Insurance fraud be classified as either external or internal and the brief explanation.

By Saleem Marsoof*

A – What is Insurance Fraud?

External insurance fraud includes any fraudulent activity committed by applicants for insurance, policy holders, third-party claimants, or professionals who provide insurance services to claimants. These fraudulent activities include the making of false statements or failing to disclose material facts in proposals, inducements to issue fraudulent policies or fix lower premiums and the inflating or “padding” actual claims. By contrast, internal fraud refers to fraud within the insurance industry itself. This activity includes neglect of duty or connivance by directors, officers, employees, agents and brokers of insurers for their personal enrichment.1

The following are examples of insurance fraud:

Example 1

Example 2: You want to upgrade your car stereo system but find it difficult to raise Rs. 120,000 to buy the system you wish to have. You sell your existing system to a friend for Rs.50,000, break a window on your car and make a theft report to the local police. You then file an insurance claim, with the assistance of your lawyer friend, for the stereo equipment and receive a benefit check in the amount of 75,000 for the “stolen” equipment. You now have 120,000 cash to use toward the system you really want, and Rs.5,000 more to pay your lawyer friend for his trouble.2

While the contract of insurance plays an increasingly important role in modern commerce and attracts civil remedies against frauds committed in connection with it, insurance fraud has become one of the most prevalent and costly white-collar crimes. According to a published study by the United States organization named the ‘Coalition Against Insurance Fraud’ (CAIF), fraud is among the most prominent cost components escalating the costs of insurance. The CAIF has estimated the annual loss figures relative to

* LL.B.,(Ceylon) LL.M (Colombo) LL.M.,(San Diego)

1 The Federal Bureau of Investigation (USA), Insurance Fraud, http://www.zeraw

2 For further examples, see Pennsylvania Office of the Attorney General, Insurance Fraud – Not a Victimless Crime,


insurance fraud in the non-health sector to be approximately US$26 billion. Outside of the CAIF figure, the life / disability insurance segment of the industry opines that approximately US$1.5 billion is lost each year through fraudulent schemes. Public concern about the price of insurance and the solvency of the insurance industry has not only prompted insurance companies and regulatory agencies to various forms of action to combat the menace, but also led to innovative legislative measures to deal with the problem.

B – Civil Remedies against Insurance Fraud

An insurer has the right to avoid the contract of insurance in its entirety if the insured has perpetrated a fraud in the course of entering into the contract. The assured is guilty of fraudulent misrepresentation if he knowingly makes a statement in his proposal form or otherwise, which is false and thereby induces the insurer to enter into the contract. According to MacGillivray3, in order to constitute a fraudulent misrepresentation, the statement in question must be-

(1) false

(2) made dishonestly, and

(3) acted upon by the recipient in the sense that it induced him to make the proposed contract.

A statement is ‘false’ where the maker knows that what he says is false or he makes the statement recklessly without caring whether it is true or false.4 In addition to the right to avoid a contract entered into by an insured who has been fraudulent, the insurer may also have the right to claim damages in delict or tort for deceit, and can in addition retain any premium paid.

It must be noted that where the misrepresentation is innocent, the insurer may seek to avoid the insurance policy, but there can be no action for damages. It has been held that the burden of proving misrepresentation was upon the insurance company resisting an action on the policy.5

C – The Proposal Form

Material misrepresentations are often contained in proposal forms filled by insured persons. In Vanguard Fire and General Insurance Co. v. Liyanage6 a fire insurance policy expired on 28th November 1950 and, after about three months, another policy was issued on 19th March 1951. It was held that the second policy was not a renewal but a fresh policy, and that the proposal form used to obtain the initial policy was of no relevance to avoid the second policy on account of misrepresentation.

3 Leigh-Jones, Longmore, Birds and Owen, MacGillivray on Insurance Law, (9th Ed. 1997) page 364 Section 16-1.

4 Derry v. Peek (1889) 14 AC 337

5 Saibo v. New India Insurance Co. Ltd. 39 NLR 153

6 62 NLR 10

It is useful to note that local judicial decisions demonstrate an inclination in favour of insured persons in regard to the interpretation of statements in proposals. For example in Buultjens v. Ceylon Insurance Co., Ltd.7 Court pointed out that where an ambiguity exists in a question put in the proposal, the contract must stand if an answer has been made to the question on a fair and reasonable construction of that question. Otherwise the ambiguity would be a ‘trap’ from which insured persons would have to be protected by Courts of Law.

