RESPONSE ON EXPOSURE DRAFT 2016 (First Amendment )

Transcription

1 RESPONSE ON EXPOSURE DRAFT 2016 (First Amendment ) Name : / ( SLA NO - ) / (IIISLA M.No.- Address : ID : Contact No : Letter Chap. / Reg. / Proposed Amendment Our Response Remarks / Reason Ref. Sub-Regulation 3(A) CHAPTER-II / Reg (3) / Sub Reg. (2)(c) Amend the Reg. 3(2)(c) as under - Insert the words subject to 3(8)(c) after taking examination once again stated under 3(2)(c) above Amend the Reg. 3(2)(c) as under - The application of Trainee shall be enroll with Authority after Student membership of IIISLA and applicantion for license shall be submitted within a period of one year after the date of passing of examination. Exhibit 1 (i) IIISLA membership is a statutory requirement post Insurance Amended Act 2015 under 64UM(1)(b). Entry into the profession has to be governed by the criterion devised and put into practice by IIISLA, to ensure and bring into the profession such quality and skill set, as to keep up with the best of practices conducive for the Survey profession. New Add - 3(8)(c) Provided Passing of relevant paper(s) of Surveyor and Loss Assessor Examination to be conducted by the Indian Institute of Insurance Surveyors & Loss Assessors (IIISLA) on the syllabus recognized by the Authority. (ii) IIISLA was established by the Authority and incorporated u/s 25 of the companies Act with the main objectives in MoA (III)(A) to promote quality in profession of SLA through education and training & to conduct Professional examinations relating to the profession of SLA hence opportunity must be given to IIISLA after empowerment in Act as a SRO.

2 Letter Chap. / Reg. / Ref. Sub-Regulation 3(B) CHAPTER-II / Reg. (3) / Sub Reg.(8)(c) Proposed Amendment Our Response Remarks / Reason Insert the Reg. 3 (8)(c ) as Reg. 3(8)(c) the application for license shall be submitted within a period of 5 years from the date of enrolment after meeting the requirements. provided that those who have enrolled as trainees with the Authority as on the date of notification of these Regulations, shall apply for license after meeting the requirements within one year from the date of notification or 5 years from the date of enrolment, whichever is later. Agreed subject to :- Reg. 3(8)(c) the application for license shall be submitted within a period of one year after passing surveyor examination date of enrolment after complying the requirements. provided that those who have enrolled as Student Membership with IIISLA as well as Trainees Surveyor with the Authority as on the date of notification of these Regulations, shall apply for license after meeting the requirements within one year from the date of notification. (i) Provision of grace period up to 5 years from the date of enrolment will harm the professional in line with the intentions and objectives for which it was established. The grace period of one year is more than sufficient for those who having professional motto to opt the profession of Surveryor and Loss Assessor seriously, not part time, and require to ensure the maintain the high standards of integrity, discipline, and professional conduct. (ii) IIISLA membership is a statutory requirement post Insurance Amended Act Entry into the profession has to be governed by the criterion devised and put into practice exclusivelyby IIISLA, to ensure and bring into the profession such quality and skill set, as to keep up with the best of practices conducive and betterment for the Survey profession and industry.

3 Letter Chap. / Reg. / Ref. Sub-Regulation 3(C) CHAPTER-II / Reg. (6) / Sub Reg.(3) (a)(v) Proposed Amendment Our Response Remarks / Reason Amend the Reg. Reg. 6(3) (a)(v) as - Proof of qualification (notarized) or categorization letter issued by the Authority stating the eligible Departments in accordance with the categorization made by circular IRDA/Order/SLA/30/3/2 002 dated 30 th March, Amend the Reg. Reg. 6(3) (a)(v) as- Proof of qualification (notarized) or categorization letter issued by the Authority or Insurer stating the eligible Departments in accordance with the categorization made by circular IRDA/Order/SLA/30/3/2002 dated 30 th March, to be treated as work in all departments without Financial restrictions as before categorization. Licensed surveyors and Member of IIISLA shall be eligible to work in all departments in which he qualifies as per the qualification criteria mentioned in Schedule 1 of Regulations without restricted category. (i) The provision of the Insurance Act 2015 (Amendment) namely to quote from section 82 (3): Quote: Notwithstanding anything contained in the foregoing provisions, a class or class of persons acting as a licensed surveyor or loss assessor prior to the commencement of the Insurance Laws (Amendment) Act, 2015 shall continue to act as such for such period as may be specified by the regulations made under this Act: Provided that the surveyor or loss assessor shall, within the period as may be notified by the Authority, satisfy the requirements of clause (a) and clause (b) of subsection (1), failing which, the surveyor or loss assessor shall be automatically disqualified to act as a surveyor or loss assessor. Unquote. does not support the proposed change by the Authority. Since Regulation cannot override the Regulatiors' parents - here the Act.

