Dear Dixon ji / Dear Abhijeet ji / Dear All Viewes, To suffice my above answers, I am attaching the judgement of Orissa HC in the matter of Sterlite Energy V. State of Orrissa.
From India, Mumbai
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2636From India, Mumbai
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Hi all,
If an employee meets with an accident and dies within the factory or establishment, and the nearest police station is informed, an FIR is lodged. The rest of the formalities, such as sending the accident report, are only formalities. Section 88(2) of the Factories Act requires sending a notice within 24 hours, which has already been done if you have informed the nearest police station. Fill out the accident report, i.e., Form 24, and send it to the insurance company. If no claim is settled by the insurance company, file a claim before the Employees' Compensation Commissioner within the prescribed limitation period.
R.L. Dhingra, Advocate, Labour Law Consultant Delhi
Contact: 09818309937
Email: rld_498@rediffmail.com
From India, Delhi
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If an employee meets with an accident and dies within the factory or establishment, and the nearest police station is informed, an FIR is lodged. The rest of the formalities, such as sending the accident report, are only formalities. Section 88(2) of the Factories Act requires sending a notice within 24 hours, which has already been done if you have informed the nearest police station. Fill out the accident report, i.e., Form 24, and send it to the insurance company. If no claim is settled by the insurance company, file a claim before the Employees' Compensation Commissioner within the prescribed limitation period.
R.L. Dhingra, Advocate, Labour Law Consultant Delhi
Contact: 09818309937
Email: rld_498@rediffmail.com
From India, Delhi
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Dear Abhijeet,
Claim Under Workmen’s Compensation Act 192
(Now The Employees’ Compensation Act 1923)
For claiming compensation under the Act, there are two options available:
1. The legal heirs of the deceased can file a case against the employer with the Commissioner for Workmen’s Compensation which is there in every district. The Labour Court will issue notice to the employer who in turn can inform the Court that the compensation is payable by the Insurance Company. Normally the Court directs the Insurance Company to pay the compensation.
2. Alternatively the employer on his part has to submit the report of fatal accident in form EE to the Commissioner for Workmen’s Compensation with the relevant details, enclosing copy of Insurance policy. The Commissioner will conduct the hearing and pass necessary orders against the Insurance Company / employer.
3. Of course necessary papers will have to be submitted to the Insurance Company to settle the claim under WC policy
Whatever I have stated above is what we practise in Kerala which I believe is applicable to whole of India.
(N.K.Raveendran)
From India, Kozhikode
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Claim Under Workmen’s Compensation Act 192
(Now The Employees’ Compensation Act 1923)
For claiming compensation under the Act, there are two options available:
1. The legal heirs of the deceased can file a case against the employer with the Commissioner for Workmen’s Compensation which is there in every district. The Labour Court will issue notice to the employer who in turn can inform the Court that the compensation is payable by the Insurance Company. Normally the Court directs the Insurance Company to pay the compensation.
2. Alternatively the employer on his part has to submit the report of fatal accident in form EE to the Commissioner for Workmen’s Compensation with the relevant details, enclosing copy of Insurance policy. The Commissioner will conduct the hearing and pass necessary orders against the Insurance Company / employer.
3. Of course necessary papers will have to be submitted to the Insurance Company to settle the claim under WC policy
Whatever I have stated above is what we practise in Kerala which I believe is applicable to whole of India.
(N.K.Raveendran)
From India, Kozhikode
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Dear All,
Thank you for your kind suggestion. As I have mentioned, it is not possible to submit Form 24 now. I only have a photocopy of the wages paid voucher, not the original, as it was misplaced by my previous HR Manager. Please suggest.
From India, Aurangabad
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Thank you for your kind suggestion. As I have mentioned, it is not possible to submit Form 24 now. I only have a photocopy of the wages paid voucher, not the original, as it was misplaced by my previous HR Manager. Please suggest.
