By Diego Arce Santivañez
Law 29571, Code of Consumer Protection and Defence (hereinafter, the Code), establishes that the suitability of products and services is defined as the correspondence between the consumer's expectations and what they actually receives. This includes the nature of the products and services, the agreed conditions and the regulations governing their provision, and it is the responsibility of the providers to guarantee the suitability and quality of what they offer in the market.
Regarding insurance services, Article 30 of the General Law of Transport and Land Transit establishes that all vehicles in circulation must have Compulsory Traffic Accident Insurance (hereinafter, SOAT) or Traffic Accident Certificate (CAT), which must include coverage for risks such as death, permanent disability, temporary disability, as well as medical and burial expenses.
Article 14 of the SOAT Regulation establishes that the payment of expenses and indemnities will be made without the need for prior investigation by any authority, simply by proving the accident and its consequences. This is independent of the responsibilities of the driver, vehicle owner or service provider.
On the other hand, article 37° of the aforementioned regulation specifies the situations in which death and bodily injury coverages do not apply. Among which, we find those accidents that are the result of fortuitous events completely unrelated to the normal circulation of the vehicle.
In one specific case, it was reported that an insurer had unjustifiably denied SOAT coverage for a vehicle, specifically the economic benefit for death and burial expenses following an accident that occurred in the district of San Mateo, province of Huarochirí, department of Lima.
The complainant questioned before Indecopi that the insurer considered a case of exclusion of coverage according to article 37 d) of the SOAT Regulation, due to the fact that the complainant's spouse died in a traffic accident caused by a rock slide while travelling as a passenger in a bus.
According to the arguments and evidence presented by the parties involved in the aforementioned proceedings, there is no dispute that the complainant's wife was the victim of the traffic accident in question, which was caused by a rock that fell on the vehicle in which she was travelling as a passenger.
The insurer denied the SOAT coverage alleging that the event was a fortuitous event unrelated to the circulation of the vehicle, thus excluding coverage for death and burial expenses. ,
Thus, through Resolution N° 0642-2024/SPC-INDECOPI, the Specialised Chamber on Consumer Protection of Indecopi (hereinafter, the Chamber) established that for the case in question, it was necessary to verify the geography and characteristics of the area where the accident occurred. Furthermore, it stated that, according to technical reports from the Geological, Mining and Metallurgical Institute, the San Mateo area is prone to landslides, landslides and other geodynamic phenomena, and that no evidence was presented to refute the existence of geological risks in the area of the accident.
Thus, the Chamber determined that, although the rockslide could be considered an unforeseeable and irresistible event generated by nature, in this specific case it could not be classified as a fortuitous event unrelated to the circulation of the vehicle, since the geological risks in the area were known and foreseeable.
The aforementioned constitutes a change of criterion of the administrative authority, however, it was not supported or motivated, since the aforementioned administrative act did not explain in detail why in this case the rockslide did not constitute a fortuitous event ─understood as an unforeseeable or unavoidable event that occurs independently of the will of the parties involved in a situation, which had evidently been the case here─ let alone developed the reasons for departing from the approach it had taken in a similar[1], case, merely stating that the conditions of the accident in question were different, since they involved a particularly dangerous environment.
But is not a sudden rockfall in all circumstances a fortuitous event? Although the answer may seem obvious, with this recent criterion the administrative authority has made an extensive interpretation of what is defined as a fortuitous event, qualifying such an event as preventable and foreseeable, which has led to an improper application of Article 37 of the SOAT Regulation and to an eminent prejudice to the insurance market.
[1] See Resolution N° 31482015/SPCINDECOPI.