With the fate of the proposed flood levy hanging in the balance as we await the outcome of negotiations between Senator Nick Xenophon and the Federal Government, it‘s timely to have a close look at the whole issue of disaster insurance and the insurance industry generally.

Cartoon: Nicholson.

A sad reality emerging from this summer’s national disasters is that not only have we been as a nation generally under-insured for natural disasters, but more significantly for consumers the insurance companies are basically a law unto themselves when it comes to paying out on insurance contracts.

As anyone who has tried to take on an insurance company knows all too well, the legal cards are stacked in the company’s favour.

There are times when insurance companies won’t think twice about calling in their lawyers to do whatever they can to delay payment. Forget about taking them to court as they will bleed you financially dry.

Needless to say, the companies are very quick to take your insurance premium, but can be very slow to pay out under the insurance contract.

Worse, they may even be quick to rely on confusing or bewildering definitions, as well as unfair contract terms to refuse to pay out under the insurance contract.

Like any industry there are ethical insurance companies who do the right thing for their customers and there are those companies which are only interested in charging you more and giving you less. Telling the difference is the real challenge for consumers.

Sure, insurance companies are businesses out to make money, but that doesn’t give them a licence to hide behind confusing definitions or unfair contract terms to avoid paying out under the insurance contract.

For starters, while there has much discussion about the need for a clear, industry wide definition of what constitutes a “flood” there has been little discussion about making sure that a standard definition of a flood is not misused by the insurance companies.

The real danger is that insurance companies will use a standard definition of a flood as a way to expand existing exclusions to their insurance contracts with a view to charging customers a new additional premium to get flood cover.

Drafting a standard definition will be legally and politically challenging as insurance companies will obviously be seeking to have the broadest possible definition of a flood as that would allow for the broadest possible exclusion for flood coverage and the maximum opportunity for them to charge a new additional premium to get flood cover.

That’s just a recipe for consumers to be fleeced on additional premiums.

Getting the right balance for consumers regarding a standard definition of a flood is only one of the challenges to reining in the insurance companies. It’s clearly important that there also be consistency on other definitions or wording used in insurance contracts.

A consistent industry-wide approach to key terms and wording of contracts would greatly assist consumers.

Another challenge is to ensure that insurance companies are fully accountable for their contract terms. This is where the Federal Government let consumers down very badly a couple of years ago when it decided to exclude insurance contracts from the new national laws against unfair contract terms.

These new laws are meant to protect consumers from those nasty aspects of consumer contracts such as the fine print and one sided contract terms that severely disadvantage consumers.

Regrettably, as a result of insurance contracts being excluded from the new laws by the Federal Government, consumers who are victims of unfair terms in insurance contracts can’t use the new laws to make the companies legally accountable for their nasty contract terms.

Why the exclusion for the insurance companies? Quite simply they are a very powerful lobby group who don’t hesitate to throw their weight around.

They use the old rehashed and self serving argument that laws against unfair contract terms would create uncertainty. Unfortunately, the Federal Government has fallen for that sneaky argument on insurance contracts and has left consumers seriously exposed to unfair insurance contracts.

Interestingly, the Federal Government was not fooled by the uncertainty argument in relation to other consumer contracts which are covered by the new laws. So, if the new laws against unfair contract terms can apply generally to consumer contracts, then they should also apply to insurance contracts.

Clearly, the Federal Government needs to make up for its previous mistake and move quickly to make the insurance companies accountable for any unfair insurance contracts.

Any concern with uncertainty can easily be addressed by the Federal Government accepting this author’s recommendation that the new laws be amended to provide for “safe harbours” under the laws.

Safe harbours would allow a company to voluntarily apply to the ACCC for an exemption from the new laws where the ACCC finds that a particular contract and its terms are not unfair under the laws.

Under this framework the ACCC would carefully scrutinise the contract and ensure that there was no fine print or terms that severely disadvantage consumers. Once approved by the ACCC the contract could not be challenged under the new laws.

Now that would provide the insurance companies with complete certainty and would remove any possible argument against insurance contracts being covered by the new laws against unfair contract terms.

That would be a win/win situation as consumers would get fairer contracts and insurance companies would get certainty under the new laws. Safe harbours would also enable the new laws to be extended to cover insurance contracts taken out by small businesses.

