Seeking Help: How Can I Claim Compensation for My Father's Death on Duty?

Dear Sir,

My father works as a night watchman, and unfortunately, he passed away while on duty. However, the factory management did not provide any compensation to us. How can I claim this compensation? Who should I contact for assistance? There are no labor lawyers in my town, and some lawyers are saying they are not familiar with these acts. What steps should I take to claim the compensation?

Thank you.

Was your father a regular employee of the company/factory? What did he die of? Which town are you from?

Our condolences on the death of your father. Please provide full details so that learned members can assist you with proper answers.

Your place is probably near the Guntur district of Andhra Pradesh. Approach labor authorities in Guntur for redressal.

Dear Syed Vali,

My heartfelt condolences to you and your family members. May Allah give you strength to bear this loss.

Dear Natharao,

May I ask you:

1. Does the ESI Act or EC Act distinguish between regular employees and non-regular employees?
2. In the case of death while on duty, how does it affect how the employee passed away?

Thank you.

"Death while on duty, how it affects as to what did employee die off?"

Kindly refer to Chapter 11 of the EC Act 1923, Section 3. This describes employer liability and reasons where the employer is not liable.

Dear Nathrao,

It is Chapter II and not Chapter 11. The section 3 describes that the employer is not liable in certain cases, as you said, but there is an important wording - "not resulting in death or permanent total disablement," to my knowledge. I am writing this without referring to the section right now and hope I am not wrong. If I am wrong, please correct me.

What you have written is correct. But reading of this court decision The Managing Director vs Smt. Subbulakshmi on 8 April, 2011 though it went in favor of the worker's family may give cause to the employer to contest the claim. Therefore, I wanted to check for more details to understand the case fully.

"My father is doing a job like a night watchman." This sentence does not give a clue whether he was a direct factory employee or a contractor's employee.

I would request some of our learned friends who are located close/nearby to Syed's place to guide him, if possible. Maybe the local jurisdictional court has a Free Legal Cell whose assistance could be utilized in this case.

I suggest handling it in a more polite way. Build up documentary records in the process. Please write an application as a son, submit or send it by registered post, asking factory management to square up dues due to families, including earned wages, leave salary, and other receivables that nominees are entitled to on completion of certain formalities. My advice is to first reach out to the company requesting the dues. In the meantime, obtain the father's PF and ESI numbers and cards, and make arrangements for the death certificate and succession certificate as well. It's likely that you will receive almost all the due and payable money for the nominees.

My condolences to the family members. I pray that the Almighty gives you and your family members the strength to bear the loss, and may the departed soul rest in peace.

Regards,
RDS Yadav
Management Adviser and Trainer
Director - Future Institute of Management and Technology

Clarification Needed on Security Personnel Compensation

Can anyone please clarify the following:

1. Is the company liable to pay the security watchman compensation if the watchman has been hired by the security agency, which has the direct employment clause, and the watchman continues to be the employee of the security agency and not the company where he is performing his duties? The security agency is also responsible for payment of salary/wages, including any allowances, as per the contract.

2. What are the responsibilities of both the company and the security agency towards the security personnel deployed in the factory premises?

Bombay High Court Ruling on Employer Liability

In a significant ruling, the Bombay High Court has laid down a substantial point of law, stating that the liability towards an employee engaged by a contractor or managing agent is on the principal employer.

The court recently upheld the decision of the 'Mumbai Commissioner for Workmen's Compensation' to award monetary relief to a worker who died in an accident, despite the fact that he was not employed by the principal employer but by a contractor.

Justice A H Joshi was hearing an appeal filed by United Assurance Company Ltd, which challenged the award of compensation to a driver who was hired by M G M Motors to transport vehicles on behalf of Mahindra & Mahindra Ltd (M&M).

The Judge noted that this being an appeal under The Employees' Compensation Act, the appellant has to substantiate the challenge on substantial questions of law.

He directed the appellant's advocate, K V Vitonde, to pinpoint and address the court on a substantial question of law: whether a principal employer would be liable to pay compensation to a worker employed by a managing agency.

Admittedly, the victim was not employed by M&M, a top auto firm that owned the vehicles. The victim was rather employed by M G M Motors, to whom the work/contract for the transport of vehicles was entrusted by the auto company.

