Chief Justice (ag) Ian Chang, on Monday last, ruled that the Commissioner of Insurance and the Insurance Arbitration Board by themselves or agents be restrained from arbitrating the complaint made to the Board by the Estate of Mohamed Farouk Kalamadeen against Clico Life and General Insurance Co. (S.A.) Limited for denying the Estate’s death claim of $200M.In March 2006, Kalamadeen had taken out a Policy of Insurance with the Clico Life And General Insurance Co. (S.A) Limited for a sum of $200M payable on his demise. Under that policy his Estate was named beneficiary. He was also entitled to accidental Death Benefit of some $1.2M at the time of his death.Last year May, some 22 days after Kalamadeen’s headless body was found,Cheap China Jerseys, Attorney-at-Law Bibi Shadick wrote the insurance company informing it that Kalamadeen had died on April 30, 2008, and attached a copy of his death certificate. Shadick had further stated that she was retained by the Estate of the deceased to apply for Letters of Administration and was seeking to have a perfect inventory of the assets of the deceased’s Estate.She was requesting that Clico provide her with a statement of all benefits due to the Estate under the said policy of insurance to facilitate her application for a grant of Letters of Administration.A month later, Clico replied to Shadick informing her that the deceased was insured under a life insurance policy for a sum of $200M, with accidental death benefit of $1.2M.Shadick was thus asked to note that payment of benefits shall be based on formal submission of the requisite claims documents and subject to satisfactory proof of entitlement to receive payment in keeping with the terms and conditions under the said policy.Last year November, Clico informed Nariman Kalamadeen, the wife of the now dead man, that the Estate’s Death Claim had been denied.This led to Shadick, in her capacity as the legal representative of the Kalamadeens, to write to the Commissioner of Insurance complaining of the Applicant Company’s denial of the Estate’s Death Claim and requesting that the matter be referred for Arbitration.Last December, the Commissioner of Insurance wrote to Clico citing the complaint by the Estate against Clico for denying the Death Claim and for a response within two weeks.Clico subsequently sought legal advice and was informed that: “Section 11 (eleven) of the Insurance Act No. 20 of 1998 is ultra vires (beyond the legal power or authority) the provisions of Article 123 of the Constitution of Guyana in as much as it seeks to vest judicial and decision making authority in the members of the Insurance Arbitration Board who are not qualified and or authorised by the Constitution to make decisions.The attorney further pointed out that the Commissioner of Insurance or a representative is appointed directly by the Minister of Finance in accordance with the Insurance Act and thus there is an incursion of the Executive into the judicial sphere. He added that the authority of the High Court to entertain claims in matters covered by Section 11 (eleven) (2) (3) of the Insurance Act is removed from the High Court and is now vested in the Insurance Arbitration Board, thus unlawfully ousting the jurisdiction of the High Court.The attorney also informed Clico that the determination of disputes and differences between an Insurer and the Insured forms part of the jurisdiction of the High Court of Guyana prior to the enactment of the Insurance Act and therefore subordinate legislation cannot remove or amend the provisions of the Constitution.“The purported removal of the jurisdiction of the High Court by the Insurance Act contravenes the provisions of the Constitution, particularly Article 8 (eight) which enshrines the supremacy of the Constitution,” according to the company’s attorney.He added that as a result the fundamental right of Clico Life and General Insurance Co. (S.A.) Limited, as guaranteed by Article 144 (8) of the Constitution, there was a breach by section 11 of the Insurance Act. It was pointed out that the Insurance Arbitration Board is also unconstitutional in as much as it is not independent and impartial within the meaning of Article 144 (8) of the Constitution.“The Commissioner of Insurance is appointed by the Minister of Finance, who is a member of the Executive, and like the two other members of the Insurance Arbitration Board does not possess the qualifications of a Judge as set out in the Constitution…They are appointed de hors (without) the Constitution and are without the security of tenure of Judges of the High Court…The aforementioned constitutional deficiencies render the members of the Insurance Arbitration Board constitutionally impotent to exercise the jurisdiction of the High Court as purportedly given to them by the Insurance Act, even through they do not satisfy the requirements of judicial office as set out in the Constitution.”As such the attorney informed the company that Section 11 of the Insurance Act is unconstitutional and void to the extent of the inconsistencies that it contains between the said section and the Constitution of Guyana.
