Plaintiffs failed to establish theft of the vehicle under the insurance policy, leading to the dismissal of their claim.

Headnote:(A) Insurance Act, 1996 – Policy Conditions – Onus of proof – The Plaintiffs failed to establish that the loss of the motor vehicle constituted theft as defined under the Policy, resulting in the repudiation of their claim by the Defendant. (Paras 12, 20, 21, 38, and 49)

(B) Evidence Act 1950 – Burden of proof – The burden lies with the Plaintiffs to prove on a balance of probabilities that the vehicle was stolen, which they failed to demonstrate through adequate evidence. (Paras 11, 18, 38)

(C) Appeals – Standard of review – An appellate court exercises caution to intervene in findings of fact made by the trial court unless those findings are plainly wrong. (Paras 14, 16)

Facts of the case: The Plaintiffs, as administrators of the estate of Tay Guan Song, claimed against the Defendant for the insured value of a missing vehicle. The Magistrate Court dismissed their claim due to lack of evidence proving theft. (Paras 3-11)

Findings of Court: The Magistrate Court held that the Plaintiffs did not meet the burden of proof required to establish that the car was stolen. (Paras 12, 20)

Issues: The primary issues were whether the Plaintiffs proved that the vehicle was stolen and if they complied with policy conditions regarding claim submission. (Paras 9, 37)

Ratio Decidendi: The court ruled that the Plaintiffs failed to demonstrate that the vehicle was taken without consent, which is necessary to qualify for theft under the terms of the insurance policy. (Paras 20, 28)

Result: Appeal dismissed.

JUDGMENT

Quay Chew Soon JC:

[1] This is an appeal against a judgment of the Magistrate Court which dismissed the Appellants' claim after a full trial. I dismissed the appeal. These are the grounds of my decision.

[2] The parties shall be referred to as they were in the Court below. Where the Appellants were the Plaintiffs and the Respondent was the Defendant ("D").

Background

[3] The Plaintiffs are the administrators of the estate of one Tay Guan Song ("Deceased") pursuant to the Grant of Letters of Administration dated 2 October 2018. The 1st Plaintiff ("P1") is the wife of the Deceased. The 2nd Plaintiff is the father of the Deceased.

[4] The Deceased passed away on 3 July 2018. He was found dead at Block B-19-01, Changkat View Condominium, Segambut, Kuala Lumpur ("Condominium").

[5] At the material time, the Deceased is the registered owner of motor vehicle No WXQ 8399 ("Car"). The Car was insured with D at an agreed value of RM85,000 under an insurance policy issued by D ("Policy").

[6] The Car purportedly went missing around June or July 2018. P1 lodged two police reports (collectively "Police Reports") on 22 August 2018 ("1st Police Report") and 1 September 2018 ("2nd Police Report") respectively regarding the missing Car.

[7] On 13 September 2018, P1 submitted a claim form dated 5 September 2018 to D with regard to the missing Car. On 3 January 2019, D repudiated the Plaintiffs' claim. The Plaintiffs appealed to D on the decision to repudiate the claim. On 16 May 2019, D rejected the Plaintiffs' appeal.

[8] On 21 June 2019, the Plaintiffs appealed to the Ombudsman for Financial Services ("Ombudsman") in regard to the repudiation. The Plaintiffs' appeal was rejected by the Ombudsman on 11 September 2019. The Ombudsman concurred with the stand taken by D to repudiate the claim.

[9] D took the stand that the Plaintiffs were late in filing their claim in breach of cls 2(a) and (c) of Section E of the Policy. Further, P failed to furnish proof that the Car was stolen, as per the recommendation of the Ombudsman.

[10] The recommendation of the Ombudsman reads:

"9. Premised on the above, it is clear that there is no evidence that the said vehicle was stolen. In order to establish theft, the Claimant must prove that the said vehicle was taken out of the possession of the owner without his consent, as per s 378 of the Penal Code. Although, it appears that the said vehicle is missing, it cannot be proven that it was stolen, ie taken out of the possession of the owner without his consent. The proximate cause of the loss of the said vehicle cannot be established and therefore, it cannot be proven that it falls within the ambit of theft."

[11] The Plaintiffs filed a suit against D in the Kuala Lumpur Magistrate Court vide suit No WA-A72NCvC-7394-10/2019 claiming for a sum of RM85,000 and for cost and interest. On 30 July 2020, the Magistrate Court dismissed the Plaintiffs' claim with cost of RM6,200. Hence, the Plaintiffs filed this appeal.

Findings of the Magistrate Court

[12] After a full trial, the learned Magistrate ("MCJ") concluded that the Plaintiffs had failed to prove their claim against D on a balance of probabilities. The MCJ made the following findings in her Grounds of Judgment:

(a) referring to ss 11 and 102 of the Evidence Act 1950 and the High Court case of Kesang Leasing Sdn Bhd v. Tetuan Zul Rafique & Partners(sued as a firm) [2014] MLRHU 1440; [2015] 7 MLJ 573, the burden of proof lies on the person who asserts. The Plaintiffs must prove that their claim is more probable through the production of evidence and calling of witnesses.

(b) clause 1(a)(vii) of Section A of the Policy stated that the insurance cover was for 'burglary, housebreaking or theft'. The contra proferentem rule submitted by the Plaintiffs was inapplicable as the Policy specifically covered for 'theft'.

(c) although exhibits P5 (letter to Dewan Bandaraya Kuala Lumpur ("DBKL")) and P6 (letter to Majlis Bandaraya Shah Alam ("MBSA")) were addu

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