Ganesh 11 February 2016

Urgent help needed in disability compensation

Dear Sir,

Background of the case :

My Younger brother is working as a Medical Representative in a Pharma company in Gujrat. On 1st June 2015, he was on leave and in my native city(Bihar). He met a road accident and he is suffering from Spinal Cord Injury. Medically termed as Paraplegia ASIA Grade A. Physically he has lost control and sensation over his lower limbs. He is completely bed ridden since last 8 months.He is getting treatment in Bangalore. Doctors have told there is no treatment available in medical science for Spinal Cord Injury. Research is still going on in medical science. But there is hope to recover for 1 year. After 1 year there is no proven case of recovery. Even after 8 months he is not even able to stand on his own. The doctors told for 1 year we will consider temporaray disability and after 1 year we will decide whether it is temperory disability or permanent disability. So hospital issued a temporary disability certificate.

We have to spend a huge money around 60K per months of his nursing assistent, medicines, Physiotherapy, etc.

Actual Case :

The employer themselves started the processing of Personal Accident Insurance and sent us the tmporary disability form to fill. We provided the same temporary disability certificate along with the duly filled application. During June to Nov 2015, I had so many rounds of discussion with ICICI Lombard claim processing team. They were asking me to provide permanent disability certificate to process the claim.I was unable to provide this certificate. But I explained them the current situation of my brother. They were not ready to process the claim. Then I asked some legal points like how coma patients are handled in insurance world it should be handled in the same way. As in both the case the medical science doesn't have any timeframe. It is completely on god, when the person will be back to normal life, even he will be normal or not. After lot of legal discussions ICICI Lomabrd processed the claim considering permanent disabilty and transferred the amount to employer on 17th Dec.

When I contacted the employer for compensation, first they told that we will calculate the Full and Final settlement amount and will transfer the final amount in my brother's account. In last 2 months the employer has given so many excuses. Today I had a discussion with the VP, HR of that company and he told me that he will talk to ICICI guys to review on their settlement. On what grounds ICICI has provided permanent disablity compensation. Even if he will not be satisfied with the ICICI response, he will appoint a medical board to decide the nature of disability and then he will decide about the compensation.

What I should do in this case . Whaat are the possible legal options which can favor us .

- Is emplyer entitled to hold the compensation awarded by ICICI ?
- As I read somewhere, providing personal Accident insurance(which covers out of office hour accidents also) is part of CSR, whether emplyer is entitled to question on Insurance provider decision ?
- Should we file a legal case of mental harassment and making financial loss on the employer ? Because they have hold the compensation amount and delaying unnecessarily.

Reply Follow

3 Replies

Kumar Doab (FIN) 14 February 2016

It is good to note that you have exerted and acted.

You seem to be well informed.

The MR's have their own state unions and that are affilliated with Trade Unions.

The VP-HR has stated to you (probably: verbally) that it shall contest the decision of Insurer :ICICI Lombard, as it has imaginated that the status ;'Permanent Disability'; taken by insurer shall have implications on claim and settlement of employer as well.

This VP-HR should state whatsoever in writing to you.

Or one may assume that: Either this VP-HR has committed a transgression or has taken legal opinion or has seen some career opportunity for him in this challeging case and has become ambitious or adventrous.

The employer is under obligation to pass the claim payment to employee.

Has the employer been deducting payment of premia from basic/gross/CTC-annual wages?

You can also explore the possibilities of payment from ESIC!

Wht the mention of Full and Final payment?

Has the employer decided to end the employment?

Ganesh 15 February 2016

Dear Sir,

Thanks for your kind response. Here is the answers of the point which you have raised :

- it shall contest the decision of Insurer :ICICI Lombard, as it has imaginated that the status ;'Permanent Disability'; taken by insurer shall have implications on claim and settlement of employer as well.

Can you please let me know What can be the implications on the claim and settlement of employer ? As I have clearly mentioned that the accident didn't happend during work.