The attitude of our Courts is illustrated by the decision in Mariya Umma v. The Oriental Government Security Life Assurance Co., Ltd.,8 In this case the proposal form was printed in the English language but the insured only understood Malayalam. The agent of the insurance company translated the questions in the form into Malayalam, and also translated the answers of the insured into English and perfected the form. The Court held that the insurance company cannot succeed without proof that the questions and the impugned answers were correctly interpreted and recorded by the Company’s agent. In this case, the Court also observed that a person making a proposal for life insurance is entitled to assume that insurance companies do not require information frivolously or through pure inquisitiveness on matters which have no conceivable relevancy to the risk which they are invited to undertake. The Court held that in a country like Ceylon where perfectly healthy persons occasionally “suffer” from slight indispositions of brief duration loosely described as “influenza”, an applicant for insurance cannot be deemed to have given untrue or incorrect information if although he had once had a mild attack of “influenza” which was speedily cured by a few doses of mixture, he gave a negative answer to the question “Have you ever suffered from any of the following ailments:-typhoid, influenza, filariasis, elephantiasis of leg or scrotum, blackwater or any other fever?”

D – Duty of Disclosure

Historically, misrepresentation has not been of particular importance in the insurance context. This is partly because the extreme width of the duty to disclose material facts arising from the position that insurance is a contract uberrimae fidei based on utmost good faith. Hence, non-disclosure has subsumed questions of misrepresentation. The basic effect of the duty can be stated quite simply. An applicant for insurance is under a duty to disclose to the insurer, prior to the conclusion of the contract, but only up to this date, all material facts within his knowledge that the latter does not or is not deemed to know. A failure to disclose, however innocent, entitles the insurer to avoid the contract ab initio, and upon avoidance it is deemed never to have existed. The insurer must avoid within a reasonable time of becoming aware of the non-disclosure.

7 61 NLR 473

8 57 NLR 145

In the course of his landmark judgment in Carter v. Boebm,9 Lord Mansfield explained the rationale behind the duty of disclosure in the following words:

“Insurance is a contract upon speculation. The special facts, upon which the contingent chance is to be computed, He most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon the confidence that he does not keep back any circumstance in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist, and to induce him to estimate the risk as if it did not exist.”

John Birds10 expresses some doubt as to whether Lord Mansfield intended to lay down as broad a doctrine as subsequent cases have established. He further points out that Carter v. Boebm involved a contract entered into at a time when communications were poor and insurers were not equipped with means easily to discover all the information they needed to know by asking the necessary questions from the insured. He concludes that the justification for an all-ranging duty of disclosure is not so apparent today.

E – What is a Material Fact?

While the test to be applied to determine whether or not an undisclosed fact is material is a question of law, the actual determination of the issue in any particular case involves the resolution of a question of fact. An example of a material fact is provided by the decision in Glicksman v. Lancashire & General Assurance Co., in which it was held that whether or not an applicant for burglary insurance had previously been refused insurance was a material fact. The insured person in Asian Paint Industries Ltd. v. Insurance Corp. of Ceylon Ltd.,12 had failed to disclose in the proposal form the disputes that existed between it and the partners of another business operating from the same premises. The insured had also falsely stated that the premises would be guarded after normal business hours by a watcher employed by the insured. It was held that there was non-disclosure and a false statement that went to the root of the basis on which the policy was issued. The Court went on to hold that even if the suppression was not deliberate but the underwriter was deceived, the policy is void because the risk run is really different from the risk understood and intended to be run at the time of the agreement.

9 [1766] 3 Burr. 1905 at 1909. See also Banque Fianciere de la Cite v. Westgate Insurance Co. Ltd. [1990] 1QB 665

and Pan Atlantic Insurance Co. v. Pine Top Insurance Co. [1994] 3 All E. R. 581.

