The Insurance Act' 1938

insurance act 1938
THE INSURANCE ACT, 1938
[AS AMENDED BY INSURANCE (AMENDMENT) ACT, 2002]
[4 of 1938]
 An Act to consolidate and amend the law relating to the business of insurance
Whereas it is expedient to consolidate and amend the law relating to the business of insurance; it is hereby enacted as follows: –
PART I
          Preliminary
Short title, extent and commencement.
1. (1)) This Act may be called Insurance Act, 19382.
(2) It extends to the whole of India.
(3) It shall come into force on such date3 as the Central Government may, by Notification in the Official Gazette, appoint in this behalf.
Definitions.
2. In this Act, unless there is anything repugnant in the subject or context, –
(1)      “actuary” means an actuary possessing such 3a[qualifications as may be specified by the regulations made by the Authority];
4[(1A) “Authority” means the Insurance Regulatory and Development Authority established under sub-section (1) of section 3 of the Insurance Regulatory and Development Authority Act, 1999;]
(2)      “policy-holder” includes a person to whom the whole of the interest of the policy-holder in the policy is assigned once and for all, but does not include an assignee thereof whose interest in the policy is defeasible or is for the time being subject to any condition;
(3)      “approved securities,” means-
(i) Government securities and other securities charged on the revenue of the Central Government or of the Government of a State or guaranteed fully as regards principal and interest by the Central Government or the Government of any State;
(ii) debentures or other securities for money issued under the authority of    any Central Act or Act of a State Legislature by or on behalf of a port trust or municipal corporation or city improvement trust in any Presidency-town;
                        (iii) shares of a corporation established by law and guaranteed fully by the Central Government or the Government of a State as to the repayment              of the principal and the payment of the divided;
                         (iv) securities issued or guaranteed fully as regards principal and interest   by the Government of any Part B State and specified as approved  securities for the purposes of this Act by the Central Government by   notification in the Official Gazette; and
(4)      “Auditor” means a person qualified under the Chartered Accountants Act, 1949 (38 of 1949), to act as an auditor of companies ;
(4A) “banking company” and “company” shall have the meanings respectively assigned in them in clauses (c) and (d) of sub-section (1) of Section 5 of the Banking Companies Act, 1949 (10 of 1949);
(5) “certified” in relation to any copy or translation of a document required to be furnished by or on behalf of an insurer or a provident society as defined in Part III means certified by a principal officer of 6Esuch insurer or provident society to be a true copy or a correct translation, as the case may be;
(5A) “chief agent” means a person who, not being a salaried employee of an insurer,  in consideration of any commission-
                (i) performs any administrative and organising functions for the insurer, and
                (ii) procures life insurance business for the insurer by employing or causing to be employed insurance agents on behalf of the insurer;
[(5‑B) “Controller of Insurance” means the officer appointed by the Central                 Government under section 2B to exercise all the powers, discharge the          functions and performs the duties of the Authority under this Act or the Life        Insurance Corporation Act, 1956 (31 of 1956) or the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or the Insurance Regulatory and Development Authority Act, 1999;]
(6)           “Court” means the principal Civil Court of original jurisdiction in a district    and includes the High Court in exercise of its ordinary original civil jurisdiction;
(6A)        “fire insurance business” means the business of effecting, otherwise than      incidentally to some other class of insurance business, contracts of         insurance against loss by or incidental to fire or other occurrence             customarily included among the risks insured against in fire insurance Policies;
(6B)        “general insurance business” means fire, marine or miscellaneous insurance                 business, whether carried on singly or in combination with one or more of them;
(7)           “Government security” means a Government security as defined in the Public Debt Act, 1944 (18 of 1944);
2[(7A)      “Indian insurance company” means any insurer being a company-
(a)                 which is formed and registered under the Companies Act, 1956 (1 of 1956);
(b)                 in which the aggregate holdings of equity shares by a foreign company, either by itself or through its subsidiary companies or its nominees, do not exceed twenty-six percent paid-up equity capital of such Indian insurance company;
(c)                 whose sole purpose is to carry on life insurance business or general insurance business or re-insurance business.
