Isoquant Investment v C. Gambiga

### Preamble
1
HH356-13
HC 6211/10
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ISOQUANT INVESTMENT

versus

C. GAMBIGA

HIGH COURT OF ZIMBABWE

DUBE J

HARARE 18, 24 July 2013 & 16 October 2013

Trial Action

Mrs R Matsika, for the plaintiff

M.E. Motsi, for the defendant

DUBE J. The plaintiff claims $4 169.00 arising from repairs effected on the defendant’s vehicle, a Mercedes Benz registration number ABJ 4144. The salient facts of this matter are that sometime in 2009 the plaintiff repaired and supplied spare parts to the defendant’s vehicle.  The defendant paid for the repairs leaving a balance of $4 169.00.  In this action, the plaintiff claims the outstanding balance.

The defendant avers that the claim arises out of repairs that were carried out to correct the plaintiff’s poor workmanship. He denies the claim and counter claims in the sum of $28 403.00 being expenses incurred in rectifying the plaintiff’s poor workmanship and materials. The defendant’s counter claim is broken down as follows:

The sum of $2 434.00 which he incurred in rectifying the plaintiff’s poor workmanship.

The sum of $5 000.00 in loss of the use of the motor vehicle whilst in the custody of the plaintiff and

Payment of US $20 969.00 being the replacement value of the Mercedes Benz engine.

The plaintiff called 4 witnesses in support of its case.  First to testify was Mr. Michael Kadzombe, plaintiff’s Senior Sales Estimator. His evidence is as follows. He is a qualified panel beater/spray painter.  His duties involve doing estimates for damaged vehicles and quality control.  The repairs to the vehicle were carried out by a team of technicians who work under his supervision.  That team includes a mechanic and an auto electrician.  He prepared a quotation for the cost of effecting repairs on the defendant’s accident damaged vehicle.  The following parts were damaged, the front bumper, bonnet, headlights, radiator, condenser, water pump, expansion tank, radiator cap, water pump, power steering pump, and bonnet grill. The vehicle was brought and parked for some time in their yard and later defendant towed it away from their premises. The defendant brought it back about a year later in June 2009 when repairs commenced. All the damages were attended to and spare parts supplied. The radiator cap was replaced initially as it was damaged from the impact.   An original radiator and cap were put and an on anti – freeze coolant put to clean the radiator and other channels that cool the vehicle. The plaintiff renewed every part which was damaged which was to do with the cooling system, thus radiator hose, radiator and cap, expansion tanks, water pump, blower and pulleys.   A radiator’s lifespan depends on the user and if properly serviced, can stay for a long time.  He explained that overheating is caused by the absence of a coolant in the system.  A warning appears on the dashboard before this occurrence and the defendant is expected to have noted this. A pressure test on the cooling system was done. This involved loading pressure into the cooling system. If there are any leaks water will leak through the pipes and gaskets. He was satisfied that the repairs which were done were in order and gave the vehicle was given  back to the defendant. Before defendant collected the vehicle it was road tested by him.

Defendant was charged $34 204.00 and he collected his vehicle in August 2009.  The defendant came back with the vehicle and complained about the lower control arm. There had been no indication during the initial repairs that the control arm and strut were damaged and the garage had not attended to it as the damage was not visible to the eye.  He had carried out a wheel alignment after the repairs, and if there had been any defects to the control arm or suspension these would have been revealed at testing. The ball joints mounted onto the control arm collapse because of wear and tear or impact with a pothole. Damage to this part depends on the condition of the road and how the driver uses the vehicle. The ball joint in the spring arm failed after the initial repairs. The vehicle was repaired and given back to defendant.

The vehicle was brought back for the third time and the defendant complained about the air conditioning system. The air conditioning compressor was not damaged when the vehicle was initially repaired. After the repairs, they filled it with gas and there were no leakages. The indications were that the air conditioning system was working properly after the first repairs because it was cooling the air and there was no information on the dashboard that there was anything wrong with the vehicle.  It was only possible to detect that the system was faulty when the vehicle starts running. When he test drove the vehicle it did not reveal problems with the air conditioner.  There was no indication of any fault with the camshaft and exhaust solenoids.  The problem was only detected when the defendant brought back the vehicle. The vehicle was attended to and given back.

