Maharaj v Sterling Services Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Seepersad, J. |
| Judgment Date | 18 April 2016 |
| Neutral Citation | TT 2016 HC 150 |
| Docket Number | CV 2015-00219 |
| Court | High Court (Trinidad and Tobago) |
| Date | 18 April 2016 |
High Court
Seepersad, J.
CV 2015-00219
1. Mr. Murphy instructed by Mr. Dick for the claimant
2. Mr. Singh instructed by Mr. Sukdeo for the defendant Date of delivery:
Contract Law - Breach of contract — Agreement for the purchase of a new Mercedes Benz motor vehicle — Vehicle returned to the defendant at least eight times for repair within 9 months — Whether the claimant was entitled to rescind the contract — Whether the vehicle was of merchantable quality — Whether the claimant had lost the right to reject the vehicle after it had been repaired.
Before the Court for its determination is the claim instituted by the claimant for damages for breach of contract and interest. Also before the Court is the defendant's counterclaim by virtue of which, the defendant sought the following reliefs:
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a. An order directing the claimant to take delivery of the vehicle.
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b. Storage for the period of July 15, 2014 to February 13, 2015 (213 days) in the sum of $21,300.00 and continuing at the daily rate of $100.00.
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c. Cost of repairs to vehicle courtesy Vehicles Skoda PCX 7373 and Mercedes Benz registration PCU 305 in the sum of $39,000.59.
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d. Costs; and
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e. Such further and/or other relief as the Court may deem fit.
The claimant and the defendant entered into an agreement for the purchase of new 2013 C 180 Mercedes Benz Motor Vehicle on or around August 2013 an agreed price of Three Hundred and Ninety Thousand Seven Hundred and Forty-Nine Dollars ($390,749.50).
Pursuant to the said agreement the claimant made the following payments:-
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a. An initial down payment of 10% or Thirty Thousand Dollars ($30,000.00) on September 27th 2013;
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b. A payment of Five Thousand Dollars ($5,000.00) on October 2nd 2013;
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c. A payment of Three Hundred and Fifty-Five Thousand Dollars ($355,000.00) on October 3rd 2013;
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d. A further cash payment of Seven Hundred and Forty-Nine Dollars ($749.00) on October 3rd 2013.
Upon receiving the final payment the defendant provided the claimant with the said Motor Vehicle.
Between the period of 12th November, 2013 to 15th July, 2014 the claimant had to return the said motor vehicle to defendant on at least eight occasions, to effect repairs.
The claimant sought to rescind the contract in August 2014.
The claimant contends that within a week of his taking delivery of the vehicle he began to hear knocking sounds from the engine, he said that he contacted Mr. Scott the Sales Agent and was advised to wait until the vehicle's service was due. The claimant took the vehicle for the scheduled service and he said that prior to him taking the vehicle it bucked in his garage. After the service the claimant contends that the loud noise persisted and the vehicle was taken back to the defendant and the defendant purported to fix the problem. When same was returned, the claimant testified that there was no improvement and the vehicle experienced power loss when ascending hills and had to be taken back to the defendant in February, March, May and July of 2014. In July 2014, hydraulic lifts had to be changed and the claimant did not, thereafter, retake possession of the vehicle.
The claimant testified before this Court and the Court found that he was a very forthright witness. His responses were very clear, cogent and direct and he instilled in the Court the unshakable felling that he was a witness of truth. The Court found no rational reason to disbelieve the claimant's version of events as it pertains to the problems that he claimed to have experienced and found that it was not plausible to hold that his complaints concerning the vehicle were the figment of his imagination.
The defendant's case was that the vehicle was extensively used by the claimant and that the vehicle had substantial mileage. On the 20th January, 2014, the defendant says that the vehicle was starting properly but its diagnostic tests revealed that a V belt and tensioner as well as four injectors had to be change but there were no injectors in stock.
On the 20th February a pulley had to be changed and on the 18th March 2014 new injectors which had previously been ordered, were placed on the vehicle. Sometime after May 2014, the alternator, pulley and belt had to be replaced and in July 2014 a diagnostic test revealed that the hydraulic elements had to be replaced.
The defendant contends that it honoured its two year warranty in relation to the vehicle and provided the claimant with two courtesy vehicles when his car was being repaired. The defendant further contends that the claimant caused damage to both courtesy vehicles and that he is responsible for the cost of the repairs.
