Motor Car Insurance (Third-party Risks) Act 1943

an insurer to produce any documents and answer any questions which may be relevant, and if at any time the Governor is satisfied that the insurer is no longer a fit and proper person to undertake insurance business or is in violation of any term or condition specified in the authorization to undertake insurance business he may revoke the authority granted to him:

Provided that such revocation shall not affect the liability of the insurer in respect of any policy of insurance in force at the time of such revocation.

(3A) Any person authorized or purportedly authorized to undertake insurance business prior to 21 March 1990 shall be deemed to have been granted authorization by the Minister under this section upon such terms and conditions as the Minister may, after 20 March 1990, consider appropriate.

(4) Any person who undertakes insurance business, except under the authority of the Governor, commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $16,800 or both such imprisonment and fine.

[section 2 amended by 1990:7 effective 21 March 1990]

Owner of motor car must hold insurance

3 (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor car on a highway or on an estate road unless there is in force in relation to the use of the motor car by that person or that other person, as the case may be, such a policy of insurance in respect of third-party risks as complies with the requirements of this Act.

For the purposes of this subsection—

(i) a person who causes or permits another person to have the control and use of a motor car shall be deemed to permit the use to which the motor car is put by that other person; and

(ii) a person who for a valuable consideration hires an auxiliary bicycle to any other person for any period of less than three months shall be deemed to cause or permit that other person to use the auxiliary bicycle.

(2) Any person who contravenes subsection (1) commits an of fence against this Act:

Punishment on summary conviction: imprisonment for 12 months or a fine of $5,040 or both such imprisonment and fine.

(3) Notwithstanding any enactment prescribing a time within which proceedings may be brought before a court of summary jurisdic tion, proceedings for an offence under this section may be brought—

(a) within a period of six months from the date of the com mission of the alleged offence; or

(b) within a period which exceeds neither three months from the date on which it came to the knowledge of the prosecutor that the offence had been committed nor one year from the date of the commission of the offence, whichever period is the longer.

(4) This section shall not apply in relation to a motor car used in the service of Her Majesty's Forces, the United States Forces or the Government of Bermuda.

Requirements in respect of policies

4 (1) In order to comply with the requirements of this Act, a pol icy of insurance must be a policy—

(a) which is issued by a person who is an insurer; and

(b) which insures such person, persons or classes of per sons as may be specified in the policy in respect of any liability which may be incurred by him or them in re spect of the death or of bodily injury to any person or damage to the property of any person caused by or arising out of the use of the motor car on a highway or on an estate road:

Provided that such a policy shall not be required to cover—

(i) [deleted by 1987:53]

(ii) liability in respect of any sum in excess of $125,000 arising out of the death or bodily in jury to any person being carried in or upon or entering or getting into or alighting from a motor car;

(iii) liability in respect of any sum in excess of $125,000 arising out of any one claim by any one person;

(iv) liability in respect of any sum in excess of $500,000 arising out of the total claims for any

vehicle at the time of the occurrence of the event out of which the claim arose.

(2) Where any payment is made by an insurer under a policy issued under this Act in respect of the death of, or bodily injury to, any person arising out of the use of a motor car on a highway or an estate road and the person who has so died or been bodily injured has to the knowledge of the insurer received treatment in a hospital in respect of the fatal or other bodily injury so arising, there shall also be paid by the insurer to such hospital the expenses reasonably incurred by the hospi tal in affording such treatment.

(3) Notwithstanding anything in any statutory provision, rule of law or the common law, a person issuing a policy of insurance under this section shall be liable to indemnify the persons or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of those persons or classes of persons.

(4) A policy shall be of no effect for the purposes of this Act unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate (in this Act referred to as a "certificate of insurance") in duplicate in the prescribed form and con taining such particulars of any conditions subject to which the policy is issued and of any other matters as may be prescribed and issued and of any other matters as may be prescribed in relation to different cases or circumstances.

(5) In this Act "policy of insurance" means a policy issued for not less than six months, and includes a single covering note issued for a period not exceeding ninety days in respect of any motor car, but does not include any extension of a covering note or any subsequent covering note issued in respect of the same motor car during any period of six consecutive months.

