PERISIC v FURQAN & ANOR (Civil Dispute)
[2019] ACAT 75
•9 August 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PERISIC v FURQAN & ANOR (Civil Dispute) [2019] ACAT 75
XD 1544/2018
Catchwords: CIVIL DISPUTE – ‘Uber’ agreements – comprehensive insurance for vehicles driven under an Uber agreement – implied terms of indemnity in motor vehicle comprehensive insurance
Tribunal: Senior Member A Anforth
Date of Orders: 9 August 2019
Date of Reasons for Decision: 9 August 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1544/2018
BETWEEN:
JOZO PERISIC
Applicant
AND:
NAEEM FURQAN
Respondent
MURTAZA AMEER
Third Party
TRIBUNAL: Senior Member A Anforth
DATE: 9 August 2019
ORDER
The Tribunal orders that:
1. The respondent is to pay the applicant the sum of $2,472.61 on or before 30 September 2019.
2. The third party is to pay the respondent the sum of $2,472.61 on or before 30 August 2019.
The Tribunal notes that:
If the third party or his insurer pays the applicant $2,472.61 on or before 30 September 2019 then it shall operate in discharge of both orders.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Summary
1. The applicant was the owner of a red Subaru wagon registration YCR55Y. It was involved in a collision with a Toyota on 23 October 2018 at the intersection of Hayden and Ginninderra Drives in Bruce, ACT. At the time of the accident, the Toyota, owned by Mr Murtaza Ameer (the third party), was driven by Mr Naeem Furqan (the respondent).
2. The accident was an uncomplicated rear end collision in which the respondent drove into the rear of the applicant’s car.
3. The respondent hired the Toyota from the third party under an ‘Uber’ agreement whereby the respondent was able to use the vehicle for commercial ride share work.
4. The accident was reported to the Police by the applicant a week after the accident. It seems that either the applicant gave the Police the wrong details concerning the colour and registration of the vehicle being driven by the respondent, or the Police incorrectly obtained and recorded this information for themselves. The Police recorded the respondent’s vehicle to be a white Toyota registration YFC49F whereas it was in fact a red Toyota Camry registration YIF88B.
5. The Uber agreement provided for the third party to take out comprehensive insurance which occurred. That insurance listed the respondent as an insured driver. For reasons unknown to the Tribunal the third party has not lodged a claim with his insurer notwithstanding that the respondent has paid $1,000 for any excess on the claim.
6. The applicant sought to activate his own insurance with the NRMA but the claim was declined because of the uncertainty about the identity of the Toyota car that was in the wrong.
7. In the end the Tribunal was satisfied that the car driven by the respondent was a red Toyota YIF88B and that the third party held valid comprehensive insurance over the vehicle which would cover the present damage to the applicant’s car.
8. The respondent was liable to the applicant for the damage caused by his own negligence. The third party was liable to indemnify the respondent under the terms of the Uber agreement whether or not the third party chose to lodge a claim with his insurer.
The procedural history in the Tribunal
9. The applicant lodged an application with the Tribunal on 15 November 2018 claiming the cost of repair to his car, naming Mr Furqan as the negligent driver and respondent. The claim was for $2,398.61 plus the $74 Tribunal lodgement fee.
10. The application annexed:
(a) a letter of demand dated 7 November 2018 from the applicant to Mr Furqan. The letter asserts that the respondent’s vehicle was a white Toyota registration YFC49F;
(b) a quote from Marko Body Repair Pty Ltd dated 1 November 2018 in the sum of $2,398.61; and
(c) an Access Canberra report indicating that the accident was reported to the Police but no action was taken. The report refers to a red Subaru Wagon registration YCR55Y and a white Toyota registration YFC49F as the vehicles involved in the accident.
11. On 7 December 2018 the respondent filed a response. He said he was renting the car from the third party at $270 per week that was to include insurance. He did not deny responsibility for the accident but said it was an insurance matter for the third party.
12. On 15 January 2019 the respondent issued a Third-Party Notice joining Murtaza Ameer to the proceedings. Mr Ameer was said to be the owner of the Toyota and therefore the person able to submit a claim on the insurance of the Toyota. The Notice asserts that the respondent paid $1,000 cash to the third party to cover the excess on the third party’s insurance claim.
13. On 26 February 2019 the matter was before the Tribunal for a conference. The applicant and respondent both appeared, there was no appearance of the third party. Directions were made for the filing of witness statements and for the third party to respond to the claim against him.