                                                    Explanation- For the purpose of this clause, the expression   “foreign company” shall have the meaning assigned to it under clause (23A) of section 2 of the Income-tax Act, 1961           (43 of 1961);]
(8) “insurance company” means any insurer being a company, association or partnership which may be wound up under the Indian Companies Act, 1913 (7    of 1913), or to which the Indian Partnership Act, 1932 (9 of 1932), applies;
(8A)insurance co-operative society” means any insurer being a co-operative society,-
                (a) which is registered on or after the commencement of the Insurance (Amendment) Act, 2002, as a co-operative society under the Co- operative Societies Act, 1912 (2 of 1912) or under any other law for the time being in force in any State relating to Co-operative Societies or under the Multi-State Co-operative Societies Act, 1984 (51 or 1984);
                (b) having a minimum paid-up capital, (excluding the deposits required to be made under section 7), of rupees one hundred crores;
 (c)in which no body corporate, whether incorporated or not, formed or registered outside India, either by itself or through its subsidiaries or     nominees, at any time, holds more than twenty-six per cent of the capital of such Co-operative Society;
(d) whose sole purpose is to carry on life insurance business or general insurance business in India:
(9) “Insurer” means-
(a) any individual or unincorporated body of individuals or bodycorporate                 incorporated under the law of any country other than India, carrying on       insurance business not being a person specified in sub-clause (c) of this clause     which­-
                (i) carries on that business in India, or
                (ii) has his or its principal place of business or is domiciled in India, or
                (iii) with the object of obtaining insurance business, employs a representative,   or maintains a place of business, in India;
(b)   any body corporate [not being a person specified in sub-clause (c) of this clause] carrying on the business of insurance, which is a body corporate incorporated under any law for the time being in force in India; or stands to any such body corporate in the relation of a subsidiary company within the meaning of the Indian Companies Act, 1913 (7 of 1913), as defined by sub‑section (2) of section 2 of that Act, and
(c)   any person who in India has a standing contract with underwriters who are members of the Society of Lloyd’s whereby such person is authorised within the terms of such contract to issue protection notes, cover notes, or other documents granting insurance cover to others on behalf of the underwriters.
but does not include a principal agent’ chief agent, special agent’ or an insurance agent or a provident society as defined in Part III;
(10)     “insurance agent” means an insuranceagent licensed under Sec. 42 who receives  agrees to receive payment by way of commission or other remuneration in consideration of his soliciting or procuring insurance business including business relating to the continuance, renewal or revival of policies of insurance;
(10A)”investment company” means a company whose principal business is the
           acquisition of shares, stocks debentures or other securities;
(10B)   “intermediary or insurance intermediary” shall have the meaning assigned to it in clause (f) of sub-section 2 of the Insurance Regularoty and Development Authority Act, 1999 (41 of 1999)
(11) “life insurance business” means the business of effecting contracts of insurance upon human life, including any contract whereby the payment of money is assured on death (except death byaccident only) or the happening of any
(12) “Manager” and “officer” have the meanings assigned to those expressions in clauses
         (9) and (11), respectively of Section 2 of the Indian Companies Act, 1913 (7 of
         1913);
(13) “Managing agent” means a person, firm or company entitled to the management of  the whole affairs of a company by virtue of an agreement with the company, and under the control and direction of the directors except to the extent, if any, otherwise provided for in the agreement, and includes any person, firm or company occupying such position by whatever name called.
Explanation.—If a person occupying the position of managing agent calls himself manager or managing director, he shall nevertheless be regarded as managing agent for the purposes of Sec. 32 of this Act;
(13A)”marine insurance business” means the business of effecting contracts of insurance
upon vessels of any description, including cargoes, freights and other interests which may be legally insured, in or in relation to such vessels, cargoes and freights, goods, wares, merchandise and property of whatever description insured for any transit, by land or water, or both, and whether or not including warehouse risks or similar risks in addition or as incidental to such transit, and includes any other risks customarily included among the risks insured against in marine insurance policies;
(13B)”miscellaneous insurance business” means the business of effecting contracts of
insurance which is not principally or wholly of any kind or kinds included in clause (6A), (11) and (13A);
(14) “prescribed” means prescribed by rules made under this Act; and
(15) “principal agent” means a person who, not being a salaried employee of an insurer,
       in consideration of any commission,—
(i) performs any administrative and organising functions for the insurer; and
(iii) procures general insurance business whether wholly or in part by
       employing or causing to be employed insurance agents on behalf of the
(16) “private company” and “public company” have the meanings respectively assigned
to them in Clauses (13) and (13‑A) of Sec. 2 of the Indian Companies Act, 1913 (7 of 1913);
(17) “special agent” means a person who, not being a salaried employee of an insurer, in consideration of any commission, procures life insurance business for the insurer whether wholly or in part by employing or causing to be employed insurance agents on behalf of the insurer, but does not include a chief agent.
Interpretation of certain words and expressions
2A.      Words and expression used and not defined in this Act but defined in the Life Insurance Corporation Act, 1956 (31 of 1956), the General Insurance Business (Nationalisation) Act, 1972 (57 or 1972), and the Insurance Regulatory and Development Authority Act, 1999 shall have the meanings respectively assigned to them in those Acts.
Appointment of Authority of Insurance.
2B.      [(1) If at any time, the Authority is superseded under sub-section (1) of section19 of the Insurance Regulatory and Development Authority Act, 1999, the Central Government may, by notification in the Official Gazette, appoint a person to be the Controller of Insurance till such time the Authority is reconstituted under sub-section (3) of section 19 of that Act
             (2) In making any appointment under this section, the Central Government shall have due regard to the following considerations, namely, whether the person to be appointed has hadexperience in industrial, commercial or insurance matter and whether such person has actuarial qualifications.
 
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