Takaful Motor - Failure to take reasonable precaution
The Participant’s claim for damages to her stolen and recovered vehicle was repudiated by the Takaful Operator on the ground that the custodian driver had failed to take reasonable precaution to safeguard the Participant’s vehicle from loss or damage by leaving it unattended with the engine running in breach of condition 7(c) of the Private Car Certificate.
Investigation and Findings
Condition 7(c) of the Private Car Certificate states as follows:
“This Certificate will only be operative if you have taken all reasonable precautions to safeguard your vehicle from loss or damage”
Investigation by the loss adjusters revealed that the custodian driver accompanied by his wife (Participant) and 6 year old daughter were travelling at the material time. They stopped at a café and the custodian driver alighted from the vehicle to pick up some items. The engine was still running with the keys in ignition. After a few minutes, the wife also got down from the vehicle to greet her friend and was standing about 1 – 1.5 meters from the vehicle while her daughter was still sleeping inside the vehicle. At the material time, a motorcycle came and the pillion rider jumped into the Participant’s vehicle and sped off with the Participant’s daughter still in the car. The Participant screamed for help and the custodian driver and another friend gave chase in the friend’s car but were unsuccessful in their attempt. The custodian driver subsequently made a police report.
The police carried out their investigations and was successful in recovering the vehicle and the Participant’s daughter. However, the Participant’s vehicle was found damaged for which she was seeking compensation from the Takaful Operator.
The Takaful Operator was advised by OFS that the facts and circumstances in this case warranted a review of the Takaful Operator’s decision to repudiate the Participant’s claim. Facts reveal that the Participant did not leave her vehicle unattended with the engine running. The Participant was only 1 – 1.5 meters away from her vehicle with her daughter still in the vehicle. She was in a position to cry for help and prevent the occurrence of the theft which she did, although unsuccessfully. The Takaful Operator’s attention was drawn to the case of Sanger v Beazley (1999) Lloyd’s Rep Insurer 424, where the Court held that “it is a question of fact in each case as to whether the vehicle has been left unattended. The test is whether the driver, was in reasonable proximity to the vehicle; was able to keep it in observation; would have a reasonable prospect of intervening to prevent its theft.” The Takaful Operator was informed that under the circumstances, the Participant can be inferred to have taken reasonable steps to prevent the loss to her vehicle, although she was unsuccessful in her attempt.
The Takaful Operator agreed to settle the claim which was accepted by the Participant.