Liability of employee is on the principal employer: HC - The Times of India

This gives a fair idea of the liability of the principal employer.

Dear Nathrao, I was aware of this judgment but still, I kept mum intentionally. We have many learned members on this forum, and I was expecting someone else to come out with this. Thanks for bringing this discussion forward in the correct way.

Entitlement to Compensation

The nominee of the deceased watchman is entitled to compensation under ESI if he is an Insured Person under ESIS and if not, under the EC Act. Compensation is payable by the ESI corporation or by the employer as the case may be. Here, the employer means his master. If his master is a contractor and is denying to pay the compensation, then the Principal Employer has to pay it.

The compensation is payable irrespective of whether the deceased watchman was a regular employee or not, whether the deceased watchman was in direct employment or not, and what the cause of death was. I hope there is no ambiguity on this subject.

Regards,

Suggestions for Claiming Compensation

My suggestions to the querist are as follows:

1. Write to the employer, i.e., both the contractor and the Principal Employer (PE), as applicable, providing details of the incident of your father's death while on duty. Request compensation as applicable under the Employees' State Insurance (ESI) or Employee's Compensation (EC) Act.

2. If the employer does not respond to your request, file a complaint with the ESI Corporation if your father was an Insured Person under ESI. If not, file a complaint with the Commissioner under the EC Act.

3. Hire an expert to lead the case before the authority. The expert must prove that the death occurred out of and in the course of employment.

The incident of death occurred on the premises of employment. The employer is responsible for lodging a complaint about the incident with the police and notifying various authorities.

Procedure to Claim Compensation Under the EC Act

1. An application for claiming compensation under the EC Act must be made to the Commissioner for Employee's Compensation in the prescribed form.

2. Before filing the application, the employee or their nominee must give notice of the accident to the employer, including details of the accident/incident.

3. Before filing the application, the employee must submit to a medical examination if required by the employer, in cases of accidents not resulting in death.

4. The application must be made within two years of the accident or within two years from the date of death.

5. If the applicant is poor, the Commissioner may exempt them from paying the application fees.

6. The Commissioner can seek assistance from any person with special knowledge related to the case for deciding the application.

7. The Commissioner can recover the amount payable by any person under the Act as an arrear of land revenue.

The querist has no option but to approach a good advocate locally. The querist seems to be from the Guntur district of Andhra Pradesh. As suggested by one of the members, Loginmiraclelogistics, if any of our members are from the Guntur district of Andhra Pradesh, please come forward to help and provide legal justice to the poor person from the employer and/or the authorities.

Regards.

Answer - Part 1
The company is always responsible, even if security staff is engaged through an agency. The agency is liable to follow applicable labor laws, and non-compliance situations have to be corrected by the agency. However, the principal employer cannot escape responsibility. There could be various types of terms and conditions in the agreement signed between the two, but the establishment cannot be divided between them.

Part 2
The security agency has to pay wages earned, leave salary, and other dues to the nominees. Wage payment, including unpaid wages, is the principal employer's responsibility. That is, if the first party has not paid, any processes like PF/PENSION, ESI, or death benefits are not allowed. The principal employer must be compelled to ensure benefits are paid to nominees.

Regards,
RDS Yadav

Dear Shri Korgaonkar,

Quote:

"I was aware of this judgment but still I kept mum intentionally. We have many learned members on this forum and I was expecting someone else to come out with this."

The main issue is how the querist can be helped. The poor gentleman is shocked at the death of his father. He does not appear to have that much knowledge of the complicated laws on the subject and even the financial muscle required to tackle factory management.

I was aware of the ruling by Honorable courts on the subject of the principal employer earlier itself. That is why I quoted it for discussion and awareness of other HR people who may not be aware of the particular ruling. The deceased is entitled to some sort of compensation here, and if the legal aid society in district courts can help him out, it will be ideal.

Regards

I would visualize that if there is an active union of employees (registered or unregistered), half of their problems would be solved. I expect this case is not that complicated to fix with the PE and/or the Contractor for an amicable settlement. Probably, the dependents need some seed money to kick-start the process in Indian conditions. Advocates might also expect a certain percentage of the settlement. Similarly, if the authorities insist on a 'succession certificate,' court fees are also involved. Additionally, the postmortem report of the deceased is crucial evidence in the scheme of things. If the employees' union takes up the case, it's a sure shot.