Certain conditions of no effect

5 Any condition in a policy issued or given for the purposes of this Act, providing that no liability shall arise under the policy, or that any li ability so arising shall cease, in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy shall be of no effect in connection with such claims as are mentioned in section 4(1)(b):

Provided that nothing in this section shall be taken to render void any provision in a policy requiring the person insured to repay to the insurer any sums which the insurer may have become liable to pay under the policy and which have been applied to the satisfaction of the claims of third parties.

Insurer must satisfy judgment against insured

6 (1) If, after a certificate of insurance has been delivered under section 4(4) to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 4(1)(b) (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwith standing that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under subsection (1)—

(a) in respect of any judgment, unless before or within seven days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or

(b) in respect of any judgment, so long as execution thereon is stayed pending an appeal; or

(c) in connection with any liability, if before the happening of the event which was the cause of the death or bodily injury or damage to property giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provision contained therein, and either—

(i) before the happening of such event the certifi cate was surrendered to the insurer, or the per son to whom the certificate was delivered made a written declaration before a Justice of the Peace stating that the certificate had been lost or destroyed; or

(ii) after the happening of such event but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was delivered made such a written declaration before a Justice of the Peace as aforesaid; or

(iii) either before or after the happening of such event, but within such period of fourteen days the insurer has commenced proceedings under this Act in respect of the failure to surrender the certificate.

(3) No sum shall be payable by an insurer under the foregoing provisions of this section if, in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy, he is entitled to avoid the policy on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it:

Provided that an insurer who has obtained such a declaration as aforesaid in an action, shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings com menced before the commencement of that action, unless before or within seven days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specify ing the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled, if he thinks fit, to be made a party thereto.

(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability of a person insured by a policy ex ceeds the amount for which he would, apart from this section, be liable under the policy in respect of that liability, he shall be entitled to recover the excess from that person.

(5) In this section—

(a) "material" means of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk, and, if so, at what premium and on what conditions; and

(b) "liability covered by the terms of the policy" means a lia bility which is covered by the policy or which would be covered but for the fact that the insurer is entitled to avoid or cancel, or has avoided or cancelled, the policy.

(c) "judgment" does not include a judgment of a foreign court, or the judgment of a court having jurisdiction in Bermuda enforcing or giving effect to a judgment of a foreign court;

(d) "judgment of a foreign court" means the judgment of any court which does not have jurisdiction in Bermuda in civil causes.

(6) In this Act references to a certificate of insurance in any provision relating to the surrender, or the loss or destruction of a certifi cate of insurance shall in relation to policies under which more than one certificate is issued, be construed as references to all the certificates, and shall, where any copy has been issued of any certificate, be construed as including a reference to that copy.

Bankruptcy of insured

7 Where a certificate of insurance has been delivered under section 4(4) to the person by whom a policy has been effected, the happening in relation to any person insured by the policy of any such event as is men tioned in section 12(1) or (2) shall, notwithstanding anything in this Act, not affect any such liability of that person as is required to be covered by a policy under section 4(1)(b), but nothing in this section shall affect any rights against the insurer conferred by this Act on the person to whom the liability was incurred.

Certain restrictions on scope of policies of no effect

8 Where a certificate of insurance has been delivered under section 4(4) to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any of the following matters—

(a) the identity, age or physical or mental condition of per sons driving the motor car; or

(b) the condition of the motor car; or

(d) the weight or physical characteristics of the goods or the identity of the owner of the goods that the motor car car ries; or

(e) the times at which or the areas within which the motor car is used; or

(f) the identity of the owner, or the specifications, horse power or value of that motor car; or

(g) the carrying on the motor car of any particular equip ment or apparatus; or

(h) the carrying on the motor car of any particular means of identification required to be carried by or under the Mo tor Car Act 1951 [title 21 item 4];

(i) the particular use to which the motor car is put, being a use to which that motor car is reasonably capable of being put; or

(j) the driving of the motor car by the insured, or by any other person with the knowledge and consent of the in sured, while the insured or that other person is not permitted by law to drive that motor car,

shall, as respects such liabilities as are required to be covered by a policy under section 4(1)(b), be of no effect:

Provided that nothing in this section shall require an insurer to pay any sum in respect of the liability of any person otherwise than in or towards the discharge of that liability, and any sum paid by an insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this section shall be recoverable by the in surer from that person.

