. However, the company is requesting that I provide an affidavit in court stating that I will not make any further claims beyond the group accidental insurance claim. I am unsure if this is a fair practice. What should I do? Can you kindly suggest a course of action? Additionally, I am wondering if I may expect additional compensation as my son was the main provider for my family.

Regards,
Harihar Prasad

You can bring the case before the Regional Factory Director regarding the same. I am confident that you will receive a fair amount through the EC Act. I advise you not to provide any affidavit. You will receive ECA Compensation + Group Accidental Insurance.

Regards

Compensation Under the WC Act

The company is liable to pay you compensation as per the WC Act. If your expectation of compensation is significantly different from what the company is ready to pay, you should go through the labor commissioner. The company's approach is more like an "out of court settlement" and would ensure a speedy payout. There is nothing wrong with it. You are not entitled to both WC and GPA claims.

Dear Shri Harihar Prasad Ji, Please accept heartfelt condolences from me, Sir. Certain things are not in our hands. It seems the company wants to settle the legal dues only with a claim under Group Accidental Insurance and has deprived you of other legal dues payable to you. That is the reason the company is asking you to sign the affidavit.

Legal Dues and Entitlements

Your deceased son was covered under Group Accidental Insurance. The claim under it is the right of the nominee/legal heir. Apart from that, the company is liable to pay the following legal dues:

1. Unpaid salary till the date of death, if any;
2. Leave encashment;
3. Settlement of PF dues, pension, and IF under it, if a member of PF;
4. Gratuity; and
5. Compensation under EC Act.

A claim under GAI is not a substitute for the Compensation under EC Act.

Your son worked with the company for, I suppose, 3 years & 6 months. If the company has GGS and there is insurance cover, you will get a good amount of Gratuity. Else, you are entitled to Gratuity for 4 years.

Steps to Claim Your Dues

To get your claim, you are advised to first write to the company and approach the Labour Commissioner and Factory Inspector. You can also approach the Senior Citizen Cell in your region. They will help you.

Can I know the name and address of the company? You can contact me anytime on my cell [Phone Number Removed For Privacy Reasons].

Regards,

Applicability of Employee Compensation Act in the USA

The above case seems to be posted from the USA. If the accident occurred in the USA and the company is also based in the USA, then the Employee Compensation Act (EC Act) will not apply. Instead, there may be local laws that would be applicable. American courts are very strict when it comes to compensating for accidental deaths, especially in cases involving negligence.

Please provide clarification on the above.

You will receive benefits under both policies as it is mandatory for every company falling under the Factories Act to obtain Group Personal Accident (GPA) and Workers' Compensation (WC) policies for their employees.

The death benefit under GPA and WC should be provided to you. The company's HR department should assist you in claiming from the insurance company. If they are not fulfilling this responsibility, you can approach the Regional Labour Commissioner.

I have a similar case. One of my brothers-in-law was working in Bahrain on behalf of an Indian company, Bramco India Pvt. Ltd., from 16 Feb 2004 to 30 March 2006. He died in a boat tragedy off the coast of Bahrain during a Nass, Murray, and Roberts party to celebrate the completion of concreting work at the Bahrain World Trade Centre. A total of 58 persons died in that tragedy, including his wife. However, no compensation was paid to his parents by either the company he was working for or the boat company that capsized.

Please advise if she can send a notice for compensation now, as this case is more than 7 years old.

Regarding compensation, there is a separate court called a "WC" court, which means Workmen Compensation Court. It operates under the "Workmen Compensation Act." Now, the Act has changed to the "Employees Compensation Act." My suggestion is not to give any affidavit to the company. Instead, file a complaint against the company through the proper channels with the "Employees Compensation Commissioner."

Dear Asrovastava1975,

In cases of injury or death due to an accident arising out of and in the course of employment, the employer is liable. This is a universal law. Therefore, the family members of victims are entitled to receive compensation.

The case is now time-barred. However, it is still advised to approach a good advocate. It is also recommended to contact the Central Labour Ministry and opposition leaders in Parliament. If all the victims are Indian, the families of all 58 victims should unite; the Government has to take action. The victims were employed by an Indian company, and the accident took place in Bahrain; International Law is also involved in this case.

Regards,

Since the salary is around Rs. 25,000, the company might have exempted this person from PF and also from ESI. The service is 3 years and 6 months, and he may not get the gratuity.

However, if he died while working, it would be better to lodge a complaint with the nearby police station and take necessary legal action against the criminal procedure. Many of these companies try to exploit people, and even their legal advisors go along with them. This has been my experience.

