CHAPTER VI DEPENDANTS BENEFIT LAW CONTENTS Subject Paras No. Definition of dependants benefit.... L.6.1 Definition of dependant.... L.6.2 to L.6.4 Partial dependence.... L.6.5 to L.6.6 Periodical payments.... L.6.7 Entitlement to dependants benefit.... L.6.8 to L.6.9 Widowed mother s entitlement.... L.6.10 Other dependants.... L.6.11 Full rate of dependants benefit.... L.6.12 Share of widow, children and widowed mother.... L.6.13 Share of other dependants.... L.6.14 to L.6.15 Review of dependants benefit.... L.6.16 to L.6.18 Payment when review decision is awaited.... L.6.19 Date of accrual of dependants benefit.... L.6.20 When claim becomes due.... L.6.21 to L.6.23 When claim becomes payable.... L.6.24 to L.6.24A Increases in rates of dependants benefit.... L.6.25 Special increase in case of lowest wage groups.... L.6.26 275
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CHAPTER VI DEPENDANTS BENEFIT LAW Definition of dependants benefit L.6.1. Dependants benefit consists of periodical payments to such dependants of an insured person who dies as a result of an employment injury sustained as an employee under the ESI Act, as are entitled to compensation under the Act [Clause (d) of Sub-Section (1) of Section 46]. It does not, however, matter whether death occurs instantaneously or after a lapse of some period from the time/date of the accident resulting in the employment injury. For the definition of employment injury, reference may be made to Chapters IV & IV A on Temporary Disablement Benefit Law. There are no contributory conditions for qualifying to this benefit. Thus, if a person dies of employment injury even on the first day of his employment, his dependants are entitled to the benefit. Definition of dependant L.6.2. Clause (6A) of Section 2 of the ESI Act says that a dependant means any of the relatives of a deceased insured person, namely :- (i) (ia) (ii) *A widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter; widowed mother; if wholly dependent on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of ** twenty five years and is infirm; (iii) if wholly or in part dependent on the earnings of the insured person at the time of his death (a) a parent other than a widowed mother, (b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate, if married and a minor or if widowed and a minor, (c) a minor brother or an unmarried sister or a widowed sister, if a minor, (d) a widowed daughter-in-law, (e) a minor child of a predeceased son, (f) a minor child of predeceased daughter where no parent of the child is alive, or (g) a paternal grand parent if no parent of the insured person is alive. * w.e.f. 1.6.2010, item (i) above has been changed to read, A widow,a legitimate or adopted son who has not attained the age of twenty five years, an unmarried legitimate or adopted daughter. ** w.e.f. 1.6.2010 The above definition of dependant is somewhat similar to the definition of a dependant as given in clause 2 (d) of the Workmen s Compensation Act, 1923, with one important difference that whereas a widower finds no place in the list of dependants as given in the ESI Act, he is included as a dependant vide clause 2(d) (iii) (a) of that Act with a rider if wholly or in part dependent on the earnings of the workman at the time of his death. 277
L.6.3. The condition of being dependent on the earnings of the insured person at the time of death does not apply to the relatives named in item (i) viz., a widow, minor legitimate or adopted son, an unmarried legitimate or adopted daughter and item (ia) viz., a widowed mother. L.6.4. An adopted son or daughter is a dependant under clause (6A) of Section 2. But, to be admitted as such, his/her guardian should submit a declaration as to the adoption being valid from a competent court of law. Mere statement of panchayat or municipality or a Member of Legislative Assembly in support of the adoption should not be accepted by Regional Office as proof of adoption. Conversely, an adoptive parent would also be deemed as a dependant on furnishing proof of adoption, subject to other conditions. Partial dependence L.6.5. As per definition of term dependant certain relatives of the deceased insured person become eligible as dependants only if they were wholly or in part dependent on his earnings at the time of his death. To determine whether a relative was partially dependent, court judgments have brought out the following aspects of partial dependence :- (i) (ii) (iii) Dependence is a question of fact and not of law. No yardstick or precise criteria can be laid down on the question and a decision on each case of partial dependence must rest on its own facts. Compensation is not a solatium paid to the relatives of a deceased but something to replace the income loss suffered by them. This test would tend to exclude those parents from the purview of partial dependence whose earning partner makes an income which is much in excess of the deceased s income and/or is sufficient not only to make ends meet but also to maintain a certain reasonable standard of living. Conversely, this test also may help a family whose income in combination with the deceased s income was just or barely sufficient for upkeep of the family. L.6.6. The conclusion to be drawn from the foregoing is that a relative other than those given in item (i) and item (ia) of the definition has to prove to the satisfaction of the Corporation that he/she was partially or wholly dependent on the deceased s earnings. The mere submission of a claim duly attested by the competent authority is no guarantee to his being admitted by the Corporation as a dependant. The Corporation is also free to admit or reject the claim of a relative of the deceased as a dependant. The Branch Office has to guide and assist the claimants in the matter of submission of claims and to gather relevant evidence in support of dependency where necessary. The Branch Office will also provide its own recommendations in regard to total or partial dependence of a claimant, based on facts and circumstances as seen and verified by it. An illustrative list of such facts and circumstances, which is by no means exhaustive, is given below to help the Branch Office in making its recommendations : - (i) (ii) Income of parents and other relatives, if any, claiming to be dependant, whether from wages, salary, business, profession and agricultural income, if any. Income of the deceased at the time of his death. (iii) Whether the deceased was living with those relatives at the time of his death. (iv) Total estimated family expenditure and their style of living. (v) Personal expenses of the deceased. (vi) Where there is no conclusive evidence that the deceased was contributing to family income, any evidence in support of claim that the deceased was supporting one or more of his relatives individually e. g., his mother, or his younger brother or sister, etc. 278