Person against whom claim made must give information as to insur ance

9 (1) Any person against whom a claim is made in respect of any such liability as is required to be covered by a policy under section 4(1)(b) shall, on demand by or on behalf of the person making the claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act, or would have been so insured if the insurer had not avoided or cancelled the policy, and, if he was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance delivered in respect thereof under section 4(4).

(2) Any person who, without reasonable excuse—

(a) fails to comply with the foregoing provisions of this sec tion; or

(b) wilfully makes any false statement in reply to any such demand as aforesaid,

commits an offence against this Act.

Certificate must be surrendered on cancellation of policy

10 (1) Where a certificate of insurance has been delivered under section 4(4) to the person by whom a policy has been effected and the policy is cancelled by mutual consent or by virtue of any provision in the policy, then the following provisions shall have effect—

(a) both the insurer and the person to whom the certificate was delivered shall, prior to the taking effect of the can cellation, report the cancellation to the Minister of Transport;

(b) the person to whom the certificate was delivered shall, within seven days from the taking effect of the cancella tion, surrender the certificate to the insurer, or, if it has been lost or destroyed, make and sign a written declara tion to that effect before a Justice of the Peace and transmit the declaration to the insurer.

(2) Any person—

(a) who fails to comply with subsection (1); or

(b) who makes a declaration thereunder which he knows to be false,

commits an offence against this Act.

Rights against insured survive his death

11 (1) The rights of any person in respect of any liability incurred by an insured person shall, in the event of the death of the insured per son, and notwithstanding any statutory provision, rule of law or the common law to the contrary, be preserved to and be enforceable by such person against the personal representatives of the insured person in the same manner and to the same extent as such rights would have been enforceable against the insured person if he had survived and section 4(3) shall apply accordingly.

(2) In this section "insured person" means a person who is in sured under a contract of insurance against liabilities to third parties in accordance with this Act.

Rights of third parties against insurer on bankruptcy of insured

12 (1) Where under any contract of insurance a person (hereinafter in this Act referred to as "the insured") is insured against li abilities to third parties which he may incur, then—

(a) in the event of the insured becoming bankrupt or mak ing a composition or arrangement with his creditors; or

(b) in the case of the insured being a company, in the event of a winding up order being made, or a resolution for a voluntary winding up being passed, with respect to the company, or of a receiver or manager of the company's business or undertaking being duly appointed, or of possession being taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property comprised in or subject to the charge,

if, either before or after the event, any such liability is incurred by the in sured, his rights against the insurer under the contract in respect of the liability shall, notwithstanding anything in any Act or rule of law to the contrary, be transferred to and vest in the third party to whom the liabil ity was so incurred.

(2) Where an order is made under the Bankruptcy Act 1989 [title 8 item 49] for the administration of the estate of a deceased debtor according to the law of bankruptcy, then, if any debt provable in bankruptcy is owing by the deceased in respect of a liability against which he was insured under a contract of insurance as being a liability to a third party, the deceased debtor's rights against the insurer under the contract in respect of that liability shall, notwithstanding anything in the said Bankruptcy Act be transferred to vest in the person to whom the debt is owing.

(3) In so far as any contract of insurance made after 5 August 1943 in respect of any liability of the insured to third parties purports, whether directly or indirectly, to avoid the contract or to alter the rights of the parties thereunder upon the happening to the insured of any of the events specified in subsection (1)(a) or (b) or upon the making of the order referred to in subsection (2) (in respect of the estate of a deceased debtor), the contract shall be of no effect.

(4) Upon a transfer under subsection (1) or subsection (2), the insurer shall, subject to section 14, be under the same liability to the third party as he would have been under to the insured, but—

(a) if the liability of the insurer to the insured exceeds the liability of the insured to the third party, nothing in this Act shall affect the rights of the insured against the in surer in respect of the excess; and

(b) if the liability of the insurer to the insured is less than the liability of the insured to the third party, nothing in this Act shall affect the rights of the third party against the insured in respect of the balance.

