The protection of the insured fact or fiction?
Brown, Lily Mite
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The main aim of this paper is to show that even though the law attempts to be clear in defining a balance between the insurer and the insured, in reality there appears to be no equality between the two, as the insurer tends to be in a better bargaining position than an individual. The overall objective as such is to highlight how lack of proper mechanisms with regard to regulation of the insurance industry can be a source of inequality between the insured and the insurer. Further that the certain doctrines in insurance law are too rigid in the end negating the protection of the insured. The outcome of the research indicated that it is a fundamental truth that Insurance is said to be there for the protection of the insured but more often than not the doctrines applied appear to favour and protect the insurers as opposed to the insured. This is attributable to the various exclusion clauses that are found in insurance contracts. It is further compounded by lack of proper and stringent supervision in the insurance industry. In addition, it was found that the lack of provision of fundamental doctrines in the Insurance Act favours the insurers as opposed to creating a balance. Consequently this leads to the insured losing out on the protection he bargained for at the beginning of the insurance purchase. The contention to be addressed to this end is whether or not there could be Insurance law reforms that re-establish justice and balance the rights and duties of the insurer and the insured. The research paper therefore proposes changes in statutory law with regard to insurance in Zambia. In this respect the Insurance Act must be clear with the provisions relating to funds and the need for certain doctrines of insurance to be codified into the Act. Further the industry should set up the insurance Ombudsman Bureau which should hear complaints from policyholders and make awards that are reasonable. The ombudsman should consider not just the law but what is reasonable and fair. It is suggested that the Competition and Consumer Protection Act should have a section dedicated to insurance contracts. This will ensure that the Act protects consumers by regulating the sale of insurance. These recommendations aide in assuring that Insurance is a fact and not a fiction.