Periodical payments L.6.7. Dependants benefit consists of periodical payments and no part or whole of this benefit can be commuted into a lumpsum. Each claim must cover one or more complete calendar months except in the case of the first or the last claim where it can be for part of a month also vide Regulation 83A of the ESI (General) Regulations, 1950, which is reproduced below :- 83A. Submission of claims for periodical payments of dependants benefit.- Each dependant whose claim for dependants benefit is admitted under regulation 82, shall submit to the appropriate Branch Office, by post or otherwise, a claim covering, except in the case of first or a final payment, a period of one or more complete calendar months in form 18A (form 16 w.e.f. 1.1.05). Such claim may be made by the legal representative of a beneficiary or, in the case of a minor, by his guardian. Entitlement to dependants benefit L.6.8. Section 52 of the Act, as amended, states as under : 52. Dependant s benefit.- (1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependants benefit shall be payable at such rates and for such period and subject to such conditions as may be prescribed by the Central Government to his dependants specified in sub-clause (i), sub-clause (ia) and sub-clause (ii) of clause (6A) of Section 2. (2) In case the insured person dies without leaving behind him the dependants as aforesaid, the dependants benefit shall be paid to the other dependants of the deceased at such rates and for such period and subject to such conditions as may be prescribed by the Central Government. L.6.8A. The Central Government has made detailed provisions in Rule 58 of the Employees State Insurance (Central) Rules, 1950, regarding daily rate, duration, eligibility and share of different types of dependants. The said Rule 58 as amended and effective from 1.10.2000 is reproduced below for ready reference. 58. Dependants benefit.- (1) Dependants benefit shall be paid to dependants of the insured person who dies as a result of an employment injury, in the following manner :- (A) In the case of death of the insured person, the dependants' benefit shall be payable to his widow, children and widowed mother as follows : (a) to the widow during life or until remarriage, an amount equivalent to three fifths of the full rate and, if there are two or more widows, the amount payable to the widow as aforesaid shall be divided equally between the widows; (b) to each legitimate or adopted son, an amount equivalent to two-fifths of the full rate until he attains the age of eighteen years: Provided that in the case of a legitimate or adopted son who is infirm and who is wholly dependent on the earnings of the insured person at the time of his death, dependants' benefit shall continue to be paid while the infirmity lasts; (c) to each legitimate or adopted unmarried daughter an amount equivalent to two-fifths of the full rate until she attains the age of eighteen years or until marriage, whichever is earlier; Provided that in the case of a legitimate or adopted unmarried daughter who is infirm and is wholly dependent on the earnings of the insured person at the time of his death, dependants' benefit shall continue to be paid while the infirmity lasts and she continues to be unmarried; 279
Provided further that if the total of dependants' benefit distributed among the widow or widows and legitimate or adopted children and widowed mother of the deceased person as aforesaid exceeds at any time the full rate, the share of each of the dependants shall be proportionately reduced, so that the total amount payable to them does not exceed the amount of disablement benefit at the full rate. (d) to the widowed mother during life an amount equivalent to two-fifths of the full rate (B) In case the deceased person does not leave a widow or legitimate or adopted child or widowed mother, dependants' benefit shall be payable to other dependants as follows :- (a) to a parent other than the widowed mother or grand-parent, for life, at an amount equivalent to three-tenths of the full rate and if there are two or more parents other than widowed mother or grand-parents, the amount payable to the parents (other than widowed mother) or grandparents as aforesaid shall be equally divided between them; (b) to any other (i) male dependant, until he attains the age of eighteen years, (ii) female dependant, until she attains the age of eighteen years or until marriage, whichever is earlier or if widowed, until she attains eighteen years of age or remarriage, whichever is earlier; at an amount equivalent to two-tenths of the full rate: Provided that if there be more than one dependant under clause (b), the amount payable under this clause shall be equally divided between them. (2) (a) The daily rate of dependants benefit shall be fifty per cent more than the standard benefit rate specified in Rule 54 rounded to the next higher multiple of five paise corresponding to the average daily wages in the contribution period corresponding to the benefit period in which the employment injury occurs. (b) Where an employment injury occurs before the commencement of the first benefit period in respect of a person, the daily rate of dependants' benefit shall be :- (i) where a person sustains employment injury after the expiry of the first wage period in the contribution period in which the injury occurs, the rate, fifty per cent more than the standard benefit rate, rounded to the next higher multiple of five paise corresponding to the wage