INSURANCE ACT 1987
Act 20 of 1987
30 June 1988
ARRANGEMENT OF SECTIONS
PART I - PRELIMINARY
1 Short title
2 Interpretation
3 Classification of insurance business
4 Application of Act to existing insurers
41 Power to make investigations
42 Powers of Commission or Inspector
43 Interim reports
44 Action after completion of
investigation
5 Limitations on application of Act
45 Costs of investigation
PART II - ADMINISTRATION
46 Grounds for suspension or
cancellation of
6 The Commission
Registration
7 The Register
47 Further grounds for suspension or
cancellation of registration
8 Power of Commission to obtain information,
48 Review of proposal to suspend or
books and papers
cancel
registration under section 46
9 Annual report by Commission
49 Effect of suspension or cancellation
under
section 46 or 47
10 Insurance Advisory Committee
50 Appointment of administrator
11 Functions of the Committee
51 Duties and powers of administrator
PART III – RESTRICTION ON CARRYING ON 52 Cancellation of suspension of
INSURANCE BUSINESS
registration
12. Requirements for carrying on business as an 53 Notice of suspension, etc
Insurer
13 Application for registration
PART VIII – INSURANCE AGENTS,
BROKERS AND SALESMEN
14 Registration
54 Registration of insurance agents,
brokers and
salesmen
15 Restriction on registration
55 Application for registration as
insurance
agent, broker and salesman
15A [Repealed 18/92]
56 Registration of applicant under
section 55
16 Procedure on determination of application
57 Procedure on determination of
made under section 13
application
Under section 55
17 Review of refusal to register application
PART IV - REGULATION OF INSURERS
18 Restriction of activities to insurance business
19
20
21
Deposit
Margin of Solvency
Reinsurance
22
Compulsory cession of risks
23
Exemptions in relation to sections 21 and
22
24 Compliance with Fourth Schedule
25 Reserve Fund
26 Long term insurance fund
27 Investment of funds
28 Claims arising from road traffic accidents
29 Motor Insurance Security Fund
PART V– TRANSFERS AND
AMALGAMATIONS
30 Application
31 Notices
32 Conditions of approval
33 Approval or refusal
34 Effect of approval
PART VI- INSOLVENCY AND WINDING UP
35 No voluntary winding up without authority
36
Winding up by court
37 Valuation of assets and liabilities
38 Reduction of contracts
39 Position where an insurer is subsidiary of a
non-insurer
40. Continuation of business of insurer in
Liquidation
PART VII – INVESTIGATIONS AND
SUSPENSION OR CANCELLATION OF
REGISTRATION
58 Cancellation of registration in respect
of
insurance agent, broker and
salesman
59 Review of refusal to register or
proposal to
cancel registration under this Part
60 Duty to keep records
61 Collection of premiums
62 List of insurance agents and
salesmen
PART IX – OFFENCES AND
ENFORCEMENT
63 Offences under Part II
64
65
66
67
68
69
70
Offences under Part III
Offences under Part IV
Offences under Part V
Offences under Part VII
Offences under Part VIII
Miscellaneous Offences
Penalties
71 Civil liability
72 Jurisdiction
PART X – MISCELLANEOUS
73 Prohibitions
74 Action by policy-owners against
insurers
75 Arbitration
76 Contracts unenforceable against
other party
77 Documents furnished to the
Commission
78 Regulations
79 Repeal
80 Commencement
First Schedule
- Existing
Insurers
Second Schedule - Deposits
Third Schedule - Solvency
Fourth Schedule - Accounts
Insurance Act 1987
An Act
To regulate the business of insurance and to provide for connected matters
PART I - PRELIMINARY
1.
Short title
This Act may be cited as the Insurance Act 1987.
2.
Interpretation
In this Act -
"actuary" means an individual who is a fellow of the Institute of Actuaries (London) or the
Faculty of Actuaries (Scotland) or possesses such other professional actuarial qualification as may
be prescribed;
"authorised agent", in relation to a foreign company, means a person named in a
memorandum of appointment or power of attorney lodged under section 276(1)(e) or 277(6) of the
Companies Act 2001.
“balance Sheet date” has the same meaning as in the Companies Act 2001.
"body corporate" means a company or a foreign company;
"class", in relation to insurance business, means any such class as is referred to in the
definition of "long term insurance business" or "general insurance business", and includes a part of
any such class;
“Commission” means the Financial Services Commission established under the Financial
Services Development Act 2001.
"company" has the meaning assigned by section 2(1) of the Companies Act 2001;
"contract" includes policy of insurance;
"director" has the meaning assigned by section 2(1) of the Companies Act 2001;
"existing insurer" means a body corporate registered as an insurer under the repealed Act;
"foreign company" has the meaning assigned by section 2(1) of the Companies Act 2001;
"general insurance business" has the meaning assigned by section 3(1);
"insurance agent" means a person who, with the authority of an insurer and not being an
employee of the insurer, acts on behalf of the insurer in the initiation of insurance business, the
receipt of proposals, the issue of policies, the collection of premiums or the settlement of claims;
"insurance broker" means a person who arranges insurance business with insurers on behalf
of prospective policyholders or as a policyholder's representative;
"insurance business" means the business of undertaking liability, by way of insurance,
including reinsurance (a)
to protect persons against loss or liability in respect of risks to which the
persons may be exposed; or
(b)
to pay a sum of money or other thing of value upon the happening of an
event;
"insurance salesman" means a person who, with the authority of an insurer or an insurance
agent, solicits proposals for insurance or negotiates insurance on behalf of the insurer or insurance
agent;
"insurer" (a)
means a body corporate authorized under this Act to carry on insurance
(b)
includes an existing insurer and save where otherwise stated, an offshore
(c)
does not include an insurance agent, an insurance broker or an insurance
business;
insurer;
salesman;
"Life assurance business" has the meaning assigned by section 3(2);
"Long term insurance business" has the meaning assigned by section 3(1);
"Long term insurance fund" means the fund referred to in section 26;
"Mauritius Government Securities" mean securities charged on the revenue of the
Government or guaranteed fully as regards principal and interest by the Government;
"Minister" means the Minister to whom responsibility for the subject of finance is assigned;
"non-resident" means any person in any of the following categories –
(a)
a person who does not normally reside or carry on business in Mauritius;
(b)
a person who is a non-resident for the purposes of the Exchange Control Act;
"Owner", in relation to a policy, means the person who is entitled to enforce any benefit
provided for in the policy;
"premium" includes an instalment of premium;
"qualified auditor" has the meaning assigned by section 2(1) of the Companies Act 2001;
"Register" means the Register kept pursuant to section 7(1);
"registered" means registered under this Act;
"reinsurance" means a contract whereby an insurer insures the risk insured by him, or part
of that risk, with another insurer;
"State Insurance Corporation of Mauritius" means the Corporation established by the State
Insurance Corporation of Mauritius Act;
[Amended 22/90; 18/92; 13/02]
3.
Classification of insurance business
(1)
For the purposes of this Act -
(a)
insurance business is divided into long term insurance business and general
insurance business, and (i)
"long term insurance business" means insurance business of any of
the following classes, namely (a)
(b)
( c)
life assurance business;
pension business; or
permanent health insurance business;
(ii)
”general insurance business” means insurance business of any class,
other than a class referred to in the definition of ”long term insurance
business”
(b)
the undertaking of liability under a contract whose principal object is life
assurance business shall be taken to constitute the carrying on of that business, and no other,
notwithstanding that the contract contains subsidiary provision giving cover for accident or
disability benefits, or both;
(c)
the reinsurance of risks under a contract of insurance shall be treated as
insurance business of the class to which the contract would have belonged if it had been entered
into by the reinsurer;
(d)
a person carries on insurance business as an insurer if he carries on as such
any class of insurance business in, or from within, Mauritius.
(2)
In this section -
"life assurance business" means the business of undertaking liability under contracts upon
human life or contracts to pay annuities on human life, but excludes permanent health insurance
business and personal accident insurance business;
"pension business" means the business of effecting and carrying out of (a)
contracts to manage pension funds or the investment of pension funds;
(b)
contracts of the kind mentioned in paragraph (a) that are combined with
contract of insurance covering either conservation of capital or payment of a minimum interest; or
(c)
contracts on a group basis to provide pensions during the lifetime of
employees as from their retirement and to their dependants should they die in service or on pension;
"permanent health insurance business" means the business of undertaking liability under
contracts to provide specified benefits against risks of persons becoming incapacitated in
consequence of sustaining injury as a result of an accident or of an accident of a specified class or
of sickness or infirmity, being contracts that either are not expressed to be terminable by the insurer
or are expressed to be so terminable only in special circumstances mentioned in the contract;
"personal accident insurance business" means the business of undertaking liability under
contracts, otherwise than incidentally on a contract whose principal object is some other class of
insurance business, to pay a certain sum or certain sums of money to, or provide any other benefit
for a particular person in the event of an accident or sickness causing the death or injury or
disability of a particular person.
4.
Application of Act to existing insurers.
This Act shall apply to and in relation to an existing insurer subject to the limitations,
variations and exceptions specified in the First Schedule.
5.
Limitations on application of Act.
(1)
Nothing in this Act shall affect the operation of the Sugar Insurance Fund Act.
(2)
This Act shall not apply to the African Reinsurance Corporation referred to in the
African Reinsurance Corporation (Priviledges and Immunities) Regulations 1978
(3)
The Minister may by regulations exclude from the application of this Act or sections
of this Act (a)
bankers, benevolent associations, credit societies, trade unions and any other
organisation which provide insurance benefits but only incidentally to their main activities; and
(b)
an association of underwriters.
[Amended 22/90]
PART II - ADMINISTRATION
6.
…..
[Repealed 13/2001]
7.
The Register
(1)
The Commission shall establish and maintain a register, in such form as he thinks
fit, in which he shall cause to be entered particulars of (a)
such matters as are required by this Act to be entered in the register; and
(b)
such other matters as he thinks fit.
(2)
Any register kept under any enactment repealed by this Act shall be deemed to form
part of the register.
(3)
Any person shall be entitled on payment of the prescribed fee -
(a)
entry therein; or
to inspect the register during normal office hours and take copies of any
(b)
to obtain from the Commission a copy, certified by the Commission to be
correct, of any entry in the register.
(4)
The register or a certificate given pursuant to subsection (3)(b), shall be received in
any proceedings as evidence, in the case of the register, of any matter required by this Act to be
entered in it or, in the case of the certificate, of the matter certified.
(5)
Subject to subsection (6), a person shall be entitled on payment of the prescribed fee
to inspect and make copies of any document furnished to the Commission pursuant to section 13 or
24.
(6)
The entitlement under subsection (5) shall not be exercised in relation to any
document or class of documents, if the Commission directs that the document or, as the case may
be, any document belonging to the class of documents, is to be treated as confidential.