Thanks and Regards,
J. Narayanan

The court will decide whether he was working in a managerial position or not. Many companies hire engineers for routine work in the company. In my opinion, he was entitled to receive all benefits applicable to the factory.

Secondly, as per the Gratuity Act, in the case of death, the completion of 5 years of service is not required. Therefore, he is entitled to receive gratuity benefits.

Regards,
R.A. Lawande

Parents of your brother-in-law cannot legally claim compensation since the accident did not arise out of or occur during employment. However, they can benefit from the Group Accident Insurance Scheme if the deceased was enrolled in the scheme.

Dear mmsmnk, can you please justify your above statement? Why do you say the accident has not arisen out of and in the course of employment?

Would appreciate it if you could guide me on how to take this further. His parents didn't make any claim at that time as they were in utter shock, and we came to know about this recently during an informal chat with his mother. His father also passed away in September 2006. I feel it is her right to be compensated, and it should not be held against her that she didn't file for compensation earlier. It was the duty of their son's employer to take care of his ailing parents by adequately compensating for the loss of their child. A total of 17 persons died in that accident, including my sister-in-law.

Dear Varghese ji,

Why do you feel that the EC Act is not applicable in this case? Can you please enlighten me on it?

The definition of workmen under the EC Act includes master seamen or other members of the crew of a ship. There are special provisions in section 15 relating to masters and seamen. Therefore, in my view, the employer is liable. However, the case is now time-barred, as I mentioned earlier.

Regards

What was the cause of the accident? You can file a criminal case against the company for causing death by negligence by filing a police complaint within the factory's jurisdiction. Also, contact the union leaders of the steel company to settle claims as per your requirements through negotiation. If needed, you can demonstrate in front of the factory gate demanding justice. In my opinion, the company has to pay compensation at least equivalent to the lifetime salary that would have been earned by your son.

Best regards,

BS Gopala Krishna
[Email Removed For Privacy Reasons]

Dear saswatabanerjee,

The accident happened in India. This case does not belong to the USA.

Regards,
[Username]

The location of your posts is showing as USA, so I thought you were based in the USA.

Understanding Group Insurance and Employee Compensation

Many companies provide group insurance paid by the company as a means of covering the risk of liability under the Employee Compensation Act. This act was earlier called the Workman Compensation Act, and its name was changed with a definition to cover not only workers but all employees of the company. These group insurance covers are called WC Insurance, though they are actually a form of group accident cover.

I do not know the details of the cover taken by your company, so I cannot comment on whether it is WC insurance (which is now mandated by law) or a pure group accident cover. Irrespective of how the cover is designed, you are entitled to full compensation under the EC Act.

Steps to Claim Compensation

I would suggest you go to the labor office with all details and documents and explain to the chief commissioner or whoever is the authority on the matter. He will be able to tell you the amount of compensation you are entitled to. There is a form you can fill and give him officially lodging a claim of compensation. The commissioner will then initiate an inquiry and ensure that the compensation is given to you. I understand the time limit for completing the process is 3 months to ensure there is no delay.

If you have a copy of the insurance cover, please see whether the money is due to the company or to you as the heir of your son. If the money is due to you (and not to the company), then you can directly approach the insurance company for the money independent of the process under the EC Act.

Hope this is of help to you.

Our seniors will correct any errors I may have made in the process above.

Compensation Process for Workmen's Accidents

Generally, companies will receive payment as per the workmen's compensation award given by the Joint Commissioner of Labour. After that, the employer will receive the GPA insurance amount from the insurance company. If the GPA amount exceeds the workmen's compensation award, the balance amount will also be paid to the nominee and children of the deceased.

Please inform in writing the Commissioner of Labour, Director of Factories, District Collector, and send a copy to the employer. All the appropriate authorities will assist you in this regard.

Regards,
L. S. RAO

If the accident occurred in India, then the appropriate authorities will come into the picture (Department of Labour, Factories Department & District Collector). Please specify where the accident occurred (India or Abroad).

Regards,
L S RAO

The tragic employment accident mentioned by Mr. Harihar Prasad is still not clear whether it is a case of a fatal accident to an Indian employee while employed abroad or in India. However, the accident mentioned by Mr. Srivatsava is clearly a case of a fatal accident to an Indian employee employed by a company registered in India while working abroad. Out of my work experience as a Commissioner for Compensation under the Employees Compensation Act, 1923, I share my viewpoints in respect of both cases as follows:

Section 15-B of the E.C Act, 1923

Section 15-B provides for special provisions relating to workmen abroad of companies and motor vehicles. Other things remaining the same or similar:

1. The first and foremost condition for a claim for compensation under these special provisions of the Act is that the company for whose employment the workman was recruited and sent abroad should have been registered in India.