group in which his average daily wages during that wage period, fall; (ii) where a person sustains employment injury before the expiry of the first wage period in the contribution period in which the injury occurs, the rate, fifty per cent more than the standard benefit rate, rounded to the next higher multiple of five paise corresponding to the group in which wages actually earned or which would have been earned had he worked for a full day on the date of accident, fall. The dependants' benefit rate calculated as aforesaid shall be called the full rate. L.6.8B. It will be clear from a study of section 52 of the Act and Rule 58 of the Central Rules that dependants' benefit is payable to a widow for life or until remarriage, to each legitimate or adopted son upto the age of 18 years and to each legitimate or adopted daughter upto the age of 18 years or until her marriage whichever is earlier. This benefit is also payable to an infirm son or infirm daughter who has attained 18 years of age provided the infirm son or daughter was wholly dependent on the earnings of the insured person at the time of his death. This benefit is payable to the infirm son so long as his infirmity lasts; in case of daughter so long as her infirmity 280
lasts or until her marriage even if her infirmity continues. The term infirmity includes physical or mental infirmity and, for entitlement to dependants' benefit, the infirm son/daughter should have total or, in any case, very substantial lack of earning capacity. L.6.9. A minor son/daughter who was below 18 years but not infirm at the time of insured person s death and who develops an infirmity later on, is not entitled to dependants' benefit for infirmity and the benefit will be stopped in respect of him/her when he/she becomes 18 years old. However, if a minor son/minor unmarried daughter is infirm at the time of insured person s death, his/her dependence on the latter s earnings will be presumed and in order to ensure continuance of dependants' benefit to such an infirm son/infirm unmarried daughter beyond the age of 18 years, it will be advisable for him/her to get his/her infirmity certified by the competent authority just after the insured person s death. The investigating official of Branch Office should suitably guide the guardian, so as to avoid hardship later on when such an infirm son/infirm unmarried daughter attains 18 years of age. Widowed mother s entitlement L.6.10 With the amendment of Central Rule 58(vide para L.6.8A) widowed mother has become a first category dependant w.e.f. 1.10.2000 just like widow and children. Other dependants L.6.11. Where the insured person does not leave behind any of the dependants mentioned in sub-clause (i), (ia) and (ii) of Section 2(6A), then his parents or if none is alive his paternal grand parents would be entitled to dependants' benefit for life, provided they were wholly or in part dependent on the earnings of the insured person at the time of his death. Besides parents/grand parents, other minor relatives of the deceased listed in items (b) to (f) of item (iii) of Section 2(6A) of the Act would also be entitled to the dependants' benefit, until 18 years of age subject to the condition of their total or partial dependence on the earnings of the insured person at the time of his death. Full rate of dependants' benefit L.6.12. The method of calculation of full rate of dependants' benefit as given in Rule 58, reproduced above, is exactly the same as the method of calculation of daily rate of temporary disablement benefit. It follows that if an insured person received temporary disablement benefit for a few days after sustaining an employment injury which later resulted in his death, there would not be any need to calculate afresh the full rate of dependants' benefit payable in respect of him to his dependants. Share of widow, children and widowed mother L.6.13. Rule 58 (1) (A) determines the share of widow, children and widowed mother of the deceased in the manner described in para L.6.8A above. A few examples of distribution of dependants benefit to widow(s), children and widowed mother are given below by way of clarification:- The total of dependants benefit as distributed amongst the widow(s) child (ren) and widowed mother will not exceed the full rate. Some examples of distribution of dependants benefit to widow(s) child(ren) and widowed mother are given below by way of clarification:- Example No. Number of children Each child s share Widowed mother s share Widow s Share** Remarks (a) 1 2/5 2/5 3/5 **In case more than one widow survives, then share of widow will be equally divided among them. Total not to exceed the full rate; hence, the child, widowed mother and widow will get 2/7, 2/7 and 3/7 respectively. 281
(b) - - 2/5 3/5 - (c) 1 2/5 2/5 * *No widow surviving. Total payable works out to 4/5 th of the full rate. (d) 2 2/5, 2/5 - * No widows and no widowed mother surviving. Total 4/5 th of full rate. (e) 3 2/5, 2/5, 2/5 2/5 * Total not to exceed full rate of benefit; hence each one will get 2/8. (f) 2 2/5, 2/5 2/5 3/5 Each child will get 2/9, widowed mother 2/9 and widow 3/9. If there are 2 widows, each widow will get 3/18 of full rate. Share of other dependants L.6.14. In case the deceased person does not leave a widow or legitimate or adopted child, or widowed mother, dependants' benefit shall be payable to the other dependents in the manner stated in Rule 58(I) (B) reproduced in para L.6.8A. L.6.15. It has, however, to be noted that the existence of dependants as well as their dependence, partial or total, has to be seen at the time of death of the insured person and not on a date before or after his death. The only exception to this principle is a posthumous child born to the eligible widow from the deceased insured person. Review of dependants benefit: L.6.16. Section 55A of the Act says as follows: 55A(1) Any decision awarding dependants' benefit under this Act may be reviewed at any time by the Corporation if it is satisfied by fresh evidence that the decision was given in consequence of nondisclosure or misrepresentation by the claimant or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent) or that the decision is no longer in