(7)
The Commission shall, at the request of any person, furnish free of charge (a)
the address of the principal office in Mauritius of an insurer; or
(b)
the name and address of the authorised agent of a foreign company that is an
insurer.
[Amended 13/02]
8.
Power of Commission to obtain information, books and papers
(1)
The Commission may require a relevant person to furnish him, at specified times or
intervals, with information about specified matters, and, if he so requires, the information shall be
verified in a specified manner.
(2)
The Commission may -
(a)
require a relevant person to produce, at such time and place as he may
specify, such books or papers as he may specify;
(b)
authorise any person to require a relevant person to produce to him forthwith
any books or papers which that person may specify; or
(c)
take such reasonable steps as he considers appropriate (i)
to inspect or verify any assets or liabilities of a relevant person; or
(ii)
to ensure that the requirements of this Act have been or are being
complied with by a relevant person.
(3)
Any power conferred by or by virtue of subsection (2) shall include the power (a)
where the books or papers are produced (i)
to take copies of or extracts from them; and
(ii)
to require that person, or any other person who is a present or past
director or auditor of, or is or was at any time employed by, the relevant person in question, to
provide an explanation of any of them;
(b)
where the books or papers are not produced, to require the person who was
required to produce them to state, to the best of his knowledge and belief, where they are or might
be;
(c)
to require any person who appears to be in possession of books or papers to
produce them.
(4)
A statement made by a person in compliance with a requirement under this section
may be used in evidence.
(5)
In this section "books or papers" includes accounts, deeds, writings and documents;
"relevant person" means an insurance agent or insurance broker or insurance
salesman, registered under Part VIII or an insurer.
[Amended 13/02]
9.
…..
[Repealed 13/2001]
10.
…..
[Repealed 13/2001]
11.
…..
[Repealed 13/2001]
PART III - RESTRICTION ON CARRYING ON INSURANCE BUSINESS
12.
Requirements for carrying on business as an insurer.
Subject to the other provisions of this Act (a)
no person other than a body corporate shall act as an insurer
(b)
no body corporate shall act as an insurer unless it is registered;
(c)
no body corporate shall carry on any class of insurance business in respect of which
it is not registered;
13.
Application for registration
(1)
An application for registration as an insurer shall be made to the Commission in the
prescribed form and be accompanied by such documents as may be prescribed.
(2)
The Commission may by notice in writing require an applicant to furnish him with
such additional information as may be described in the notice;
(3)
The Commission may require that any information furnished by the applicant be
verified in such manner as may be stipulated.
(4)
If an applicant fails, within such reasonable time as the Commission may allow, to
comply with any request made under subsection (2) or (3), the application shall lapse.
[Amended 13/02]
14.
Registration
(1)
Subject to sections 12, 13 and 15, the Commission may register an applicant.
(2)
Where the Commission registers an applicant, he shall enter in the register (a)
the name of the applicant;
(b)
the classes of insurance, in respect of which the applicant is registered;
(c)
-
(d)
the conditions, if any, subject to which the applicant is registered.
[Amended 22/90; 18/92; 13/02]
]
15.
Restriction on registration
The Commission shall not register an applicant where (a)
the applicant has a paid up share capital of less than
2,000,000 rupees or
such higher amount as may be prescribed or an equivalent of that amount in foreign currency;
(b)
he is not satisfied that -
(i)
the class of insurance business in respect of which the application is
made will be conducted in accordance with sound insurance principles;
(ii)
the applicant, if registered, would be able to comply with such of the
provisions of this Act as would be applicable to it;
(c)
it appears to him that any director or manager of the applicant is not a fit and
proper person to hold the position held by him;
(d)
the applicant has failed to make the deposit required by section 19(1)(a);
(e)
he is not satisfied that the applicant has been or would be within a reasonable
time able to make such treaty arrangements for reinsurance as may be applicable;
(f)
the applicant is a foreign company which is not registered under the
Companies Act 2001 and has not a satisfactory record of at least 3 years' experience in handling the
class of insurance business in respect of which the application is made, in the country where it has
its head office.
[Amended 22/90; 18/92;13/02]
15 A. [Repealed 18/92]
16.
Procedure on determination of application made under section 13.
(1)
Where the Commission registers an applicant as an insurer he shall (a)
notify the applicant in writing accordingly; and
(b)
cause notice of the registration to be published in the Gazette;
(2)
Where the Commission refuses to register an applicant as an insurer, he shall notify
the applicant in writing accordingly.
[Amended 13/02]
17.
Review of refusal to register application
(1)
An applicant under section 13 that is aggrieved by the refusal of the Commission to
register it may refer the case for review by the Minister by giving notice in writing to the
Commission by registered post within 60 days of the date on which it receives, pursuant to section
16(2), notice of the refusal.
(2)
it is made.
A notice of review under subsection (1) shall specify in detail the grounds on which
(3)
The Commission shall transmit to the Minister a notice of review lodged with him
under subsection (1) and the Minister shall decide whether or not the applicant shall be registered.
(4)
(5)
The Commission shall. where the Minister decides that the applicant (a)
shall be registered, register the applicant and comply with section 16(1); or
(b)
shall not be registered, notify the applicant in writing accordingly.
The decision of the Minister shall be final.
[Amended 13/02]
PART IV - REGULATION OF INSURERS
18.
Restriction of activities to insurance business.
An insurer shall not carry on activities in, or from within, Mauritius, otherwise than in
connection with or for the purposes of such insurance business in respect of which it is registered.
[Amended 22/90]
19.
Deposit
(1)
A body corporate that -
(a)
Second Schedule;
applies to be registered as an insurer, shall make the deposit required by the
(b)
is registered as an insurer, shall not carry on any insurance business unless it
maintains the deposit in accordance with that Schedule.
(2)
A deposit made pursuant to subsection (1) shall be made with the Commission and
shall be subject to the conditions set out in, or imposed pursuant to, the Second Schedule.
[Amended 22/90; 18/92; 13/02]
]
20.
Margin of solvency
(1)
Every insurer shall have and maintain the margin of solvency determined in
accordance with the Third Schedule and shall furnish to the Commission, in such form as may be
prescribed, at the end of its balance sheet date and at any other such time as may be required by the
Commission, a Certificate of Solvency.
(2)
Whenever the margin of solvency of an insurer is less than that required to be
maintained the insurer shall make good the deficiency without delay.
(3)
For so long as the margin of solvency of an insurer is less than that required to be
maintained the insurer shall not assume any new risks of any kind whatsoever and any risks so
assumed shall be null and void.
(4)
No insurer shall -
(a)
declare, distribute or pay any dividend when its margin of solvency is less
than that required to be maintained by this section; or
(b)
pay any dividend if the effect of doing so would be to reduce its margin of
solvency to less than that required to be maintained by this section; or
(c)
where it is a foreign company, remit any money out of Mauritius if the effect
of doing so would be as provided in paragraph (b).
(5)
For the purposes of section 216 of the Companies Act 1984, an insurer shall be
deemed to be unable to pay its debts if its margin of solvency is, for a continuous period of 2
months less than that required to be maintained by this section.
[Amended 22/90;13/02]
21.
Reinsurance
(1)
Every applicant or insurer shall submit to the Commission any treaty arrangements
for reinsurance made or proposed to be made by the applicant or the insurer.
(2)
The Commission may direct the applicant or the insurer to make such amendments
to the reinsurance arrangements submitted under subsection (1) as he deems necessary.
(3)
The Commission shall direct the applicant or insurer to amend any treaty
arrangements for reinsurance with an insurer that does (a)
general insurance business, without having and maintaining the reserve fund
which it is required to have and maintain under section 25; or
(b)
long term insurance business, without having a long term insurance fund.
(4)
The Commission shall, in determining whether to give directions under subsections
(2) and (3), have regard to all matters that he considers relevant and, in particular, to (a)
the class of insurance business carried on or proposed to be carried on;
(b)
the amount of premiums received by on due to be received by the insurer
during its last preceding balance sheet date in respect of each class of insurance business carried on
by it;
(c)
the nature and value of the assets of the insurer or the applicant; and
(d)
the person or persons by which the reinsurance is, or is proposed, to be
undertaken.
(5)
Every insurer shall submit to the Commission such returns in respect of facultative
reinsurance effected by it as the Commission may require from time to time.
[Amended 13/02]
22.
Compulsory cession of risks
(1)
Subject to section 23 (2), every insurer shall offer to cede to a Statutory Reinsurer
such percentage of its relevant risks as may be prescribed.
(2)
Where the Statutory Reinsurer -
(a)
accepts an offer made under subsection (1), the offeror shall effect the
cession which it has offered to make;
(b)
refuses the offer, it shall give reasons for its refusal if the offeror so requests.
(3)
Any payment by an insurer to the Statutory Reinsurer shall be made within 2 months
of the completion of the cession unless any other longer period is agreed upon between the parties.
(4)
An insurer required to effect a cession shall produce or submit for inspection to the
Statutory Reinsurer such statements, books, records, accounts or other documents and furnish such
information as may reasonably be required by the Statutory Reinsurer.
(5)
In this section "relevant risks" means risks reinsured by way of a treaty;
"Statutory Reinsurer" means the State Insurance Corporation of Mauritius or any
other insurer approved by the Minister.
[Amended 22/90; 18/92]
23.
Exemptions in relation to sections 21 and 22.
(1)
The Commission, having regard to such matters as he considers relevant and , in
particular, to the matters mentioned in subsection 21(3), may, by notice in writing and subject to
such conditions and for such period as he specifies in the notice, exempt the insurer from the
requirements of section 21(1).
(2)
The Commission may exempt any insurer from compliance with the requirements of
section 22(1), wholly or in respect of any description of relevant risks, if it is satisfied that it is
necessary or appropriate to do so in the circumstances.
[ Amended 13/01]
24.
Compliance with Fourth Schedule.
(1)
Every insurer shall comply with the requirements of the Fourth Schedule and the
Commission shall give such directions as he deems fit to ensure compliance.
(2)
Where, following an actuarial investigation into the financial affairs of an insurer
made under paragraph 5 of the Fourth Schedule, there is an established surplus which the actuary
has recommended as available for distribution, the insurer shall not transfer or otherwise apply
assets representing any part of that surplus unless the insurer has allocated to policyholders of
participating policies at least 90 per centum of that surplus.
[Amended 22/90; 13/02]
]
25.
Reserve Fund.
(1)
Every insurer carrying on general insurance business shall have a reserve fund
which shall consist of its free reserves excluding its paid-up capital and, subject to subsection (4),
maintain it at least at the minimum level.
(2)
Whenever, at the end of any balance sheet date of an insurer, its reserve fund is at
less than the minimum level, the insurer shall transfer to its reserve fund from its profits for that
balance sheet date (a)
an amount equal to the shortfall; or
(b)
if the shortfall exceeds 25 per centum of those profits and it elects to do so,
the amount represented by that 25 per centum.