10 John Bird. Modern Insurance Law, (4th Ed.) 102.

11 [1927] AC 139.

12 [1992] 1 Sri LR 270. Cf, Almeida v. Amit 38 NLR 405.

F – Distinction between Law, Fact and Opinion

The duty of disclosure and the duty not to misrepresent require that statements made by the proposer be of facts not opinion. In Joel v. Law Union & Crown Insurance Co., 13 a statement as to the health of the proposer, made by her, was regarded as a statement of opinion, which meant that the insurer could not avoid the policy. This accords with common sense, as the proposer is usually not a medical expert or specifically instructed by such an expert of facts as to his health, and cannot be expected to give more than an opinion. However, in a later case14 concerning a similar issue, a proposer who failed to disclose a visit to a specialist was held to be guilty of non-disclosure of a material fact, even though he did not know that there was anything seriously wrong with him. The Court distinguished a mere statement as to health which is a mere statement of opinion, from a statement as to whether a proposer for life insurance has consulted a doctor in more than an ordinary way, which is a statement relating to a material fact requiring to be disclosed.

G – Constructive Knowledge

More problematic is the question as to whether or not the insured is bound to disclose only those material facts that he actually knows or whether his “knowledge” includes facts that he ought to know. In Joel v. Law Union & Crown Insurance Co., ~ one of the issues was whether the proposer was bound to disclose the fact that she had suffered from acute depression, it being accepted that she was unaware of the fact. In answering the question in the negative, the judges were at pains to point out that there is no duty to disclose what the insured does not know. However, it has later been said that the question as to disclosure of constructive knowledge is an open one so far as non-marine

insurance is concerned

H – Knowledge of Agents

The insured is deemed to have the knowledge of his agent acquired in the course of his duties. Furthermore, if the managing director of a company knows a material fact, but it is not known to the officer of the company who actually makes the proposal for insurance on the company’s behalf, the company is deemed to know and the non-disclosure of the fact to the insurer will entitle the latter to avoid the contract. The same principles will apply if the agent is a broker, although in this case the proposer would almost certainly have an action in negligence against the broker who failed to disclose the fact to the insurer. Facts which are material need not nonetheless be disclosed to the insurer if (i) they diminish the risk

13 [1908] 2 KB 863.

14 Godfrey v. Britannic Assurance Co. Ltd., [1963] 2 Lloyds Rep. 515.

15 [1908] 2 KB 863.

disclosure. Carter v. Boebm16 itself was a case where the insurers could not rely upon the non-disclosure because, it was held, the material facts were a matter of common knowledge. The insurance was of a Fort in Sumatra by the Governor of the then colony. The material fact was that the Fort was likely to be attacked by the French. It was held that the underwriters in London should have known that as well as the insured

Similarly, an insurer will be deemed to have the knowledge that his agent has if that knowledge was acquired by the agent acting in the scope of his authority, actual or ostensible, except perhaps where the proposer warrants the accuracy of an incorrect statement even when the agent knows the true position. For example, in Blackley v. National Mutual Life Association of Australasia,17 the agent knew before the contract was concluded that the life insured had a brain tumour which had just been operated upon. This knowledge was imputed to the insurer. It should be noted, though, that the fact that the agent could have known of the material fact, for example, by a proper medical examination, is not enough. Similarly, the fact that the insurers have the means of knowledge, for example, the name of the doctor of a proposer for life insurance, does not relieve the insured of his duty of disclosure.

/ – The Test of Materiality

According to the decision of the English Court of Appeal in Lambert v. Co-operative

Insurance Society,18 a fact is material for the purposes of both non-disclosure and misrepresentation if it is one which would influence the judgment of a reasonable or prudent insurer in deciding whether or not to accept the risk or what premium to charge. This test was somewhat modified by the Court of Appeal in Container Transport International Inc. v. Oceanus Mutual Underwriting Association (Bermuda) Ltd., 19 in which case, the Court took the view that the requirement that the suppressed fact must influence ‘the judgment’ of a prudent insurer did not mean that an insurer would have acted differently if he had known the fact, but merely that he would have wanted to know of the fact when making his decision. This refinement was endorsed by the House of Lords (by a majority of 3 to 2) in Pan Atlantic Insurance Co. v. Pine Top Insurance Co. Ltd.20

However, Pan Atlantic introduced a novel additional requirement into the law of nondisclosure, the majority clearly being influenced by the need to temper the harshness of the general test. This additional requirement is that the non-disclosed fact, material in the opinion of the prudent insurer, must also have induced the actual insurer to enter into the contract. This means that the inducement requirement for misrepresentation in general contract law also applies to misrepresentation in insurance law.