accordance with this Act due to any birth or death or due to the marriage, remarriage or cessation of infirmity of, or attainment of the age of eighteen years, by a claimant. (2) Subject to the provisions of this Act, the Corporation may, on such review as aforesaid, direct that the dependants' benefit be continued, increased, reduced or discontinued. L.6.17. Regulation 84 on the above subject states as under: 84(1) The amounts payable as dependants' benefit in respect of the death of an insured person may be reviewed by the appropriate Regional Office at its own initiative, and shall be so reviewed if an application is made to that effect, under any of the following circumstances :- (a) If any of the beneficiaries ceases to be entitled to the dependants' benefit by reason of marriage, remarriage, death, age or otherwise, or (b) if a fresh dependant is admitted to the claim for dependants' benefit by the birth of a posthumous child, or (c) if, after the previous decision as to the distribution of the dependants' benefit was taken, some facts materially affecting such distribution come to light. (2) Any review under this regulation shall be made after giving due notice by registered post to each of the dependants, stating therein the reasons for the proposed review and giving them an opportunity to submit objections, if any, to such review. 282
Subject to the provisions of the Act and these regulations, the appropriate Regional Office may, as a result of such review, commence, continue, increase, reduce or discontinue from such date, as it may decide, the share of any of the dependants. L.6.18. A review of the eligibility and share of each dependant will be necessary in the following circumstances: (i) A posthumous child is born to the widow from deceased insured person: The dependants benefit will be reviewed with effect from the date of birth of the posthumous child and share of dependants fixed/refixed in the light of position prevailing on the said date. Illustration I: Insured person died childless on 1.5.2009 and widow started getting 3/5 ths of the full rate with effect from 2.5.2009. She gave birth to a living child on 1.10.2009. While there will be no change in the rate of dependants' benefit payable to her, dependants' benefit at 2/5 ths of the full rate will become payable in respect of the new-born with effect from 1.10.2009. Illustration II: Insured person died on 1.8.2008 leaving behind his widow and 2 minor children. The rates of dependants' benefit were fixed as 3/7 ths for the widow and 2/7 ths each for the two children. A posthumous child was born to the widow on 15.12.2008. The rates on review of dependants' benefit will be fixed as 3/9 ths i. e., 1/3 rd for the widow and 2/9 ths in respect of each of the three children with effect from 15.12.2008. (ii) A child dependant reaches 18 years of age or dies before reaching this age OR A female child gets married before she reaches 18 years of age: In case of death of a child, dependants' benefit will be paid at the rates already fixed upto and including the date of his/her death, and reviewed, to be effective from the date following the date of death. In case of marriage of female child, benefit at the old rate will be payable upto the date preceding the date of marriage and reviewed, to be effective from the date of marriage. Similarly, dependants' benefit will be payable at the old rate in respect of son or unmarried daughter upto the date preceding the date on which he/she becomes eighteen years and reviewed, to be effective from the next day. In case there is a younger son/younger unmarried daughter already admitted as dependant, the total benefit payable will not be affected but only the shares will be redistributed. Illustration I: A widow and her two children were in receipt of dependants' benefit when her younger child, being a daughter, was married on 15.10.2009. The earlier shares of dependants benefit, being 3/7 ths for the widow and 2/7 ths each for the children, will be refixed as a result of the review as under with effect from 15.10.2009. Widow -- 3/5 ths of the full rate Elder child -- 2/5 ths of the full rate. Illustration II: A widow and her only son were in receipt of dependants' benefit when her son became 18 years old on 10.12.2008. Dependants' benefit in respect of the son will be stopped with effect from 10.12.2008 and widow will continue to get her own share only, being 3/5 ths of the full rate, from 10.12.2008. 283
(iii) The widow gets remarried or dies: In the event of her remarriage, the widow s share will be stopped w.e.f. the date of her remarriage; In the event of her death, her share will be stopped w.e.f. the date following the date of her death. The share of other dependants will be reviewed and refixed from the relevant date. Illustration : On death of the widow; The share of each dependant will work out as follows :- (a) Widow mother was one of the dependants: No. of Children Each Child s share Widow mother s share Total share 1 2/5 2/5 4/5 2 2/6 each 2/6 6/6 (full) 3 2/8 each 2/8 8/8 (full ) (b) There was no widow mother: No. of Children Each Child s share Total share 1 2/5 2/5 2 2/5 each 4/5 3 2/6 each 6/6 (full) (iv) Of the two widows admitted, one dies or gets remarried. Date of review will be the same as in three (iii) above. The half of widow s share which was being paid to the widow now deceased/remarried will be relocated in favour of the surviving/remaining widow who will start receiving widow s full share of DB admissible. There will be no change in the rates of DB being paid to other dependants. (v) Of the two parents admitted, one dies. During their lifetime, each parent was getting 3/20 of the full share of DB. When one of them dies, the share of the deceased parent will be relocated to the surviving parent who will start getting 3/10 of the full rate of DB as admissible to a single parent (other than widow mother) w.e.f. the date following the date of the late parent s death. (vi) An infirm child in receipt of dependants' benefit who is above 18 years of age overcomes his/her infirmity: Dependants' benefit will be stopped to him/her. On review, other dependants will receive dependants' benefit on reallocation of their shares in the same manner as when a dependant child becomes 18 years old. Payment when review decision is awaited L.6.19. Review of dependants' benefit will be carried out normally by the Regional Office at its own initiative or on reference from Branch Office and the Regional Office will ensure issue of revised rates of dependants' benefit admissible to the remaining dependants before the date of termination of benefit to a dependant, e. g., when a dependent child is to be 18 years old. At other times, the Branch Office will initiate a review on coming to know of events like marriage/remarriage of a daughter/widow or death of a dependant and it may take time for the Branch Office to receive the Regional Office decision on review. In cases where the Regional Office decision is awaited and the next payment of dependants' benefit has fallen due, there is no bar to the Branch Office 284