The defendant brought back the vehicle again with the problem of the engine light that was showing. This problem had not been detected and attended to  initially. The witness referred the problem to the German Resident Engineer. The plaintiff repaired the catalytic converters which are housed in the exhaust system.  They removed the catalytic convertors and erased the engine light which was appearing on the dashboard. A new pump was supplied and fitted and the fuel tank cleaned. They had not initially attended to the pump. Any fault with the pump could be attended to only after the vehicle became mobile.  If the fault is there it takes time for it  to pack up and it did not pack up during the road test. There was no indication of this fault at the time the vehicle was first attended to. The vehicle was given back to defendant.

The vehicle was attended to again as per invoice under exhibit 7. They removed the catalytic convertors housed in the exhaust system and erased the engine light which was appearing on the dashboard. These had earlier not been attended to because there was no indication of the fault. The triangle was related to fuel quality.  The technicians replaced the oxygen sensor to just see if the problem could be resolved and they just erased the light but it still came on. A new oxygen sensor which had caused the breakdown was fitted. This problem had not been detected when the earlier repairs and final inspection was earned out.

The next time the vehicle was attended to was when it had broken down in Chisipite and it was returned to ZIMOCO. The breakdown had been caused by an oxygen sensor, a part which detects oxygen flow and if there are any problems with that flow, the engine light goes on.  As it was not detected during repairs and testing, it could not have been attended to earlier. A new oxygen sensor was fitted and the engine light went off.

The witness maintained under cross examination that the vehicle was in the plaintiff’s custody for an inordinate period after the accident resulting in the vehicle deteriorating.  His view is that the additional repairs were necessary repairs. He refuted that the vehicle required a new engine.  When he tested the vehicle the dashboard did not give him information that it required replacement.

The fuel pump was not attended to initially.  When the vehicle was brought, petrol was not pumping properly and this was due to the fact that the vehicle had been parked for a long time.  There was water in the tank, it was rusty.  They cleaned the tank.  When he tested the vehicle initially it did not give any information on damage to the fuel tank or pump and there was no need to repair it.

He maintained that the repairs were carried out professionally.  His explanation for the continuous problems is that the vehicle had been involved in a serious accident resulting in extensive damages and it had been parked for a long time before the commencement of the repairs.  It was difficult to identify the problems before the vehicle was mobile.  Defects were expected to manifest themselves after the initial repairs.

The witness gave clear and satisfactory evidence.  He did not waver under cross-examination.  He remained consistent with his story.

The plaintiff’s next witness was Karl Lenhardt. He is employed by the plaintiff as its Resident German Engineer.  His duties entail diagnosis, repairing and testing motor vehicles.  He supervised the diagnosis and was satisfied that the repairs done were proper.  He testified that the plaintiff uses genuine and original parts ordered from Germany.  After the repairs he tested the vehicle and he was satisfied that the vehicle had been repaired according to Mercedes Benz standards.  He also checked to see if the cooling and air conditioning system was okay.  He checked the oil and coolant levels.  He carried out visual and pressure tests on the cooling system to ensure that there were no leaks.  He lifted the car up and checked from below and there were no leaks on the coolant system, gear box or engine system.  He then went for a road test. All the systems were working properly.  Whenever there is a problem, this should show on the dashboard or visually. No light came on from the system, an indication that the vehicle was working well and there were no abnormalities or damage revealed during the road test. Because the car was twisted as a result of the accident, he checked to see if the chassis was straight

After the first repairs, other repairs were earned out.  The witness stated that the vehicle was next brought with the problem of the strut which was weak.  The strut was weak and this may be attributed to the condition of the roads used. This part was not initially attended to and there was no visible damage to it.  Everything was technicality correct.  There was no indication that the fuel pump and air conditioner were not working properly.

