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Determination
Case number | 984526 |
Financial firm | Insurance Manufacturers of Australia Pty Ltd |
Case number: 984526 14 May 2024
The complainant held a comprehensive motor insurance policy with the financial firm (insurer).
The complainant lodged a claim for the theft of the vehicle, which occurred on 23 March 2022.
The insurer denied the claim and says;
Has the complainant established a loss covered by the terms of the policy?
Yes, the complainant has established a loss which is covered by the terms of the policy.
Why is the outcome fair?
The complainant has established a valid claim under the terms of the policy and in those circumstances, it would not be fair to allow the insurer to deny the claim.
The determination is in favour of the complainant.
The insurer is to pay the complainant’s claim in accordance with the terms and conditions of the policy.
The insurer is to pay interest, under the Interest Contracts Act 1984 (the Act), on any cash settlement amount, from the date of denial of the claim until the date of payment.
2.1 Has the complainant established a loss covered by the terms of the policy?
Policy provides cover for loss or damage
The complainant’s policy provides cover for loss or damage to the vehicle caused by an incident. Incident includes ‘theft or attempted theft’.
The cover provided by the policy is subject to the terms, conditions and exclusions which are detailed within the Product Disclosure Statement (PDS) and Certificate of Insurance (COI).
I am satisfied that the insurer has provided the complainant with the PDS and COI and therefore it is entitled to rely upon the terms, conditions and exclusions, to determine its liability to the complainant.
The COI states that there was a standard excess of $700.
In this determination, I refer to the complainant’s friend as AA, who was the previous owner of the vehicle and is a qualified motor mechanic.
Onus on complainant to establish a claimable loss
As the complainant alleges the car was stolen, the onus is on her to establish the vehicle was taken without her knowledge and consent.
The onus on the complainant extends to establishing that the loss occurred in circumstances consistent with confirmed evidence and that the complainant’s version of events is credible.
Circumstances of the loss
On 25 March 2022, the complainant informed the insurer that the vehicle had been stolen on
23 March 2022, from outside AA’s house who had had possession of the vehicle for nine months.
The complainant states that from the time of purchase, she did not drive the vehicle and it was left at AA’s house for servicing.
The complaint says there was no urgency or set date for when the vehicle was required to be completed, given it was not intended for daily use.
Based on the available information:
The vehicle has not been recovered.
Insurer says there are inconsistencies with the claimed event
The insurer says the complainant has not suffered a loss for a claimable event.
The insurer appointed an Investigator (QC) who has identified several concerns and anomalies regarding the claimed event.
I will address each issue below.
It is noted that the vehicle was purchased privately and intended for private use. It is arguably not commonplace for the owner of a vehicle to receive a purchase receipt.
While the purchase condition has not been established for the time of the claim, the roadworthy certificate dated 28 June 2021 and the state issued certificate of registration dated 30 June 2021, provides evidence that the vehicle was in a road registered condition at the time of the vehicle transfer.
Given that the theft of the vehicle was on the 23 March 2022, it is plausible that the vehicle was still in a roadworthy condition some nine months later.
I also accept that the complainant may be unable to provide evidence of the service history, mechanical works and or modifications of the vehicle considering it is commonplace for this information to be stored in the vehicle in the service manual.
Given the theft of the vehicle, access to this by the complainant would no longer be available. The inability of the complainant to provide the items requested is not a valid reason for the insurer to decline the claim.
It is also noted that that the complainant has provided a credible explanation for the lack of service history given that AA was completing the service who was qualified to provide the
service.
It is acknowledged that AA has not assisted with enquiries to be interviewed or take any phone calls relating to the theft.
While AA has no obligation, his lack of assistance does not assist the complainant in establishing her claim. However, I’m not satisfied that this alone is sufficient to entitle the insurer to deny the claim.
I am not convinced that the complainant intended to take out insurance only in the event they were picking up the vehicle to be covered from the first day of driving it. The comprehensive insurance also covers fire, theft and malicious damage.
While it is unclear why the vehicle was neither stored at her home, nor driven for such a long period, when it only required a basic service, the complainant has provided a plausible response why this is the case, including the Melbourne COVID lockdowns and advice that her husband was ill with COVID on several occasions.
I acknowledge that despite advice from the complainant saying the vehicle was stored at AA’s residence, there is no evidence to confirm the vehicle was at the location.
However, I accept it would be difficult for the complainant to now prove the vehicle was there and this of itself is insufficient for the insurer to deny the claim.
Despite the complainant not being able to provide all the requested banks statements to the investigator (or provided an explanation as to why she cannot provide this statement), it is not uncommon to deposit cash into an account. Nor is it uncommon to partially fund a purchase with cash.
The insurer contacted the previous employer who confirmed that no Tubs have ever been gifted to the complainant’s husband and but did confirm that two have been sold to him over the years.
I acknowledge the response previous employer is very specific and there are multiple inconsistencies from the complainant whether the tubs were obtained at no cost or at $100 each.
The inconsistencies do not assist the complainant in establishing her claim, but the inconsistencies are not directly linked to the loss itself. As such, I do not regard the inconsistencies themselves as entitling the insurer to deny the claim.
It is noted there are inconsistencies regarding manufacture year and the Australian compliance plate fitted to the vehicle.
The manufacture date listed on the registration paperwork is 1994 which is also consistent with the certificate of insurance. This is in comparison to the roadworthy certificate that lists the year as 2008 which does match the compliance plate date in the registration paperwork.
While I note this is an unusual situation; two different dates are provided within the roadworthy certificate, although the vehicle identification number is consistent across the documents.
I accept that t would be unlikely a licenced motor vehicle tester would have an error such as the build date (not the Australian compliance date of a vehicle), it is not implausible.
The complainant says that AA attends to private jobs outside of his usual place of work.
Given that the complainant states that there was no major work that needed to be completed as it was a straightforward simple service, the complainant has provided a plausible explanation.
In my view, it is not unusual for someone to be unable to recall the kilometres the vehicle had travelled, I find this plausible. Especially given the complainant was working for AA who is a qualified motor mechanic with a trusting relationship.
On balance, the complainant has established a claimable loss
Having reviewed the exchanged evidence and circumstances surrounding the event, on balance, I am satisfied the complainant has established a theft has occurred.
This is because:
In support, the police report dated 23 March 2022 states:
At 1800hrs 14/01/2022 victim parked her car (vehicle registration) out the front of friends house at (AA’s address). At 722hrs 23/03/2022 victim received a text message from her friend stating that the vehicle was no longer present. Victim’s friend has the only set of keys for the vehicle and still has them. Consent to tow given.
The insurer is to pay the complainant’s claim in accordance with the terms and conditions of the policy.
The insurer is to pay interest, under the Act, on any cash settlement amount, from the date of denial of the claim until the date of payment.
2.1 Why is the outcome fair?
The outcome is fair as I am satisfied that the complainant has established a valid claim and in those circumstances it would not be fair to allow the insurer to deny the claim.
AFCA has determined this complaint based on what is fair in all the circumstances, having regard to:
The respective parties have completed a full exchange of the relevant information, and each party has had the opportunity to address any issues raised. We have reviewed and considered all the information the parties have provided.
While the parties have raised several issues in their submissions, we have restricted this determination to the issues that are relevant to the outcome.