(3)
Whenever, at the end of any balance sheet date of an insurer, its reserve fund is
equal to or in excess of the minimum level, the insurer shall transfer to its reserve fund from its
profits for that balance sheet date the amount represented by 5 per centum of those profits, unless
the level of its fund is 50 per centum, or more, in excess of the minimum level.
(4)
The fact that an insurer has complied with subsection (2)(b) shall not in itself
prevent the Commission from exercising any power under section 46 on the ground that the insurer
has failed to comply with subsection (1).
(5)
No distribution to shareholders and no transfer to other reserves from the Statutory
Reserve Fund shall be made without the approval of the Commission.
(6)
In this section -
"free reserve", means a reserve not held against any specific contingent liability and
excludes for the purposes of this section, the share capital;
"minimum level", in relation to the reserve fund of an insurer means an amount
equal to 10% or such other percentage as may be prescribed of the annual average of the total gross
premiums (including reinsurance premiums accepted) over the last three preceding balance sheet
dates of the insurer;
"profits" means net profits from carrying on general insurance business;
[Amended 22/90; 18/92;13/02]
26.
Long term insurance fund
(1)
Every insurer carrying on long term insurance business shall have and maintain a
long term insurance fund.
(2)
An insurer shall pay all monies received in respect of any class of long term
insurance business carried on by it into an appropriately named sub-fund of the long term insurance
fund.
(3)
A deposit in respect of long term insurance business made by an insurer, pursuant to
section 19 and paragraph 1(1) of the Second Schedule, shall be deemed to form part of the assets of
the long term insurance fund.
(4)
Every insurer carrying on long term insurance business shall, not later than 8 months
after the end of each balance sheet date, furnish to the Commission a detailed statement of (a)
the assets and liabilities of the long term insurance fund;
(b)
the income derived from those assets; and
(c)
any deduction on account of general reserves and any other liabilities
relating to its long term insurance business, as at the end of the balance sheet date concerned, duly
certified by a qualified auditor.
(5)
The statement referred to in subsection (4) for a balance sheet date may be
incorporated in the balance sheet prepared pursuant to paragraph 2 of the Fourth Schedule with
reference to that balance sheet date.
(6)
The long term insurance fund of an insurer shall not be liable or chargeable for or in
respect of any contract or transaction of the insurer other than that of the long term insurance
business carried on by the insurer, and shall not be applied directly or indirectly for any other
purpose.
[Amended 13/02]
27.
Investment of Funds.
(1)
An insurer carrying on general insurance business shall invest in Mauritius and,
subject to subsection (7), at all times keep invested in Mauritius, an amount equal to not less than
the amount represented by the sum of its reserve fund maintained under section 25 and of its share
capital.
(2)
An insurer that is not a foreign company (a) shall invest in Mauritius an amount of at least 75 per cent; and
(b) may invest outside Mauritius an amount not exceeding 25 per cent,
of the funds in respect of long term insurance business which it has accepted, or may accept, in
Mauritius.
(3)
An insurer that is a foreign company shall maintain in Mauritius assets the value of
which shall be not less than the amount representing its admitted liabilities in respect of long term
insurance business in Mauritius.
(4)
Any additional investment required to be made by an insurer pursuant to subsection
(1) or (2), or increase of assets required to be maintained pursuant to subsection (3) shall be made
or effected within 6 months of the close of the balance sheet date of the insurer.
(5)
The value of any deposit made by an insurer pursuant to section 19 shall, to the
extend that it consists of any Mauritius Government Securities, be deemed to be an investment
made or asset maintained for the purposes of this section.
(6)
Not less than 30 per centum or such other percentage as may be prescribed of the
investment required to be made by subsection (1) or (2), or the assets to be maintained under
subsection (3), shall be made or, as the case may be, maintained in such securities as may be
prescribed.
(7)
The Commission, having regard to such matters as he considers relevant, may, by
notice in writing, permit an insurer to utilize any investment for any purpose specified in the notice,
subject to such conditions and restrictions as he may specify.
(8)
For the purpose of subsection (3), "admitted liabilities" has the same meaning as it
has for the purpose of the Third Schedule.
(9)
For the purposes of this section, an insurer that does not have a share capital shall be
deemed to have the required share capital;
(10) In this section, “required share capital” means the minimum paid-up share capital in
rupees mentioned in section 15.
[Amended 22/90; 18/92; GN 51/92]
28.
Claims arising from road traffic accidents
(1)
Any party to a traffic accident may make a written complaint to the Commission
regarding the unsatisfactory handling of a claim made to an insurer.
(2)
Following receipt of such a complaint, the Commission may direct the insurer to
furnish him, within such period as he specifies, with explanations in writing on the processing of
the claim.
(3)
The Commission may, if not satisfied with such explanations (a)
issue directions in writing to the insurer; and
(b)
initiate the necessary procedure for investigation under Part VII of the Act.
(4)
An insurer who fails to comply with the directions given by the Commission under
this section shall commit an offence.
[Amended 22/90; 18/92; 13/02]
]
29.
Motor Insurance Security Fund
(1)
There shall be established, from the appointed day and in such manner as may be
prescribed, a fund to be known as the Motor Insurance Security Fund which shall be used to make
payments to persons suffering personal injury in traffic accidents (a)
where the tortfeasor or the vehicle which caused the injury is untraceable; or
(b)
in other cases, where such payments are required to meet any case of
hardship pending the exhaustion of any legal remedy available to the victim.
(2)
Every insurer carrying on such class of insurance business as may be prescribed
shall pay to the fund such levy as may be prescribed.
(3)
The fund shall be managed and payments shall be made from it in such manner as
may be prescribed.
(4)
The fund shall have all the powers of a natural person.
[Amended 22/90; 18/92; 13/02]
PART V - TRANSFERS AND AMALGAMATIONS
30.
Application.
(1)
insurer,
Subject to this Act, where (a)
two or more insurers intend to amalgamate; or
(b)
an insurer intends to transfer insurance business of any class to another
all the insurers jointly in the former case, and the transferor in the latter case, shall apply to the
Commission for his approval of the amalgamation or transfer, as the case may be.
(2)
Subsection (1)(b) shall not apply to the transfer of any insurance business of a
foreign company that is an insurer except in so far as the transfer relates to insurance business
carried on in, or from within Mauritius.
(3)
An application under subsection (1) shall be accompanied by -
(a)
the draft of the document under which the proposed amalgamation or
transfer is to take effect;
(b)
audited accounts for the last five years or such shorter period as applicable,
in respect of the insurance business of all insurers concerned in the proposed amalgamation or
transfer; and
(c)
transfer is founded.
any other report or document on which the proposed amalgamation or
(4)
where the proposed amalgamation or transfer is in respect of long term insurance
business, an application under subsection (1) shall, in addition to the documents mentioned in
subsection (3), be accompanied by a report on the terms of the scheme and the likely effects of the
scheme on policyholders of the insurers concerned as a result of the proposed scheme of
amalgamation or transfer, prepared by an actuary approved by the Commission.
(5)
The documents, accounts and reports mentioned in subsections (3) and (4) shall be
prepared as at the date at which the proposed amalgamation or transfer is to take effect, which date
shall not be more than 12 months after the date of the application under subsection (1).
[Amended 22/90;18/92;13/01]
.
Notices.
(1)
The Commission shall not consider an application made under section 30 unless -
(a)
notice of the application for amalgamation or transfer has been published in
the Gazette and in at least two daily newspapers published and circulating in Mauritius;
(b)
except in so far as the Commission has otherwise directed, a copy of the
notice has been sent to every affected policyholder, and to every other person who claims an
interest in a policy included in the amalgamation or transfer and has given written notice of his
claim to one of the insurers involved in the amalgamation or to the transferor, as the case may be;
and
(c)
copies of a statement setting our particulars of the amalgamation or transfer,
approved by the Commission, and, in the case of long term insurance business, the report of the
actuary, have been available for inspection at one or more places in Mauritius for a period of not
less than 30 days beginning with the date of the first publication of the notice in accordance with
paragraph (a).
(2)
The notice referred to in subsection (1) shall invite any person, including an
employee, director, shareholder or policyholder, who has reasonable grounds for believing that he
would be adversely affected by the carrying out of the scheme to write to the Commission within
30 days of the publication of the notice, stating the grounds on which he believes he would be
adversely affected by the carrying out of the scheme of amalgamation or transfer.
[Amended 13/02]
32.
Conditions of approval.
The Commission shall not approve an amalgamation or transfer on an application made
under section 30 unless he is satisfied that (a)
every policy included in the amalgamation or transfer evidences a contract
which (i) was entered into before the date of the application; and
(ii) imposes on the insurer obligations the performance of which will constitute
the carrying on of insurance business;
(b)
the amalgamated insurer or transferee, as the case may be, is or immediately
after the approval will be, authorised under this Act to carry on insurance business or the
appropriate class or classes of insurance business; and
(c)
the amalgamated insurer's or transferee's financial resources and the other
circumstances of the case justify the giving of his approval.
[Amended 13/02]
33.
Approval or refusal
(1)
The Commission may, after considering (a)
the accounts, documents and reports deposited with it under this Part;
(b)
the representations, if any, made under section 31(2); and
(c)
the recommendations of the Commission if any,
approve a scheme of amalgamation or transfer on such terms as he considers necessary, or refuse to
approve the application.
(2)
After making a decision under subsection (1) the Commission shall -
(a)
cause to be published in the Gazette and in such other manner as he thinks fit
a notice of his decision; and
(b)
cause to be sent to -
(i)
the parties to the amalgamation or the transferor and the transferee;
and
(ii)
referred to in section 31(2),
every person who made representations in accordance with the notice
a copy of the notice referred to in paragraph (a).
[Amended 13/02]
34.
Effect of approval.
(1)
Subject to subsection (2), an instrument giving effect to an amalgamation or transfer
approved under section 33 shall be effectual in law (a)
to transfer to the amalgamated insurer or the transferee all the rights and
obligations under the policies included in the instruments of the parties to the amalgamation or the
transfer; and
(b)
if the instrument so provides, to secure the continuation by or against the
amalgamated insurer or the transferee of any legal proceedings by or against any party to the
amalgamation or against the transferor which relate to those rights or obligations,
notwithstanding the absence of any agreement on consent which would otherwise be necessary for
it to be effectual in law for those purposes.
(2)
Where an amalgamation or transfer has taken place, no policyholder shall be
regarded as having abandoned any claim which he would have had against the original insurer or to
have accepted in its place the liability of another insurer, unless he or his agent has signed a written
document abandoning that claim and accepting in its place the liability of that other insurer.