He denied that the vehicle was brought back because the initial repairs were not properly carried out.  He attributed the problem of the pump to the fact that the vehicle had been parked for a long time and the fuel tank became rusty.  When he initially examined the vehicle it did not give out any information that the tank had problems so he did not attend to it.  They put a new radiator and cap which was supposed to last for about 10 000 km.  If it overheated this is because the defendant neglected to put a coolant in the system.  The yellow engine light triangle is due to the fuel quality used in Zimbabwe.  They tried to diagnose the problem and failed and just erased the faults which were recorded in the control box. They did not bypass the engine light.  He denied that the vehicle required a new engine because after he tested the vehicle the dashboard did not give him information regarding replacement of the engine system and it worked well. The vehicle kept on presenting problems because it had been parked for a long time and because it was not equipped to use Zimbabwean fuel. On the overheating, the witness testified that before a vehicle presents a problem of overheating it gives a warning on the instrument panel that the coolant is too low and needs to be topped up.  The temperature gauge will be high. The defendant should have seen these warnings. He refuted that the additional repairs were necessitated by the fact that the initial repairs were not properly done. Everything was technically correct after the first repairs. The vehicle did not display any information showing any defects after the initial repairs. He maintained that the time taken to repair the vehicle was reasonable because they had to order some parts from Germany. All the problems that followed arose from latent defects which could not have been detected at the time of initial repairs. The problems after 16 December 2010 occurred because the vehicle was being used by the defendant subsequent to the initial repairs.

He impressed the court as a person who is well versed with his job.  He gave the impression that he conducted through tests of the vehicle after each repair.

The next witness was Patrick Chigogo, a parts salesman with the plaintiff. The defendant approached him and introduced himself as Mr Takundwa. He requested for a quote for a Mercedes Benz S 350 which the witness provided. The witness did not see the car. His evidence was not disputed. The last witness for the plaintiff was its General Services Manager, Collen Mann. He administers the Chrysler and Mercedes Benz workshops. He testified that the defendant did not pay for the extra repairs.  After the defendant complained that the engine was overheating, he was asked to bring the vehicle for inspection.  He failed to do so resulting in the plaintiff instituting proceedings to inspect the vehicle. He has never seen the vehicle.

The defendant’s evidence is as follows:

His vehicle was involved in an accident in 2008.  The plaintiff quoted him $35 000, 00 which he paid. The repairs took three months.  About one week after he had collected the vehicle, it started to make some noise from the front and was not stable.  He took it to plaintiff who advised him that the problem was to do with the control arm. Mr Kadzombe advised him that they may have overlooked the repair of the control arm when they did the original quote. The problem was attended to and he took the vehicle. He did not pay for the repairs because he was asked to drive it first in order to see if he was satisfied.

A week later he discovered that the air conditioner was not working.  He returned the vehicle to plaintiff’s garage and they explained that they overlooked the repair and that the car had been parked for a long time. It was repaired. He did not pay for the repairs because the plaintiff should have fixed the air conditioning system when it carried out the initial repairs. After the repairs and on his way home the engine light came on.  He returned the vehicle  and a technician advised him that the problem with the light was due to the fuel  he was using which had damaged the fuel tank and that they needed to repair the whole fuel system. He was told that Zimbabwean fuel was impure despite that the witness has used the same fuel since 2006.  He was given back the vehicle. The light was off but went on again after a few days.  The plaintiff returned the vehicle for an inspection and he was advised that it was to do with the exhaust system which was not properly burning fuel to the catalytic converters.

He collected the vehicle and the engine light was off and a few days later the engine light came on again. The plaintiff said he could return the vehicle. Whilst on his way to Zimoco, the vehicle suddenly stopped. It was towed to Zimoco. He asked for another vehicle but failed to get it. The plaintiff reported that a few sensors were not working and that the light was due to previous errors. And they bypassed the error. He collected the vehicle and drove it for a week and the light was off. One day whilst driving towards Chisipite he saw smoke coming out of the boot in front through the grill. The vehicle was boiling. He told the plaintiff that it had failed to repair his vehicle and took the vehicle to Ralvon Motors who reported that the vehicle had mixed water and oil resulting from a fault with the radiator and cooling system and the vehicle required a new engine.  They replaced the radiator cap. The plaintiff did not do a professional job as they failed to establish the real cause of the light. Some repairs were overlooked due to poor workmanship and he is not responsible for the subsequent repairs.