With such a clear opportunity to tackle unfair insurance contracts it’s time the Federal Government moved quickly to make insurance companies fully accountable for their contracts.

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34 comments

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    • fairsfair says:

      11:33am | 02/03/11

      I think it is bad Eric and judging by your comment I think you are on that same track too - it isn’t cut and dry.

      Premium is generated from risk factors. Risk factors are determined by statistics. Just like your vehicle premium would be more expensive in Kings Cross over Toorak due to risk of theft, we cannot ignore statistics between age groups and genders because of social opinions and political correctness.

      Like a 17 year old P plater is rated differently to a 35 year old P plater. Is that ageist? Should that be legistlated against? No it shouldn’t - statistics are statistics to all the 19 year oldds out there if that bunches your crotch I don’t care - it is trend and it has to be used to determine cost. If the fact that men are more likely to write their car off in a high speed accident generating a higher claim and women are more likely to dint a panel attempting to reverse parallel (but do it more often) goes against your ideology, whoopdeedoo!

      Interesting take on it nonetheless.

    • Erick says:

      04:50pm | 02/03/11

      I think it’s bad too, Fairsfair.

      However, as long as politicians insist on equality of outcomes, they’ll have to put up with stuff like this.

    • acotrel says:

      06:29am | 02/03/11

      Insurance companies trypically fail to recognise when customers are performing their own risk management, and reduce premiums in consideration of that! We shouldn’t be depending on insurance companies to pick up the tab for our own lack of care.  We should manage the risk - look at what could happen in various scenarios, in terms of the likelihood and potential consequences.  Most of us acknowledge that climate change is happening, and it’s now a whole new ball game.  Are we to really expect that insurance companies will reinsure Grafton if it’s built in exactly the same place, and no control measures installed?  We need to get real and develop a new mindset, and take responsibility for our own actions.  When HIH did a number on us a while back, many of our riskier activities ceased to occur due to the costs of insurance. Those of us involved in high risk sports recognised the problem, and documents such as ‘Guide to Managing Risk In Motor Sport, were developed through the Standards Association.

    • Gregg says:

      11:20am | 02/03/11

      Other than that most of us know that the climate is always going to be variable, I can basically agree with what you say for once Acca and that any Insurance company prepared to offer coverage for what is on a known flood plain or even just in a river valley will have every right to charge accordingly.
      Likewise with HR sports and coverage if available will usually be based on minimal requirements, most likely covered in any Risk Management and if an organisation goes beyond that, I can imagine an Insurance company wishing you well in your warm and fuzzy glow but Insurance policies like most regulations will always have a limit to the recognition you speak of.

    • thatmosis says:

      07:11am | 02/03/11

      Bullcrap, its time people took resonsbility for their own action and actually read the product information they are handed. I read what Im getting and if there is a difference of opinion I get it corrected or change firms. Blaming the insurance companies is typical of this nanny syndrom that pervades society today. People expect to be handled with kid gloves and do nothing for them selves except moan and complain when things dont go their way because of their own stupidity. Take responsibility for your own actions before blaming everybody else.

    • DG says:

      07:33am | 02/03/11

      Mr Zumbo

      the insurance industry was working towards a very clear and defined definition of flood and how it is represented in a contractural sense 3 years ago….........However your much championed ACCC suggested that this was a collusive activity, so it never moved forward. Hooray for the ACCC

    • malohi says:

      07:34am | 02/03/11

      I certainly agree with your proposals regarding uniform defenitions and ACCC scrutiny of standard insurance contracts.

      I have issues with your assessment of the current situation though.

      Insurance companies ARE fully accountable for their contracts, what you clearly don’t like is that the other person entering the contract is accountable too.

      You speak of unfair terms and confusing definitions. If the terms are unfair and the definitions confusing. Either learn to read a contract or don’t enter into the contract.

      You say like any industry there are those who ethically etc.. The issue is that the person entering the contract had a choice to get legal advice before signing but they didn’t. Why should an insurance company pay out for something that they are not legally obliged to. That is poor business and “any industry” would do the same. Industry is about $$. Charity is about people, that is the reality.

      If you don’t like it there is a big building called a court where a person can get a impartial ruling on whether the contract was “unfair” or whether they just did not bother to understand what you were signing. I would say the latter would be found in most cases.

