A three-member bench chaired by Justice Ravinthran Paramaguru said it could not accept FA Wagen Sdn Bhd’s attempt to raise a point of law not canvassed by the parties in the courts below.
The issue FA Wagen sought to raise was whether Poratha Corporation Sdn Bhd, the purchaser of the vehicle, could reject the car after repairs were carried out and it was fit for delivery.
Also on the bench which heard the final appeal on Thursday were Justices See Mee Chun and Wan Ahmad Farid Wan Salleh.
The bench also ordered FA Wagen to pay Poratha RM15,000 in costs.
Lawyer PS Ranjan, A Kailesh and Luqman Firdaus Yunus represented Poratha, while counsel Shannon Rajan and R Laarnia appeared for FA Wagen.
In 2020, then sessions court judge Mabel Sheela Muttiah said Poratha had proved its case against FA Wagen on a balance of probabilities.
The judge allowed Poratha’s claim for RM88,300 for the loss of use of the car, RM1,779 as special damages, interest and costs.
FA Wagen’s appeal was dismissed by the High Court on May 6, 2021.
According to the facts of the case Poratha’s manager had in 2013 bought the car for his wife’s use, paying approximately RM105,000 for the car.
Poratha took delivery of the car a month later, but it encountered numerous mechanical faults and defects and could not be used between Sept 27, 2013 and March 17, 2016.
The car was left at FA Wagen’s service centre for repairs, and Poratha had to hire another car at RM200 a day for use from Oct 15, 2013 to March 13, 2016.
Still under warranty, FA Wagen was obligated to carry out the repairs and rectify the defects for the car to be roadworthy.
In her judgment, Mabel said that based on the evidence of two witnesses and on the documents produced at trial, there were real and fundamental defects to the car which FA Wagen had failed to rectify within a reasonable time.
She found that Poratha had sustained losses as it had to service the car’s hire purchase instalments without being able to use it.
She said the Consumer Protection Act 1999 provided for an implied guarantee that the goods supplied to a consumer shall be of acceptable quality.
Mabel found that the car was not of “acceptable quality” and “fit for purpose” as required under the law. She said the car’s gearbox and engine mounting were defective. 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. The driver’s seat was also faulty as it kept moving because it could not be locked into place. The car’s air-conditioning system was also found to be faulty.
The judge also found that FA Wagen had failed to call an expert on Volkswagen cars to prove its defence in the case.
In a passing remark, she 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.