Peru does not have uniform and systematised insurance case law, however, there is a tendency to moderate the effects of contractual conditions that limit insurer’s responsibility when the insured does not fulfil all the requirements of the contract.
In the matter 759-71, the Supreme Court found that the lack of notification of an accident covered by a personal accidents policy was not a condition that could affect insured’s right to indemnity.
The Court stated in the above mentioned case that the fact that the insured had suffered severe injuries justified the late notification. The fact that the insurance contract was subject to general terms of contract had a great impact on the Court’s decision.
Under section 1398 of the Civil Code, those conditions that allow the drafter of the contract to rescind the contract or limit liability will not be valid if the contract was celebrated under general terms of contract without administrative approval. Likewise, according to section 1401, in case of doubt the conditions of a contract subject to general terms must be interpreted in favour of the party that did not draft the contract.
Insurance companies are obliged to file the general, particular and special terms, annexes and other clauses of their policies to the insurance supervisor. According to section 15 of the Resolution 1420-2005-SBS, the reception of such documentation by the Registry does not imply the approval of the Supervisor.
It can be concluded that, in cases of conflict, the most likely scenario is that the judges will protect the insured, even from its own negligence. Rejection of coverage will only be possible in cases where the insured causes a loss to the insurer due to his lack of diligence.