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GOD PLANS   03 November 2020

Rights of the heir of deceased employee against employer

Respected Sir / Madam,

Facts:

Mr. A worked as a driver in a private limited company (“employer”). He was driving the company’s goods vehicle on duty. Goods vehicle hit on a container truck standing on the right side of the road. Mr. A died in that accident. The heir of Mr. A filed against the insurance company of the container truck for third party claims.

Queries:

1. Whether the employer company is liable to pay any compensation to the legal heir of Mr. A as his death was on duty?
2. Whether the employer company can avoid his liability saying that the heir of Mr. A filed against the insurance company of the container truck for third party claims?
3. Whether the heir of Mr. A has right to get both third party claims from insurance company and compensation from the employer?

Please advise the legal rights of the heir of Mr.A in the above case against the employer company.

Your advice is highly appreciated.

Thank you.



 6 Replies

Suri.Sravan Kumar (senior)     03 November 2020

Let me answer to your qry

1.) The employer is liable to pay compensation to the LR's of Mr A under the Employees Compensation Act as the death was in an accident arising out of and during the course of employment.

2. The Employer can take plea that LR's of A filed claim against the Owner as well as Insurance Co of the Container.

3. As per the M.V Act the LR's can claim compensation either under M.V.act or under Employees Compensation Act and not under both. Sec 167 of M.V.Act bars dual claim of compensation.

2 Like

P. Venu (Advocate)     03 November 2020

Learned expert Mr. Sravan Kumar has given a comprehensive reply.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 November 2020

1. Employer is the Insured Party and for ANY type of loss, only the Employer can file insurance claim of third party damages & compensation etc.... (which includes claims of death of "A" (its employee).

2. "A" is not the insured Party and there is no privity of contract between Insurance Co. & "A". Hence legal heir of "A"  CANNOT file any claim directly to the Insurance Co.  BUT legal heir can file claim for compensation with the Employer.

3. Point no. 2, will depend on whether accident happened because of Drunk & Driving, Negligence of "A" or the Container Truck driver, Mechanical Failure of either Vehicle,  etc.... There will be many factors taken into consideration alongwith the Police report on the accident.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

Dr J C Vashista (Lawyer)     04 November 2020

I agree with expert advise of Mr. Suri Sarvan Kumar .

Q 1 Yes, employer is liable to compensate LRs of deceased driver.

Q 2 The LRs can claim compensation from insurance as the driver was insured with the vehicle

Q 3 The claimant shall have to opt for compensation either from employer or insurance.

Pradipta Nath (Advocate)     04 November 2020

1. In case the Employee is covered under the ESIC, the dependent of the deceased is entitled for the welfare under the scheme. And whereas the employee was not covered under the ESIC, the Employer is bound to give compensation under the Employees' Compensation Act.

2. No, the Employer cannot avoid the statutory liability as held under the Employees' Compensation Act or ESIC Act. The only limitation is under section 61 of the ESIC Act which bars the similar benefits of other welfare schemes. i.e you cannot have benefits from both ESIC and EC Act simultaneously!

3. For answering question no. 3, need to go through the terms and conditions of the insurance. Otherwise the Employer cannot avoid its statutory obligation as enumerated under the ESIC Act or EC Act.

But to satisfy claim the representative of Mr. A should be a dependent as per the definitions otherwise the employer is not obliged unless he preferred to move under section 164 of the MV Act and claim compensation!

GOD PLANS   04 November 2020

Sir,

Thanks for your efforts and kind advise. I will communicate your reply to the legal heir of Mr.A.

Thanks sir


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