continuing payment of dependants' benefit at the old rates in respect of those dependants who will obviously continue to be eligible even after the review. The payments thus made can be adjusted against the revised rates received from Regional Office after the review. However, in the following cases the payment may be stopped and the Regional Office review decision awaited: (1) When guardianship of dependants has been put to question. (2) Information regarding marriage of a daughter, remarriage of a widow or widowed daughter, death of a dependant was received long after the event, and payment for periods after the date of the event has already been made. (3) Some material facts putting into doubt the right to benefit of some dependants already admitted have been brought to light. Date of accrual of dependants' benefit L.6.20. As per Regulation 83, the dependants benefit shall accrue from the date of death in respect of which the benefit is payable, or where disablement benefit was payable for that date, from the date following the date of death. It follows also that in case wages were paid for the date of death, dependants' benefit accrues from the date following the date of death. When claim becomes due L.6.21. Under Section 77, an application claiming a benefit shall be made before an Employees Insurance Court within a period of three years from the date on which cause of action arose. The cause of action would be deemed to arise only if the dependants of the deceased insured person had claimed the dependants' benefit in accordance with the Regulations within a period of twelve months after the claim became due. In other words, the claimants should have filed the claim with the Corporation within 12 months of the date on which it became due. Employees' Insurance Court can, however, relax this 12 months limit on grounds which appear reasonable to the court. Regulation 45 (d) says that a claim for dependants' benefit for the purposes of Section 77 of the Act becomes due for the first payment on the date of death of the insured person or, if disablement benefit was paid for the date of death, on the date following the date of death and, in case of birth of a posthumous child, on the date of birth of the posthumous child. For subsequent payments, as per Regulation 45 (e), the claim for payment of dependants' benefit becomes due on the last day of the month to which it relates. L.6.22. Thus, the right of a dependant to dependants' benefit is legally enforceable only if he or she submitted a claim for the benefit to the Corporation within 12 months of the date on which it became due and, the same having not been paid by the Corporation, submits an application within 3 years of the said date to the Employees' Insurance Court. The limit of 12 months as aforesaid may be relaxed by the Court on grounds which appear reasonable to the court. L.6.23. In view of the fact that a vast majority of the dependants may be illiterate and ignorant of the provisions of the law as described above, the Corporation continues to entertain claims for dependants' benefit received later than the legal time-limits. The Regional Director, who is the authority to (i) admit a case of death of an insured person as death due to employment injury, (ii) admit a dependant as well as a guardian in case of minor for payment of dependants' benefit and, (iii) review and refix the rates of dependants' benefit, has also the power to admit a claim received later than 12 months after the date mentioned in paragraph L.6.20 but within 6 years from the said date provided he is satisfied about the reasons for delay. Claims received after the expiry of 6 years are to be referred to Headquarters Office. 285
When claim becomes payable L.6.24. Under Regulation 52, the first payment of dependants' benefit must be made not later than 3 months after the claims therefor, together with the relevant medical or other certificates and any other documentary evidence which may be called for under the Regulations has been furnished complete in all particulars to the Regional Office. Subsequent payments have to be made within the calendar month following the month to the whole or part of which they relate, whichever is later, subject to production of any documentary evidence which may be required under the Regulations. L.6.24A. Where payment is not made within the time limit stated above, it has to be reported to the appropriate Regional Office and must be made as soon as possible. Increases in the rates of dependants' benefit L.6.25. Keeping in view the rising cost of living and with the interests of the dependants as its core objective, the Corporation has, from time to time, sanctioned increases in basic rates of dependants' benefit as under :- Table of enhancement of dependants' benefit rates Date of employment Injury Increases in basic rate of benefit allowed from 1-1-92 1-10-77 1-4-80 1-1-87 1-1-89 (See note 1 below) (a) On or before 31-3-74 20% 20% 45% 10% 45% (b) 1-4-74 to 31-3-75 10% 20% 45% 10% 35% (c) 1-4-75 to 31-3-78 -- 15% 45% 10% 35% (d) 1-4-78 to 31-3-79 -- -- 45% 10% 35% (e) 1-4-79 to 31-3-81 -- -- 35% 10% 30% (f) 1-4-81 to 31-3-84 -- -- 15% 10% 30% (g) 1-4-84 to 31-12-86 -- -- -- 10% 25% (h) 1-1-87 to 31-3-90 -- -- -- -- 15% In addition to the increases mentioned in the table given above, the Corporation has effected seven more increases effective from 1.1.93, 1.4.95, 1.8.97, 1.8.99, 1.8.2000, 1.8.2002 and 1.8.2005. In each case the periods mentioned in the first column in the above table were spread over to a very great extent and each period of a calender year was given a separate increase. Note 1: The full rate of dependants' benefit after enhancement should not exceed the maximum full rate of dependants' benefit which was :- Rs. 18. 75 upto 31-12-80 Rs. 21.00 from 1-1-81 to 26-1-85 Rs. 28.00 with effect from 27-1-85 286