(5) For the purposes of this Act "liabilities to third parties", in relation to a person insured under any contract of insurance, shall not include any liability of that person in the capacity of insurer under some other contract of insurance.

(6) This Act shall not apply where a company is wound up vol untarily merely for the purposes of reconstruction or of amalgamation with another company.

[section 12 amended by 1989:58 effective 31 January 1990]

Duty to give information to third parties

13 (1) In the event of any person becoming bankrupt or making a composition or arrangement with his creditors or in the event of an order being made under the Bankruptcy Act 1989 [title 8 item 49], in respect of the estate of any person, or in the event of a winding-up order being made, or a reso lution for a voluntary winding up being passed, with respect to any com pany or of a receiver or manager of the company's business or under taking being duly appointed or of possession being taken by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the charge, it shall be the duty of the bankrupt debtor, personal representative of the deceased debtor or com pany, and, as the case may be, of the trustee in bankruptcy, trustee, liq uidator, receiver or manager, or person in possession of the property to give at the request of any person claiming that the bankrupt debtor, de ceased debtor, or company is under a liability to him, such information as may reasonably be required by him for the purpose of ascertaining whether any rights have been transferred to and vested in him by this Act and for the purpose of enforcing such rights, if any, and any contract of insurance, in so far as it purports, whether directly or indirectly, to avoid the contract or to alter the rights of the parties thereunder upon the giving of any such information in the events aforesaid or otherwise to prohibit or prevent the giving thereof in the said events, shall be of no effect.

(2) If the information given to any person in pursuance of sub section (1) discloses reasonable ground for supposing that there have or may have been transferred to him under this Act rights against any par ticular insurer, that insurer shall be subject to the same duty as is im posed by subsection (1) on the persons therein mentioned.

(3) The duty to give information imposed by this section shall include a duty to allow all contracts of insurance, receipts for premiums, and other relevant documents in the possession or power of

the person on whom the duty is so imposed to be inspected and copies thereof to be taken.

[section 13 amended by 1989:58 effective 31 January 1990]

Statutory rights of third party not defeated by settlement between insured and insurer

14 Where the insured has become bankrupt or where, in the case of the insured being a company a winding-up order has been made or a resolution for a voluntary winding-up has been passed with respect to the company, no agreement made between the insurer and the insured after liability has been incurred to a third party and after the com mencement of the bankruptcy or winding-up as the case may be, nor any waiver, assignment, or other disposition made by, or payment made to the insured after the commencement aforesaid shall be effective to defeat or affect the rights transferred to the third party under this Act, but those rights shall be the same as if no such agreement, waiver, assign ment, disposition or payment had been made.

Production of certificate of insurance

15 (1) Any person driving a motor car on a highway or on an es tate road shall, on being so required by any police officer, give his name and address and the name and address of the owner of the motor car and produce his certificate, and if he fails so to do he commits an offence against this Act:

Provided that, if the driver of a motor car within five days after the day on which the production of his certificate was so required, pro duces the certificate in person at such police station as may have been specified to him at the time its production was required, he shall not be convicted under this subsection of the offence of failing to produce his certificate.

(2) It shall be the duty of the owner of a motor car to give such information as he may be required by any police officer to give as to the identity of the driver of the motor car on any occasion when the driver was required under subsection (1) to produce the certificate; and if the owner fails to do so, he commits an offence against this Act.

(3) Where, owing to the presence of a motor car on a road, an accident occurs involving injury to another person or to an animal or to the property of any person, the driver of the motor car does not at the time produce his certificate to a police officer or to some person who, having reasonable grounds for so doing, has required its production, the driver shall report the accident at a police station as soon as possible, and in any case within twenty-four hours of the occurrence of the acci dent, and there produce his certificate; and if he fails to do so, he com mits an offence against this Act:

Provided that a person shall not be convicted under this subsec tion of the offence of failing to produce his certificate if, within five days after the occurrence of the accident, he produces the certificate in person at such police station as may be specified to him at the time the accident was reported.

