The Ombudsman for Short-Term Insurance, Dennis Jooste.
Taking your parents’ motor vehicle without their permission has more serious consequences than just being reprimanded as one complainant to the Ombudsman for Short-Term Insurance’s office recently found out. The dispute arose out of a claim for a loss after the insured’s daughter had taken the insured’s motor vehicle without her parents’ knowledge or consent. Whilst driving the vehicle she was involved in a collision where the vehicle was damaged. She did not have a driver’s license and only had a learner’s license (but was not accompanied by a licensed driver, as required by law).
The insurer declined liability of the claim as their policy entitled them to “decline liability where the vehicle is driven without a license or where the driver has a learner’s license but does not comply with legislation regarding learners at the time of loss or damage”. The insured did not dispute this provision, but contested the insurer’s right to decline liability on the basis that the situation was likened to an emergency, as his daughter needed to purchase food from a fast food outlet which was approximately 500 metres away from the insured’s house. He felt that it was unsafe for his daughter to walk to the fast food outlet.
The Ombudsman for Short-Term Insurance, Dennis Jooste, was of the view that there were two possible approaches which should be considered when dealing with the matter, namely that the claim be considered as a pure accident claim or that the claim be considered as a theft claim where the daughter stole the vehicle for temporary use.
Reviewing the claim as an accident claim for the damage sustained to the vehicle
As the policy clearly stated that the insurer did not accept liability where the driver did not comply with the licensing requirements or provisions in terms of the law, the outcome of this approach was considered straight forward as the policy simply did not provide cover. The insurer therefore could not be expected to pay the claim on this basis. There was also no reason to require the claim to be paid on the basis of equity.
Reviewing the claim as a theft claim in which the daughter stole the vehicle for temporary use
The insurer contended that this could not be a case of theft as the incident involved only temporary use of the motor vehicle and that there was no intention to permanently deprive the owners (parents) of their motor vehicle. The Ombudsman agreed with the insurer but also considered whether the act of the daughter constituted statutory theft in terms of Section 1 of the General Law Amendment Act 50 of 1956 which made unauthorised use the same as theft under certain circumstances. The Ombudsman pointed out that if the facts led to the conclusion that it was “furtum usus”, (statutory theft) then the license requirements prescribed by the policy could not be relied upon by the insurer to decline liability. The Ombudsman concluded however that the facts did not constitute statutory theft and that there was no basis upon which the claim should be paid.
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