However, the maximum limits as stated above are not applicable to increases in dependants' benefit rates sanctioned after 1-1-89, as the rates are revised from time to time regularly. Note 2: When fractions of paise occur in the increased rates of each dependent, these should be rounded off to two decimal points, e. g., 35.9375 paise to 35.94 paise and 10.8635 paise to 10.86 paise. Note 3: The quantum of enhancement in DB rates upto the increase effected on 1-1-92 is to be allowed with reference to the date of employment injury and not with reference to the date of death of insured person. However, the quantum of enhancement effected from 1-1-93, 1-4-95, 1-8-97, 1.8.99, 1.8.2002 and 1.8.2005 is to be allowed with reference to the date of death of insured person due to employment injury. Note 4: The increase in DB rates is to be allowed on basic amount. Basic amount means dependants' benefit rate which was originally payable before allowing any increase. Note 5: For calculation of actual dependants' benefit rate under each slab admissible on account of the increases sanctioned Hqrs. memos, copies of which were supplied to all the Branch Offices, have to be referred to. Special increase in case of lowest wage groups L.6.26. In respect of lower wage groups, the Corporation has given an additional relief effective from 1-1- 90 onwards, and thereby the daily rate of DB for the lowest four wage groups has been raised to Rs. 14/-, as per details given below:- S. No. Group of employees whose daily wages are Existing full daily rate of DB Enhanced full daily rate of DB 1. Below Rs. 6/- 3.50 14.00 2. Rs. 6/- and above but below Rs. 8/- 4.90 14.00 3. Rs. 8/- and above but below Rs. 12/- 7.00 14.00 4. Rs. 12/- and above but below Rs. 16/- 9.80 14.00 The full rate of dependants' benefit in case of the above mentioned four groups shall be either Rs. 14/- or that worked out inclusive of increases effected from time to time in the basic rate, whichever is higher. 287
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CHAPTER VI DEPENDANTS BENEFIT PROCEDURE CONTENTS Subject Paras No. Death due to employment injury... P.6.1 Report of death... P.6.2.1 to P.6.2.2 Disposal of body of IP who died of employment injury... P.6.3.1 to P.6.3.2 BM s role on receipt of death report... P.6.4 to P.6.5 Admittance of death case by BM......... P.6.5A Death occurring some time after employment injury... P.6.6.1 to P.6.6.2 Where IP attached to another Branch Office... P.6.7 Post mortem report... P.6.8.1 to P.6.11 Death certificate... P.6.12 Inviting claim in advance of acceptance... P.6.13.1 to P.6.13.2 Watch over progress of DB case... P.6.14 to P.6.15 Dependants benefit claim... P.6.16 Examination of claim... P.6.17 to P.6.19 Time-bound action at RO... P.6.20.1 to P.6.20.3 Completion of Regional Office dependants register (ESIC - 102) Inviting claims from other dependants... P.6.21 to P.6.22... P.6.23 General Notice where necessary... P.6.24.1 to P.6.24.2 Regional Office decision on dependants benefit Advance (provisional) payment of dependants benefit Communication of decision on dependants benefit... P.6.25.1 to P.6.25.3... P.6.26... P.6.27.1 to P.6.27.2 Completion of records at Branch Office... P.6.28.1 to P.6.29 Action where benefit not claimed... P.6.30.1 to P.6.30.3 First payment of dependant s benefit... P.6.31 Payment to minors guardian s appointment... P.6.32.1 to P.6.32.5 Claim for June and December... P.6.33.1 to P.6.33.3 289
Transfer of benefit record to another Branch Office ECS facility for dependants benefit... P.6.34 to P.6.35 P.6.35A Payment by money order... P.6.36 Certificate of infirmity... P.6.37 to P.6.38 Review of dependants benefit... P.6.39.1 to P.6.41 Action by Branch Office on review decision... P.6.42 to P.6.43 Payment due on dependant s death... P.6.44 290
CHAPTER VI DEPENDANTS BENEFIT PROCEDURE Death due to employment injury P.6.1. A dependants' benefit claim can arise only on the death of an insured person during the course and out of an employment injury. Death due to an employment injury may occur either (i) instantaneously after the employment injury is sustained or (ii) some time after the employment injury. (Section 52). The term dependant has been discussed in the Chapter on Dependants' Benefit Law. Report of death P.6.2.1. As per Regulation 77, where fatal accident occurs at the place of employment the employer is required to send a report of death to the nearest Branch Office and to the ESI Dispensary. Further, such a report has to be sent by the employer through a special messenger or otherwise as speedily as possible (Regulation 68). In case death occurs on any day when the Branch Office is closed or beyond its regular working hours, the employer is required to arrange to send the report to the residence of the Branch Manager. P.6.2.2. If fatal accident occurs outside the premises of factory/establishment while the insured person was on duty, the employer is required to send the accident report to the appropriate Branch Office and the Insurance Medical Officer/Insurance Medical Practitioner of the insured person as soon as he comes to know about fatal accident of the insured person. Disposal of body of IP who died of employment injury P.6.3.1. Regulation 78 provides that where an insured person dies as a result of an employment injury sustained as an employee under the Act, the body of the injured person shall not be disposed of until it has been examined by an Insurance Medical Officer who will also arrange a post mortem examination, if considered necessary, in co-operation with any other existing agency. Provided that if an Insurance Medical Officer is unable to arrive for the