FACT SHEET CONSUMER COUNCIL OF FIJI CAMPAIGN Insurance in Fiji: who pays, who profits, who loses?

Transcription

1 EUROPEAN UNION FACT SHEET CONSUMER COUNCIL OF FIJI CAMPAIGN Insurance in Fiji: who pays, who profits, who loses? Preface Human Lives are not valued, as Third Party Policies do not fairly compensate accident victims despite the law declaring it compulsory! Introduction In the Council conducted an in-depth review of the insurance industry in Fiji. From this research it was drawn to the Council s attention that the Compulsory Third Party Policy Insurance (or CTPI) is one key issue that deserves the attention of the policy makers and the consumers. In Fiji, the Motor Vehicles (Third Party Insurance) Act and Land Transport Act makes it compulsory for all registered motor vehicles to have CTPI cover, unless exempted by the Minister of Transport. Since the Government has made third party insurance compulsory, motor vehicles cannot be registered or run on the road until the third party insurance cover is bought. What is Compulsory Third Party Insurance (CTPI)? In 1948, the Colonial government put in place the motor vehicle (third party insurance) ordinance. The objective of the law was to...make provision for compulsory insurance against third party risks arising out of the motor vehicles. While the payment of third party insurance is compulsory for all motor vehicles, numerous exclusion provisions do not provide protection to third parties who are injured from accidents involving motor vehicles. Though all motor vehicle owners are compelled by law to purchase a Third Party Insurance, fair compensation for accident victims is yet to be seen. There are irregularities or limitations in the payouts as it is left entirely on the industry to make the decision. The claimant or third party victim can seek courts assistance to get a fair claim if the claim is rejected or the amount is negligible. Often the accident victims (or the deceased s family) are left wondering if justice is indeed served under the current systems, policies and laws. The Council is then compelled to act on disseminating vital information to vulnerable consumers who may have been injured or families of those who died in motor vehicle accidents but are unable to make their financial claims from the insurance companies that cover Third Party Insurance policies. Only three insurance companies cover Third Party Insurance policies. Insurance Industry Report Commissioned by the Council Our Report on the Insurance Sector revealed that the Compulsory Third Party Insurance, which was adopted to protect the third parties (those who become or are the victims

2 of road accidents such as passengers, drivers or pedestrians), is not achieving the purpose of its existence. Hundreds suffer from vehicle accidents annually yet they are not fairly compensated for the physical, emotional and psychological stress that they endure. Questions have arisen as to whether anyone really cares about the innocent victims of fatal or near fatal accidents and the loss of lives and livelihoods for the deceased families? The report on CTPI uncovered essential facts that consumers should be aware of:- 1. Annually insurance companies are paid millions of dollars from motorist as CTPI; 2. However, when it comes to consumer redress, they are limitations or numerous exclusions to avoid liability; 3. So, NOT ALL victims of motor vehicle accidents receive claims despite third party insurance is compulsory; 4. Limitation extend to public service vehicle CTPI claims; these are $4000 per person or $40,000 for all passengers collectively; and 5. The regulator of the Insurance Companies has no say in the premiums, exclusions and/or who qualifies to get the Third Party claims as this is left entirely in the hands of the insurance companies; Other Issues: S29 (2) of the Act- empowers the minister to make regulations prescribing premiums payable for the purpose of this Act may differentiate between different classes of motor vehicles including the purposes for which they are used or intended to be used. Until 2000 no such regulation was made. First time such a regulation came in effect was by the Motor Vehicle (third party insurance) regulations This regulation differentiated classes of vehicles, the rates of CTP insurance. December 2000, the Regulations were quashed by the High Court on grounds that they were made without due consultation with Insurance Council of Fiji. WHAT DOES THIS MEAN? This means that insurance companies that were differentiating between classes of motor vehicles and rates the company charged are illegal. Insurance companies have been differentiating vehicles without regulations is a breach of law Conditions designed to avoid liability...through exclusion clause are: Is driven by a person who does not have the owner s permission Is driven by someone who does not hold a valid driving licence Is in unsafe condition Conveys any load in excess of that for this it was constituted Carries passengers for the hire or reward in a vehicle not registered for that purpose Driven by a person who is intoxicated?

3 Need for the Campaign Most of the accident victims the Consumer Council had interviewed knew very little or nothing at all on what Third Party Insurance was. The bus fire accident in Sigatoka last year (2008) left 12 people dead and the insurance cover for 60 passengers in a bus is for $40,000 which is a measly sum for the fallen victims. It is for this reason that the Council intends to campaign on Third Party Insurance to draw the attention of the policy makers, victims and vehicle owners on an insurance cover that is compulsory but of no benefit to state or the consumers. The objective of this campaign is to make the Third Party Insurance policies beneficial to all parties. The issues above warrant a vigorous campaign and this is further expounded by the researched cases documented by the Council as follows:- Case Study 1 This accident shocked the nation and many are still trying to come to terms with the horror when 12 people lost their lives. Two issues arose from the accident. 1. The need to have a justifiable and fair compensation. Public service vehicle CTPI claims are limited to $4000 per person or $40,000 for all passengers collectively. The amount divided amongst deceased passengers is a measly sum which is based on the total number of passengers. The ridiculous payout requires the regulator (RBF) and the Ministry of Transport to review the CTPI policies. More compensation can be claimed but one has to go through the court system. However, the issue remains: why has a CTPI system in the first place if real justice will be served only through an (expensive) legal system. 2. The Court is still sought as an avenue for fair and equitable redress. The Council is of the view that redress for accident victims should be simple and not be divided between different agencies. Victims should get fair claims that they deserve by approaching an institution that is less adversarial and efficient to save costs, time and lessen the impact of the trauma they are enduring. Victim(s) or loved ones need not go through the added ordeal of courts and paying expensive lawyers on top of their misfortune. Should Fiji have Accident Compensation Commission (ACC) to deal with all accidents including motor vehicle accidents, workplace accidents and general accidents?

