Good day,I logged a comlaint with MIOSA....

Asked by MarkusT on 24-10-2020 10:51:57
Question posted in the Consumer Protection Law category relating to Gauteng

Good day,

I logged a comlaint with MIOSA. Further down is the compaint I logged. The dealeship at first didn't respond after a couple of tries from the ombit in which the dealership said that they would respond. The ombit then sent me the following letter: 

NOTICE IN TERMS OF SECTION 70(2) OF THE CONSUMER PROTECTION ACT NO. 68 OF 2008 (CPA)Dear Mr Top. After a number of attempts to acquire a response from the supplier have failed, we conclude that there is no reasonable probability of the parties resolving their dispute through the process of conciliation and the MIOSA therefore hereby terminates the process. The complainant may now proceed to approach the National Consumer Commission to exercise his/her rights in terms of the Section 71 of the CPA.

Soon afterwards, the ombit phone me to say that they have reopened the case because the dealership's attorney has undertaken to respond now, which they then did. Their response to my complaint is below as well.

At first they accused my of driving further after stopping at the gaurage. However I produced evidence in the form of eToll pictures and log that the car was towed home and not driven as they at first alleged. They now changed their story that I should not even have driven to the closest gaurage, which seems to me unreasonable since the car was still driving and I was on the highway. The distance I drove since the car lost power to the gaurage is about 3km. In addition, they things they mentioned about the lights on the dash etc. simply did not happen as I did not seize the engine. 

My quesions are as follows:

Should I reply to the ombit and list all the holes in their story?

Should I accuse them outright of seizing the engine deliberately and blaming me for it so that they didn't have to fix the head gasket, as per the 6 months warrantee, that I suspect have blown due to a problem with the radiator. This in my opinion caused problems with the head gasket developing up to the point that it blew. They are also trying to create the impression that I drove about 1500km after they replaced the radiator. In truth, I drove that in total with the car since I bought it up to the point that I sent it back to them the last time. About 4 months.

I am also sure I would be able to get a statement from the tow truck driver that the car was still starting the morning that it was loaded onto the tow truck and sent to the dealership. Would that be helpfull?

Or do I leave it as is and hope the person evaluating the case at the ombit sees through their lies and twisting of the truth? 

MY COMPLAINT

On the 21st of March 2020, I bought a Hyuandai i20 from CMH Mazda Randburg, which started overheating soon after I bought it. On the 11th of May I sent an email to the salesman Francois Kleinveld, that the car is overheating. He responded on the 14th that I can bring it in on Monday the 17th of May, which I did. They found the radiator had a leak which they then replaced at their cost.

After that and due to the ongoing covid19 lockdown, I used the car close to my house only. However the first time I took it on the highway, on the 29th of June, it overheated again. It was not all the way in the red, but the engine did lose some power. I drove it to the closest garage and waited for it to cool down. It however did not want to start, so I phoned my wife to tow me home. At home it actually started again, but it sounded like one of the cylinders was not working. I then arranged with my insurance’s roadside assist to tow the vehicle to the dealership. When the driver loaded the car, it was still starting as I drove it from my garage to behind the tow truck to be loaded. About 20m.

After I then sent the car back, the dealership said that they suspected the head gasket blew, which was what I suspected as well, and would fix the car at their cost of R18,954. Subsequently they sent me an email that the engine has seized up completely and needs to be replaced which will cost R29,000 and it is for my account. I replied that the car was still starting when I sent it to them, so it must have seized after I sent it. The manager then arranged for a forensic report to be done on the vehicle. The report indicated that the car is now seized up, but does not specify when this occurred. After the initial loss of power, I stopped at the closest garage I could find and called my wife to come and tow me home. The following morning, I sent it to the dealership as indicated above.

They are maintaining that I drove the vehicle even after the initial loss of engine power, which I certainly did not since my wife towed me home and that they received it in a seized state, which is not true since it was still starting when I sent it that morning. I’m sure the driver of the tow truck would be able to verify that.

I agree with the report’s discussion up to this point “After breaking down, the vehicle’s engine had an opportunity to cool down and the heat seizure that had occurred had relaxed and the engine had come loose and later the customer had been able to restart the engine however, instead of summoning and waiting for a recovery vehicle to collect the vehicle, the customer had obviously elected to continue driving the vehicle until the engine overheated so badly the engine had locked up solidly and the crankshaft can no longer be rotated even when a tool with a long lever handle is applied to the nose-end of the crankshaft.”

After my wife towed me home, the engine had indeed come loose and I was able to start it again at home. I did not drive it however and left it in my garage until the next morning when I sent it with the tow truck to the dealership. I certainly did not “elect to continue driving the vehicle until the engine overheated so badly the engine had locked up solidly.” I don’t know when exactly this occurred, but I certainly did not drive it to that degree.

In addition, in my opinion, the car was defective from the start, which is evident from the report by the following: “it is my considered view that the engine’s cylinder head gasket had become severely distressed when the engine had initially begun overheating due to the coolant leakage from the radiator’s side tank seals. The damaged radiator had been replaced however, the latent damage that had manifested on the cylinder head gasket had obviously not yet developed to the point where it was identifiable through a cooling system pressure test exercise and the vehicle had been released to the customer.” In light of this and the fact that I did not seize the engine, would like to return the vehicle for a full refund.