    • Andrew says:

      09:54am | 02/03/11

      I agree malohi, we constantly get told that insurance companies are greedy and evil.  I have worked for most of the major insurance companies in my career and it’s just not true, especially in times of natural disaster.  There is always a genuine care and concern for policyholders (except those making fraudulent claims - an all to common occurrence!).

      After the Victorian bushfires many companies were paying more than was contractually obliged because they were afraid of any adverse media coverage!  I’m sure insurers will continue to be blamed for people’s poor planning - they are easy targets for the “Today Tonight” and “ACA” style journalism that bogans need to fuel their outrage!

    • iansand says:

      07:56am | 02/03/11

      I have acted for and against insurance companies.  I have discovered a pretty simple rule.  You get what you pay for.  Companies offering cheap premiums can do so for a pretty simple reason.  They pay out less often.

      Third party is a little different, in that the benefits are defined outside the terms of the policy, but for most other policies my simple rule works.

    • Vince says:

      09:50am | 02/03/11

      But certainly it is also true that insurance companies game the system and the typical consumer is at a huge disadvantage.  Fine if you are simply selling mobile phone plans, but when it comes to something so extremely serious and potentially life-altering like adequate insurance, there has to be a higher standard expected of the industry.

    • Markus says:

      02:50pm | 02/03/11

      When it comes to something so extremely serious and potentially life-altering like adequate insurance, there also has to be a higher standard expected of the individual.

    • Mick says:

      09:08am | 02/03/11

      A flood is an overflow of an expanse of water that submerges land. Easy, problem solved. No weasle words. No getting out of it. If it floods they pay.

    • fairsfair says:

      10:15am | 02/03/11

      You have to think of avenues of recovery though. An insurer will always seek to recover their outlay when fault can be placed. Where does the water come from? Is it from the sky, is it from upstream is it from stormdrains? This opens up so many avenues for people to do stupid things in and around your home (like councils failing in their obligations to install effective water mitigation). Afterall, if everyone is insured lets not fix Mary street - lets give ourselves a pay rise.

      There needs to be differentiation between simple water ingress, riverine flood, flash flood etc etc. It protects the insured’s interests too - afterall if you can prove that it is the fault of another you may be entitled to sue for damages over and above your property loss.

    • Tony Bee says:

      12:33pm | 02/03/11

      That’s far too simplistic. If there were not different definitions of flood, then we would all have to pay for flood cover - regardless of whether we lived in a flood-prone area.

    • fairsfair says:

      12:54pm | 02/03/11

      That is exactly what Suncorp has done TonyBee. To do so they have dropped other products (like strata in 2009 which was a massive market of theirs and left lots of people high and dry with 100% premium increases upon renewal) and it does not necessarly make them the best insurer - they have their faults and gaps in other areas.

      Many people outside of flood prone areas are now getting away from Suncorp as they just can’t afford to shoulder the flood risk for those people who are in the mix. Looking at it at an organizational level, other Suncorp owned companie like APIA to cover flood, but AMP don’t.

      As more of these people peel off in future and following the massive outlays they now have, I wonder how this will affect Suncorps ability to keep spruiking their flood cover. I think articles like this one will scare people into rushing to get flood cover when they probably don’t even need it.

    • fairsfair says:

      09:09am | 02/03/11

      “Like any industry there are ethical insurance companies who do the right thing for their customers and there are those companies which are only interested in charging you more and giving you less. Telling the difference is the real challenge for consumers.”

      Agree with the first bit but it is easy to tell. It is pretty much determined by cost and the PDS. The only way to judge off cost is to have more than one quote and read read read (yes it is boring and it takes time, but it has to be done). 

      If you built a house would you just go to three builders, and immediately choose the cheapest of the three? No - you would look at the fine print and you would make an educated decision. That cheaper quote may not come with floor coverings.

      People have to start taking interest in their own affairs. When it goes tits up, you can’t blame someone else. I don’t have a broker because I know a little about insurance having processed claims on behalf of the insured for over two years. If I did not have this background knowledge I would have a broker. Just like I would not go and enter the stock market without asking about. A broker can help you with little perks along the way that give you more cover for the same money (sometimes less, sometimes more but one doing their job properly will give you simplified options). For instance, if you purchase a new car and place cover through an Allianz agent or broker you will get a 3 year new for old replacement option. If you do it direct, you will only get 2 years cover for that option and the most any other mainstream insurer offers is 2 years. You don’t like your broker or you think they are ripping you off - go see another one. You can’t be charged any fees until you place cover and you can waste as much of their time as you want - they are used to it.