The plaintiff never asked him to pay for the subsequent repairs. He signed an acknowledgement of debt and was told that he should pay when he is happy with the vehicle.  He decided to get a new engine rather than continue repairing the vehicle and got a quote for an engine from Zimoco for $24 000, 00. Later he sold the vehicle for $30 000.00. It was still running with the problems still persisting.

The following issues were referred to trial,

“1. Whether or not the plaintiff failed to effect repairs on the defendant’s motor vehicle registration number ABJ 4144 in a proper and workman like manner

2. Whether or not the defendant is indebted to the plaintiff in the sum of US$4 169.00 for the repairs that were effected on the defendant’s motor vehicle.

3. Whether the plaintiff is indebted to the defendant in the sum of $28 403.00”

It is common cause that the first set of repairs was carried out after consultation with the defendant and on his instructions. The plaintiff carried out further repairs to the vehicle and the subsequent repairs were not quoted and attended to at the time of the initial repairs. It is these subsequent repairs that the defendant takes issue with.

The defendant did not pay for these repairs. The plaintiff’s case is that the vehicle was left idle for a long time after accident. The plaintiff contended that this state of affairs could have caused the vehicle to deteriorate. The plaintiff’s witnesses explained that the vehicle had been badly damaged in an accident and because most of these defects were not visible to the naked eye and could only be detected after the vehicle became mobile, they were unable to detect some of the problems. The repairs that they quoted were those that were visible to the eye or thought necessary. The other reason why problems kept occurring with the cooling system, pump and in other areas is because the vehicle had been parked for a long time. These problems only became visible when the vehicle became mobile. The plaintiff contends that it was justified in charging for the repairs. The engine light that kept on appearing on the dashboard was due to the type of petrol used in Zimbabwe and they acknowledged that they had failed to resolve that problem.

The evidence discloses that the repairs to the defendant’s vehicle were carried out by a highly experienced and qualified team of technicians and engineers. There were quality control measures put in place in order to ensure that the vehicle was properly repaired. It would be tested on every occasion it was repaired. The plaintiff’s explanation was supported by expert evidence. Mr Lenhardt is an expert in this type of vehicle and has been a technical engineer with Mercedes Benz for over 41 years. He is highly experienced and qualified and has a master’s degree in mechanical engineering. He testified that he supervised the diagnosis and repair of the vehicle. Mr Kadzombe was clear that he is a trained spray painter\panel beater and also supervised the team that carried out the repairs He is an experienced estimator and is qualified by virtue of his experience to carry out an estimate of the vehicle repairs. He trained in house. He was clear that the diagnosis of the vehicle was done by technicians and the German resident engineer. He did the testing of the vehicle and quality control He explained that quality control is not difficult as the problems present themselves on the instrument panel. He acts as the mouth piece of the technicians. Mr Hativagoni may have been involved in the repairs of this vehicle. In fact evidence was led to the effect that a team of technicians, auto electricians and mechanics were involved in the repair of this vehicle. It was not practical to call everyone. I am satisfied that the personnel that dealt with this vehicle were well qualified. The plaintiff’s evidence regarding the cause of the problems and whether they performed a good job simply went unchallenged. The plaintiff’s explanation for failing to detect some of these problems was not rebutted by any expert evidence.  The defendant was unable to adduce expert evidence to show that the problems that kept on emerging were due to poor workmanship.

The defendant claims that the engine was damaged by overheating. That efforts to repair the vehicle were not making any commercial sense and he decided to sell the vehicle. The defendant did not call witnesses from the garage which formulated that opinion. No sufficient evidence was led to convince the court that the engine had deteriorated to the extent that it required a new engine. In fact the vehicle was sold with the same old engine and it was mobile. No expert witness was called from Ralvon Motors who attended to the car to testify on the poor workmanship. The plaintiff’s position that the engine and radiator system did not require any replacement is more convincing.