The defendant said that all the necessary repairs were effected by July, 2014 but the claimant refused to take his vehicle and same was left in the defendant's possession and a daily rental fee of $100.00 is owed by the claimant.
The defendant called four witnesses namely:
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a. Peter Owen
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b. Sanchia Jodhan
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c. Katrina Beharry
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d. Scott Thomas Katrina Beharry
This witness's evidence was primarily in relation to the two courtesy vehicles which were supplied. Ms. Beharry stated that as far as she was aware both vehicles had fully comprehensive insurance and she knew that the insurance company had settled the defendant's claim in relation to PCX 7573. She also testified that the invoices submitted by the defendant in relation to both vehicles reflected the defendant's retail costs for parts and labour and she also said that she was aware that each customer signed an agreement prior to taking receipt of a courtesy vehicle and that the customer would not be responsible for normal wear and tear.
This witness testified that she had met with the claimant but denied the defendant's assertion that she said to him that Mercedes Benz produces a fleet of cars and ever so often one turns up defective and that it is unfortunate that he got that one however they will do their best to fix it. This witness was not heavily tested as to whether she said this. The Court found no reason to disbelieve the claimant given the Court's view that he was an extremely honest witness and therefore the Court found that it was more probable to conclude that Ms. Jodhan did in fact make the statement and the statement amounted to an acknowledgment and recognition that there were serious issues with the vehicle which were not usual.
This witness was the agent who dealt with the claimant's transaction. In cross examination he indicated that he had received several calls from the claimant and the claimant had claimed on numerous occasions that he was hearing a taping or knocking sound emanating from the vehicle.
This witness is and was at the material time the defendant's Service Manager and he outlined the events in relation to the claimant's vehicle. He stated that he became involved because the claimant had a number of complaints about the same issue and it is the defendant's policy in such a circumstance, for him as the Manager, to liaise directly with the customer. He accepted that a sound emanated from the vehicle and that this sound was recorded and the audio was placed on the system for technical support. The Court proceeded after the cross examination by Attorneys for the claimant to ask questions of this witness and the questions and his responses were as follows:
“Judge: For the period October 2013 to July 2014 did you as the service manager received complaints relative to other C180 Benz vehicles that would have been sold around October 2013?
Mr. Owen: Yes
Judge: Can you recall how many complaints you would have received about those vehicles?
Mr. Owen: I cannot recall the exact amount but I can recall the complaint.
Judge: A V belt on a v—- tensioner those are parts of the engine?
Mr. Owen: They are attachments to the engine.
Judge: And based on your experience how often are these parts required to be changed?
Mr. Owen: It would be dependent on the mileage of the vehicle I would say between 40,000-60,000 miles usually or 1 1/2 year.
Judge: That they required to be changed?
Mr. Owen: Yes
Judge: i f a belt on the belt tensioner has to be changed what effect if any would it have on the vehicle?
Mr. Owen: It would make a loud squealing noise in the instance when the vehicle is started cold especially.
Judge: According to the service record the v-belt and the v-belt tensioner for this particular vehicle was changed sometime in January 2014?
Mr. Owen: Yes
Judge: And the mileage on the vehicle was then 8,899 miles?
Mr. Owen: yes
Judge: So you would accept that that mileage was far below the 40,000-60,000 mileage mark that you just told me?
Mr. Owen: Yes
Judge: Now injectors for this engine, what do they do relative to the engine?
Mr. Owen: the injectors deliver a specific quantity of fuel to the engine, in this particular case appose to conventional type injection systems it delivers it directly to the combustion chamber.
Judge: And if an injector or several injectors are not working properly what if any would be the effect on the engine ‘s performance?
Mr. Owen: The effect would be tune related, the engine most likely would start to emit a black smoke, it would have a poor warm up phase which can also include misfiring and the engine management system would eventually pick up the cylinder that is misfiring or not performing correctly and it would show you and engine check lamp or an engine diagnosis lamp on the dashboard.
Judge: With reference to mileage and/or age what would be the parameters within which you would usually have to change injectors?
Mr. Owen: Unfortunately with injectors it's a little more difficult to assign a timeframe I'll give you an example. If the customer or the owner of the...
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