      I found flood cover is the easiest thing to determine.  By law, the schedule of insurance (not the PDS) must say words to the effect “this policy does not include flood cover”. If it says that nowhere, you have it. From there, you need to refer to the index of the PDS and read what flooding actually means. It doesn’t matter if the definitions are not the same policy to policy - you just choose one that has the definition that you want and single phone call to an insurer will sort that for you. Why is that so hard?

      Just like they don’t pay the same in the event your jewellery is stolen from your home, they determine how they will treat a flooding event in different ways. In a competetive industry where there is not all that much room to move their product is their only means of differentiating from the competition.

    • Vince says:

      11:38am | 02/03/11

      fairsfair, you obviously have a great deal of knowledge about insurance and your comments are insightful.  Nevertheless, you describe an insurance industry that highly favours those who are “in the know” and penalizes those who are not.  Fine if you are talking about sophisticated consumers.  But in the world at large, that is a recipe for unfairness.  The ignorant,  the aged, the under-educated, the poor, the young, the un-represented - these are the people who will naturally be at a disadvantage in the environment you describe.

    • fairsfair says:

      12:04pm | 02/03/11

      I acknowledge that Vince and I acknowledge that there are predatory companies out there that have some pretty weird ideas about setting sums insured at “replacement value” etc etc. Some say you are lucky to be with them, others say it is all about you. Sadly neither of those are true. It is however a business transaction and just like if you go out and pay $99 for a 50” Plasma you can’t expect it to be a Sony Bravia. You get what you pay for in any industry and you get some jerks in any industry.

      My issue is the umbrella perception that all insurer’s are bad and for someone like Frank to say we go all “medievil on the arse” - OMG. I hope that the Punch chooses the headline as they do the captions. I don’t believe that the industry penalises those who are “not in the know”. Insurance companies are required by law to be transparent and upfront. Duty of Disclosure applies and it cuts both ways everything has to be in writing. There are services available to all australians free of charge. Why is that fact not broadcast to the masses over this false image of the big bad insurance man? Thats right, they have the PowerBand priority that must be debunked.

      Coles and Woolies are about to launch their own products. I look forward to getting my hands on their policy wordings and learn who will be underwriting the cover. I hope they are comprehensive enough to begin to rectify some of the issues that most of Australian’s refuse to acknowledge in their own backyards. I don’t believe it to be ignorance, rather a refusal to accept responsibility.

    • Vince says:

      12:49pm | 02/03/11

      Coles and Woolies?  OMG no, please say it isn’t true.

    • Don Homer says:

      10:11am | 02/03/11

      Apparently if you point out the legal flaws in Frank’s argument that comment won’t be published. We couldn’t have a law professor being wrong now could we?

      Frank knows he’s wrong from a legal position but I suppose we shouldn’t let that stand in the way of drumming up good, old fashioned, grass roots hatred against those darn greedy insurers.

      For those of you wishing to browse the ample protection that consumers already have check out the Insurance Contracts Act 1984 (Cth) [particularly sections 13 and 14].

    • malohi says:

      12:57pm | 02/03/11

      Tee hee.
      I too have found that pointing out any sort of legal arguement which can be proved correct is frowned upon. It seems to take the wind out of the sails of the mob nodding at eachother screaming unoorstrayylien and the like. No mob= bad for journo.

      Much easier in matters such as this to grandstand on today tonight etc for the “peoples” victory than to go to court and get whomped for ones ignorance.

      But the legal “flaws” do not take from the author’s reccommendations, which I think would be positive, ACCC should do more. Lazy sods.

    • Don Homer says:

      01:23pm | 02/03/11

      Insurance contracts are already regulated by the ASIC, who have the power to do almost all of the things Zumbo recommended (see Insurance Contracts Act ss 11A and 11B).

      He really does love a spot of good ACCC bashing and occasionally its appropriate. But not this time! As Frank well knows the reason the ACCC isn’t administering insurance contracts is because the current legislation is adequate and ASIC is doing a good job as regulator.