The defendant did not cooperate when he was requested to bring in the vehicle for inspection by the plaintiff. The plaintiff’s request to check and inspect the state of the vehicle at the time the allegations of poor workmanship arose was ignored.  A court order to this effect was sought to no avail.  Although the defendant was served with a copy of the order through his legal practitioners, he failed to comply with it. The order was made well before the vehicle was disposed of by sale.  It is surprising that the defendant would sell the vehicle when it was the subject of court proceedings and when he was aware that the vehicle was required for purposes of verifying his claim.

The technicalities of this case required that someone with the requisite qualifications and expertise be called to comment on whether or not the plaintiff did a professional job. Once the plaintiff led expert evidence over what repairs it carried out and the cause of the problems the defendant was required to rebut that evidence. It is imperative in any case involving poor workmanship, that a complainant call experienced qualified personnel in the same field to address the issues of poor workmanship. Motor vehicle repair claims based on poor workmanship can simply not be proved without expert opinion evidence. This was not done in this case and this has proved fatal to the defendant’s case.

The defendant has failed to show that the subsequent repairs were necessitated by the plaintiff’s poor workmanship. The plaintiff’s evidence shows that the repairs were not initially quoted and paid for. The plaintiff carried out these repairs and is justified in claiming for that service.

The defendant claims $2 434.00 which was allegedly incurred in rectifying the plaintiff’s poor workmanship when the vehicle allegedly overheated. The claim is in respect of a radiator and cap, radiator hose, and continuous belt purportedly replaced by Ralvon Motors. The defendant was unable to satisfactorily explain why it was necessary to replace the radiator filter by Zimoco. This is in light of the plaintiff’s evidence that they had put a new radiator which was expected to last for about 10 000kms. No explanation was advanced as to why the radiator was replaced when the one replaced by the plaintiff was still under warranty.  The plaintiff could have replaced that radiator. The cost of the replacement is much higher than that of the plaintiff. The plaintiff’s evidence on the other hand is that the cooling system was extensively repaired and tested and that it is unlikely that the vehicle overheated. The suggestion is that if it did, the defendant was negligent as he is expected to have seen the warning on the dashboard. The defendant gives the impression that the continuous belt was repaired twice by Ralvon motors. He says that it was replaced in July 2010 and he parked the vehicle and did not drive it. The invoice shows that the belt was again replaced in September 2010. The need to replace the belt within two months was not explained especially when the defendant avers that he was not using the vehicle between July and September. Or it may be that the invoices are not authentic. The defendant failed to explain why it was necessary to replace the belt twice in such a small space of time.

It would have been prudent on the part of the defendant to produce written reports or lead evidence from the mechanic who worked on the vehicle at Ralvon motors or some other expert to comment on the work carried out by the plaintiff and by itself. That evidence would have explained in detail, what the problem with the cooling system and the continuous belt was, where the problems originated from and or the likely cause of the problem.  The court is not satisfied that the claim for poor workmanship with respect to the cooling system and the continuous belt has been proved.

The next issue relates to the defendant’s claim of loss of use of the vehicle whilst it was in the custody of the plaintiff. The defendant claims $5 000.00 on the premise that he had to hire another vehicle during the time that the vehicle was off the road. No evidence was produced to show that he hired a vehicle as no proof of that expense was produced. This figure seems to have been plucked from the air .This court is ill equipped to assess the claim. As was remarked in Monumental Arts Company v Kingstone Pharmacy 1976 (2) SA 1111

“It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an in adequate factual basis, for an assessment and it is not competent to award an arbitral approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made.”

This claim fails.

The defendant has failed to show that the subsequent repairs were not carried out with the necessary skill and expertise and were necessitated by the plaintiff’s incompetence. The plaintiff is entitled to payment for the subsequent repairs.

The court is not satisfied that the defendant has proved his counter claim on a balance of probabilities.  The counter claim is dismissed.

The plaintiff is entitled to the cost of the repairs done to the vehicle on the subsequent occasions.

It is the court’s considered view that the plaintiff has proved its case on a balance of probabilities.

In the result it is ordered as follows

The defendant’s counter claim is dismissed.

The defendant to pay to the plaintiff the sum of US$4 169.00

Interest therein at the value of 5% per annum from the date of summons to the date of full and final payment.

Costs of suit.

Wintertons,plaintiff’s attorneys

Mabulala and Motsi,defendant’s attorneys