(4) In this section "produce his certificate" means produce for examination the relevant certificate of insurance evidencing the fact that the motor car was not being driven in contravention of section 3.

Forgery of certificate of insurance

16 (1) Any person who, with intent to deceive—

(a) forges within the meaning of the Criminal Code [title 8 item 31], or alters or uses or allows to be used by any other person, a certificate of insurance within the meaning of this Act; or

(b) makes or has in his possession any document so closely resembling such a certificate as to be calculated to de ceive,

commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 2 years.

(2) Any person who, for the purpose of obtaining the issue of a certificate of insurance under this Act, makes any false statement or withholds any material information, commits an offence against this Act:

Punishment on summary conviction: imprisonment for 6 months or a fine of $840 or both such imprisonment and fine.

(3) Any person who issues a certificate of insurance which is to his knowledge false in any material particular, commits an offence against this Act:

Punishment on summary conviction: imprisonment for 12 months or a fine of $1,680 or both such imprisonment and fine.

(4) If any police officer has reasonable cause to believe that any certificate of insurance produced to him in pursuance of this Act by the driver of a motor car is a document in relation to which an offence under this section has been committed, he may seize the document; and when any document is seized under this section, the person from whom it was taken shall, unless previously charged with an offence under this sec tion, be summoned before a court of summary jurisdiction to

account for his possession of the said document, and the court shall make such or der respecting the disposal of the said document and award such costs as the justice of the case may require.

Giving name and address

17 If the driver of any motor car who commits an offence under this Act or any regulations made thereunder, refuses to give his name and address or gives a false name or address he commits an offence against this Act; and it shall be the duty of the owner of the motor car if required to give any information which it is within his power to give and which may lead to the identification and apprehension of the driver; and if the owner fails to do so he commits an offence against this Act.

Offences

18 (1) (a) Any person who by an act or omission contravenes any of the provisions of this Act or of any regulations made thereunder commits an offence against this Act; and

(b) where a person commits an offence under this Act for which no specific punishment is provided:

Punishment on summary conviction: imprisonment for 3 months or a fine of $420 or both such imprisonment and fine.

(2) Where a person is, by virtue of any power contained in this Act or in any regulations made thereunder, required to do or to abstain from doing any act or thing and makes default in complying with any such requisition, a magistrate on conviction, in addition to any other punishment which he may impose, may order such person to comply with such requisition and may annex to any such order any condition as to time or mode of action or otherwise which he may think necessary to enforce compliance therewith.

(3) Every person who makes default in complying with any such order of a magistrate may, in the discretion of the court, be ordered to pay by way of a penalty a sum not exceeding $21 for every day during which he is thereafter in default or to be imprisoned until he has reme died his default:

Provided that any such person shall not for such non-compliance be liable to the payment of any sums amounting in the aggregate to more than $336 or to imprisonment for any periods amounting in the aggre gate to more than 2 months in addition to any other fine or term of im prisonment to which he may otherwise be liable.

Minister charged with responsibility for transport may make regulations

19 (1) The Minister charged with responsibility for transport may make regulations for prescribing any thing which may be prescribed under this Act, and generally for the pur pose of carrying this Act into effect, and in particular, but without preju dice to the generality of the foregoing provisions, may make regulations—

(a) as to the forms of policies and any other forms to be used for the purposes of this Act;

(b) as to applications for, and issue of, certificates of insur ance and any other documents which may be prescribed and as to the keeping of records and documents and the furnishing of particulars thereof or the giving of infor mation with respect thereto;

(d) as to the custody, production, cancellation and surren der of any such certificates or other documents;

(e) for providing that any provisions of this Act shall, in re lation to motor cars brought into Bermuda by persons making only a temporary stay therein, have effect sub ject to such modifications and adaptations as may be prescribed.

(2) [omitted] [covered by Interpretation Act 1951 section 35]

(3) The affirmative resolution procedure shall apply to regula tions made under this section.

[section 19 amended by 1990:7 effective 21 March 1990]

20 [repealed by 1977:35]

Bermuda Consolidated Legislation

Motor Car Insurance (Third-party Risks) Act 1943