16 [1766] 3 Burr. 1905.

17 [1972] New Zealand Law Reports 1038.

18 [1975] 2 Lloyd’s Rep. 485.

19 [1984] 1 Lloyd’s Rep. 467. 20 [1995] 1 AC 501.

What still remains somewhat unclear, though, is the force of the inducement requirement. In Pan Atlantic, there are clear dicta that there is a presumption of inducement, and this was followed by the subsequent Court of Appeal decision in St Paul Fire & Marine Insurance Co. (U.K.) Ltd. v. McDonnell Dowell Construction Ltd.21 Here, it was also held that it is sufficient if the non-disclosed fact was an inducement and not necessarily the inducement.

The courts have long been prepared to accept the opinion of other insurers as evidence of whether or not particular facts are material, because the test of materiality depends initially on the opinion of a reasonable insurer. In some cases, such opinions appear to have been accepted very readily, but some of the modern decisions emphasize that they are in no way binding on the court which must decide the issue as a question of fact. For example, in Reynolds v. Phoenix Assurance Co.,22 Forbes J. rejected the argument that if an insurer is telling the truth and he is held to be a reasonable insurer, the court must accept his evidence as conclusive. The evidence is expert evidence that assists the court but never binds it. This is particularly so, of course, where there is conflicting evidence from different insurers.

J – Criminal Sanctions

With the rapid increase in the perpetration of insurance fraud, it has become necessary to resort to criminal sanctions as a deterrent. In Sri Lanka there has been no special legislation dealing with insurance fraud, and even the recently enacted Regulation of Insurance Industry Act23 does not seek to make insurance fraud a specific offence. It is therefore necessary to resort to the provisions of the Penal Code, particularly Section 398 thereof, to deal with insurance fraud.

Section 398 of the Penal Code declares that “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, or damage or loss to the Government, is said to cheat”.

The component elements of the offence of cheating are:-

(a) the deception of any person by the accused

(b) the carrying out of the deception fraudulently or dishonestly

21 [1995| 2 Lloyds Rep. 116.

22 [1978] 2 Lloyds Rep. 440.

23 The Regulation of Insurance Industry Act No. 43 of 2000.

(c) by means of the deception, inducing the person deceived (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property, or (iii) to do or omit to do anything which he would not otherwise do or omit

(d) the causing of loss or damage, or the likelihood of causing loss or damage, of the kind envisaged, to the person deceived or to the Government by reason of the act or omission contemplated by element (c) (iii).

In the insurance context, the gist of the offence of cheating is the inducement of the insurer to issue an insurance policy at an agreed premium and / or to honour a claim through some deception practised by the insured. The essence of deception, in this context, was explained in Wijerama where Hearne J. declared : “To deceive is to cause to believe what is false. This may be done by a dishonest concealment of facts…. or by representing as a fact that which is not a fact.”24

It must be noted in this context that deception may be established not only by a positive act of commission but even by an omission on the part of the accused. Section 398 of the Penal Code contains an explicit provision that “A dishonest concealment of facts is a deception within the meaning of this section.”25 The principle is illustrated by the decision in Lavona Marikar. 26 In this case, Middleton J. held that a mortgagor of property, who had suppressed the fact that the property had been seized in execution of a writ and induced the mortgagee to advance money on the basis of the mortgage, was guilty of cheating. His Lordship stated:

“I think it was the duty of the accused under the circumstances to disclose the fact of the seizure. He does not disclose it, and he must have known he was not entitled to charge the property. The fair inference is that he fraudulently and dishonestly suppressed the fact of the seizure.”