examination within 12 hours of such death, the body may be disposed of after obtaining a certificate from such Medical Officer or Practitioner as may be available. Provided further that nothing contained in this Regulation shall be in derogation of any power conferred on a coroner under any law for the time being in force or on the officer-in-charge of a police station or some other police officer under Section 174 of the Code of Criminal Procedure, 1973 (2 of 1974). P.6.3.2. The employer will thus wait for the visit of the Insurance Medical Officer and help him in completing his enquiries. The body of the injured person shall not be disposed of by the employer or if the body is removed to the residence of the deceased by his relatives, until it has been examined by an Insurance Medical Officer/Insurance Medical Practitioner. If the Insurance Medical Officer/Insurance Medical Practitioner is unable to arrive within 12 hours of the death, the body may be disposed of after obtaining a death certificate from such Medical Officer or Practitioner as may be available. BM s role on receipt of death report P.6.4. On receipt of form 16 ( form 12 w.e.f. 1.1.05) or report of death in the Branch Office, the Manager shall give top priority to the matter, enter the same in the Accident Report Register and visit the place of accident personally at the earliest. If the report reaches him beyond working hours of the Branch Office or at his residence, arrangement will be made by him to visit the factory/establishment as early as possible. It is emphasised that all such accidents will be investigated by the Manager or the Dy. Manager himself immediately and, in any case, within three days from the date of receipt of the accident report. The Manager/Dy. Manager will also ascertain the wage- 291
cum-contribution record of the deceased person. Where an ESIC-32 or wage-cum-contribution record has been already furnished by the employer, the Manager will check its correctness with the original wage records. He should also simultaneously obtain the claim(s) from the eligible claimant(s). For this, the BM should seek the cooperation of the employer, the trade union and the co-workers. He will then prepare his report on form ESIC-25 (a copy of which may be seen at Annexure I, Chapter-IV-TDB Procedure). This report together with the wage-cumcontribution record duly verified by him and the accident report will be entered in the Accident Report Register in the appropriate column as usual, and despatched to Regional Office alongwith the claim(s) obtained from eligible claimant(s) and other documents detailed in Chapter IV - Temporary Disablement Benefit Procedure, within ten days of the date of receipt of the accident report. P.6.5. In the mean time the dependants (widow, widowed mother and/or children) of the deceased insured person may contact the Branch Office in connection with dependants' benefit. The receptionist/claims clerk will receive them and supply them with the necessary forms and furnish all information needed by them. He will also assist them in filling up the claim form (form 15), specimen at Annexure I. Enquiries may also have to be made from the dependants by post in which case the necessary forms will be despatched alongwith brief instructions regarding the legal requirements and procedure to be followed in filling and sending the claim forms to the Branch Office. Admittance of death case by BM P.6.5A In case the accident takes place inside the factory premises (shop floor) arising out of and during the course of employment and Branch Manager finds on investigation that the death has occurred due to employment injury, he may admit the case and take further action for provisional payment of dependants benefit after obtaining an undertaking as per specimen below. The provisional payment of dependants benefit may be made for a maximum period of six months and the payments thus made may be adjusted on receipt of final decision on the death case from Regional Office. UNDERTAKING I, son/daughter/wife of late Shri, Ins.No. an employee of M/s hereby declare that I am a bonafide dependant of the insured person named who expired due to accident in the factory on. I claim advance payment of dependants benefit as per provisions under ESI Act without prejudice to the outcome of the final approval/decision on the case. I further promise to refund the payment so received by me if the same or part of it is found not payable to me on final decision in the case. Witness 1. Signature, name and address:- Witness 2. Signature, name and address:- Signature Name( ) Date Complete address (This undertaking on behalf of minor children will be signed by the widow) Countersigned and accepted for provisional payment of dependants benefit Date: Signature Manager, Branch Office, 292
Death occurring some time after employment injury P.6.6.1. The Branch Manager will also conduct an investigation into such a case on receipt of the information about death. He will proceed to the place of death and examine the eye-witnesses to verify that death had resulted from the employment injury and not from any other cause. The examination of witnesses and their statements should be recorded by him. The Manager should then prepare a report embodying his findings on the case in form ESIC-25. P.6.6.2. The Manager will, if the investigating Branch Office is also one to which the insured person was attached, hand over his report to the clerk concerned. The clerk will record on the ledger sheet, remarks regarding death of the insured person. Where IP attached to another Branch Office P.6.7. If the investigating Branch Office is not the one to which the insured person was attached, the Manager will hand over the death report together with ESIC-25 to the receipt clerk who will make an entry in the remarks column of the accident report register and despatch it to the appropriate Branch Office or where this is not known, to the Regional Office for transmission to the appropriate Branch Office. Post mortem report P.6.8.1. On receipt of form-12, or even earlier, on receipt of a message about the death, Insurance Medical Officer/Practitioner will visit the factory/establishment and examine the