Scope of claims for travel agency liability insurance

At present, the planning and adjustment of travel agencies are generally exposed to two types of insurance: "travel agency liability insurance" and "travel accident insurance". As a qualified planner and coordinator, we need to accurately grasp the difference between them, be able to connect with reality, make good use of emergencies in our work, and reduce the risks of travel agencies themselves.

First of all, we must clarify the attributes of these two types of insurance. Travel agency liability insurance belongs to property insurance, and travel accident insurance belongs to personal insurance. The resulting insurance contracts are property insurance contracts and personal insurance contracts. Insurance contracts usually involve four subjects, namely, the applicant, the insurer, the insured and the beneficiary. Travel agency liability insurance belongs to property insurance, and the insured is a travel agency, which transfers its own business risks by paying premiums to insurance companies; The insurer is an insurance company, which establishes an insurance fund to operate insurance business by collecting insurance premiums, and when an insurance accident occurs, it will perform the responsibility of compensation or payment of insurance benefits according to the insurance contract. In the practice of travel agency liability insurance contract, the applicant is usually the same as the insured and is an insured travel agency (that is, the applicant is the same as the insured). It should be noted that beneficiary is an exclusive concept of personal contract, which does not exist in property insurance. Therefore, travel agency liability insurance will not involve the beneficiary.

Travel accident insurance, the parties to the contract and related parties have four specific situations: first, the tourists themselves insure themselves as the insured; Second, tourists themselves, as the insured, insure their spouses, children and parents; Third, the tourists themselves, as the insured, take out insurance for "other family members and close relatives who have the relationship of maintenance, support or support with them"; Fourth, in the tourism activities organized by the unit, the unit, as the insured, insures the "workers who have labor relations with them".

According to the operation practice of travel agencies, when signing travel contracts, many tour operators generally regard the tourists themselves as the insured, the insured and the beneficiary when filling in the clauses of travel accident insurance. It is worth noting that under such circumstances, the travel agency suggested that tourists take out accident insurance, but the tourists refused. In order to avoid risks, the travel agency paid accident insurance for tourists and filled the insured as tourists. Such a simple legal act, without the prior consent of tourists, the insurance contract is invalid.

So I remind my friends that when signing the contract, we must let the tourists sign it.

How to deal with claims in practical work?

In the process of traveling, tourists cause personal injury due to the reasons of travel agencies (such as failing to fulfill contractual obligations such as informing and warning, and causing traffic accidents on arranged tour buses). If tourists are also insured for travel accident insurance, how should travel agencies use insurance to compensate?

What often happens in reality is that travel agencies assist tourists to claim hospitalization and medical expenses from insurance company A through accident insurance, and the insurance company collects original relevant evidence while making compensation; Afterwards, the tourists asked the travel agency for compensation. In practice, different travel societies take different measures, but there are roughly two kinds. First, the travel agency believes that tourists have already received compensation through accident insurance, and travel agencies should not pay again; Second, the travel agency claims from the insurance company B by starting the travel agency liability insurance. At this time, insurance company B requires tourists to provide original evidence such as medical expenses, because in accident insurance claims, tourists have handed over the relevant originals to insurance company A, so they cannot provide them. At this point, insurance company B often refuses to pay compensation on the grounds that there is no original evidence. What is the right way for travel agencies? Is the insurance company's behavior legal? What will happen if you enter the judicial process?

Let's take a look at the relevant provisions of the "loss compensation principle" in the Insurance Law and its scope of application. Generally speaking, the principle of loss compensation can be understood as: the financial situation of the insured after the loss occurs should not be better than when it does not occur because of insurance compensation. There are three main points under the principle of loss compensation, that is, no loss means no compensation, only loss can be compensated, and the compensation shall not exceed the loss. The most common example in our life is car damage compensation, and the insurance company's fixed loss behavior is to evaluate the actual loss of the insured, because it is impossible for the insurance company to pay the full car price because of a simple scratch on the car. The principle of loss compensation can effectively prevent unjust enrichment. The clauses that embody the principle of loss compensation in the insurance law all appear in the third section of the insurance contract in Chapter II. In particular, the provision of Article 60 "the insurer's right of subrogation" is a prominent embodiment of the principle of compensation for losses. Paragraph 1 of Article 60 of the Insurance Law stipulates: "If an insured accident is caused by damage to the subject matter insured by a third party, the insurer shall subrogate the insured's right to claim compensation from the third party from the date of compensation to the insured." However, in the second chapter "insurance contract" and the second section "personal insurance contract" of the Insurance Law, there are diametrically opposite laws to echo it. Article 46 of the Insurance Law stipulates: "If the insured suffers death, disability, illness and other insurance accidents due to the behavior of a third party, the insurer has no right to recover from the third party after paying the insurance money to the insured or beneficiary, but the insured or beneficiary still has the right to claim compensation from the third party." The reason why the legislation stipulates this is mainly based on the consideration of "priceless person", thus excluding the "principle of damages" from the life insurance contract.

From the above analysis, it can be seen that the principle of loss compensation in the current insurance law only applies to property insurance contracts, not to life insurance contracts. Then, combined with the previous case, travel accident insurance belongs to personal insurance. If personal injuries occur due to travel agencies, tourists can not only get compensation from insurance companies, but also claim compensation liability from travel agencies. As a travel agency liability insurance, the insurance company should compensate.

From the perspective of insurance law, insurance business is divided into two categories: life insurance and property insurance. Property insurance includes the principle of loss compensation, but does not include life insurance. However, from the insurance practice, there are two types of life insurance: fixed payment insurance and cost compensation insurance. Fixed payment insurance refers to the insurer paying the insurance premium according to the agreed amount after the insurance accident. For example, the Travel Accident Insurance Contract stipulates that "if the insured dies within 180 days from the date of the accident, the insurer shall pay the death insurance money according to the insured's accident insurance amount specified in the insurance policy". Assuming that the insured amount is 500,000 yuan, at this time, the insurer considers whether the insured has died, regardless of the factors such as whether the insured has the cost of rescue (in practice, there may be no rescue cost because of immediate death, or it may cost 6,543,800 yuan to rescue invalid death in the hospital). Expense compensation insurance refers to the insurer's compensation for the insured's expenses or income reduction according to the agreed scope and standards after the insured accident. For example, in the travel accident insurance contract, it is stipulated that "if tourists suffer accidental injuries during the travel, the insurer will pay 80% of the necessary and reasonable medical expenses actually incurred during the hospitalization period". At this time, the insurer considers the actual expenses of the insured, whether it is death, disability or illness. For accident insurance with fixed compensation, the subject matter of insurance is human body and life, which is priceless. Of course, it cannot adapt to the principle of compensation for losses. Therefore, the insured can certainly get compensation from both the insurer and the travel agency (provided that the travel agency is legally responsible for this). As far as expense compensation accident insurance is concerned, the subject matter of insurance is obviously the property interests of the insured, and the principle of loss compensation should be applied. Many scholars have also put forward this view, pointing out the legislative negligence of the Insurance Law, that is, the legislation ignores the classification of "fixed insurance" and "compensation insurance" in accident insurance, which has caused practical adverse consequences.

Article 5 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Tourism Disputes stipulates: "If the tour operator has handled liability insurance and the tourists only sue the tour operator for the insurance liability accident, the people's court may, at the request of the parties, list the insurance company as a third person." If in practice, once a tourist claims from a travel agency after obtaining accident insurance, and once he goes to the judicial process, he can ask the court to add an insurance company that bears the liability insurance of the travel agency as a third party to solve the related problems.

Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.