From India, Aurangabad
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Dear Hirea You can manage this issue. Please try within your level. I have already sent you a private message. Act accordingly.
From India, Kumbakonam
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From India, Kumbakonam
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Dear Seniors,
Thank you for your suggestion. I have acted as per your guidelines. However, now the insurance company is requesting a letter stating an explanation about why the factory's act does not apply to our company on the company's letterhead. Will this be harmful to our company? Please advise.
Regards,
Abhijeet Hire
+919011436868
From India, Aurangabad
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Thank you for your suggestion. I have acted as per your guidelines. However, now the insurance company is requesting a letter stating an explanation about why the factory's act does not apply to our company on the company's letterhead. Will this be harmful to our company? Please advise.
Regards,
Abhijeet Hire
+919011436868
From India, Aurangabad
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Dear All,
Thank you to all of you for your valuable suggestions. Now we have received a cheque in the name of WC Commissioner, and we have to recover the amount paid to the deceased employee's family from the cheque, as we have paid them an advance amount until receiving the cheque. The deceased employee's legal heir has provided in writing on a ₹100 Stamp paper that they do not have any objection to paying our amount from the cheque received from the insurance company. Please help us on how we can recover the amount that was paid by our company in advance to the deceased family.
Regards,
Abhijeet
From India, Aurangabad
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Thank you to all of you for your valuable suggestions. Now we have received a cheque in the name of WC Commissioner, and we have to recover the amount paid to the deceased employee's family from the cheque, as we have paid them an advance amount until receiving the cheque. The deceased employee's legal heir has provided in writing on a ₹100 Stamp paper that they do not have any objection to paying our amount from the cheque received from the insurance company. Please help us on how we can recover the amount that was paid by our company in advance to the deceased family.
Regards,
Abhijeet
From India, Aurangabad
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Dear Abhijeet,
You should not pay any amount to the family/legal heir of the deceased. Whatever the compensation calculated, it should be directly paid to the Workmen Compensation Commissioner. The compensation amount must be paid by the WC Commissioner after verifying the necessary proof of the legal heir. If you paid any amount directly to the family of the victim, it should be considered as Ex-gratia and not considered as compensation. Please refer to Section 8 of the WC Act for further clarification.
From India, Kumbakonam
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You should not pay any amount to the family/legal heir of the deceased. Whatever the compensation calculated, it should be directly paid to the Workmen Compensation Commissioner. The compensation amount must be paid by the WC Commissioner after verifying the necessary proof of the legal heir. If you paid any amount directly to the family of the victim, it should be considered as Ex-gratia and not considered as compensation. Please refer to Section 8 of the WC Act for further clarification.
From India, Kumbakonam
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Dear Abhijeet,
As per the Employee Compensation Act, firstly, the employer has to report any fatal accident to the Workmen Compensation Commissioner within 7 days of the accident. Secondly, within a month of such an incident, the employer has to deposit the compensation amount to the Workmen Compensation Commissioner. In case of a fatal accident, no compensation can be directly paid by the employer to the heirs of the deceased. It is the WC commissioner who calls the dependents (legal heirs) of the deceased with proof/documents and, after verifying the same, distributes the compensation amount proportionately among the dependents.
In your case, you have paid the compensation directly. Therefore, please apprise your case to the workmen's compensation commissioner and show him all the documents (compensation cheque copy, declaration given by legal heirs), and try to get this settlement registered under him.
Thanks and regards,
Jaspal Negi
From India, Mumbai
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As per the Employee Compensation Act, firstly, the employer has to report any fatal accident to the Workmen Compensation Commissioner within 7 days of the accident. Secondly, within a month of such an incident, the employer has to deposit the compensation amount to the Workmen Compensation Commissioner. In case of a fatal accident, no compensation can be directly paid by the employer to the heirs of the deceased. It is the WC commissioner who calls the dependents (legal heirs) of the deceased with proof/documents and, after verifying the same, distributes the compensation amount proportionately among the dependents.