deceased person s body and the circumstances in which he received the injury. If considered necessary, he will arrange for a post mortem examination of the body in co-operation with any other existing agency. P.6.8.2. Wherever death occurs from causes other than natural causes, a post mortem examination of the dead body is got conducted as a rule at the initiative of the police. In such cases, the Branch Manager will obtain a copy of the post mortem report on payment of fee at rates prescribed by the State Government. P.6.8.3. Where post mortem examination is conducted at the request of the Insurance Medical Officer/Insurance Medical Practitioner, the Regional Director or the Branch Manager, the fees should be paid at the rates prescribed by the State Government. P.6.8.4. The fee will be paid by the Branch Office from A/c No. 2 and shown as a distinct entry in the schedule of benefit payments ESIC-19 in column 26 or any other column of the schedule which has not been utilised, by giving the heading as fee paid for post mortem. The voucher may be kept by the Branch Office as in the case of benefit payment dockets. P.6.9. Where the Insurance Medical Officer and the Manager are fully satisfied that the death was due to employment injury, the post mortem examination need not be insisted upon. In other words, where there is no doubt about the death having resulted from an employment injury, a post mortem report need not be insisted upon as a matter of routine and the case may be disposed of speedily without waiting for the post mortem report. P.6.10. Where, however, it is found unavoidable or essential to call for a post mortem examination report, no effort should be spared by Branch Manager in obtaining the report. But the BM shall not delay the submission of the papers/report due to non-receipt of FIR/Post Mortem Report etc. The Regional Office, on its part, should lend its full support if any State Government authority is to be approached for the purpose. P.6.11. However, if the post mortem report/death certificate does not become available within two months from the date of death due to accident, the case may be examined and decided by Regional Office based on circumstances of death, with reference to Section 51A of the Act, in consultation with the Medical Referee or the State Medical Commissioner. Please also refer to Para P.6.20.3 infra in this connection. 293
Death certificate P.6.12. The IMO/IMP will issue a death certificate in form ESIC-Med-12 unless he is certain that the death was due to an employment injury say, for instance, after a post mortem examination, or on a careful examination of the body of the insured person (of which a written record may be kept) and keeping in view the circumstances of the death, in which case he may issue a death certificate in form-17 (Form 13 w.e.f. 1.1.05). ESIC-Med-12 will be equally admissible for purpose of deciding claims for dependants' benefit in place of death certificate in form 13. A death Certificate should ordinarily be issued to dependants and a copy of it may be sent to the appropriate Branch Office. All the records pertaining to the deceased insured person, i. e., the medical record envelope, the index card, etc., will be returned by the Insurance Medical Officer to the Administrative Medical Officer. Inviting claim in advance of acceptance P.6.13.1 The dependants of the deceased insured person should be supplied copy of form 15 (specimen at Annexure-I) as soon as the Regional Director or the Branch Manager, as the case may be, prima facie comes to the conclusion that the death has been due to the employment injury. While sending the form to the dependants of the deceased insured person, it should, however, be made clear that any claim furnished by him/them will be without prejudice and subject to the Corporation being convinced that death was due to employment injury. Specimen of letter to be issued to dependants is at Annexure II. P.6.13.2 In order to expedite the claim from the dependants and to cut down delay, notice should instead be issued by the Branch Manager himself. The amended form of the notice is at Annexure II-A. Watch over progress of DB case P.6.14. A separate file should be opened for each fatal accident case, which should be marked DEATH CASE in red ink on its top and which should remain in the custody of the Branch Manager who should personally ensure that necessary follow-up action in the case is taken on top priority basis at all the stages right from the date of accident to the date of first payment of Dependants' Benefit. P.6.15. At the Regional Office, the Regional Director should review the position of all pending cases every month. A statement of cases pending in each of the Branch Offices and in the Regional Office, indicating reasons and details of cases pending for more than 6 months from the date of accident, reasons therefor and steps taken to dispose of the same should be sent so as to reach the Headquarters Office by 15 th of the month following the month to which it relates. This statement should be sent under the signatures of the Regional Director. Dependants' benefit claim P.6.16. The dependants' benefit claim form (form 15 copy at Annexure I) may be filled in individually by each dependant or jointly by all or some of the dependants. It must be attested by one of the authorities mentioned on the form and be accompanied by the following documents:- (a) Evidence that death of the insured person has occurred due to an employment injury in shape of a death certificate issued by an Insurance Medical Officer/Insurance Medical Practitioner on form 13 or ESIC-Med-12, or a certificate of death issued by a hospital or dispensary doctor, or any other medical practitioner who may have been on the spot at the time of death or visited the deceased after death. Municipal death certificate supported by evidence that the insured person died due to employment injury will also be sufficient for the purpose. If the original death certificate is required by the dependents for any legitimate purpose, it may be returned on written request after retaining a copy thereof duly attested by the Manager. This may be done only after the claim has been decided. 294