4 (ii) Any amended Act should be with prospective effect and NOT retrospective effect. Also the sanctity of licenses issued by the authority should not be brought into cloud; unless there are explicit violations of criteria then prevailing (iii) Such work restriction does not exist in any profession (Legal, Medical, CA, Architects etc.etc) and is against fundamental rights of the professional to work as per his qualification. Honble High Court, Madras and Patna which have permitted several SLA petitioner to work in all categories & departments against the Writ petition W.P. No of 2002 filed challenging order of the authorities dated in Chennai High Court and subsequently C.W.J.C. No of 2002 and C.W.J.C No.3943of 2006 was filed in Patna High Court. (iv) Restriction also takes away the fundamental right of the insurer to choose the best professional of his choice for a job, as is prevalent in other professions. The Hon'ble Madras High Court in the the Institute Of Chartered vs K. Bhagvatheeswaran And Union Of... on 24 March, 2005.

5 JUDGMENT Markandey Katju, C.J. has observed that - It is well known that each profession has its own historical conventions, traditions, customs and practices and it has never been the conventions, tradition, custom or practice among the professions like Lawyers' profession, Chartered Accountants' profession, etc., that work must be diversified to young and less fortunate professionals by restricting the number of cases/audits which can be accepted by a Lawyer/Chartered Accountant. In our opinion, placing restrictions on the number of cases/audits which can be accepted by a Lawyer/Chartered Accountant is an unreasonable restriction under Article 19(6) of the Constitution and is also violation of Article 14, taking into account the historical growth and development of these professions, and their traditional and customary practices. A client must be free to choose his Lawyer/Chartered Accountant, and conversely the number of cases/audits which can be accepted by a professional must be left free to decide by the Lawyer/Chartered Accountant of his own free will. Such restrictions can only be voluntary and not imposed by any external authority on the members of the profession

6 Letter Chap. / Reg. / Ref. Sub-Regulation 3(D) CHAPTER-VII / Reg. (17) / Sub Reg.(3) Proposed Amendment Our Response Remarks / Reason Replace the Reg. 17(3)as The surveyor under whom a trainee will be trained shall have a valid license for the last 8 years. No Replacement in Reg.17(3) Existing Provisions must continue as Trainee Applicants - The surveyor under whom a trainee will be trained shall be an Associate or Fellow member of the Institute continuously for 8 years (i) Being a Self Regulatory Organisation as well as Provision existing MoA of IIISLA in which only IIISLA having duty and responsibility be in tune with the amended act provisions in 64UM1(b) to education, training and examination to facilitate introduction of best practices amongst its members hence without having the Valid Membership of IIISLA as an Associate or Fellow no trainer is permitted to train any trainee. (ii) The Regulations cannot go beyond or overrule the Act provisions since IIISLA membership is a statutory requirement post Act amendment 2015, any stipulation ignoring such membership of IIISLA would be arbitrary and will setup a bad precedence in law.

7 Letter Chap. / Reg. / Ref. Sub-Regulation 3(E) CHAPTER-VII / Reg. (17) / Sub Reg.(6) Proposed Amendment Our Response Remarks / Reason Replace the Reg. 17(6) as under If a Surveyor and Loss Assessor already licensed by the Authority seeks to obtain a similar license for acting as a surveyor in a department of general insurance business other than for which he has been licensed, he shall undergo a period of training of not less than six months under a licensed Surveyor and Loss Assessor holding a valid license to act in that particular Department for the last 8 years. If a Surveyor and Loss Assessor already licensed by the Authority and Member of IIISLA seeks to obtain a similar license for acting as a surveyor in a department of general insurance business other than for which he has been licensed, he shall undergo a period of training of not less than six months under a licensed Surveyor and Loss Assessor holding either a Fellow or Associate Membership to act in that particular area. Provided, a member before circular IRDA/Order/SLA/30/3/2002 shall be eligible to work in all departments in which he qualifies as per the qualification criteria mentioned in Schedule 1 of Regulations without restricted category. (i) Any amended act should be with prospective effect and NOT retrospective effect. Also the sanctity of licenses issued by the authority should not be brought into cloud; unless there are explicit violations of criteria then prevailing. ii) It needs to be considered that post transitory provision of amended act; there will be no licensing. Hence the wording of regulation need to facilitate such scenario; as well as the provisions of amended Act. Here the categorization order quoted by the authority comes in handy to allow all the departments to the SLAs who were categorized vide categorization letter issued by the Authority stating the eligible Departments in accordance with the categorization made by circular IRDA/Order/SLA/30/3/2002 dated 30 th March, 2002.

