PUTRAJAYA: The Court of Appeal upheld the Sessions Court's decision ordering a continental car distributor to pay RM90,000 in damages to a company for the loss of use of a new but defective Volkswagen Polo Sedan 1.6.
A three-judge panel, led by Datuk Ravinthran Paramaguru, also ordered FA Wagen Sdn Bhd to pay Poratha Corporation, the purchaser of the car, RM15,000 in costs.
The panel, which included Datuk See Mee Chun and High Court Judge Datuk Wan Ahmad Farid Wan Salleh, rejected FA Wagen's attempt to introduce a legal argument not previously addressed in lower courts.
FMT reported that the issue FA Wagen sought to raise was whether Poratha, which purchased the car, could reject the car after it was repaired and fit for delivery.
In 2020, then Sessions Court Judge Mabel Sheela Muttiah ruled that Poratha had proved its case against FA Wagen on a balance of probabilities and allowed RM88,300 for the loss of use of the car; RM1,779 as special damages, interest and costs.
The High Court dismissed FA Wagen's appeal by the High Court on May 6, 2021.
The facts of the case read that Poratha's manager had purchased the car for about RM105,000 for his wife's use in 2013.
Poratha took delivery of the car a month later but it ran into mechanical faults and defects and could not be used between Sept 27, 2013 and March 17, 2016.
The car was left to be repaired at FA Wagen's service centre and Poratha was forced to hire another car at RM200 daily from Oct 15, 2013 to March 13, 2016.
As the car was still under warranty, FA Wagen was obligated to conduct repairs and rectify the defects to be roadworthy.
Mabel, in her judgment, said the evidence of two witnesses and on the documents produced at trial showed there were real and fundamental defects to the car which FA Wagen had failed to rectify within a reasonable time.
She said she found that Poratha had sustained losses as it had to service the car's hire purchase instalments without being able to use it.
The Consumer Protection Act 1999 provided for an implied guarantee that the goods supplied to a consumer shall be of acceptable quality, she said.
Mabel found that the car was not of "acceptable quality" and "fit for purpose" as required under the law, saying that the car's gearbox and engine mounting were defective while its battery and tyres also had to be replaced shortly after purchase.
She also found the car to be unsafe because of a defective brake disc that caused it to judder whenever the brakes were applied.
She said the driver's seat was also faulty as it could not be locked into place while the car's air-conditioning system was also found to be faulty.
FA Wagen, she said, had failed to call an expert on Volkswagen cars to prove its defence in the case.
Mabel had called for the government to push through the "lemon law" to allow purchasers of cars and other consumer goods to obtain compensation for products that repeatedly fail to meet quality and performance standards, noting that Singapore has enacted similar legislation.
Lawyers P.S Ranjan, A. Kailesh and Luqman Firdaus Yunus stood for Poratha while FA Wagen was represented by Shannon Rajan and R. Laarnia.