Kumar v Carpenters Motors [2007] FJMC 29; Civil Case No 112 of 2004 (7 December 2007)

IN THE RESIDENT MAGISTRATES COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 112 OF 2004

BETWEEN:

RAJENDRA KUMAR s/o Krishna Murti
PLAINTIFF

AND:

CARPENTERS MOTORS
DEFENDANT

Counsel for the Plaintiff: Mr Penaia Samusamuvodre
Counsel for the Defendant: Mr Donald Gordon

Date of Hearing: 21/11/07
Date of Judgment: 07/12/07

JUDGMENT

[1] The plaintiff carries on business under the name and style of Arkay Enterprises.

[2] This claim was filed on 31/08/04 and the plaintiff’s solicitors described the plaintiff as Rajendra Kumar when his name was Rajendra Naicker and this led to the defendant’s solicitors pleadings amongst other things, privity of contract and locus standi and despite a reply being filed to the statement of defence the plaintiff’s solicitors did not pick up the error until the date of the hearing. This kind of error is inexcusable. On the hearing date I granted leave to the plaintiff’s solicitors to rectify this and the claim was amended accordingly.

[3] The plaintiff bought a Nissan Terrano motor vehicle registration number EL 033 for a sum of $25,000.00 (not $26,000.00 as stated in the statement of claim) after having traded in his Nissan Sunny for $9,500.00 on 04/06/04. This motor vehicle had an automatic transmission.

[4] The plaintiff test drove the motor vehicle before the purchase and at the time of the purchase he was given a warranty marked as Exhibit P1.

[5] The warranty was for a period of three months or 6,000 km. The warranty stated "what is not covered" which includes the following:

1. Tyres and any other rubber component.

2. Accessories.

3. Normal maintenance service such as wheel balancing and alignment, engine tune up, headlight adjustment, replacing of light bulbs, spark plugs, distributor points, drive belts, clutch disk, brake shoes and pads, filters, wiper blades, lubricants, coolant, antenna, and normal wear and tear.

4. Damage of failure resulting from:

❖ misuse, accidents, theft or fire.

❖ use of improper or dirty fuel, fluids or lubricants.

❖ lack of proper maintenance services.

❖ alteration or improper repair.

❖ repairs not performed by Carpenters Motors or authorized agent.

❖ normal deterioration, damage caused by act of nature and other environment conditions.

❖ any vehicle on which the odometer reading has been changed or tampered.

❖ incidental or consequential damages such as loss of use of the vehicle inconvenience or commercial loss.

[6] The coverage of warranty is as follows:

"Unless otherwise specified, this warranty is for mechanical breakdown and provided the terms of the warranty are complied with, it covers spare parts and labour at the manufacturer’s list prices for parts and labour cost necessary incurred in rectification of those items covered by the warranty. Any consequential failure of a mechanical part as a direct result of failure of another part that is covered, by warranty is also covered, regardless of the exception below."

[7] Mechanical breakdown is defined as follows:

"Mechanical breakdown is deemed to mean the prohibitively premature failure – that is breakage unserviceability or inability to operate properly through excessive wear – of one or more of a vehicle mechanical parts, which are subject to warranty such as to have been unforeseen or unforeseeable by the buyer, be the failure accidental or inadvertent or not."

[8] The plaintiff drove the motor vehicle and it was emitting excessive smoke. He took the motor vehicle back to the defendant as it continued to emit excessive smoke.

[9] He was advised by Vinod Kumar (DW1) the defendant’s foreman to change the air filter and he changed the air filter and despite that it still continued to emit excessive smoke and the plaintiff again went back to the defendant after a couple of days and complained about the excessive smoke. He was sent to the defendant’s garage to have the motor vehicle checked on the diagnostic machine. He was unable to have the motor vehicle checked as the diagnostic machine was not working so the motor vehicle was given to him and he continued to use it.

[10] He drove the motor vehicle to Suva and on his way back at Sigatoka the motor vehicle’s speed reduced and the plaintiff was only able to travel at 20-30 km/hr. He had to drive at that speed as it was night time.

[11] On 24/06/04 he took the motor vehicle back to the defendant. The motor vehicle had only clocked 1,589 km since purchase (mileage at the date of purchase – 80,155). He complained that the motor vehicle was not changing gear on drive.

[12] The defendant refused to repair the motor vehicle and advised the plaintiff the warranty did not provide the cover as clutch was not part of the warranty.

[13] The defendant tendered Exhibit D1 which states when the motor vehicle was handed in and other details. There are two pages to Exhibit D1. On page 1 it is stated:

"Advised customer that clutch wear out is not part of the warranty."

[14] Vinod Kumar initially stated that he prepared Exhibit D1 and subsequently in cross-examination he said it was prepared by Ashneel Kumar and in re-examination he said it was written on his direction.

[15] Vinod Kumar said he drove the motor vehicle and told the plaintiff and I quote him "That may be the gear box is gone." He also said quite emphatically that he found the problem and there was no need to open the gear box. But page 2 of Exhibit D1 reads as follows:

"The vehicle registration EL 033 was brought into workshop with a complain of improper gear engagement. Upon testing (Test Drive) it was found that the problem is internal that is further inspection of the transmission is required.

The transmission is to be removed, dismantled various clutches, valves, passages, bands, gear are to be inspected and tested for wear and tear.

Upon inspection we can give a proper evaluation of the cause of clutch slipping and improper gear engagement".

[16] The defendant’s warranty stated that for designated period of time and for specific mileage, they will repair and replace parts which prove defective. The defendant refused to effect repairs to the motor vehicle as it claimed that the problem was not part of the warranty.

[17] The onus rests on the defendant to establish that the defect was not covered under the warranty. The defendant has failed to establish this onus. Page 2 of the Exhibit D1 is in direct conflict with page 1. I am unable to understand as to how the plaintiff was advised that the clutch was the problem and he was not covered for that when page 2 states that the problem can only be ascertained when the gear box is removed and dismantled. The defendant has in my view acted in a very high handed and unreasonable manner.

[18] When the plaintiff took the motor vehicle from the defendant his mechanic Prameshwar found out that a bolt was missing and the converter was not fitted in properly and it was forced in.

[19] Vinod Kumar’s evidence leaves a lot to be desired. He said that if the converter was damaged the motor vehicle would not move and this is in direct conflict with the evidence of Norman Williams (DW2) who said that the motor vehicle would move but it would have abnormal behavior like jerking.

[20] In the circumstances I hold that the plaintiff’s motor vehicle was covered under the warranty and the plaintiff is entitled to costs of replacement of air filter in the sum of $63.90 and cost of replacement of the gear box and labour cost in the sum of $2,750.00 and loss of income at a conservative rate of $50.00 per day for 24 days (24/06/04 – 21/07/04) is $1,200.00.

[21] The other interesting observation about Exhibit D1 is the note – "not covered as advised by Ajay Lal."

There is no evidence to show that he ever saw the motor vehicle. He just went on the strict wordings of the warranty.

[22] Despite the obvious conflict within Exhibit D1 which was a document in the defendants possession the defendant continued to contest this case and the plaintiff in my view is entitled to cost at higher level rather than costs on solicitor client basis. This matter has been before the Court since 22/09/04 and I summarily access costs in the sum of $3,000.00 against the defendant in favour of the plaintiff.

Result

[23]

Replacement of air filter	$ 63.90
Replacement of gear box and labour cost	$2,750.00
Loss of income	$1,200.00
Cost	$3,000.00
TOTAL	________
	$7,013.90

[Mohammed S. Khan]
Resident Magistrate

07 December, 2007