If an insurance policy stipulates a vehicle must be kept in a locked garage at night, not even chaining the insured vehicle, several dogs, a locked gate and aggressive male ostriches, can substitute as suitable security measures.
Abrie Burger found that several measures he had taken to protect his off road vehicle which was parked in his yard outside at night were not good enough for his insurance company when he submitted a claim for theft of the vehicle.
The insurance company rejected the claim on the basis that the vehicle had not been parked in a locked garage at night, as was required in the policy.
Burger, a sales representative from Sasolburg, complained to the FAIS Deputy Ombud that he was not aware of the requirement to keep the vehicle in a locked garage as he did not receive the policy schedule and policy wording from his broker, Heritage Insurance Brokers (Pty) Ltd of Sandton.
He said that on the day of the theft, his and his friend’s vehicles were chained and locked together and left outside for the night because they had been washed and he had arrived home late that afternoon.
He said there were several dogs on the premises but they had been poisoned during the night of the theft and one died as a result.
Outside the fence there were five ostriches of which three were “very aggressive males”. Entry to the yard by the burglar/s was gained by breaking or cutting off the lock on the gate.
The issue for determination before Ms Noluntu Bam, the Deputy Ombud for Financial Services Providers, was whether the respondent was negligent in not making the complainant aware of the condition of insurance which was breached, thus leading to the insurer rejecting the claim for theft of the vehicle.
During investigation, it was found that the complainant had stated in his own handwriting in the proposal form dated 24th February 2005 that the vehicle would be kept in a locked garage at night.
The respondent said a letter dated 2 March, 2005 accompanied by the policy schedule and policy wording was sent to the complainant shortly after inception of the policy to the postal address furnished by him in the proposal form.
The letter stated that “unless otherwise provided for, overnight theft from the permanent place of residence is EXCLUDED unless the ATV/Off road vehicle is kept in a fully enclosed garage or carport and both any door and any gate leading to the garage or carport is kept locked at all times and there is proof of visible, violent or forcible entry/exit”.
This condition is also mentioned in the policy “confirmation of cover,” which was sent to the motor dealer, as well.
Ms Bam said when motor vehicles are financed, the credit supplier requires insurance cover to protect its interests.
The insurer on the other hand, seeks to minimise its exposure to the risk materialising. To this end, the question is asked in the proposal form “where is the vehicle kept at night? – not address”. In this case, Burger answered “locked garage”.
A further clause in the form states: “I agree that this proposal shall be the basis of the contract between the insurer and myself.”
Ms Bam said that in the circumstances, it cannot be said that the complainant was unaware of the relevant condition that was breached and which led to the rejection of the claim, even assuming the complainant did not receive the policy schedule and wording as alleged by him.
“In any event, I note that two letters were posted to the complainant regarding non-payment of premiums. He thereafter paid the premiums. The probabilities seem to favour the conclusion that he did in fact receive the letter with the policy schedule and wording as well.
“There rests a duty on a broker to draw the insured’s attention to material clauses in the insurance contract.
“However, in the matter before me the complainant himself stated the vehicle would be kept in a locked garage at night and then failed to do so when it was stolen.
“It, therefore, cannot be said that in this case the respondent was negligent in rendering the service to the complainant.”
Ms Bam said it was clear that had the complainant abided by the condition about keeping the vehicle in a locked garage at night at his premises as he had warranted in the proposal form, the theft may have been avoided.
“That he had dogs and ostriches on the premises do not detract from his warranty,” she added, in dismissing the complaint.
No comments:
Post a Comment