8 Letter Chap. / Reg. / Ref. Sub-Regulation 3(F) CHAPTER-VIII Reg. (21) / Sub Reg.(4) Proposed Amendment Our Response Remarks / Reason Amend Reg. 21(4) as Half-yearly report as per the Form-IRDAI-19 prescribed under Schedule II of this regulations within 45 days from the end of the half year Claim process flow data will be brought into effect, as per the format devised / proposed; indicating the process flow of each claim reported in India. Insurer shall furnish such information every month / quarter or as frequently as notified by the Authority from time to time to indicate; (i) Claims settled without Survey (ii) Numbers of claims surveyed by approved Surveyor (iii) Details of Survey fee Paid (iv) Details of S/Fee Out standing (v) Numbers of claims settled, amounts paid. (vi) Number of claims O/S, amounts involved, Form-19 to be prescribed as under ANN. (i) IRDA Act clearly defines SLA as an intermediary and an intermediary as defined in the Act cannot align with either party to insurance contract. (ii) SLA is one entity of cadre only; i.e., Approved Surveyor and Loss Assessor, as per the Act. There is no term as In house surveyor or Corporate Surveyor; and such terminology which are not supported by the Act SHOULD NOT find a place in the Regulations made by the Authority. (iii) Corporate licensing of Surveyor & Loss Assessor SHOULD also be stopped immediately and all individual SLA licenses should be validated. This would also facilitate smooth transition of licensed era to IIISLA membership era in this post transitory period of amended act; since membership of IIISLA is devised and designed on individual membership only. IIISLA in due course of time devise a methodology to facilitate corporate formation by individual members; on the lines of ICAI.

9 (iv) A portal would provide information about Claim status, Surveyor Deputation Status, Surveyor report status, Payment status to Policy holders and Suvey Deputation, Survey Report status and Survey Fee status to Surveyor and all other requirements to Insurer and other stakeholders. 3(G) Replace the Annexure I to Schedule I as per the Exhibit 1 3(H) Insert Form No-19 to Schedule II as per the Exhibit II Replace the Annexure I to Schedule I as per the Exhibit 1 as Under ANN As referred in 3 ( F )