(3)
Within 3 months of the publication in the Gazette pursuant to section 33(2)(a) of a
notice of approval of an application, the amalgamated insurer or, as the case may be, the transferee,
shall deposit with the Commission (a)
a balance sheet, prepared in accordance with the requirement of the Fourth
Schedule, and, showing a true and fair view of the amalgamated insurer's or, as the case may be, the
transferee's affairs as at the date of that publication; and
(b)
a declaration under the hand of each person who was, immediately prior to
the date of that publication, chairman of any insurer that was a party to the amalgamation or
transfer, that (i)
to the best of their knowledge and belief, every payment made or to
be made to any person on account of the amalgamation or transfer is fully specified in the
declaration and no other payments, except those specified, have been or are to be made, either in
money, policies, bonds, valuable securities or other property, by or with the knowledge of the
parties to the amalgamation or transfer
(ii)
the requirements of section 31(1)(b) have been complied with.
[Amended 13/02]
PART VI - INSOLVENCY AND WINDING UP
35.
No voluntary winding up without authority.
Notwithstanding the Companies Act 2001, an insurer shall not be wound up voluntarily
without the prior written authority of the Commission.
36.
Winding up by court.
(1)
Any winding up by the court under the Companies Act 2001 of an insurer shall be
subject to the provisions of this Act.
(2)
Where a petition for winding up an insurer is presented by a person other than the
Commission, a copy of the petition shall be served on the Commission and he shall be entitled to be
heard on the petition.
(3)
A petition for winding up a company that is an insurer on a ground referred to in
section 216(4)(d) or (j) of the Companies Act 2001, may be presented by the Commission.
(4)
In addition to the circumstances set out for winding up a company in the Companies
Act 2001 but subject to the relevant provisions in this Part, an insurer may be ordered to be wound
up by the court on the petition of (a)
not less than one-tenth of the shareholders holding not less than one-tenth of
the issued share capital of the insurer; or
(b)
not less than 50 persons holding policies of life assurance with the insurer (i) which have been in force respectively for not less than 3 years; and
(ii) which on maturity will be for a total value of not less than such amount as
may be prescribed.
[Amended 22/90;18/92; 13/02]
37.
Valuation of assets and liabilities.
(1)
insurer -
Subject to any directions which may be given by the court, in the winding up of an
(a)
the value of the assets of the insurer shall be ascertained in such manner and
upon such basis as may be determined by the liquidator in consultation with the Commission;
(b)
the liabilities of the insurer in respect of the current policies of long term
insurance business shall, as far as practicable, be calculated by the method and upon such basis as
may be determined by an actuary appointed by the court; and
(c)
the liabilities of the insurer in respect of general insurance business shall be
determined by the liquidator in consultation with the Commission.
(2)
The actuary, in determining the basis of valuation under subsection (1)(b), shall take
into account -
38.
(a)
the purpose for which the valuation is to be made; and
(b)
any directions which may be given to him by the court.
Reduction of contracts.
(1)
Where an insurer is unable to pay its debts, the court may, instead of making an
order for winding-up, order the reduction of the amount of the current policies of the insurer upon
such terms and subject to such conditions as the court considers appropriate.
(2)
For the purpose of a reduction under subsection (1), the value of the assets and
liabilities of the insurer and all claims in respect of policies issued by the insurer shall be
ascertained in the manner set out in section 37(1)(a) or (b), whichever is appropriate.
39.
Position where an insurer is subsidiary of a non-insurer.
(1)
Where an insurer is a subsidiary of a body corporate which is not an insurer, and the
body corporate is wound up under the provisions of the Companies Act 2001 or otherwise -
(a)
the subsidiary shall not be wound up except on the basis of a separate
application for winding up; and
(b)
the provisions of this Part shall apply in relation to the subsidiary as to any
other insurer.
(2)
The Companies Act 2001 shall apply for the purpose of determining whether or not
an insurer is the subsidiary of a body corporate.
40.
Continuation of business of insurer in liquidation.
(1)
A liquidator who is in charge of liquidation proceedings in respect of an insurer
shall, so far as it may be possible and subject to the direction of the Commission or the order of the
court, carry on the insurance business of the insurer during the liquidation proceedings, but shall
not effect any new contracts of insurance including renewals of existing policies of general
insurance.
(2)
Where the liquidator is satisfied that the interests of the existing policyholders and
creditors in respect of liabilities of the insurer attributable to his business require the appointment
of a special manager of the business, he may apply to the court, and the court may on the
application appoint a special manager of that business to act during such time as the court may
direct, with such powers, including any of the powers of a receiver or manager under the
Companies Act 2001, as may be entrusted to him by the court.
(3)
necessary.
The court may require the special manager to give such security as it considers
(4)
The court may make such order as it considers appropriate with regard to the
payment of remuneration to the special manager.
PART VII - INVESTIGATION AND SUSPENSION OR CANCELLATION OF
REGISTRATION
[Amended 13/02]
41.
Power to make investigations.
(1)
Where it appears to the Commission that (a)
an insurer is, or is likely to become unable to meet its obligations;
(b)
an insurer has failed to comply with any of the provisions of Part IV;
(c)
an insurer has failed to furnish within such period as specified any
information demanded by the Commission in writing; or
(d)
any information in his possession calls for an investigation into the whole or
part of the insurance business of an insurer,
it may serve on the insurer a notice in writing calling on it to show cause, within such period as is
specified in the notice, why it should not, on the grounds so specified, investigate the whole or any
part of the business of the insurer or appoint a person (in this Part referred to as "an Inspector") to
make such an investigation and report to the Commission the results of his investigation.
(2)
Subject to subsection (3), if the insurer fails, within the period specified by the
notice, to show cause to the satisfaction of the Commission, the Commission may make the
investigation or cause it to be made by an Inspector.
(3)
No investigation shall be made under this section into the business or any part of the
business of an insurer without the approval of the Commission.
(4)
The remuneration of an Inspector shall be determined by the Commission..
(5)
An Inspector shall, for the purposes of the Public Officers Protection Act, be
deemed to be a public officer or person lawfully engaged in the performance of a public duty.
[Amended 13/02]
42.
Powers of Commission or Inspector
(1)
In making an investigation under this Part, the Commission or an Inspector may (a)
exercise all or any of the powers conferred by section 8 on the Commission;
(b)
examine on oath any person who is, or has at any time been, a director,
actuary, auditor, officer, agent, servant or shareholder of the insurer, or the holder of a policy issued
by the insurer or the personal representative of any such holder, or any other person who, in the
opinion of the Commission or the Inspector, it is necessary to so examine; and
(c)
for the purpose of paragraph (b), administer oaths.
(2)
A person specified in subsection (1)(b) shall produce to the Commission or an
Inspector at his request any securities or books or papers of the insurer which are available to him
and shall give to the Commission or an Inspector, at his request, any information in his possession
relating to the business of the insurer.
(3)
The Commission or an Inspector may, if he deems it necessary, employ the services
of an actuary, qualified auditor or lawyer to advise him against payment of an appropriate fee.
(4)
section 8(5).
In this section, "books or papers" has the meaning given to that expression by
[Amended 13/02]
43.
…..
44.
Action after completion of investigation
(1)
[Repealed 13/2001]
After an investigation under this Part in respect of any insurer has been completed (a)
an Inspector shall, as soon as is practicable, transmit -
(i)
to the Commission his final report and a summary of his conclusions
arrived at as a result of the investigation; and
(ii)
to the insurer such a summary; and
(b)
the Commission may, subject to subsection (2), without affecting any other
powers conferred by this Act, issue such directions in writing to the insurer, in respect of all or any
of its insurance business,as he thinks necessary or proper to deal with the situation disclosed by the
report, including, in particular, directions prohibiting or regulating the issue of new policies, the
renewal of existing policies or the entering into of any new contract of insurance.
(2)
No direction -
(a)
than 12 months, or
issued under subsection (1)(b) to an insurer shall remain in force for more
(b)
issued under subsection (1)(b) to an insurer that is a foreign company, shall
apply to the carrying on of its insurance business otherwise than in or from within Mauritius
(3)
Any direction which has lapsed may be reissued with such modifications as the
Commission may think fit.
[Amended 13/02]
45.
Costs of investigation.
(1)
Subject to subsection (2), the expenses of and incidental to an investigation under
this Part shall be paid out of the General Fund of the Commission.
(2)
Where -
(a)
in his final report on an investigation under this Part, the Commission or an
Inspector finds that there was reasonable cause for the investigation; and
(b)
the Commission certifies that the insurer concerned ought, for that reason, to
pay all or any specified part of the expenses of or incidental to the investigation,
the insurer shall be liable to make payment accordingly, and those expenses, or the specified part
thereof, may be recovered by the Commission.
[Amended 48/91; 13/02]
46.
Grounds for suspension or cancellation of registration.
(1)
Subject to this Part, the Commission may suspend or cancel the registration of an
insurer, in relation to the whole or any part of its business, on any of the grounds set out in
subsection (2).
(2)
The grounds referred to in subsection (1)
are that -
(a)
there exists a ground which, under section 15, would have prevented the
insurer from being registered;
(b)
the insurer has failed to satisfy an obligation to which it is subject by virtue
of this Act;
(c)
the insurer has been convicted of an offence under section 65 and has not
appealed against the conviction, or having made such an appeal the conviction has not been
quashed;
(d)
the business of the insurer is not being carried on in accordance with sound
insurance principles;
(e)
the insurer has failed to satisfy a judgement obtained against it within the
period allowed by law; or
(f)
the insurer, being a foreign company, has ceased to be authorised to effect
contracts of insurance or contracts of a particular description, in the country where it has its head
office.
(3)
The Commission shall not, pursuant to subsection (1), suspend or cancel the
registration of an insurer, either wholly or partly unless (a)
he has by registered post notified the insurer in writing that he proposes to do
so, giving in the notice the reasons why he proposes to do so; and
(b)
the insurer -
(i)
fails to lodge with the Commission a notice of the insurer's intention
to refer the case for review by the Minister, as provided in section 48, within the period mentioned
in that section; or
(ii)
having lodged such a notice within that period(A)
the insurer withdraws the notice before the Minister gives his
decision in the case; or
(B)
the Minister decides that the registration of the insurer shall
be suspended or, as the case may be, cancelled.
[Amended 13/02]
47.
Further grounds for suspension or cancellation of registration.
(1)
Where the business of an insurer is being investigated under this Part, the
Commission may suspend the registration of the insurer in relation to the whole of that business or,
as the case may be, the part being investigated.
(2)
The Commission may, at the request of an insurer, cancel the registration of the
insurer, either wholly or partly.
(3)
Where an insurer ceases to carry on insurance business, the Commission may cancel
its registration.
(4)
Where an insurer that is registered in respect of any class of insurance business has
not at any time carried on business of that class, and at least 12 months have elapsed since the
registration of the insurer, the Commission may cancel its registration in respect of that class of
business.
