I am a self-employed person owning a proprietorship firm and working with freelancers individuals on a commission basis.
One freelancer guy has passed away on spot in a bike accident, he was driving a bike which was registered under my name, which is around midnight when we were going to our hometown.
His parents and brother registered a case under the MV act which was dismissed by the magistrate, after dismissal they have filed the case under wc act section-10 after 2 years of the accident, stating that he was my employee and he was going to the site for some works by owner bike during his traveling he met with an accident.
We haven't provided any documents which can verify the employment with us but still labor commissioner considering their case and its been almost 4years and our next date for recording the evidence would be next month, kindly suggest the evidence which can make our case stronger and also suggest good labor lawyer in Delhi.
From India, Delhi
One freelancer guy has passed away on spot in a bike accident, he was driving a bike which was registered under my name, which is around midnight when we were going to our hometown.
His parents and brother registered a case under the MV act which was dismissed by the magistrate, after dismissal they have filed the case under wc act section-10 after 2 years of the accident, stating that he was my employee and he was going to the site for some works by owner bike during his traveling he met with an accident.
We haven't provided any documents which can verify the employment with us but still labor commissioner considering their case and its been almost 4years and our next date for recording the evidence would be next month, kindly suggest the evidence which can make our case stronger and also suggest good labor lawyer in Delhi.
From India, Delhi
Dear Himanshu Jain,
You could have given a sufficient background information.
What is the nature of your business and what kind of work the freelancers do? How frequently did you give him work before his death? How long the the freelancer was working with you?
The freelancer dies of accident while at work and the family members have filed a suit to claim the compensation from you as a Proprietor. However, the Workers' Compensation Act (WCA) is applicable to the employees only.
In that case, to prove the eligibility of the claim, the onus of proving the employer-employee relationship lies with the other party. What documents do they have to prove that the died person was your employee?
Before availing of the services of a freelancer, did you make any contract agreement? In the contract agreement did you mention specifically that the work will be assigned on the case to case basis and this cannot be construed as employer-employee relationship?
Nevertheless, whether the agreement was made or not, the outcome of the case will depend on the evidence that the other party provides. The nature of the work, the frequency of assignment of the work and the method of remuneration in the past are the deciding factors to prove the employer-employee relationship.
Just because the Proprietor (respondent) says that the he had engaged the freelancer, it cannot be a ground for the labour court to decline the claim. The court could verify the merits of the case from all the angles. Therefore, it will be difficult to predict the court verdict.
Thanks,
Dinesh Divekar
From India, Bangalore
7736You could have given a sufficient background information.
What is the nature of your business and what kind of work the freelancers do? How frequently did you give him work before his death? How long the the freelancer was working with you?
The freelancer dies of accident while at work and the family members have filed a suit to claim the compensation from you as a Proprietor. However, the Workers' Compensation Act (WCA) is applicable to the employees only.
In that case, to prove the eligibility of the claim, the onus of proving the employer-employee relationship lies with the other party. What documents do they have to prove that the died person was your employee?
Before availing of the services of a freelancer, did you make any contract agreement? In the contract agreement did you mention specifically that the work will be assigned on the case to case basis and this cannot be construed as employer-employee relationship?
Nevertheless, whether the agreement was made or not, the outcome of the case will depend on the evidence that the other party provides. The nature of the work, the frequency of assignment of the work and the method of remuneration in the past are the deciding factors to prove the employer-employee relationship.
Just because the Proprietor (respondent) says that the he had engaged the freelancer, it cannot be a ground for the labour court to decline the claim. The court could verify the merits of the case from all the angles. Therefore, it will be difficult to predict the court verdict.
Thanks,
Dinesh Divekar
From India, Bangalore
Dear Mr. Himanshu Jain,
The person dies out of an accident while discharging his duty. As per you the person was working in your firm as a freelancer on commission basis. As per you, the claim of compensation by the family of diseased from you is wrong as he was not your employee. It is difficult to say whether the person was your employee or not on strength of information provided by you. The burden of proving the employer-employee relationship lies with the other party.
How come your vehicle used by the dying person for his purpose is a big question in this case?
It is a fact that the family of diseased person are eligible for compensation. The WC authority will decide who will pay the compensation. The liability to pay compensation lies either with the Employer (You) or by the Insurance Company under which vehicle got registered, as per the merit of the case.
You need to engage a lawyer for this purpose.
From India, Mumbai
The person dies out of an accident while discharging his duty. As per you the person was working in your firm as a freelancer on commission basis. As per you, the claim of compensation by the family of diseased from you is wrong as he was not your employee. It is difficult to say whether the person was your employee or not on strength of information provided by you. The burden of proving the employer-employee relationship lies with the other party.
How come your vehicle used by the dying person for his purpose is a big question in this case?
It is a fact that the family of diseased person are eligible for compensation. The WC authority will decide who will pay the compensation. The liability to pay compensation lies either with the Employer (You) or by the Insurance Company under which vehicle got registered, as per the merit of the case.
You need to engage a lawyer for this purpose.
From India, Mumbai
Dear Himanshu,
Without prejudice to your contention that the individual was not an employee in your establishment but only a freelancer engaged on commission basis, from your post it is discernible that the bike was yours and you were also on the bike along with the deceased when the road accident occurred. Your above contention also stands vindicated by the claim for compensation instituted before the Motor Accidents Claims Tribunal by the legal heirs of the deceased. It would have been better had you mentioned the grounds on which the claim was dismissed by the Tribunal.
In this connection, I would like to request you to refer to section 167 of the Motor Vehicles Act, 1988 which deals with option regarding claims for compensation in certain cases as follows:
" Notwithstanding anything contained in the Workman's Compensation Act,1923 ( 8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the WC Act,1923, the person entitled to compensation may, without prejudice to the provisions of chapter X claim such compensation under either of those Acts but NOT under both."
Therefore, in my opinion, the subsequent claim filed before the W.C.Commissioner u/s 10 of the E.C Act,1923 after the dismissal of the claim under the MV Act,1988 is not maintainable. I would suggest that you should raise a preliminary issue before the W.C.Commissioner and request him to decide it first.
From India, Salem
Without prejudice to your contention that the individual was not an employee in your establishment but only a freelancer engaged on commission basis, from your post it is discernible that the bike was yours and you were also on the bike along with the deceased when the road accident occurred. Your above contention also stands vindicated by the claim for compensation instituted before the Motor Accidents Claims Tribunal by the legal heirs of the deceased. It would have been better had you mentioned the grounds on which the claim was dismissed by the Tribunal.
In this connection, I would like to request you to refer to section 167 of the Motor Vehicles Act, 1988 which deals with option regarding claims for compensation in certain cases as follows:
" Notwithstanding anything contained in the Workman's Compensation Act,1923 ( 8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the WC Act,1923, the person entitled to compensation may, without prejudice to the provisions of chapter X claim such compensation under either of those Acts but NOT under both."
Therefore, in my opinion, the subsequent claim filed before the W.C.Commissioner u/s 10 of the E.C Act,1923 after the dismissal of the claim under the MV Act,1988 is not maintainable. I would suggest that you should raise a preliminary issue before the W.C.Commissioner and request him to decide it first.
From India, Salem
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The Workmen's Compensation Act 1923.pdf
Workmen's Compensation Act 1923.doc