It has been held that the concealment of facts does not amount to deception unless there is a duty to disclose.27 However, this requirement cannot be an obstacle to the imposition of criminal liability in the insurance context as the uberrimae fidei character of insurance imposes upon all parties a positive duty to disclose all material facts.

It is noteworthy that the offence of cheating is not complete without actual deception.

The decision in Pascoe v. Weerasingha28 supports the proposition that if the insurer knew that the statements made by the insured are false, the latter cannot be charged for cheating, although it might be possible to sustain a charge of attempted cheating29. Sri Lankan cases also support the view that the fact that the insured had the opportunity of

24 [1937] 17 Ceylon Law Recorder 160.

25 Section 398 of the Penal Code, Explanation.

26 10 NLR 369.

27 The King v Silva 20 NLR 349.

28 [1892] 1 SCR 305.

29 See, Abeywardene v. Mutlunayagam 47 NLR 12.

verifying the truth of the statement is irrelevant to the question of criminal liability, if in fact the insurer was deceived.

K – Combatting Insurance Fraud

The focus in western countries has been on the combat of insurance fraud, which has become a growing menace. Specific legislation has been enacted in many States of the United States of America, but only Pennsylvania Crimes Code will be examined here due to constraints of space. The Pennsylvania Crimes Code at Section 4117 contains interalia the following provisions:

1. During Application: Making any material false statement on an insurance application to receive insurance you may not be entitled to or to receive a lower premium than one you are entitled to, is a criminal act punishable by imprisonment of up to 5 years and a fine of up to $10,000 or both.

2. During the Insurance Claim: Making any material false statement, oral or written, on an insurance claim in order to receive benefits to which you are not entitled, including increased benefits, is a criminal act punishable by imprisonment of up to 7.years and a fine of up to $15,000 or both.31

The Office of Pennsylvania’s Attorney General’s Insurance Fraud Section began operation and acceptance of referrals during August, 1995. Since then, over 1,500 referrals alleging insurance fraud have been reviewed by the Section, resulting in more than 700 criminal investigations and 160 arrests for insurance fraud and related criminal


While many of those arrested are repeat offenders with a criminal history including theft and fraud-related offenses, almost half of those charged with insurance fraud are first time offenders with no prior criminal history. These offenders, when questioned about their conduct, are typically shocked that they are the subject of a criminal investigation. After all, they say, “Haven’t I paid thousands of dollars in premiums to insurance companies?” “Is it wrong to try and recoup some of those premiums with a fraudulent claim when the opportunity arises?” “Are the insurance companies really going to miss a few thousand dollars?” The answer is simple. Insurance fraud is a very serious crime. In fact, the cost of insurance fraud, conservatively estimated at over $50 billion annually nationwide, is usually passed along to consumers through increased premiums. Therefore, in reality, insurance fraud is a crime in which all those insured person who pay premiums are ‘victims’. The bottom line is that insurance fraud is a crime that is taken very seriously by the Office of Attorney General. People need to understand that partaking of this activity, which they may view as ‘victimless’, in reality, impacts millions

30See. Ramanathan Pulle v. Ramanathan Pulle (1909) 3 Weerakoon’s Report 10.

31 See, Pennsylvania Office of the Attorney General, Insurance Fraud – Not a Victimless Crime, 32 tbid.

of consumers. Additionally, it can lead the offender to have a criminal record, serve substantial jail time and be obligated to pay large fines.

Similarly, in Canada the ICPB, a national organization operating since 1923 and supported by insurers is in the thick of the battle against insurance fraud.33 Its primary function is to mitigate insurance industry losses by cooperating with authorities across Canada to detect, investigate and prosecute insurance crime. Its computer network is available to assist underwriters and claims personnel. In addition, most insurers have established in-house Special Investigation Units, which form part of an overall fraud team comprising specially trained and experienced investigators, claims examiners, managers and legal counsel. This type of program is essential to a successful attack on insurance fraud. For lawyers, representing insurers on suspicious claims is a highly sensitive area of practice because of the potential for bad-faith claims and the related issues pertaining to underwriting and corporate policy. Insurers and their legal counsel must take great care in investigating their insureds and third parties and in the steps they pursue after fraud is uncovered. While many insurers take strong positions on fraudulent claims in order to undermine the trend, it is essential that insurers conduct proper investigations and avoid denying claims without sufficient support for that position.