(5)
The Commission may, as a condition of canceling the registration of an insurer
under subsection (2) or (3), either wholly or partly, require the insurer to make arrangements,
satisfactory to the Commission, to meet any liabilities, whether actual or prospective, in respect of
the class of insurance business concerned.
[Amended 22/90;18/92; 13/02]
48.
Review of proposal to suspend or cancel registration under section 46.
(1)
An insurer that is aggrieved by a proposal to suspend or cancel its registration under
section 46, may refer the case for review by the Minister by giving notice in writing to the
Commission by registered post within 60 days of the date on which it receives, pursuant to section
46(3)(a), notice of the proposal.
(2)
it is made.
A notice of review under subsection (1) shall specify in detail the grounds on which
(3)
The Commission shall transmit to the Minister a notice of review lodged with him
and the Minister shall decide whether or not to support the proposal.
(4)
49.
The Commission shall give to the insurer notice in writing of the Minister's decision.
[Amended 13/02]
Effect of suspension or cancellation under section 46 or 47.
(1)
Subject to subsection (2), a body corporate -
(a)
whose registration is wholly suspended or cancelled shall not carry on any
insurance business; or
(b)
whose registration is suspended or cancelled in relation to any part of its
insurance business, shall not carry on that business
after the date on which it is notified pursuant to
section 53 of the suspension or cancellation.
(2)
A suspension or cancellation of registration under section 46 or 47 shall not, subject
to section 51 (1), prevent a body corporate from (a)
continuing to carry on business relating to a contract of insurance effected
before the date on which it is notified pursuant to section 53 of the suspension or cancellation; or
(b)
effecting a contract of insurance in pursuance of a term of a contract of
insurance subsisting at that date,
and for the purpose of doing so the insurer shall be deemed to be a registered insurer.
50.
Appointment of administrator.
(1)
Where the registration of a body corporate is wholly or partly suspended or
cancelled under section 46 or 47(1), the Commission may, subject to subsection (2), appoint a
person as an administrator in relation to the whole of the business of the body corporate where the
registration is wholly suspended or cancelled, or in relation to the relevant part of the business of
the body corporate where the suspension or cancellation is partial.
(2)
The Commission shall not, in relation to a body corporate, appoint as an
administrator (a)
a body corporate;
(b)
an undischarged bankrupt;
(c)
a mortgagee of any property of the body corporate;
(d)
an auditor or actuary of the body corporate;
(e)
an officer of the insurer or of any body corporate which is a mortgagee of the
property of the body corporate; or
(f)
a person restrained or disqualified from managing a company under section
117 or 118 of the Companies Act 1984.(S.337 of the Companies Act 2001)
(3)
The remuneration payable to an administrator shall be determined by the
Commission with the approval of the Minister.
[Amended 13/02]
51.
Duties and powers of administrator.
(1)
The administrator appointed under section 50 shall manage the whole or, as the case
may be, the relevant part of the business entrusted to his administration and for the purpose of
doing so (a)
shall, in particular, have and may exercise the powers referred to in section
(b)
shall comply with directions given to him under subsection (2);
49(2);
(c)
shall manage the business or, as the case may be, the part of the business,
with the greatest economy compatible with efficiency.
(2)
The Commission may give such directions to the administrator as to his powers and
duties as he deems desirable in the circumstances of the case, and the administrator may apply to
the Commission for instructions as to the manner in which he shall conduct the management of the
business of the body corporate or in relation to any matter arising in the course of that management.
[Amended 13/02]
52.
Cancellation of suspension of registration
(1)
The Commission may, with the approval of the Minister, cancel any suspension of
the registration of a body corporate made under this Part.
(2)
Where an administrator has been appointed under section 50 in relation to the whole
or part of the business of the body corporate and the suspension of the registration of the body
corporate is cancelled pursuant to subsection (1) -
(a)
the powers and duties of the administrator in relation to the body corporate
shall thereupon cease; and
(b)
the administrator shall use his best endeavours to facilitate the return of the
management of the whole or, as the case may be, the relevant part of its business to the body
corporate.
53.
Notice of suspension, etc.
(1)
The Commission shall -
(a)
give notice in writing to a body corporate of the suspension or cancellation,
wholly or partly, under this Part of its registration;
(b)
given notice in writing to a body corporate in relation to which an
administrator has been appointed under section 50;
(c)
given notice in writing to a body corporate when the suspension of its
registration is cancelled under section 52; and
(d)
cause notice of any such suspension, cancellation or appointment to be
published in the Gazette.
(2)
Any notice required to be given under
subsection (1) shall be given by registered
post.
[Amended 13/02]
PART VIII - INSURANCE AGENTS, BROKERS AND SALESMEN
54.
Registration of insurance agents, brokers and salesmen
(1)
On or after the relevant date, no person shall act as, or advertise that he acts as or is
willing to act as, an insurance agent, insurance broker or insurance salesman in Mauritius unless he
is registered as such an agent or broker or salesman.
(2)
Where any person acts as an insurance agent, insurance broker or insurance
salesman in the period after the commencement of this Act and before the relevant date without
being registered as such under this Act, this Act shall apply in that period in relation to that person
as it applies in relation to a person so registered.
(3)
In this section, "the relevant date" means the date that is 3 months after the
commencement of this section.
55.
Application for registration as insurance agent, broker and salesman
(1)
An application to be registered as an insurance agent, insurance broker or insurance
salesman shall be made to the Commission in such form and shall be accompanied by such
documents, as may be prescribed.
(2)
Section 13(2) and (3) shall apply in relation to an application under this section as
they apply in relation to an application under section 13.
[Amended 13/02]
56.
Registration of applicant under section 55.
(1)
Subject to subsection (2), where an application is made in accordance with section
55, the Commission may register the applicant as an insurance agent, or, as the case may be, an
insurance broker or and insurance salesman.
(2)
The Commission shall refuse to register an applicant under section 55-
(a)
as an insurance broker, unless the applicant is covered by a professional
indemnity insurance policy acceptable to the Commission and meeting such requirements as may
be prescribed; and
(b)
as an insurance agent, broker or salesman unless he is satisfied that the
applicant is a fit and proper person to be registered and, if registered, would be able to comply with
such of the provisions of this Act as would be applicable to the applicant.
(3)
Registration shall be effected by entering in the register(a)
(b)
(c)
the name of the applicant;
the capacity in which the applicant is registered; and
the conditions, if any, subject to which the applicant is registered.
(4)
Where the Commission refuses to register an applicant under section 55, the
applicant, if aggrieved, may, within 60 days of receiving, pursuant to section 57(2), notice of the
refusal, refer the case for review by the Minister under section 59, by giving notice in writing to the
Commission by registered post and specifying in detail the grounds on which it is made.
[Amended 13/02]
57.
Procedure on determination of application under section 55.
(1)
Where the Commission registers an applicant under section 55 he shall, by
registered post, notify the applicant in writing accordingly.
(2)
Where the Commission refuses to register an applicant on any ground referred to in
section 56(2), he shall, by registered post, notify the applicant accordingly and give
in the notice the ground for the refusal.
[Amended 13/02]
58.
Cancellation of registration in respect of insurance agent, broker and salesman.
(1)
The Commission may-
(a)
at the request of an insurance agent broker or salesman; or
(b)
subject to subsection (3) and on any of the grounds set out in subsection (2),
cancel the registration of the insurance agent, broker or salesman.
(2)
The grounds referred to in subsection (1)(b) are-
(a)
that the insurance agent, broker or salesman, as the case may be, has failed to
satisfy an obligation to which he is subject by virtue of this Act; or
(b)
that there exists a ground on which he would be prevented under section
56(2) from registering the insurance agent, broker or salesman.
(3)
The Commission shall not, pursuant to subsection (1)(b), cancel the registration of
an insurance agent, broker or salesman unless he has (a)
by registered post notified the insurance agent, broker or salesman, as the
case may be, that he proposes to do so, giving in the notice the reasons why he proposes to do so;
and
(b)
the insurance agent, broker or salesman, as the case may be -
(i)
fails to lodge with the Commission a notice of his intention to refer
the case for review by the Minister, as provided in section 59, within the period mentioned in
subsection (4); or
(ii)
having lodged such a notice within the period -
(A)
the insurance agent, broker or salesman, withdraws the notice
before the Minister gives his decision in the case; or
(B)
the Minister decides that the registration of the insurance
agent, broker or salesman, as the case may be, shall be cancelled.
(4)
An insurance agent, broker or salesman, as the case may be, who is aggrieved by a
proposal to cancel his registration may, within 60 days of the date on which he receives, pursuant to
subsection (3)(a), notice of the proposal, refer the case for review by the Minister by giving notice
in writing to the Commission by registered post and specifying in detail the grounds on which it is
made.
[Amended 13/02]
59.
Review of refusal to register or proposal to cancel registration under this Part.
(1)
The Commission shall transmit to the Minister a notice of review lodged with him
under section 56(4) or 58(4), and the Minister shall decide whether or not to support the refusal or,
as the case may be, the proposal.
(2)
The Commission shall -
(a)
give to the person referring a case for review notice in writing of the
Minister's decision; and
(b)
if the Minister does not support a refusal to register an applicant, register the
applicant.
[Amended 13/02]
60.
Duty to keep records
(1)
Act shall,
An insurance agent, insurance broker or insurance salesman registered under this
(a)
keep such records as may be prescribed; and
(b)
furnish to the Commission such statements and returns relating to his
business in such form and at such intervals as may be prescribed.
61.
Collection of premiums
(1)
An insurance agent or salesman registered under this Act shall, for the purpose of
receiving any premium for a contract of insurance, be deemed to be the agent of the registered
insurer notwithstanding any conditions or stipulations to the contrary.
(2)
Any insurance agent, broker or salesman registered under this Act who (a)
acts in negotiating, renewing or continuing a contract of insurance with an
(b)
receives payment of the premium for such a contract,
insurer; and
shall pay the premium, less any commission and other deductions to which, by the consent of the
insurer, he is entitled, to the insurer within 30 days of its receipt by the agent, or as the case may be,
broker or salesman, or such shorter or longer period as may be agreed in advance by the insurer.
62.
List of insurance agents and salesman
(1)
Every insurer shall maintain in its principal office and exhibit in a conspicuous place
to which the public has access a list of all persons representing it as insurance agents and a list of its
insurance salesmen, and shall provide the Commission, on demand, with a copy of such lists.
(2)
Every insurer and insurance agent registered under this Act shall provide the
Commission, on demand, with particulars of its salesmen.
PART IX - OFFENCES AND ENFORCEMENT
63.
Offences under Part II.
Any person who (a)
makes default in complying with a requirement imposed under section 8; or
(b)
in purported compliance with any such requirement (i)
furnishes information which he knows to be false in a material particular; or
(ii)
recklessly furnishes information which is false in a material particular,
shall commit an offence.