4 Case Study 2 Compensation for Lautoka Panel Beater Fiji Times, 9/9/09, page 3 The compensation due to Narayan materialised after 8 years. TIME CONSIDERATIONS NEED TO BE ADDRESSED IF THE PAYOUT IS TO HAVE SOME MEANING TO THE VICTIMS. Case Study 3 Innocent Victims of Legal Interpretation In 2003, one Pranish Prakash Chand was traveling in a vehicle on his side of the road. The driver of another vehicle, one Ganpati Bala, crossed his vehicle to the center line of the roadway and had a collision with a vehicle driven by Pranish Chand. Pranish was seriously injured. The vehicle driven by Bala belonged to one Sandhika Chand, who had hired the vehicle out to Bala for $100 per week. Bala was conveying one passenger in return for a payment of $35. The injured third party, i.e., Pranish Chand, commenced proceeding against Sandhika Chand and Ganpati Bala. Judgment in liability against them was obtained by default and damages were proved at a hearing. The Defendant, an insurance company, had issued a Third Party policy to Sandhika Chand for the vehicle; the cover issued was for a goods vehicle. The premium was $90. The policy contained exclusions and defined the persons or classes of persons entitled to drive and enjoy cover under the policy. The main term was as follows: Limitation as to use Premium had been paid for only the use of the motor vehicle for the purpose set out and the motor vehicle was not be used for any other purpose unless the policy was endorsed and extra premium (if any) paid. The Court ruled in favor of the insurance company. The consequence was that Chand,

5 an innocent third party victim of an accident, was almost permanently incapacitated, with no source of income, and no remedy in the country. Chand is now appealing the High Court decision. The Court, through Finnigan, J., stated: This was clearly a loss to the victim but based on a technicality the Insurance company was exempted from paying compensation to an innocent victim. WHAT IS THE PURPOSE OF HAVING TO PAYING THIRD PARTY PREMIUMS IF THE LAW CANNOT ENFORCE IT.? Case Study 4 CIVIL JURIDICTION ACTION NO: HBC 238/2002 between Sun Insurance Company and Ratu Peni Kurisoru (First Defendant), Mohammed Islam (Second Defendant), Ashok Kumar (Third Defendant) Chandra Mati Singh ( Fourth Defendant) Sun Insurance vs. Ratu Peni & Others A vehicle belonging to one Mohammed Islam (Second Defendant) was driven by Ratu Peni Kurisoru (First Defendant). The vehicle, which Kurisoru was driving, was involved in an accident with another vehicle belonging to one, Ashok Kumar (Third Defendant). In the vehicle with Kumar was one, Chandra Mati Singh (Fourth Defendant).The Court concluded that Ratu Peni Kurisoru was drunk and did not have a licence at the time of accident and therefore the case was awarded to the insurance company. Ashok Kumar & Chandra Mati Singh (third parties) were ordered to pay the plaintiffs costs (to insurance company) which was assessed at $3000.The Judgement was delivered based on a policy which states: The person insured shall not use the motor vehicle nor shall the owner permit any person to use such motor vehicle :...Whilst any such person as aforesaid... is under the influence of intoxicating liquor... Was Ashok Kumar or Chandra Mate Singh at fault? They were third parties and accident victims in this case. The victims faced further economic loss by paying the plaintiff costs. Was this fair to third party? Was the objective of compulsory third party insurance met? Case 5 Objection of an Insurance Company Over-Ruled by Court On 10 th December, 2001 one Praneel Jeet Singh and Ranjeeta (Third Party s) sustained injuries from a vehicle driven by one, Amit Prasad. The Vehicle belonged to one, Sainaz Bibi. On 26 th March, 2002, the third party s wrote to the Claims Manager of the plaintiff company claiming compensation in accordance with section 11(2) (a) of the Motor

6 Vehicles (Third Party) Insurance Act (Cap 177 ). Not surprisingly, the claims of the third party s were rejected by the insurance company. The case was brought to the Court and the Court awarded the decision in favour of the third parties. The insurance companies claim that It is our experience CTP insurance is readily available and that claimants all choose to go legal is questionable. Council s Stand on CTPI These case studies reveal that there is an urgent need to review the CTPI legislation so that any legislation on compensating victims of motor vehicle accident are adequately and fairly protected. How many more horrific stories do we have to experience before laws are repealed? There is no better time then the present. The greatest ill we could conceive is when those who ought to make changes say nothing and do nothing.

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