DEALERSHIP ATTORNEY'S RESPONSE

1. We refer to the abovementioned matter and your Notice of Referral ofComplaint dated 16 September 2020 which our offices received on’20 October 2020.

2. Please note that we act on behalf of CMH Mazda Randburg (our client) hereinand we herewith respond to your abovementioned referral on our client's

instruction.

3. We confirm that you granted our client an extension and that our client’s replyis to be lodge on 30 October 2020.

4, In brief do we summarise that there is no reason for the transaction to becancelled. The fact that the motor vehicle’s head gasket had blown, and thatthe engine failed permanently, was due to the negligence of Mr Top. Mr Top

simply ignored the warning signs and decided to drive the vehicle even though

the warning lights on the dashboard would have warned him that he should

stop the vehicle.

We will now elaborate and on the above and address the complaint in more

detail further herein.

Mr Top purchased a 2013 Hyandai I20 1.4i Hatchback motor vehicle form ourclient on 21 March 2020.

On 11 May 2020 Mr Top informed our client that the car has over heated. Ourclient indicated that the vehicle should be brought in.

Our client examined the vehicle and determined that the cooling system of theradiator had started leaking coolant form the rubber seals of the radiator’s

plastic covers.

The radiator was subsequently replaced, and the vehicle was tested by our

client and the vehicle was found to be in order and was released to Mr top.

On 29 June, and after Mr Top drove approximately 1500 km over a period of38 days, Mr Top informed our client, via text message, that the engine has cut

out.

10.1. If the cause for this was the due to the previous radiator replacementthe vehicle would have had problems much sooner after the repairswere conducted. It is therefore our submission that these two matterare unrelated.

11. Our client requested that the motor vehicle be brough in to enable our clientto examine the vehicle to determine wat the problem was.

12. During the examination of the vehicle, our client conducted a cooling system

radiator pressure test and found that the cylinder head gasket had blown, and

that the engine had seized up.

13. Our client then instructed Enigma Automative Forensic Services CC to

investigate the reasons for the seized up engine and to issue a report.

13.1.

The report is attached hereto and marked as Annexure “A”.

14. The attached report purports the following:

14.1 The engine’s. multi-layer laminated steel cylinder head gasketyielded and has blown through in multiple areas, resulting incompression pressure and combustion gas pushing through past thegasket’s laminations into the engine block’s water jacket andexpelling coolant from the engine and the water jacket via theoverflow system.

14.2 The loss of coolant from the engine led to abnormally high engineoperating temperature conditions manifesting and the engine'selectronic control unit would have detected the heat and illuminatea warning light in the dashboard instrument cluster.

14.3 The vehicle would have also gone into “limp mode” status and dueto the fact that Mr Top continued driving, the engine had stalled andcut out.

14.4 Mr Top had without a doubt continued driving the vehicle with thesealed integrity of the engine’s cooling system in a compromisedstate and the extreme temperature conditions developing inside theengine led to the engine’s pistons seizing up solidly.

14.5. The severity of the damage prevailing in this engine is bordering onmalicious damage in that Mr Top would have received a host of earlywarning, which if he did adhered to, the damage in the engine could

have been significant minimised if not completely avoided.

14.6. The earlier warning indications would have included but were notlimited to any of a combination of the following factors:

14.6.1. A significant loss of power and generally poor engineperformance,

14.6.2. Increased smoke emissions from the engine’s exhaustsystem,

14.6.3, Elevated temperature warning lights would haveilluminated in the dashboard instrument cluster,

14.6.4. The check engine light would have illuminated as soon asthe knock sensors detected the pistons beginning to makea noise, and or the oxygen sensors would have related tothe change in exhaust gas emission values and the oiltemperature warning system would have responded.

Mr Top indicated that the engine lost some power, which are one of thewarning signs, but that there were no warning lights: He further indicated thathe drove to the “nearest” garage after the engine started to over heat.

15.1. This in itself is an admission that the continued to drive the vehicleknowing there is a there is a serious problem.

16. No where does Mr Top indicate how far he drove to the garage. It is clear fromthe report that the engine has sustained unrepairable damage and that thiscould only have been sustained if the motor vehicle was driven after thewarning lights came on, or as Mr Top indicated, after the engine lost power.

16.1. We do however submit that the distance he drove is not relevant.The fact that he admittedly did so is because that is the sole causeof the engine ceasing up.

17. Mr Top should have stopped the vehicle and requested road side assistance,and shouldn’t have driven the vehicle to the “nearest” garage as this had theresult that the engine is now beyond repair. Should Mr. Top have done thisthen the coolant leak would probably have been the only repair required.

18. It is therefore our submission that there are no grounds to cancel thisagreement and to refund Mr Top.

19. The engine must be replaced, and it must be for the account of Mr Top as theseizure of the engine was due to the sole negligence of Mr top.

20. We trust that this is sufficient reply to the complaint.

21. Should you require any: further information or documentation please feel freeto request same from our offices.

22. We trust this is in order.

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