64.
Offences under Part III.
(1)
offence.
(2)
Any person who carries on business in contravention of section 12 shall commit an
Any person who for the purpose of obtaining registration under section 14 (a)
furnishes information which he knows to be false in a material particular; or
(b)
recklessly furnishes information which is false in a material particular,
shall commit an offence.
65.
Offences under Part IV.
(1)
offence.
(2)
Any insurer which makes default in complying with section 18 shall commit an
Any person who causes or permits to be included in -
(a)
any account, balance sheet, report, return or statement required to be
prepared or prepared under paragraph 2, 3 or 5 of the Fourth Schedule;
(b)
any notice served on the Commission pursuant to paragraph 4 of that
Schedule; or
(c)
any statement furnished to the Commission under section 26(4), a statement
which he knows to be false in a material particular or recklessly causes or permits to be so included
any statement which is false in a material particular shall commit an offence.
[Amended 13/02]
66.
Offences under Part V.
Any person who causes or permits to be included in any statement sent out under section
31(1)(c) a statement which he knows to be false in a material particular or recklessly causes or
permits to be so included any statement which is false in a material particular shall commit an
offence.
67.
Offences under Part VII.
Any person who-
(a)
refuses or fails to comply with a requirement of the Commission or an Inspector
under section 42(2); or
(b)
when appearing before the Commission or an Inspector for the purpose of section 42
(i) makes a statement which he knows to be false in a material particular; or
(ii) recklessly makes a statement which is false in a material particular,
shall commit an offence.
[Amended 13/02]
68.
Offences under Part VIII.
(1)
Any person who contravenes section 54 shall commit an offence.
(2)
Any person who for the purpose of obtaining registration under section 56 (a)
furnishes information which he knows to be false in a material particular; or
(b)
recklessly furnishes information which is false in a material particular,
shall commit an offence.
(3)
Any person who makes default in complying with any requirement of section 60,
61(2) or 62 shall commit an offence.
69.
Miscellaneous offences.
(1)
Any person who (a)
by any statement, promise or forecast which he knows to be misleading, false
(b)
by any dishonest concealment of material facts; or
or deceptive;
(c)
by the reckless making, dishonestly or otherwise, of any statement, promise
or forecast which is misleading, false or deceptive,
induces or attempts to induce another person to enter into or offer to enter into any contract of
insurance with an insurer shall commit an offence.
(2)
Any person who causes or solicits a person to enter into, or to make application to
enter into, a contract of insurance in Mauritius with a person who is not a registered insurer shall
commit an offence.
(3)
70.
Any person who contravenes section 73 shall commit an offence.
Penalties.
(1)
Any person who commits an offence under section 64, 65, 66, 68(1) or (2) or 69(1)
shall be liable on conviction to imprisonment for a term not exceeding 5 years and a fine not
exceeding 50,000 rupees.
(2)
Any person who commits an offence under any provision of this Act (other than a
provision referred to in subsection (1)) shall be liable on conviction to imprisonment for a term not
exceeding 3 years and a fine not exceeding 30,000 rupees.
(3)
Any person who continues to make default in complying with section 63(a) or 67(a)
after being convicted of that default shall commit a further offence on each day on which the
default takes place and shall be liable on conviction to a fine not exceeding 1,000 rupees for each
day.
71.
Civil liability.
(1)
Where a body corporate carries on business in contravention of section 12, 18 or 54
every officer and member of the body corporate who has knowledge of the fact or is concerned in
the management of the body corporate shall be jointly and severally liable for the payment and
discharge of every debt and liability incurred by the body corporate in so carrying on business.
(2)
Where a body corporate contravenes section 20(4), directors of the body corporate
who vote for or consent to a resolution authorising payment or distribution of a dividend contrary to
section 20(4)(a) and (b) or who consent to a remission contrary to section 20(4)(c), shall be jointly
and severally liable to restore to the body corporate any amounts so paid, distributed or remitted
and not otherwise recovered by the body corporate,
(3)
For the purposes of subsection (1), "officer" or "member" has the meaning
respectively assigned by section 2(1) of the Companies Act 2001.
(4)
For the purposes of subsection (2), the reference to "directors" shall be deemed to
include a reference to the authorised agent of a foreign company.
[Amended 13/02]
72.
Jurisdiction.
(1)
Notwithstanding -
(a)
section 114 of the Courts Act; and
(b)
section 72 of the District and Intermediate Courts (Criminal Jurisdiction)
Act,
a magistrate shall have jurisdiction to try an offence under this Act.
(2)
Notwithstanding any enactment or rule of law, in a prosecution under section 70(3),
the Court shall not dismiss an information by reason only that any one count discloses more than
one offence.
PART X - MISCELLANEOUS
73.
Prohibitions.
(1)
No person other than a registered insurer shall have or use, or continue to have or
use, the word "insurance" or "assurance", or any derivative thereof, in the name under which that
person carries on business.
(2)
No insurer shall, without the written permission of the Commission carry on
insurance business unless it has and uses as part of its name the word "insurance" or "assurance".
(3)
statement -
No insurer shall publish a statement, or issue a document on which is printed a
(a)
of the authorised capital of the insurer, unless the statement also specifies the
amount of the subscribed and paid up capital of the insurer; or
(b)
of the subscribed capital of the insurer unless the statement also specifies the
amount of the paid up capital of the insurer.
(4)
No insurance shall be effected outside Mauritius to cover assets in Mauritius unless
such insurance is effected in such manner and subject to such terms and conditions as may be
prescribed.
[Amended 13/02]
74.
Action by policy owners against insurers.
The owner of a policy shall, notwithstanding any contrary provision in the policy or in any
agreement relating to the policy, be entitled to enforce his rights under the policy against the insurer
liable under the policy in any competent court in Mauritius.
75.
Arbitration.
(1)
An insurer may, by writing (a)
under the hands of two directors in the case of a company; or
(b)
under the hand of the authorised agent in the case of a foreign company,
agree to refer to arbitration, in accordance with the Code of Civil Procedure, any existing or future
dispute between itself and any owner of a policy issued by it.
(2)
The owner of a policy may, by writing under his hand, agree to refer to arbitration,
in accordance with the Code of Civil Procedure, any existing or future dispute between himself and
the insurer that issued the policy.
(3)
Every insurer that is a party to an arbitration may delegate to the arbitrator power to
settle any term or to determine any matter capable of being lawfully settled or determined by the
insurer itself or by its directors or other governing body.
76.
Contracts unenforceable against other party.
(1)
Subject to subsection (3), a contract of insurance which is entered into by a person in
the course of carrying on insurance business in contravention of section 12 shall be unenforceable
against the other party, and that other party shall be entitled to recover any money or other property
paid or transferred by him under the contract, together with compensation for any loss sustained by
him as a result of having parted with it.
(2)
The compensation under subsection (1) shall be such as the parties agree or as a
court may, on the application of either party, determine.
(3)
A court may allow a contract to which subsection (1) applies to be enforced or
money or property paid or transferred under it to be retained if it is satisfied (a) that the person carrying on insurance business reasonably believed that his entering
into the contract did not constitute a contravention of section 12; and
(b) that it is just and equitable for the contract to be enforced or, as the case may be, for
the money or property paid or transferred under it to be retained.
(4)
Where a person elects not to perform a contract which by virtue of this section is
unenforceable against him or by virtue of this section recovers money or property paid or
transferred under a contract, he shall not be entitled to any benefits under the contract and shall
repay any money and return any other property received by him under the contract.
(5)
Where any property transferred under a contract, to which this section applies has
passed to a third party the references to that property in this section shall be construed as references
to its value at the time of its transfer under the contract.
(6)
A contravention of section 12 shall not make a contract of insurance invalid to any
greater extent than is provided in this section, and a contravention of that section in respect of a
contract of insurance shall not affect the validity of any reinsurance contract entered into in respect
of that contract.
77.
Documents furnished to the Commission.
(1)
The Commission may require any person who furnishes to him, under this Act, any
document in a language, other than English or French, to provide a certified translation of the
document into the English or French language at that person's expense.
(2)
A document certified by the Commission of Insurance to be a copy of a document
furnished to him under this Act shall be admitted in all courts as evidence of the original document.
(3)
78.
In this section, "document" includes a certificate, contract, statement or abstract.
[Amended 13/02]
Regulations.
(1)
The Minister may make such regulations as he thinks fit for the purposes of this Act.
(2)
The Minister may by regulations amend the Schedules.
(3)
The regulations may -
(a)
make different provisions for different classes of insurers and for different
classes of insurance business;
(b)
provide for the payment of fees and the levying of charges.
(Amended 22/90)
79.
Repeal.
(1)
The Insurance Act is repealed.
(2)
The State Insurance Corporation of Mauritius Act is amended by adding
immediately after section 15 the following section -
15A.
Requirement of Insurance Act 1987.
The Corporation shall comply with the requirements of the Fourth Schedule
to the Insurance Act 1987, and that Schedule shall apply in relation to the
Corporation as it applies in relation to a registered insurer.
(3) The Companies Act 2001 is amended(a)
in section 215 by deleting the word “The” and replacing it by the words
“Subject to section 36 of the Insurance Act 1987, the”;
(b)
in section 216 –
(i)
in subsection (2), by adding immediately after paragraph (f) the
following paragraph(g)
(ii)
by the Commission of Insurance in the circumstances
referred to in section 36(3) of the Insurance Act 1987;
in subsection (3)(a), by deleting the word “Only” and replacing it by
the words “ Subject to subsection (2)(g), only”
[Amended 22/90; 13/02]
80.
Commencement
This Act shall come into force on a day to be fixed by Proclamation and different days may
be fixed in respect of different provisions of the Act.
Passed by the Legislative Assembly on the fifteenth day of December, one thousand nine
hundred and eighty-seven.
[P 3/88]
L. RIVALTZ QUENETTE
Clerk of the Legislative Assembly
FIRST SCHEDULE
Existing Insurers
1.
Section 12
For the purposes of section 12, an existing insurer shall be deemed to be registered
in respect of any class of business for which it was registered under the repealed Act, immediately
prior to the commencement of this Act, but without prejudice to the operation of
section 46 or 47.
2.
Section 19
(1)
Section 19 shall apply in relation to an existing insurer so as to require it to
deposit (a)
50 per centum of the deposit required, at the beginning of the second
balance sheet date of the insurer after the commencement; and
(b)
in equal instalments, the balance of the deposit required at the
beginning of the third and fourth balance sheet dates of the insurer after the commencement.
(2)
Pending the deposit of an instalment of a required deposit pursuant to
subparagraph (1)(a), section 12(3) of the repealed Act shall continue to apply in relation to the
insurer as it would have done if this Act had not been enacted.
3.