14. On 8 March 2019 the respondent filed a statement. He admitted the rear end collision and did not deny responsibility. The respondent said that he had rented the Toyota from the third party for a month under an ‘Uber’ agreement. Implicitly, the rental began around 1 October 2018 and the car was returned to the third party on 31 October 2018. The respondent said he reported the accident to the third party who told him that there was no insurance on the Toyota. The third party told the respondent that he would take care of the damage to the applicant’s car if the respondent paid $1,000 towards the excess on the claim. The third party said he would have the work done by his own mechanic. The respondent paid the $1,000.
15. The respondent annexed:
(a) a copy of a Certificate of Inspection of a red Toyota Camry registration YIF88B, dated 2 January 2018 which contains the annotation ‘ride share vehicle;’
(b) photos taken at the site of the accident including photos of the rear end damage to the applicant’s Subaru and front-end damage to the red Toyota registration YIF88B;
(c) a letter of demand from the applicant dated 12 March 2019 stating that the respondent’s vehicle was a white Toyota; and
(d) a handwritten note signed by both the respondent and the third party stating that the respondent returned the car, registration YIF88B, on 31 October 2018 with the front end damage.
16. The matter was listed for hearing on 24 April 2019. The applicant and respondent appeared in person. There was no appearance of the third party
17. A confirmation of comprehensive insurance from an insurer called ‘Bingle’ was tendered. It provided insurance cover for the period 3 October 2018 to midnight 31 December 2018 and listed the drivers to be both the respondent and third party. This document referred to a red Toyota Camry vehicle registration YIF88B.
18. At the hearing the respondent affirmed his acceptance of responsibility for the accident. He affirmed that he had hired the vehicle from the third party and paid the insurance on the vehicle. The vehicle was a red Toyota Camry registration YIF88B.
19. The Police report in evidence said that the respondent was driving a white Toyota registration YFC49F. There was considerable discussion about how the Police Report came by this information. It transpired that only the applicant had attended the Police Station and reported the accident, and this was on 31 October 2018.
20. The applicant was initially adamant that the car that hit him was a white Toyota with registration YFC49F and not a red Toyota with registration YIF88B. He went so far as to accuse the respondent of lying to avoid responsibility. After some questioning from the Tribunal the applicant conceded that he was in error and the car that hit him was the red Toyota registration YIF88B. So much was obvious from the photos taken at the scene of the accident on the day.
21. Discussion then ensued about the date of the accident. The respondent asserted that it really happened on 31 October 2018, but the applicant and third party had conspired to date the accident on 23 October 2018 in the belief that this would influence whether there was insurance coverage with Bingle. There was no evidence for this assertion. The assertion appeared to be without substance given that the insurance cover with Bingle extended to midnight on 31 October 2018 and was for a red Toyota Camry registration YIF88B.
22. The error occurred in the description in the Police Report of the car driven by the respondent and this error was caused during the misreporting to the Police of the applicant a week after the accident.
23. The discussion then turned to the respondent’s third-party claim. It is sufficiently clear from the terms of the Third Party Notice that the respondent is asserting his right in contract under the Uber agreement against the third party.
24. The third party was on notice and did not comply with the procedural directions or appear.
25. The Tribunal is satisfied that the Uber agreement exists, and it included comprehensive insurance with Bingle. The effect of the insurance is that the third party has agreed, either expressly or implicitly, to indemnify the respondent against any claims caused by the respondent that fell within the insurance cover.
26. The Tribunal is satisfied that the third party did in fact take out that insurance cover, but for reasons unknown to the Tribunal has failed to lodge a claim with Bingle. The Tribunal is satisfied that the respondent has also paid $1,000 to the third party to cover any excess on the Bingle claim.
27. Whether the third party lodges the claim or not is irrelevant to the indemnity the third party owes to the respondent.
Consideration of the issues
28. Liability for the accident has been admitted by the respondent, and rightly so. There has no challenge to the amount of the quote from Marko Body Repair in the sum of $2,398.61.
29. The applicant is entitled to judgment against the respondent in the sum of $2,398.61 plus the $74 for the Tribunal lodgement fee giving a total of $2,472.61.
30. The respondent is entitled to judgment against the third party by way of a full indemnification of judgement awarded against the respondent in favour of the applicant.
31. The net effect is that the third party or his insurer is to pay the applicant the sum of $ 2,472.61
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Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
XD 1544/2018
PARTIES, APPLICANT:
Jozo Perisic
PARTIES, RESPONDENT:
Naeem Furqan
PARTIES, PARTY JOINED
Murtaza Ameer
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
COUNSEL APPEARING, THIRD PARTY
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
SOLICITORS FOR THIRD PARTY
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
24 April 2019
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