Dear Experts,
A driver came inside the factory to lift the material (finished goods) and died due to a road accident in the Factory. Who is liable to pay compensation to him? Can the authority ask the Factory management to pay the compensation under the Employees Compensation Act or any other Act? Is there any case law?
Regards,
From India, Delhi
10A driver came inside the factory to lift the material (finished goods) and died due to a road accident in the Factory. Who is liable to pay compensation to him? Can the authority ask the Factory management to pay the compensation under the Employees Compensation Act or any other Act? Is there any case law?
Regards,
From India, Delhi
Any person who is inside the factory to perform any work is treated as worker (Can be Casual labour or engaged through the contractor)
Any worker inside the factory premises shall be covered under ESI if the salary is with in the ESI limit even if the person is working for 1 day. Any person covered under ESI is not covered under Employee Compensation Act & it is advisable to take Employee Compensation Policy for the persons who are not covered under ESI.
Any Accident occurs inside the factory premises is directly liable to the occupier & if transport vendor is not compensating then factory need to compensate.
As you mentioned road accident in the factory & of the compensation is awarded from the vehicle insurance then Employee Compensation is not applicable
From India, Bangalore
Any worker inside the factory premises shall be covered under ESI if the salary is with in the ESI limit even if the person is working for 1 day. Any person covered under ESI is not covered under Employee Compensation Act & it is advisable to take Employee Compensation Policy for the persons who are not covered under ESI.
Any Accident occurs inside the factory premises is directly liable to the occupier & if transport vendor is not compensating then factory need to compensate.
As you mentioned road accident in the factory & of the compensation is awarded from the vehicle insurance then Employee Compensation is not applicable
From India, Bangalore
I disagree with Jeevarathnam Sir
I am assuming he was the driver of a transport vehicle that came to pick up goods from the factory.
1. Compensation under Employee Compensation Act will not apply as the person is not an employee under any law. He is an employee of a service provider who has come in connection with his work of driving a vehicle. Just because he happened to be in the factory at that time does not make him a contract worker. (assumption, he was just driving or sitting and not doing any factory related work)
2. Factory is not liable to pay his ESIC, because he is basically transiting and not working in the factory. However, to prevent problems and litigation, the factory management should have ensured that the transport company has covered his workers under ESIC
3. His family can claim compensation from the factory under TORT, for which the factories generally take a public liability insurance. (Note, the policy should not be the one just restricted to Environment)
4. If there was negligence on part of the factory or its employees, again his family is entitled to file a civil suit under TORT or ask police to file a criminal case (no compensation in criminal case)
5. The family can claim compensation from insurance company through Motor Vehicles Tribunal
From India, Mumbai
I am assuming he was the driver of a transport vehicle that came to pick up goods from the factory.
1. Compensation under Employee Compensation Act will not apply as the person is not an employee under any law. He is an employee of a service provider who has come in connection with his work of driving a vehicle. Just because he happened to be in the factory at that time does not make him a contract worker. (assumption, he was just driving or sitting and not doing any factory related work)
2. Factory is not liable to pay his ESIC, because he is basically transiting and not working in the factory. However, to prevent problems and litigation, the factory management should have ensured that the transport company has covered his workers under ESIC
3. His family can claim compensation from the factory under TORT, for which the factories generally take a public liability insurance. (Note, the policy should not be the one just restricted to Environment)
4. If there was negligence on part of the factory or its employees, again his family is entitled to file a civil suit under TORT or ask police to file a criminal case (no compensation in criminal case)
5. The family can claim compensation from insurance company through Motor Vehicles Tribunal
From India, Mumbai
Hi Saswatabanarjee
Its nice to have healthy discussions as it will help to understand the Act & Rule much better. I really welcome your observation.
Workmen/employee compensation Act never says as worker & it refers employed in the industries/activities etc
Section 1(ii) & (iii) of Schedule 3 is clear that anyone employed for the purpose shall be compensated as per the Act.
Section 2(n) has the definition of the workman which covers even the contractors, casual labours etc who are employed for any activity with in the premises
I do accept about the TORT & Public general liability, unnamed insurance policy, Workmen compensation policy if covered as contractors, third party liability etc also covers
From India, Bangalore
Its nice to have healthy discussions as it will help to understand the Act & Rule much better. I really welcome your observation.