Section 20
(1)
Section 20 shall apply in relation to an existing insurer with effect from the
beginning of the second balance sheet date of the insurer after the commencement.
(2)
Pending the application of subparagraph (1) of section 20 in relation to an
existing insurer, section 13 of the repealed Act shall continue to apply in relation to the insurer as it
would have done if this Act had not been enacted.
4.
Section 21
(1)
The arrangements for reinsurance which an existing insurer has at the
commencement shall be deemed to have been approved by the Commission under section 21 on the
commencement and that section shall apply accordingly.
(2)
Section 21(3) shall not operate to prevent reinsurance with an existing
insurer during any period when the existing insurer is not required, by reason of paragraph 5, to
have a reserve fund.
(3)
Section 21(3) shall not operate to prevent reinsurance with an existing
insurer during any period when the existing insurer is not required, by reason of paragraph 6(1), to
have a long term insurance fund if the insurer complies with paragraph 6(2).
5.
Section 25
Section 25 shall apply in relation to an existing insurer with effect from the
beginning of the second balance sheet date of the insurer after the commencement.
6.
Section 26
(1)Section 26 shall apply in relation to an existing insurer carrying on long term
insurance business with effect from the beginning of the second balance sheet date of the insurer
after the commencement.
(2)
Pending the application of subparagraph (1) of section 26 in relation to an
existing insurer carrying on long term insurance business, the insurer shall continue to observe any
requirements of the repealed Act applicable to it with respect to the life assurance fund under the
repealed Act and, for that purpose, the repealed Act shall continue to apply in relation to the insurer
as if this Act had not been enacted.
7
Section 27
(1)
Section 27 shall apply in relation to an existing insurer with effect from the
beginning of the second balance sheet date of the insurer after the commencement.
(2)
Pending the application of subparagraph (1) of section 27 in relation to an
existing insurer, section 29A of the repealed Act shall continue to apply in relation to an insurer in
respect of life assurance business (as defined in section 3 of that Act) as it would have done if this
Act had not been enacted.
(3)
In the application pursuant to subparagraph (1) of section 27, subsection (6)
shall apply –
(a)
for the purposes of subsection (2), only in relation to the net increase
in funds after that application; and
(b)
for the purposes of subsection (3), only in relation to the assets
required to cover the increase in the admitted liabilities after that application.
8.
Fourth Schedule
If an existing insurer has not had such an investigation as is referred to in paragraph
5 of the Fourth Schedule carried out within 3 years before the commencement, the insurer shall
cause an investigation to be made by the insurer's actuary as at the last date of the balance sheet
date nearest to the commencement.
SECOND SCHEDULE
Deposits
1.
Amount of deposit
(1)
The amount of the deposit is 6million rupees which shall be raised to not less
than 8 million rupees as from 1 July 1998 in respect of long term insurance business or general
insurance business.
(2)
Where an insurer is registered in respect of long term insurance business and
general insurance business, subparagraph (1) shall have effect as if the requirements of section 19
and that subparagraph were requirements to make and maintain separate deposits in respect of each
such business.
(3)
A deposit made under this Schedule shall consist of cash or of any Mauritius
Government securities, or, subject to subparagraph (8), bank deposits, or partly in cash, securities
or bank deposits, or any combination thereof, and the value of any such security for the purpose of
this Schedule shall be deemed to be the market value at the date when the deposit is made.
(4)
All income accruing in respect of a deposit shall be payable to the registered
insurer making the deposit, except where the insurer is declared insolvent, or is the subject of
liquidation proceedings or investigation.
(5)
A registered insurer may at any time, with the written consent of the
Commission, substitute for any deposited security any other Mauritius Government security having
not less than equal value according to the market value at the date of that consent being given.
(6)
The Commission shall release to any insurer cash forming part of its deposit
or received by the Commission on the redemption of any deposited security if the insurer
substitutes for the cash to be released Mauritius Government securities having the same value as
that cash according to the market value of the securities when they are so substituted.
(7)
A registered insurer may request the Commission to allow it to sell any
deposited security and to invest the net proceeds of sale in such Mauritius Government security or
bank deposit as the insurer may request, and the new security and any uninvested proceeds of sale
shall be deemed to form part of the deposit.
(8)
A deposit shall not be made wholly or partly under this paragraph or
paragraph 2 or 3 by way of bank deposit unless the Commission consents and shall be subject to
such conditions as he may impose.
2.
Restriction on use of deposit
(1)
A deposit made by a registered insurer shall be deemed to be part of the
assets of the insurer, but shall not (a)
be capable of being transferred, assigned, or encumbered with a
mortgage or other charge, by the insurer;
(b)
be available for the discharge of a liability of the insurer, other than a
liability in respect of a policy of insurance issued in Mauritius by the insurer; or
(c)
be liable to attachment in execution of a judgment, except a judgment
obtained by a policy holder of the insurer in respect of a debt due upon a policy of insurance issued
in Mauritius and which debt the policy holder has been unable to recover in any other way.
(2)
If any part of a deposit made under this Schedule is used in the discharge of
any liability of a registered insurer, the insurer shall deposit such additional sum in cash securities
(estimated at the market value of the securities on the day of deposit), or by way of bank deposits,
or partly in cash, securities (so estimated) or bank deposit or any combination thereof, as will make
up the amount so used and, unless the deficiency is made good within a period of 2 months from
the date when the deposit or any part thereof is used for the discharge of liabilities, the insurer shall
be deemed to have failed to comply with the requirements of paragraph (1).
3.
Short fall in deposit
(1)
Subject to the provisions of this paragraph, the market value of a deposit
shall be verified as at
31 December in each year, and if the deposit is found to be short of the required amount of deposit
under this Schedule, the registered insurer shall be required to make good the short fall before 31
March in the next following year.
(2)
If the cash realised by the sale of or on the maturing of any securities
(excluding in the latter case the interest accrued) falls short of the market value of the securities at
the date on which they were deposited with the Commission, the registered insurer shall make good
the deficiency by a further deposit either in cash securities (estimated at the market value of the
securities on the day on which they are deposited), or by way of bank deposit or partly in cash,
securities (so estimated) or bank deposit, or any combination thereof, within a period of 3 months
from the date on which the securities matured or were sold.
4.
Refund of deposit
(1)
A deposit made by an applicant for registration as an insurer shall be
returned by the Commission if the applicant is not so registered.
(2)
Subject to this Schedule, a deposit made in terms of this Schedule shall be
retained by the Commission until either it is returned as provided in subparagraph (3), or is required
in the winding up of the affairs of the registered insurer.
(3)
Where the Commission is satisfied that a registered insurer has ceased to
transact or carry on any class of insurance business in respect of which it has
been registered and that its liability in respect of that class of business has
been satisfied or is otherwise provided for, he shall, on the application of an
insurer, return to the insurer such part of the deposit as, in his opinion, is not
required in respect of any other insurance business carried on by the insurer;
but no such return shall be made in relation to any class of insurance
business until after the expiration of the third balance sheet date of the
insurer from the date when the last policy in respect of that insurance
business was issued or such shorter period as the Minister may approve.
[Amended GNs 44/91; 71/93; 170/93]
THIRD SCHEDULE
Margin of Solvency
1.
Determination of margin of solvency
(1)
A registered insurer has the required margin of solvency if (a)
in the case of an insurer carrying on long term insurance business, the
amount of its admitted liabilities in respect of policies issued does not exceed the amount of its long
term insurance fund, as certified by the insurer's actuary; or
(b)
in the case of an offshore insurer carrying on general insurance
business, the value of its admitted assets exceeds the amount of its admitted liabilities by not less
than 1,000,000 rupees, or 10 per centum of the premium income, net of reinsurance premiums, in
the preceding balance sheet date, whichever is the greater.
(c)
in the case of an insurer carrying on general insurance business, the
value of its admitted assets exceeds the amount of its admitted liabilities by (i)
(ii)
(iii)
not less than 2,000,000 rupees if the premium income, net of
reinsurance premium in the preceding balance sheet date did
not exceed 10,000,000 rupees; or
not less than 20 per centum of the premium income, if the
premium income, net of reinsurance, in the preceding balance
sheet date exceeded 10,000,000 rupees but did not exceed
30,000,000 rupees; or
the aggregate of 6,000,000 rupees and 10% of the amount by
which the premium income, net of reinsurance, in the
preceding balance sheet date exceeded 30,000,000 rupees.
(2)
In the case of a registered insurer that carries on both long term insurance
business and general insurance business, subparagraph (1) shall have effect as if the requirements
of section 20 and that subparagraph were requirements to have and maintain separate margins of
solvency in respect of the two kinds of business, and accordingly as if the references in that
subparagraph to assets and liabilities were references to assets and liabilities relating to the kind of
business in question.
2.
Meaning of "admitted assets"
(1)
For the purpose of this Schedule, the admitted assets of a registered insurer
shall refer to any property, security, item or interest owned by it, but shall not include (a) unless otherwise authorised under the Companies Act 2001, a loan made
after the commencement of this Act to a person who, when the loan was made, was (i)
a director or authorised agent of the insurer;
(ii)
a director or authorised agent of a corporation that is a related
corporation in relation to the insurer; or
(iii)
an associate of a director or authorised agent referred to in item (i) or
(ii);
(b) an unsecured loan made after the commencement of this Act;
(c) an asset that is mortgaged or charged for the benefit of a person other than
the insurer, to the extent that it is so mortgaged or charged;
(d) a loan to, debenture of, or share in, any corporation that is a related
corporation in relation to the insurer, except to the extent that the Commission has, under
subparagraph (2), approved it;
(e) an unpaid premium that became due to the insurer more than one year
previously;
(f) an intangible asset;
(g) operational assets, including supplies, furniture, motor vehicles, office
equipment and computers, in excess of their written-down values;
(h) prepaid expenses and deferred charges;
(i) amounts owed and due by foreign reinsurers for more than 6 months; or
(j) such other assets as may be prescribed.
(2)
Where an insurer requests the Commission to give an approval for the
purposes of subparagraph (1)(d), the Commission may, by notice in writing, approve the loan,
debenture or share or such part of the loan or debenture as he determines, or refuse to do so.
(3)
In this paragraph "associate", in relation to any person, means(a)
the wife or husband, or minor son or daughter, of that person; and
(b)
any person who is an employee or partner of that person;
"authorised agent", in relation to an insurer means the authorised agent of a foreign
company.
(4)
Section 2(7) of the Companies Act 2001 shall apply for the purpose of this
paragraph to determine whether or not a corporation is a related corporation in relation to an
insurer, and for that purpose "Corporation" has the meaning given by section 2(1) of that Act.
(5)
The Companies Act 2001 shall apply for the purpose of determining whether
or not a person is the subsidiary of a body corporate.
3.
