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Work place Accident - Case Study - Need Suggestion
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Chrm Message From: tiwarirekha Total Posts: 18 Join Date: 29/03/2007
Rank: Executive Post Date: 18/09/2008 00:24:52 Points: 90 Location: United States

Hello All 
 
We are a software development company based in  Bangalore. One of our employees met with an accident  (out of her own fault in company provided RTV, two  fingers fractured) while way back to her home. She  was on leave for a month or so. Now she claims that  company should pay her salary which had been marked  as LWP (Leave without Pay). 
 
Please suggest, if campany is liable to pay her  under any Labor Law. 
 
Regards, 

Rekha 
 
PS: We do not have any accident / insurance policy  in place ..

Chrm Message From: sunil madan Total Posts: 21 Join Date: 29/03/2007  
Rank: Executive Post Date: 18/09/2008 00:28:05 Points: 105 Location: United States

Dear rekha,

your establishment must either be covered under ESI or workmen compensation act. if the injured employee is covered under esi she will get benefit according to esi provisions, if not then she will get benefit aspper w. c. act.for this accident ur company is
liable to pay compensation, because it will be deemed as accident arose out of and in the course of employment. if u need more clarifications,pl. feel free to ask.

regds

sunil madan

Chrm Message From: sonali_raji Total Posts: 1 Join Date: 29/03/2007  
Rank: Beginner Post Date: 18/09/2008 00:29:43 Points: 5 Location: United States

Company is liable only for 8 hrs from when he make entry and go out side after punching his card.

after that company is not liable though ESIC is applicable, but as per welfare Act, he can not claim because the accident was after his duty while going home, it is because we do not no from were he is coming like- bar etc.

thank you.

Sonali

Chrm Message From: surendranath Total Posts: 1 Join Date: 29/03/2007  
Rank: Beginner Post Date: 18/09/2008 00:34:42 Points: 5 Location: United States

If the employee is covered under ESI Act, she has to approach ESIC Local Office and there is no Employer's liabilty. According to a recent Supreme Court judgement, concept of notional employment is not considered by ESIC authorities as far as ESI Act is considered. There was a move to amend the ESI Act/Reulations to bring the concept of notional employment under the purview of ESI Act. this has to be checked.

If the employee is not covered under ESI Act, then she is covered under Workmen's compensation Act. Various judgements of Supreme court and different high Courts have considered the concept of notional employment and said that if the employee dies due to accident while going to work place from residence or while returning from work place to residence, as an accident arising out of and during the course of employment and as such entitled for compensation in accordance with provisions of the said Act.

In the instant case referred, the employee is entitled for compensation for temporary disablement named as HALF MONTHLY PAYMENT which works out to 50% of the salary.

Please check the provisions of WC Act.

While ESI Act also provides for medical treatment, WC Act does not provide for any medical teatment to be provided by the employer mandatorily, but any money spent on the medical treatment of the injured is not consideed as compensation under WC Act.

Liability under the provisions of WC Act may also be insured under general insurance.

Regards,

Surendranath

Chrm Message From: tashu Total Posts: 34 Join Date: 29/03/2007  
Rank: Executive Post Date: 19/09/2008 04:37:11 Points: 170 Location: United States

Dear All,

Notional extension is yet to be amended either in ESI Act or WC Act. Under ESI, if any accident happens outside the premises within one kilometer radius from the work premises during reasonable office related hours it will be considered as employment injury. Same logic will be applicable for WC also. (Decosta Case - Supreme court)

If accident happens in the company provided vehicle, irrespective of the location and time it is employment injury - for consideration under ESI and WC.

The employee cannot claim wages for the loss of pay period.

The employee can claim (or company can give) compensation under WC Act registering a case with Labour Commissioner. Any payment made by the employer directly to the employee under any outside settlement will not be considered as a legal compensation. The payment has to be made before the labour commissioner - mandatory. If the employee is covered under ESI, the employee has to approach ESI for benefit - employer should have given accident notification to ESI.

Thanks

Tashu


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