‘Firms cannot be expected to overcompensate consumers’

2013-10-15 00:00

A PIETERMARTITZBURG motorist is locked in a dispute with a car dealership following an accident on the premises in a case that offers interesting insight into consumers’ rights to recourse and businesses’ responsibilities in terms of the Consumer Protection Act.

Adriaan Marillier was collecting his 2010 VW Polo from the VW Barons dealership in the city where it had been repaired when he witnessed a staff member crashing it into another customer’s Audi on the premises. The cost of the damage was estimated at R30 000.

“It was clear to me that these representatives were speeding. This was also the sentiment of other VW personnel who witnessed the accident. Nevertheless, I was in an extreme hurry and insisted on a courtesy vehicle as I needed to go,” Marillier said.

However, dealer principal Ryan Delaney said the staff in the two cars had been driving at an estimated 20 km/h and described the incident as an “unfortunate accident”.

Marrilier said the front bumper and fenders had been pushed up into the engine compartment and the bonnet had been bent up, half way above the engine.

“They tried to drive it out of the way but the wheels made a terrible sound. It looked bad,” Marillier said.

He said two days after the accident, when he had not heard from the dealership, he went into the branch to complain.

“The service representative who crashed my car advised that my car was with an approved panel beater to be repaired,” Marillier said.

He said he was left with no option but to accept the dealership’s assessment that his car was not a write-off.

“Why do I have to accept a car back that has now been in a crash? Everybody knows that once a vehicle is in a crash it loses value automatically,” he said.

Marillier said he was stuck in a “lose-lose situation”.

“If they repair the car, it has still lost value. If I trade it in to purchase another vehicle, I still lose as I now have to outlay additional capital,” he said.

“All I am expecting is to be placed financially or otherwise in the same situation as prior to the crash.”

Marillier claimed that Delaney had advised him that the dealership did not have to fix the car, but was doing so “as a favour” since its repair agreement contained a clause where it had waived liability for damage.

However, when asked about this Delaney denied it, saying the dealership’s agreements contained no such clause.

Delaney said the damage to both cars was cosmetic and the manufacturer-approved panel beaters had not noted any structural damage.

“Whilst we do try and take every precaution to ensure the safety of vehicles at our dealerships, due to the nature of our business, there are occasions where accidents unfortunately occur.”

Delaney said the dealership had provided both customers with courtesy cars and had undertaken to pay for the repair of both cars.

“The repairs will be to manufacturers’ specifications to ensure the vehicles are returned to the clients in the same condition that they were received,” Delaney said.

“We will continue to look for ways to reduce the risks within our business to minimise the chance of this sort of incident in the future.”

However, Marillier remained unhappy with the solution, concerned that the car’s value had dropped.

Delaney then suggested that Marillier trade in his VW Polo for a similar car, or that he sell it to the dealership, which would add the price difference if the value had indeed dropped.

At the time of going to print Marillier had not made a decision whether to accept the offers or to complain to the Retail Motor Industry or the Motor Industry Ombudsman.

However, Gary McCraw, director of the National Automobile Dealers Association of the Retail Motor Industry, said the consumer had been offered fair recourse and it was unlikely the courts or the ombudsman would rule differently.

He said companies could not be expected to overcompensate and enrich consumers by, for example, providing a new or better car.

“The dealer is being fair as he has repaired the damage and is putting him [Marillier] in the position he was in before the accident,” McCraw said.

And according to the CPA, any supplier that has possession of a consumer’s property “in the handling, safeguarding and utilisation of that property must exercise the degree of care, diligence and skill that can reasonably be expected” of someone managing another person’s property “and is liable to the owner of the property for any loss resulting from a failure to comply”.

McCraw added that some dealerships still used waivers of liability for damage in documents customers are asked to sign when dropping off cars for repairs. But most were moving away from this due to this requirement of the CPA.

The CPA also forbids suppliers from asking consumers to assume obligation or waive their rights to claim for damages, rendering such clauses useless even if they are used.

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