Meaning of "admitted liabilities"
(1)
For the purpose of this Schedule, a reference to the admitted liabilities of a
registered insurer (a)
carrying on general insurance business, means liabilities shown as
current, contingent or prospective liabilities in the accounts of the insurer in respect of policies
issued; or
(b)
carrying on long term insurance business, means liabilities shown in
the balance sheet and the valuation liabilities as certified by the insurer's actuary.
(2)
For the purposes of this Schedule, a reference to admitted liabilities does not
include a reference to (a)
a liability in respect of share capital or a reserve in lieu of capital
approved by the Commission;
(b)
a liability in respect of such matters as the Commission may by
notice in writing direct; or
(c)
a prescribed liability.
4.
Provision of accounts
Every registered insurer shall make adequate provision in his accounts for liabilities
in respect of unexpired risks outstanding and incurred claims, including provisions for claims
incurred but not reported, computed in accordance with a method approved by the Commission.
5.
Power of Commission
(1)
The Commission, having regard to such matters as he considers relevant,
including the date of incorporation of a registered insurer, may by notice in writing allow time for a
registered insurer, subject to such terms and conditions as he specified in the notice, to comply with
the requirement of paragraph 4.
(2)
The Commission may at any time take such reasonable steps as he considers
appropriate to verify the assets and liabilities of any registered insurer or for securing the
particulars necessary to establish that the requirements of this Schedule have been complied with as
on any date.
6. Limitation
Nothing in this Schedule shall be construed as requiring a registered insurer to
maintain any assets in Mauritius in respect of his business which is not carried on in, or from
within, Mauritius.
[Amended GN 44/91]
FOURTH SCHEDULE
ACCOUNTS AND RETURNS
1.
Separation of accounts
(1)
A registered insurer carrying on more than one class of insurance business shall
keep separate accounts of all receipts and payments in respect of each such class of business.
(2)
The Commission may, by notice in writing, require a registered insurer carrying on
more than one class of insurance business to keep separate accounts of all receipts and payments in
respect of a part of any such class of business.
(3)
Where a single amount received or paid, whether in respect of premiums, investment
income, claims, commission, reinsurance costs, administration costs, taxes or otherwise is received
or paid in respect of more than one class of insurance business, and the amount is not otherwise
allocable between the different classes, the insurer shall, for the purposes of this paragraph,
apportion the amount in an equitable manner between the classes of insurance business in respect
of which it is received or paid.
(4)
Nothing in this paragraph affects the requirements of section 26 in relation to a
registered insurer carrying on long term insurance business.
2.
Accounts, balance sheet and other returns
(1) A(a)
company that is a registered insurer, in respect of all insurance
business wherever commenced, transacted or carried on; or
(b)
foreign company that is a registered insurer, in respect of insurance
business wherever commenced, transacted or carried on which constitutes or constituted a liability
on its insurance business in Mauritius,
shall at the expiration of each balance sheet date prepare, in accordance with the Regulations, with
reference to that year (i) a balance sheet;
(ii)
a profit and loss account or a revenue account, or both, as may
be applicable; and
(iii)
in respect of each class of insurance business, or part thereof,
for which the insurer is required by paragraph 1 to keep a separate account of receipts and
payments, a revenue account.
(2)
Every registered insurer shall furnish to the Commission such further returns
or abstracts, or amended or substituted returns or abstracts, as may be required by the Commission.
(3)
Every reserve or provision shall be calculated in accordance with
internationally approved methods, and the methods adopted for the purpose shall be disclosed to
the Commission, including any change in the methods.
(4)
All amounts which are required to be shown in any account or balance sheet
shall be shown in Mauritian currency to the nearest rupee.
(5)
A registered insurer that is a foreign company and is required by the law of
the country where it has its head office to prepare and furnish to a public authority any documents,
shall, within 3 months of having done so, furnish to the Commission four certified copies of every
abstract, statement, account and return furnished to that public authority.
3.
Audit and auditor's certificate
(1)
The accounts of every registered insurer shall be audited annually by its
auditor who shall be a person who is a qualified auditor.
(2)
The auditor shall, in a certificate relating to the accounts and statements in
respect of a balance sheet date of a registered insurer, state whether (a)
the accounts and statements to which it relates appear to him to be in
accordance with the requirements of this Act, and give particulars of any matters that do not appear
to him to be in accordance with those requirements;
(b)
the accounting records of the insurer in respect of that year appear to
him to have been properly kept and to record and explain correctly the transactions and financial
position of the insurer, and give particulars of accounting records that appear to him not to have
been so kept and of transactions that appear to him not to have been so recorded;
(c)
in respect of that year, he has obtained the information and
explanations that he requested and give particulars of information and explanations he requested
but did not obtain;
(d)
he is satisfied that the accounts and statements referred to in item (a)
agree with the accounting records of the insurer and appear to him truly to represent the
transactions and financial position of the insurer in respect of the balance sheet date to which they
relate and, if any of them appear to him to fail so to represent the transactions and financial
position, give particulars of the failure;
(e)
amounts required by paragraph 1(3) to be apportioned have been
equitably apportioned and if they have not been so apportioned give particulars of the failure;
(f)
all management expenses wheresoever incurred in respect of the
insurer's business, whether directly or indirectly, have been fully debited in the revenue account or
profit and loss account as expenses and, if they have not been so debited, give particulars of the
amounts not so debited; and
(g)
every reserve has been calculated in accordance with paragraph 2(3),
and if they have not been so calculated give particulars of the failure.
4.
Appointment of actuary by insurer with long
term insurance business
(1)
Every registered insurer shall within one month of beginning to carry on long
term insurance business appoint an actuary to the insurer; and whenever an appointment comes to
an end the insurer shall, as soon as practicable, make a fresh appointment.
(2)
A registered insurer making an appointment under subparagraph (1) shall
within 14 days serve on the Commission a written notice stating that fact and the name and
qualifications of the person appointed.
5.
Actuarial investigation
(1)
Every registered insurer carrying on long term insurance business shall, not
less than once in every 3 years, cause an investigation into its financial position to be made by the
insurer's actuary.
(2)
An investigation to which subparagraph (1) or (2) relates shall include (a)
a valuation of the liabilities of the insurer attributable to the insurer's
long term insurance business; and
(b)
a determination of any excess over those liabilities of the assets
representing the fund or funds maintained by the insurer in respect of that business and, where any
rights of any long term insurance policy holders to participate in profits relate to particular parts of
such a fund, a determination of any excess of assets over liabilities in respect of each of those parts.
(3)
the insurer shall -
Where an investigation into a registered insurer's financial position is made,
(a)
furnish to the Commission a copy of the report of the insurer's
actuary; and
(b)
prepare and furnish to the Commission a statement of the insurer's
long term insurance business in the prescribed form, within the time limit prescribed under
paragraph 6(1) of the date to which his accounts are made up for the purposes of the investigation.
(4)
The report referred to in subparagraph (3) shall include (a)
a statement of the valuation basis used;
(b)
a statement showing the extent to which account has been taken of
the nature and term of the assets available to meet the liabilities valued;
(c)
the actuary's opinion on the value of the assets mentioned in item (b);
and
(d)
a list of the assets so mentioned and their values, giving any equities
held separately,
(e)
a consolidated Revenue account for the period covered by the Report.
(5)
The basis of valuation adopted shall be such as to place a proper value upon
the liabilities having regard to the mortality experience among the persons whose lives have been
insured by the insurer, to the average rate of interest from investments and the expenses of
management (including commission), and shall be such as to ensure that no policy is treated as an
asset.
(6)
The value placed upon the aggregate liabilities of a long term insurance fund
maintained under section 26 in respect of policies by reason of the adoption of any basis of
valuation shall not be less than it would have been if it had been calculated on the minimum basis
prescribed.
(7)
The actuary who makes the valuation shall certify whether in his opinion the
value placed upon the aggregate liabilities relating to a fund in respect of policies by the valuation
is not less than the value which would have been placed upon those aggregate liabilities if it had
been calculated on the minimum basis prescribed.
6.
Submission and publication of returns
(1)
Four copies of every account, balance sheet, certificate, report, return or
statement required to be prepared or prepared under paragraph 2, 3 or 5 shall be signed by two
directors and, in the case of a foreign company, the authorized agent of the registered insurer, and
by the auditor who made the audit or the actuary who made the valuation (as the case may be) and
shall be submitted to the Commission within 8 months after the end of the period to which they
relate.
(2)
Every registered insurer shall furnish forthwith to the Commission a certified
copy of every report on its affairs made to its shareholders or policyholders.
(3)
A statement or return other than a balance sheet, profit and loss account,
revenue account or actuarial report shall, in the case of a foreign company, be signed by the
authorized agent unless the Commission requires it also to be signed by the auditor or the actuary
of the insurer.
(4)
No insurer shall publish in Mauritius or elsewhere any return or statement
required under this Act in a form other than that in which it has been furnished to the Commission;
but nothing in this subparagraph shall prevent an insurer from publishing a true and accurate
abstract from such return or statement for the purpose of publicity and a copy of which is submitted
to the Commission.
7.
Examination of returns
(1)
If it appears to the Commission that any return or report furnished to him
under this Schedule is inaccurate or incomplete in any respect, he may –
(a) require further information, which shall be certified if he so directs, from
the insurer or from such auditor, actuary or other person as he may consider necessary;
(b) require the insurer to submit any document for his examination at its
registered office, or its principal place of business, in Mauritius, or to supply any statement;
(c)
examine any officer of the insurer in relation to the return or report
and may administer on oath accordingly; or
(d)
decline to accept the return or report unless such further information
as may be required by him is furnished within such period as he may specify, and if he declines
under this paragraph to accept any return or report, the insurer shall be deemed to have failed to
comply with the requirements of this Schedule in relation to such a return or report.
8.
Register of policies and accounting records
(1)
A registered insurer, in respect of each class of insurance business carried on
by it, shall
maintain (a)
a register of issued pollicies showing the name and address of the
policy holder, the date when the policy was effected, and a record of any transfer, assignment or
nomination of a policy of which the insurer has notice; and
(b)
a register of claims, or other appropriate records in which shall be
entered every claim made, the date of the claim, the name and address of the claimant, and the date
on which the claim is discharged, or in the case of a claim which is rejected the date of rejection
and the grounds therefor.
(2)
For the purposes of subparagraph (1), any insurance business of a registered
insurer in respect of any person, human life, property or interest outside Mauritius which
constitutes a liability, on its insurance business in Mauritius, shall be deemed to be Mauritius
business.
(3)
If the accounting records that a registered insurer is required to keep are in a
place outside Mauritius the insurer shall transfer to and keep in Mauritius such statements and
records as will enable the accounts and statements required to be maintained or submitted under
this Act to be prepared, and call for such records and statements pertaining to the preceding periods
as may be required by the Commission.
(4)
For the purposes of complying with subparagraph (3), a foreign company
will be allowed 3 months to transfer the relevant records and statements.