10 Schedule I Annexure-1 IRDAI (Insurance Surveyors and Loss Assessors) Regulations, 2015 Qualification Criteria for Enrolment and Licensing of Surveyors and Loss Assessors (Regulation 3) Sl Depart Academic/technical/Professional/Insurance Academic/technical/Professional/Insurance Qualifications No ment Qualifications 1. Fire B.E./ B. Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent, C.A./ B.E./ B. Tech./ B.Sc. (Engg.) / A.I.M.I.E. or its equivalent, C.A./ I.C.W.A., I.C.W.A., A.I.I.I./ F.I.I.I./Post Graduate Diploma in Insurance A.I.I.I./ F.I.I.I./ Post Graduate Diploma in Fire,Engineering and allied from IIRM Insurance from IIISLA 2. Marine Cargo 3. Marine Hull B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent thereof (Marine Engineering/ Naval Architecture),/ certificate of competency as Master of Ship or as First Class Marine Engineer issued by a recognized authority, Degree or diploma in Naval Architecture of a recognized University or Institute./ A.I.I.I./ F.I.I.I./ Post Graduate Diploma in Insurance from IIRM B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent thereof (Marine Engineering/ Naval Architecture)/ certificate of competency as Master of Ship or as First Class Marine Engineer issued by a recognized authority, 4. Engg. B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent, Diploma of 3 years duration from a recognised institution or its equivalent thereof 5. Motor B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent thereof (Mechanical/ Automobile); Diploma in Mechanical Engineering/ Automobile Engineering of 3 years duration from a recognised institution or its equivalent thereof ; B.E./ B.Tech./ B.Sc. (Engg.) / A.I.M.I.E. or its equivalent thereof,/ Certificate of competency as Master of Ship or as First Class Marine Engineer issued by a recognized authority, Degree or diploma in Naval Architecture of a recognized University or Institute./ Post Graduate Diploma in Insurance from IIISLA with A.I.I.I./ F.I.I.I. B.E./B.Tech./ B.Sc. (Engg.) / A.I.M.I.E. or its equivalent thereof / certificate of competency as Master of Ship or as First Class Marine Engineer issued by a recognized authority / Post Graduate Diploma in Insurance from IIISLA with A.I.I.I/F.I.I.I B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent, Diploma of 3 years duration from a recognised institution or its equivalent thereof / Post Graduate Diploma in Insurance from IIISLA B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent thereof (Mechanical/ Automobile); Diploma in Mechanical Engineering/ Automobile Engineering of 3 years duration from a recognised institution or its equivalent thereof ; 6. Miscell aneous B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent; Diploma of 3 years duration from a recognised institution or B.E./B.Tech./ B.Sc. (Engg.)/ A.I.M.I.E. or its equivalent; Diploma of 3 years duration from a recognised institution or its equivalent; C.A./ its equivalent; C.A./ I.C.W.A.; A.I.I.I./ F.I.I.I./ Post Graduate I.C.W.A.; A.I.I.I./ F.I.I.I./ Post Graduate Diploma in Insurance from Diploma in Insurance from IIRM; IIISLA with A.I.I.I./ F.I.I.I 7. LOP C.A./ I.C.W.A; A.I.I.I./ F.I.I.I C.A./ I.C.W.A / Post Graduate Diploma in Insurance from IIISLA with 8. Crop Insura nce* A.I.I.I./ F.I.I.I B. Sc. in Agricultural Science from a recognised University B. Sc. in Agricultural Science from a recognised University / Post Graduate Diploma in Agriculture and Rural Insurance from IIISLA

11 * The details of the training and examination for Crop Insurance shall be notified separately. Note: 1. In order to qualify for enrolment and licensing, an applicant should have secured a degree or diploma of a recognized Institute after attending full time course as a regular student or part time course with equivalency certificate issued by the respective Institute/University Provided in case of courses viz. A.I.M.I.E; C.A./ I.C.W.A and A.I.I.I./ F.I.I.I., P.G.Diploma from IIISLA, course completion certificate is treated as valid qualification. 2. All Full Time Technical Degree/Diploma stated above shall be obtained from a. AICTE approved Institutions or b. the Universities recognized by University Grants Commission or. c. the institutions of National importance recognized by Ministry of Human Resources Development ( MHRD)

12 Schedule II Form IRDAI 19 Regulation 21 (4) QUATERLY REPORT ON SURVEY JOBS FOR THE QUATERLY REPORT ( MONTH WISE) FROM / Name of the General Insurer : No. of in-house employee surveyors as on reporting date Sl.No. Line of Business No. of Claims reported Claim Settled without Nos of Claim reported within In-House Limit No. of claims reported above Limit survey by any approved surveyor under In-House Limit 1 Fire 2 Marine Cargo 3 Marine Hull 4 Engineering 5.a Motor cashless Motor other than 5.b cash less 6 Miscellaneous 7 LOP (Loss of Profits) 8 Crop Total : Surveys undertaken by Approved Surveyor who is member of IIISLA under provision of Act Claim Settlement Ratio I hereby solemnly acknowledge that the details provided above are true to the best of my knowledge. Date : Authorised Signatory

13 Note :- The information of deputation of each and every claim must be uploaded on the Insurer and IRDAI portal within 72 hours of deputation with all details viz Claim. No., Insured Name & Address, Vehicle/ Insured details, Risk Covered,, Claimed amount, Assessed Amount, Amount Paid, Place & Dt. of loss, Name of Surveyor, Membership No., Dt. of Deputation, Place & Date of survey made, Survey fee details e.t.c as prescribed format of IIISLA in view of regulation. in the following format :- Format* prescribed as under for Risk covered in Insurer Details Policy No. Claim No Place of accident Estimated Amt Name of SLA & Lic. No, if required Dt. of Deputation S/Fee Details Vehicle/ Insured Insured Details Policy validity Dt. of Loss Place of Survey Assessed Amt IIISLA M.No, if required Dt. Of Survey Fee Paid