- The employer is under obligation to pass the claim payment to employee.

Can you please point me to some rule of the employment act or labour department so that I can take a reference of those act/rule while talking to V.P, HR next time.

- Has the employer been deducting payment of premia from basic/gross/CTC-annual wages?

No .. Employer hasn't deducted the premium amount towards personal accident cover.

- Wht the mention of Full and Final payment?

On 17th Dec 2015 when ICICI transferred the compensation amount to the employer, I was verbally informed from one of HR Manager that now we will calculate the my broter's financial liability towards company(if any, eg. advance, loans,etc) and after settllement of those amount(if any) the remaining amount will be transaferred to my brother's account. In jan 2016, I was verbally informed by the same HR Manager "there is no financial liabilities of your brother towards the company. So the whole amount will be given to your brother. My V.P, HR wants to talk to your because there are some formalities. He will call you you in couple of days." I was waiting for his V.P, HR to call me but even after 1 week I didn't get any call so I called him. After that he started this new thread of contesting the decision of Insurer.

- Has the employer decided to end the employment?

They have never raised this point directly. But I suspect that every time when they are saying that there is some formalities to complete before paying the compensation, it is the formaliites about the termination only. I asked those guys what are the formaliites, they told we can't discuss over phone.

- You can also explore the possibilities of payment from ESIC!

Sir, It is another question I wanted to raise. I was not aware of ESIC, recently 2 weeks before one of my well-wisher suggested me about ESIC. When I checked my brother's payslip there is no deduction as such towards ESIC contribution. When I checked with one of his HR, he informed me that though his salary range falls in ESIC eligibility but the place where he was working(Valsad, Gujrat) doesn't comes under covered area of ESIC so there is no ESIC facility for him. I checked ESIC website and I found that Valsad, Gujrat is covered in ESIC. So, again it seems that there is one more mistake by the employer. I want to know whether ESIC is mandatory for all the employee which salary is less than 15K or it is on the wish of Employer.

If they would have done ESIC, there was a fair chances that my brother would have got the benefit of Extended sick leave for 2 years(ESIC website mentions, in case of paraplegia , extended sick leave of 2 years is valid). Though he didn't complete his job for 2 years, but there is a clause that ESIC higher official can grant the leave, in exceptional case even if the employee has not completed 2 years of service. here I want to mention that my brother has completed around 15 months of service. It was his first job.

Whether not registering for ESIC is an offence made by the employer ?

Sir, I am in big trouble. Being a middle class person, It is very tough to manage the monthly expense of more than 50K on my brother's treatment. Some how I am managing since last 8 months but I got the hope when I heard in december that he will get the compensation. I thought it will be a little helpful for me and my brother. But this new steep turn in the decision of his V.P, HR has made our life more hell. Would you mind to share your contact so that I can discuss with you and you cn guide me in this devastating phase of my life. My cell# is +91-9986010296.

Kumar Doab (FIN) 15 February 2016

The employee was on approved leave (hope you have the leave application and approval and employer has never contested it. Also the accident was not due to employee's fault).

It is simple logic that insurer has released the payment and employer should not sit on it.

The employer is also liable to inform labor Office if Employe Compensation Act benefits are also involved.

Even if employer has obtained Master Policy from an insurer it still has to register and cover thru ESIC. If employer has not covered thru ESIC then employer is liable for any/all benefits that employee could have got and also ESIC can penalize the employer.You can approach ESIC.

You could have recorded all calls. HR has already confirmed that nothing is due towards employee and hence it should release the payment without any tantrums.

If they can't discuss over phone then they can visit with prior appointment in writing preferably and explain the intent of meeting.

If you are apprehending the termination you may approach Unions/Inspector appointed State Shops & estbs Act/O/o Labor comissioner etc preferably thru an able counsel specialzing in labor law matters.

Regret I am not able for discussions by phone/email.