Insurance Claim

Waikato Times, Volume 116, Issue 19430, 3 December 1934, Page 8

Insurance Claim

SUCCESSFUL ACTION.

SEQUEL TO ACCIDENT.

FAILURE TO NOTIFY COMPANY. An action of importance to all motorists and insurance ® was heard before Mr Justice Herdman in the Supreme Court, Hamilton,, today when the South British Insuiance Company, Ltd., claimed £382 os from Torrance James Patrick Cleary, agent, of Hamilton, for alleged breach of contract of insurance. The alleged breach was that defendant failed to notify the insurance company of an accident forthwith in which his car was involved. Mr A. L. Tompkins appeared foi the plaintiff company and Mr P. Harkness represented the defendant. In opening, Mr Tompkins pointed out that the case was interesting to insurance companies and motorists. Action was taken under Section 11 of the Motor Vehicles Insurance (Third Party Risks) Act, 1928, a section not well known to the public but of considerable importance to insurance companies. The facts, of the case were, that on December 14, 1933, Terence Hawke was in charge of defendant’s car, which was insured under the third party risk provisions with the plaintiff company. He negligently drove the car, colliding with a bicycle ridden by Margaret Joan Vallilley at the intersection of Victoria and Bryce Streets and causing her injuries. The latter claimed £592 damages and plaintiff company' as defendant’s insurer settled the claim for £382 5s with costs. The company now claimed this amount from defendant on the grounds of his failure to notify the accident forthwith, as required by the Statute.

Unaware Till March.

Franois Wooller, local manager of plaintiff company, said his company held the nomination form of the tourer car owned by defendant. He was first- aware of the accident on March 23, 1934, when a junior clerk Informed him that he had met Hawke outside the office and that Hawke had said his young;, brother was involved in an accident while driving Cleary’s car. Witness wrote immediately to Cleary asking him to call at the office. On March 27 witness saw Terence Hawke who gave him a few particulars of the accident. Hawke said he had told Cleary about the accident and regarded it as. the latter’s duty to inform the company. Witness called at Cleary’s house but he was away. He called again a few (lays later and told Cleary to sign a claim form. When witness asked him why he had not notified his office of the accident Cleary replied that he understood it was Hawke’s duty. Cleary did not go to the office to see witness. On April 10 plaintiff company instructed’an insurance assessor to look into the matter. Cleary finally signed the claim form' on May 12—six months after the accident. No notification of the accident had been left at his office prior to that time. Colin Baxter Bowling, clerk, employed by the South British Insurance Company, testified that at no time had he ever received notification from Cleary of the accident.

Gertrude Andrews, typist, employed by the South British Insurance Company, Hamilton, gave similar evidence.

Assessor’s Evidence.

Clement Eustace Shakeshaft, assessor and broker, said he was instructed to act as assessor for plaintiff company on April 1,0. On several occasions he wrote Cleary asking him to call at his office to settle the matter but Cleary failed to reply. Later witness saw Cleary and pointed out that it was essential for him to notify the company as required by statute. Cleary did not say he had made notification and replied that he had no interest in the matter as he wp.s not driving the car. Patrick David Leahy, deputy registrar of the Supreme Court, Hamilton, produced an order made by .Mr Justice Herdman at the last sessions in Hamilton approving of the settlement by which the company paid £382 to Miss Vallilley, the person injured in the accident.

Telephoned Company.

Defendant, who described himself as a company director, said he lent his car to Terence Hawke at the time of the accident. He first heard of the accident on the day it happened from Hawke and telephoned the plaintiff, company the same day informing them of 'the affair and that Hawke would give particulars. Witness said he instructed Hawke to call at the company’s office and give details of the accident as he was familiar with them. Cross-examined, witness said he knew it was his duty to notify the company immediately. ■ , Asked by Ilia Honour why he did not advise the insurance company that he had received a letter from a firm of solicitors intimating that damages would be claimed witness replied that he thought the company would receive a copy of the letter sent to him. He had lost his copy.

Terence Hawke, driver of defendant’s car at the time of the accident, recalled informing defendant that a girl had been knocked over on the morning of the accident. Cleary said lie was going to ring up [he insurance company. Witness saw him use the telephone but would not swear that he was ringing, the company. Witness said lie called at the office of plaintiff company and gave information of tlie accident some time before February 5, when he was served with a police summons. After he. had received t.he summons he went again to the company’s office, tilled in a form, and signed it. Cross-examined, witness said lie did not call at the insurance company soon after the accident because lie considered it was Cleary's duty. Constable 11. J. Carseldine said he served a summons on Hawke personally on February 5.

j His rionour, arrer reviewing the | evidence, said lie could place no rcj liance on the evidence of the defendant and bis witnesses. II seemed clear that defendant' bad not observed the statutory requirement lu notify llioj accident immediately. II was reI markable that although Hawke placed the lime of his visit, to Hie company's office some time in January actually the lime was in March. Judgment was l hereupon entered for the plaintiff company for Hie full amount claimed with costs. Till 'sts cured at a Farthing a mass1/- bottle ••Price's" Fruit Extract makes gallons delicious cordial. 1