Regulations 27(4), 28(e) and 30(1) & (2) of IRDAI (Insurance Brokers) Regulations 2018 require written mandate from the clients to the insurance broker to represent them for the purposes mentioned in the said regulations.
The Authority has been receiving requests regarding the interpretation of the expression
“written mandate” and seeking clarification whether a mandate communicated through an
electronic form can be considered as “written mandate” under the above regulations.
In this regard, section 4 of Information Technology Act relating to ‘Legal recognition of electronic records’ states as under:
“where any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is-
(a) Rendered or made available in an electronic form; and
(b) Accessible so as to be usable for a subsequent reference”.
Accordingly, the Authority, clarifies that a mandate communicated by a client to the insurance broker through an electronic form can be considered as “written mandate” within the meaning and scope of Regulations 27(4), 28(e) and 30(1) & (2) of IRDAI (Insurance Brokers) Regulations 2018.
In this regard the insurance brokers are also advised to bear in mind the contents of Section 65 B of the Indian Evidence Act 1872 relating to “admissibility of electronic records”.
What is this Section 65 B of the Indian Evidence Act 1872
65A. Special provisions as to evidence relating to electronic record:
The contents of electronic records may be proved in accordance with the provisions of section 65B.
65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a
document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in
any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of
which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –
(a) the computer output containing the information was produced by the computer during the period over which the computer was used
regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is
derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the
accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary
course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period
as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether –
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and
references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things,
that is to say, –
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of
this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, –
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly
or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the
purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that
computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human
intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being
derived therefrom by calculation, comparison or any other process.]