Workmen/employee compensation Act never says as worker & it refers employed in the industries/activities etc
Section 1(ii) & (iii) of Schedule 3 is clear that anyone employed for the purpose shall be compensated as per the Act.
Section 2(n) has the definition of the workman which covers even the contractors, casual labours etc who are employed for any activity with in the premises
I do accept about the TORT & Public general liability, unnamed insurance policy, Workmen compensation policy if covered as contractors, third party liability etc also covers
From India, Bangalore
In the instant case the employer/paymaster is liable to pay the compensation. The driver was doing the material collection and transporting on behalf of the transporter agency. The family of the deceased should file a case against transporter for compensation. This is a MV case, as per Section 164, if a person is seriously hurt, or dies due to an accident caused by a motor vehicle, the owner or insurer of that vehicle has to pay compensation. The company where accident happened is no way liable to pay compensation because the deceased has no employee and employer relationship.
The company authority can pay some financial assistance to the family of the dead out of good gesture on sympathy ground.
Further, the cause of accident too can held responsible the company authority, if found guilty by the Factory Inspector and Police. There would be a separate case by the authority of Factory Inspector.
From India, Mumbai
The company authority can pay some financial assistance to the family of the dead out of good gesture on sympathy ground.
Further, the cause of accident too can held responsible the company authority, if found guilty by the Factory Inspector and Police. There would be a separate case by the authority of Factory Inspector.
From India, Mumbai
Jeevarathnam P Sir,
Definition of worker in Employee Compensation Act, Sec 2(n) was deleted in 2009
The definition of Employee is as below :
*[(dd) "employee" means a person, who is--
(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or
(ii) (a) a master, seaman or other members of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or
(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;]
Nowhere in the definition they are talking of contract workers.
But in any case, a driver of a truck that has come to pick up some goods from the factory does not qualify as he was not "Employed in Such Capacity as specified in Schedule II by the factory. In fact the factory did not employ him at all.
If you see sec 2(e), it says
(e) "employer" includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a *[employee] are temporarily lent or let on hire to another person by the person with whom the *[employee] has entered into a contract of service or apprenticeship, means such other person while the *[employee] is working for him;
Even here, the services of the driver were never lent or let on hire to the factory.
The transporter may have "let" the truck for carrying the goods. It does not make the factory the employer of the driver. If that was the case, then they would be liable for any vehicle anywhere in the world which is carrying the goods
From India, Mumbai
Definition of worker in Employee Compensation Act, Sec 2(n) was deleted in 2009
The definition of Employee is as below :
*[(dd) "employee" means a person, who is--
(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or
(ii) (a) a master, seaman or other members of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or
(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;]
Nowhere in the definition they are talking of contract workers.
But in any case, a driver of a truck that has come to pick up some goods from the factory does not qualify as he was not "Employed in Such Capacity as specified in Schedule II by the factory. In fact the factory did not employ him at all.
If you see sec 2(e), it says
(e) "employer" includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a *[employee] are temporarily lent or let on hire to another person by the person with whom the *[employee] has entered into a contract of service or apprenticeship, means such other person while the *[employee] is working for him;
Even here, the services of the driver were never lent or let on hire to the factory.
The transporter may have "let" the truck for carrying the goods. It does not make the factory the employer of the driver. If that was the case, then they would be liable for any vehicle anywhere in the world which is carrying the goods
From India, Mumbai
Under the Employees' Compensation Act, the factory management must compensate the driver's family for his unfortunate demise on the premises. This social security legislation mandates compensation for employees injured or killed during work. Despite the accident occurring at the factory, the driver qualifies as an employee entitled to compensation. The management's liability is established through vicarious responsibility. Precedents have upheld the obligation to compensate families in such cases. Additionally, the Fatal Accidents Act holds them accountable if negligence led to the accident. In conclusion, the factory management must provide compensation under either of these acts, providing support to the bereaved family.
From India, Dombivali
From India, Dombivali
Dear Pocket
Please explain how the driver working for a transporter becomes an employee of the occupier of the factory
Also, please tell me under which clause in fatal accidents act he is covered.
Please note that the post shows nothing to indicate that the occupier or manager was responsible or negligent for the accident
From India, Mumbai
Please explain how the driver working for a transporter becomes an employee of the occupier of the factory
Also, please tell me under which clause in fatal accidents act he is covered.
Please note that the post shows nothing to indicate that the occupier or manager was responsible or negligent for the accident
From India, Mumbai
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