      Re ACC being “lazy sods”- try administering and enforcing trade practices compliance for the millions of registered Australian businesses and dealing with consumer issues, complaints etc on paltry government funding. They do a pretty good job all things considered. If they are to administer more areas of law they need more funding.

    • fairsfair says:

      10:23am | 02/03/11

      Frank you fail to address the concept of “self insurance”. Many large organisations assume the risk because it is simply not economically viable for them to outlay premiums annually. Could you imagine the premium that governements would have to pay for insurance on every piece of infrastructure even down to the car that A08 John Bloggs of Longreach drives to and from his cushy govt job? You do realise that we as tax payers would be paying that bill too - each and every year. What would the excess be?

      Self insurance works, if you put into a bank account what you would usually pay in insurance, for use in the event of loss. This is what Governments should be doing and what I thought they were doing without our tax dollars. The government has failed to take out insurance (I have no beef with that I think that is the way it should be) but the issue is that in the absence of cover they have failed to adequately self insure and this is a basic betrayal of the taxpayer. This is why I have the dirts with the whole idea of this levy. Stop glossing over the fact that the QLD govt has failed its people, the Federal govt has failed the nation and putting this back on the Insurers.

    • Jay says:

      11:02am | 02/03/11

      Well all of the old cliche’s and old wives stories come out from people who really have no idea as to what they are talking about. The Insurance industry pays out 99.7% of ALL claims. Fact. As a previous writer mentioned the ACCC stuck their nose into the negotiations, the Govt has procrastinated and ofcourse everything is now the Insurers fault.Most Insurance policies are very clear and in plain English and clearly spells out what you are covered for and not covered for.If an Insurance Coy denies a claim they do not do it lightly as most Company’s have an internal dispute resolution process within their organiszation that will review a decision. If there is any doubt the Company will pay it. If the Company still disputes your claim then you have access to the Insurance industry dispute resolution process which costs the policyholder nothing and the claim will be reveiwed by an Independent and experienced panel.If they uphold the denial then you can issue proceedings. Unfortunately some people cannot comprehend that they have breached a policy condition like:exceeding the blood alcohol limit, not notifying of loss of license,unroadworthy cars,major modifications to a car by petrol heads who then claim that they have done nothing to the car,getting a car repaired before the insurance coy can have a look at it, fraudulent claims, properties that are not maintained and are run down or dumps,renting out properties and not telling the Insurer,not occupying the property for three months and not telling the insurer. If insurance Coy’s are that bad then go ahead and self insure and take the risk, but stop your winging.

    • ceebails says:

      11:04am | 02/03/11

      A contract is a contract. No point signing it if you don’t read it.

      One householder up here who has had his house slip down the mountain is crying foul about his insurance company is deserting him.

      The fact that his policy explicitly states that he is NOT insured for earthquake, landslip, subsidence etc., he feels is irrelevant. He thinks his insurance company should show him some compassion. I shake my head ...

    • Gregg says:

      11:38am | 02/03/11

      Emotions will obviously run hot Frank when people who have had their home insured find it is not covered for flooding when their house is within a known flood plain area.
      There are some companies that do offer coverage and they no doubt have done their risk assessments and as in the case of the Brisbane River Valleys, just like many residents they may have felt assured there would not be a problem because of the Wivenhoe Dam but we know differently now.
      There’ll be other companies who may over flood plain insurance for a premium a client will not likely accept and so they need to look elsewhere or realise they’re without insurance.
      But essentially it is not so difficult to look at what a coverage is for, be it all flooding, flood plain exclusion or whatever.

      As others have said, it is simply a case of reading the fine print and if need be ask the questions to know what you’re signing up for and especially to do that re flood cover if you’re out on the plains or in a lower lying area associated with a water course, be it stream or river.
      Unfortunately, most of us probably give little consideration to the wider topographical features if we like the look of a nice house in a nice street.

      Perhaps if not already there, Real Estate Sales laws should have it necessary for a full clear disclosure of where a property is situated with reference to known high water levels.