In your case, you have paid the compensation directly. Therefore, please apprise your case to the workmen's compensation commissioner and show him all the documents (compensation cheque copy, declaration given by legal heirs), and try to get this settlement registered under him.
Thanks and regards,
Jaspal Negi
From India, Mumbai
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Dear Jaspal,
It seems that Abhijeet either has not remitted the compensation amount cheque to WC Commissioner within the month of fatality or failed to submit the photocopy of the cheque and the acknowledgement duly issued by the WC Commissioner along with the insurance claim application. That's the reason the cheque has been issued in the name of WC Commissioner. If the legal heir is returning the amount paid as advance to Abhijeet, then it is well and good. But if the legal heir denies to return the advance money paid to them, then Mr. Abhijeet cannot claim the same from the legal heir, as Section 8 of the WC Act clearly states that no amount should be given directly to the family/legal heir of the deceased, and if the same is paid, then it will be considered Ex-gratia.
Appended below is Section 8 of the WC Act:
8. DISTRIBUTION OF COMPENSATION. - (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make advances to any dependent on account of compensation of an amount equal to three months' wages of such workman, and so much of such an amount as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees, which is payable as compensation, may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under subsection (1), as compensation in respect of a deceased workman, the Commissioner shall, if he thinks necessary, cause notice to be published or served on each dependent in such a manner as he thinks fit, calling upon the dependents to appear before him on such a date as he may fix for determining the distribution of the compensation.
If the Commissioner is satisfied after any inquiry which he may deem necessary that no dependent exists, he shall repay the balance of the money to the employer by whom it was paid.
The Commissioner shall, on the application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under subsection (4), be apportioned among the dependents of the deceased workman or any of them in such a proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependent.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied, or otherwise dealt with for the benefit of the woman or of such person during his disability, in such a manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on an application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependent or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependent is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made or shall be made in any case in which it would involve the repayment by a dependent of any sum already paid to him.
(9) Where the Commissioner varies any order under subsection (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation, or other improper means, any amount so paid to or on behalf of such a person may be recovered in the manner hereinafter provided in section 31.
From India, Kumbakonam
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It seems that Abhijeet either has not remitted the compensation amount cheque to WC Commissioner within the month of fatality or failed to submit the photocopy of the cheque and the acknowledgement duly issued by the WC Commissioner along with the insurance claim application. That's the reason the cheque has been issued in the name of WC Commissioner. If the legal heir is returning the amount paid as advance to Abhijeet, then it is well and good. But if the legal heir denies to return the advance money paid to them, then Mr. Abhijeet cannot claim the same from the legal heir, as Section 8 of the WC Act clearly states that no amount should be given directly to the family/legal heir of the deceased, and if the same is paid, then it will be considered Ex-gratia.
Appended below is Section 8 of the WC Act:
8. DISTRIBUTION OF COMPENSATION. - (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make advances to any dependent on account of compensation of an amount equal to three months' wages of such workman, and so much of such an amount as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees, which is payable as compensation, may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under subsection (1), as compensation in respect of a deceased workman, the Commissioner shall, if he thinks necessary, cause notice to be published or served on each dependent in such a manner as he thinks fit, calling upon the dependents to appear before him on such a date as he may fix for determining the distribution of the compensation.
If the Commissioner is satisfied after any inquiry which he may deem necessary that no dependent exists, he shall repay the balance of the money to the employer by whom it was paid.
The Commissioner shall, on the application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under subsection (4), be apportioned among the dependents of the deceased workman or any of them in such a proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependent.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied, or otherwise dealt with for the benefit of the woman or of such person during his disability, in such a manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on an application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependent or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependent is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made or shall be made in any case in which it would involve the repayment by a dependent of any sum already paid to him.
(9) Where the Commissioner varies any order under subsection (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation, or other improper means, any amount so paid to or on behalf of such a person may be recovered in the manner hereinafter provided in section 31.
From India, Kumbakonam
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