All over the world governmental agencies as well as the insurance industry has adopted various methods of combating insurance fraud. Federal and State law enforcement agencies have established task forces to investigate and prosecute these frauds. Insurance companies have created Special Investigative Units to investigate questionable claims , and regulatory agencies and voluntary organizations have undertaken programs to alert insurance consumers of modus operand used by those involved in these rackets34 .

In recent times, facilitators such as lawyers, doctors, physio-therapists, psychologists, acupuncturists and others have been prosecuted and convicted throughout the world for insurance fraud.35

L – Conclusions

As seen in the previous sections of this article, the existing provisions of the civil law and criminal law relating to insurance fraud contain many principles that are similar and easy to apply. However, specific statutory provisions in the lines of the innovative western legislation noted above could be useful to combat the menace of insurance fraud. Insurance corporations and companies should establish special investigative units to handle cases of insurance fraud and undertake programs to alert insurance consumers, who generally pay for such fraud by way of higher premium36.

33 Singleton Urquhart. Insurance Industry Tackles Task of Preventing Fraud, http://www.singleton, com 34 See, How to Spot, Avoid and Report Suspected Auto Collision Fraud, hup:// 35 See, Indicting of Lawyers in Medicare Kickback Case, http://www.insurancefraud. com: See also, Med-Legal Consulting, Inc., Insurance Fraud on the Home (Care) Front: The Case of the Irresistable Fresh Strawberries, http://www.overbyte. com/medlegal 36 Singleton Urquhart, Insurance Industry Tackles Task of Preventing Fraud, http://www.

It is noteworthy that the Regulation of Insurance Industry Act37 contains certain provisions that would deter or facilitate the discovery of such frauds. In particular, Section 28 of the Act makes it compulsory for every insurer to keep and maintain-

(a) a register or record of policies, in which shall be entered in respect of every policy issued by the insurer, the name and address of the policy holder, the date when the policy was effected, and particulars of any transfer, assignment or nomination of which the insurer has notice

(b) a register or record of claims in which shall be entered every claim presented to the insurer, together with the date of the claim and the name and address of the claimant, the date of settlement of the claim, and where a claim is repudiated the date of repudiation and the grounds therefor.

These provisions will no doubt facilitate the discovery and investigation of insurance fraud, particularly if the various corporations and companies in the insurance industry chose to cooperate with each other for this purpose.

In this connection, the need to enlist public support for the detection of insurance fraud cannot be over-emphasized. Public cooperation can only be secured by improving the public image of the insurance industry, and enhancing its rather low credibility level. This can be achieved primarily by substituting ‘no fault’ third party risk insurance for the fault based system that exists at present and increasing the quantum of compensation paid by insurers to accident victims to realistic levels.38 Such measures will also eliminate the need for legitimate customers to make ‘bogus’ claims to obtain compensation commensurate with actual loss suffered by them. It is also important to educate the public of the need to be vigilant about the activities of those involved in insurance fraud, and to take measures that would deter the commission of insurance fraud. Introduction of reward schemes to encourage the public to give information regarding such fraud would help to detect and bring to book such offenders.

Cooperation among insurance organizations would be of great value in the detection and investigation of insurance fraud. Such organizations should also collaborate with the Insurance Board and the Attorney General’s Department. It is important not only to share information but also to share expertise and resources. The internet and e-mail are fast becoming important means of sharing information and expertise internationally.39 Assistance may be obtained from individuals specializing in various types of investigation, such as detection of staged road accidents from study of photographs.40

37 The Regulation of Insurance Industry Act No. 43 of 2000.

38 See, Dr. (now Justice) A.R.B. Amarasinghe, Compensation for Road Accidents in Ceylon, (1971) 2 Journal of Ceylon Law. 161.

Access may be had to the following popular web sites: (1) (2) See, The Institute of Professional Investigators, Road Accident Investigation – Reading the Photographs,