    • Michael says:

      12:45pm | 02/03/11

      Frank, you ignoring the basic premise of insurance: We all have different risks atached to our different insured property, lives etc. Insurance companies work out a premium based on these risks. In some cases, an insurance company will deem the risk too high and refuse or put conditions on the insurance. For example, if someone is a dangerous driver an insurance company can refuse to insure them. If someone manufactures explosives in their property, an insurance company might refuse to insure the property for explosions. Likewise, if somone builds a house in a known floood area, the insurance company can refuse to insure them for floods. It’s pretty simple, really. The other option would be to either refuse these people insurance of any kind, or to increase everyone’s premiums to cover the known and expected floood damage for all these houses built in flood areas. Personally, I would not be happy to pay 10 - 20% more to cover somone else’s chosen risk… I choose not to live in a floood zone because I do not think the benefit of a cheap waterfront property (or area) outweighs the risk of flood. The reality is, people who live in flood zones can either pay massive insurance to cover the massive risk of floods or be refused any form of home insurance. It’s not a popular reality and it seems harsh, but the same might be said for people who drive highly modified cars or are repeat drink drive offenders.

    • Thirsty says:

      02:54pm | 02/03/11

      Why cant we have a simple checklist at the start of an insurance policy contract, such as ticking a box for different cover
      Any water damage (gets around the definition of a flood…everyone cross subsidies everyone else), any fire damage, and earthquake damage etc etc
      It it was legislated as above, there would be no argument as to whether you have cover or not
      By incorporating flood related damage into an “any water damage”, everyone would take this cover, as it would cover floods, storm water damage, water main damage, rain etc etc…no more arguements. By trying to define something as simplistic as flood, you run the real risk that we have now, every policy has a different definition of what actually constitues flood damage
      Is this too simplistic??

    • St. Michael says:

      06:37pm | 02/03/11

      Yes, it is.

      Read the other blog on the site about stupid people.  Such a checklist would be for the stupids, nobody else.  It would also be no more useful than the Heart Foundation tick of approval after a few months, because the checklist means nothing.  The terms of the contract are what matters.  Since most of the stupids in Gen Y have enough time and money to buy iPads and iPhones and iThinks and iCan’tBeBothereds and all the time in the world to read on them, they have enough time to read the damn contract or get legal advice on them.

    • OddCreature says:

      05:36pm | 02/03/11

      After Black Saturday I began to wonder if my house would be covered if it were destroyed as a result of a bushfire. I scoured the PDS, but to no avail. So I rang my insurance company and asked this very simple yes/no question. I sure didn’t get a yes/no answer. I listened to the guy talk for twenty minutes, at the end of which neither I nor he knew if my house was covered for bushfire.

      And people like Fairsfair have the hide to tell me I should take personal responsibility?

      Insurance contracts, in their current form, are a joke. They are unclear, and totally confusing. And if you doubt that, then let me ask once again, is my house covered if it’s destroyed by a bushfire? I still don’t know.

    • fairsfair says:

      08:06pm | 02/03/11

      go to another insurer. if you aren’t satisfied with that answer, shift. FFS that is personal responsibility. If you haven’t shifted after that answer and still have complete faith in your cover, you are an odd creature.

      Post the PDS number which is printed on the back page and I’ll let you know.

      I live in the wet tropics nowhere near trees. It is highly unlikely that my house would ever be subject to bushfire therefore I have not gone out of my way to find a policy that clearly covers it. Same goes for blizzards. I don’t have flood cover either because I don’t feel at risk but if I did I would be sure as hell making sure it was clearly written in the material supplied when I pay the bill.

    • darragh scully says:

      06:24pm | 02/03/11

      Im Just a Bogan outraged or at least I think I kind of am.
      Is it true that Premier Bligh sought tax dollars for Insurance but forgot to pay for the actual Insurance? Did the State of QLD only have 7 million set aside for disaster relief?

      What the people need is Catastrophe Bonds (kind of like war bonds that pay out dividends when a disaster doesnt actually happen) . Im not sure the insurance companies are selling the types we need however given that we need insurance to protect us from Governor Blunder Catastrophe.
      QLD i feel you pain.

      Meanwhile the good news is Australia that the first JSF f35 rolled of the production line yesterday and the first day commeth!!!

    • Chris Chinniah says:

      01:15pm | 17/05/12

      I think it is really sad that the insurance companies are so unethical when it comes to payouts to their clients, and the law should do more to protect the people affected. That being said, I think fundamentally, the way the companies work have to be changed as well, or no insurer will stay in business long enough. Chris
      Chinniah - http://www.nriol.com/insurance/bajaj-allianz-insurance/bajaj-allianz-travel-insurance.asp

 

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