2. The notice of the accident and the claim for compensation may be served on the local agent of the company in the country of the accident.

3. Ordinarily, in the case of the death of the workman in respect of whom the provisions of Section 15-B are applicable, the claim for compensation shall be made within one year after the receipt of the news of death by the claimant. However, the Commissioner is empowered to condone the delay if sufficient cause is shown to his satisfaction and entertain the claim.

Hence, a claim can be preferred by the dependents of the victim of the Bahrain employment accident even now.

Regarding Mr. Harihar Prasad's case, I fully endorse the views of Mr. Korgaonkar. If the victim was an employee recruited by an Indian company and the accident happened while working abroad, the claim shall be made as set out earlier.

As the dependent parents of your deceased son, your wife and you are entitled to compensation under the Employees Compensation Act, 1923, in addition to the proceeds of the Personal Accident Insurance and gratuity under the Payment of Gratuity Act, 1972. It would be advisable to engage a Counsel experienced in labor matters. They will guide you properly and make all the necessary arrangements.

Good luck to you!

Dear Harihar Prasad ji, I once again reiterate that the employer is wrong in settling all your dues, including the claim under the EC Act, against the amount receivable under the GAP claim. Apart from the amount under the GAP claim, the company is liable to pay you compensation under the EC Act. However, if it is mentioned in the schedule of the GAI policy that the claim under this policy will discharge the employer's liability under the EC Act, in this case, the employer is right in settling the claim of the EC Act under the claim of GAI.

I remember having seen nearly 5-6 years back such a Group Insurance policy discharging the employer from liability under the WC Act. There are many private insurance companies, and they offer various kinds of products as per the need and charge premiums accordingly. You need to see the schedule of the policy and confirm that the said policy does not discharge the employer from the claim under EC and proceed further as advised by me or Shri. Umakanthan.

The same information was conveyed to your son who telephoned me. In fact, from him, I learned that the company claims that the EC claim is settled under the GAI. Therefore, you need to confirm it from the schedule of the policy. You are advised to obtain a copy of it either from the company or from the insurance company and forward me a scan at [Email Removed For Privacy Reasons].

Regards,

Kindly share the following details:

- Date of Accident
- Place of Accident
- Designation of Victim
- Nature of Work/Duties Assigned
- Where Was He Treated Immediately After the Accident
- Post-Mortem Report - Cause of Death
- Police Report - Cause of Death
- Name of Company & Address
- Company's Financial Standing, Nature of Business, etc.
- Name & Age of Victim
- Factories Inspector's Report Regarding the Accident
- Any Other Information Available with You
- Management's First Information Letter to You

Regards,
BS Gopala Krishna

Dear sir,

The company is liable to pay under the Workmen's Compensation Act of 1923 for:
1) Group Accidental Insurance
2) Unpaid salary
3) Leave encashment
4) Gratuity
5) Bonus
6) PF dues

If the company rejects settling the above statutory payments, you can file a case before the Assistant Commissioner of Labour.

Compensation calculation under the Workmen's Compensation Act of 1923 is as follows:
Age factor of the deceased employee * salary * (percentage of loss) 50/100.

Thanks & Regards,

In both of your cases, if it is related to outside India where one may be in America and the other in Bahrain, you need to ascertain the age of the person, his salary at the time of death, and what he would have earned up to the age of 60, had he lived.

Based on the deceased's total earnings for the rest of his life up to the age of 60, you should file the claim with:

a. The Indian Embassy in the country you are located
b. The Labour head of the country where the deceased worked
c. The human rights commission of the country where the deceased worked

Later, if you have not received the proper claim, you can challenge the orders of the above authorities in the appropriate court of law in that country. In other words, you should first decide what the appropriate claim is in consultation with local authorities or an advocate.

Mr. Srevastav mentioned that in Bahrain, no compensation is paid even after 7 years. Try to make a claim by sending the documents directly from India and through the Indian Embassy. Since nothing has been done in the last 7 years, I don't know what can be done now, but you can still try.

If the accident occurred in India, the suggestions have already been provided and the same could be implemented.

Have a wonderful day.

In both cases, you can also file a claim with their registered company in India and the Commissioner of Labour of the state where you reside. Since the other death is not in America, as misunderstood, you should file your claim as advised by Umakanthan.M, Additional Commissioner of Labour (RTD), and other members: Vivian Chandrashekar, Advocate, and Management Consultant.

Contact details:
Phone: 9916138191
Email: advocatevivian@gmail.com