CHITAKUNYE
J: On Wednesday 2 November 2005 the
plaintiff was driving his Mazda 626 motor vehicle when he was involved in an
accident at corner Wilson drive and Athlone road with a Nissan Hardbody motor
vehicle registration number 696-572 B that was being driven by the defendant's
employee.
The
defendant's employee admitted liability for the accident. When the plaintiff
left the scene to look for assistance he returned to find that the defendant
had towed his motor vehicle to its garage. The plaintiff made a follow up and
found his motor vehicle in the defendant's garage.
The
plaintiff sourced quotations for the repair of the motor vehicle from other
panel beating garages. He was advised that the motor vehicle was damaged beyond
economic repair. The defendant being in the panel beating and spray painting
business offered to repair the motor vehicle to the plaintiff's satisfaction.
At the defendant's instance the parties agreed that the defendant repairs the
motor vehicle. The defendant came up with quotation number Q4456/05, exhibit 2,
for all the work that needed to be done.
The parties further agreed that after the
repairs the motor vehicle was to be taken for a technical inspection by the
Auto-mobile Association of Zimbabwe, herein after referred to as (“AAZ”). The
inspection was intended to ascertain if work would have been done to standard.
To this end they endorsed that agreement on the above cited quotation that:
“To give AA report after repairs.'
The
defendant proceeded to do the repairs albeit at a slow pace. In February 2006
the plaintiff went to collect the motor vehicle as he had become impatient at
the pace repairs were being done. When he drove the motor vehicle in the
company of an employee of the defendant he discovered that the motor vehicle
would not engage into fifth gear. He returned the motor vehicle to the
defendant. He later went to collect the motor vehicle in March 2006. On this
occasion there were still some outstanding items to be attended to. The
defendant allowed the plaintiff to collect the motor vehicle on the agreement
that the plaintiff would return the motor vehicle later for the outstanding
items to be attended to.
After
collecting the motor vehicle the plaintiff said that he discovered that the
repairs done were not up to standard hence this claim.
The
defendant on the other hand contended that the repairs were done up to standard
and an AAZ report was in fact obtained. That report confirmed that the repair
work done in respect of the accident damages as reflected in Q4456/05 had been
done to standard. The outstanding work noted in the report was not as a result
of the accident in question and so the defendant was not liable.
As
the parties could not agree the plaintiff sued the defendant for an order:
“Compelling the
defendant to complete the repairs to standard;
Alternatively,
for repair costs in the sum of $2 000 000 000-00(Zimbabwe dollars) or as valued by a
valuer to be agreed upon by both parties.”
At
trial that sum was amended to 5824-00 United States dollars.
In its plea the
defendant denied that it took long to repair the motor vehicle contending that
the repairs were done promptly and to the satisfaction of the plaintiff. The
defendant also denied that there was any agreement that the plaintiff would use
the motor vehicle while the defendant would attend to agreed outstanding areas.
Indeed
in paragraphs 3.2 and 3.3 of its plea the defendant stated that:
“3.2 When the plaintiff took away the motor vehicle it was not for
temporary use as alleged or implied but that it signified the end of the
defendant's commitment regarding the motor vehicle.
3.3 There were no agreed areas to be further attended to by the
defendant as all the repairs had been completed to the plaintiff's
satisfaction.”
The
defendant further denied that any demands were made after the plaintiff had
taken the motor vehicle either by the plaintiff or the plaintiff's insurers.
The issues for determination as agreed at the pre-trial
conference were:
- Whether or not the repairs to the plaintiff's motor
vehicle were effected in full and, if not, why?
- Whether or not the defendant should be ordered to
complete the repairs or to pay to the plaintiff the costs of the repairs.
The
plaintiff gave evidence and called two witnesses in support of his claim. In
his evidence the plaintiff chronicled how the accident occurred and how
thereafter the defendant towed his motor vehicle to its garage. He confirmed
being advised by other panel beating garages that the motor vehicle was damaged
beyond economic repair. When he advised the defendant of this the defendant
indicated otherwise and stated that they were going to repair the motor vehicle
as they were also in the panel beating and spray painting business. Upon their
assurance he agreed.
The
parties went on to agree that after the repairs the defendant was to take the
motor vehicle to AAZ for a technical inspection to assure the plaintiff that
the motor vehicle had been repaired to standard. The defendant was required to
furnish the plaintiff with such a report.
The
plaintiff said that after that agreement he went away. He kept on checking for
progress on the repairs. To his dismay no progress was made for quite some
time. In February 2006 he went to collect the motor vehicle as he had become
impatient at the time the defendant was taking to complete the repairs. On the
first attempt he did not succeed as he realized after a short drive that the
fifth gear would not engage. He returned the motor vehicle to defendant.
On
16 March 2006 he went and collected the motor vehicle. There were still some
outstanding repairs to be done. On collection the parties agreed that when the
defendant secured the necessary parts the plaintiff would bring the motor
vehicle for the repairs to be completed. When he later made effort to return
the motor vehicle so that the defendant could complete the repairs the
defendant refused to accept the motor vehicle. The defendant kept on giving
varying excuses for not being ready to accept the plaintiff's motor vehicle.
Upon realizing the difficulties he was now encountering the plaintiff said he
approached his insurers for assistance. An official thereof at some stage
accompanied him to the defendant's offices in an effort to resolve the issue.
It was thereafter that the defendant accepted back the plaintiff's motor
vehicle. This was now in September 2006. The evidence of that acceptance is a
check list done by the defendant's employee when the motor vehicle was left,
exhibit 3. A job card was prepared confirming the receipt for work to be done;
this was tendered as exhibit 4. The plaintiff went on to say that on leaving
the motor vehicle the defendant assured him that the motor vehicle would be
ready for collection within three days. That was not to be. The motor vehicle
was only released on 22 September 2006 after having been left there on 7
September 2006. Even then the motor vehicle was not satisfactorily repaired. He
noted that some parts had in fact been removed and either not replaced or
replaced with substandard parts.
As
his efforts to have the defendant repair or complete the repairs to standard
were not yielding any results he sought the AAZ's opinion on the motor vehicle.
AAZ furnished him with a report after an inspection of the motor vehicle. That
report was tendered into evidence as exhibit 11. The report shows a number of
defects and concludes by stating the general performance and general condition
of the motor vehicle as poor.
The plaintiff
denied the defendant's contention that after the initial repairs the motor
vehicle was ever taken to AAZ as per their agreement. He maintained that he was
never furnished with any AAZ report by the defendant.
When
asked about a third road traffic accident which the defendant said was the
reason he brought back the motor vehicle to the defendant's garage in September
2006, the plaintiff categorically denied that he was ever involved in another
accident.
The
plaintiff gave his evidenced well. He maintained his stance even under intense
cross examination.
The
next witness was Tendai Alexander Munyavi. He is an employee of Insurance
Consultance Services. His evidence was to the effect that the plaintiff was
their client. The plaintiff's motor vehicle had been insured with them on a
third party policy. He confirmed that after the accident the plaintiff had
problems with the defendant. The plaintiff sought their assistance in having
the defendant re-attend to his motor vehicle. In September 2006 he went with
the plaintiff to the defendant's offices where upon discussing with the
defendant's representative, the defendant agreed to take back the plaintiff's
motor vehicle for completion of repairs the plaintiff had been complaining
about. The defendant through its representative promised that the motor vehicle
would be ready in three day's time from the day they took it there.
On
his own Tendai A. Munyavi said that he made some follow up with the defendant
on the repairs. These follow ups included making telephone calls to the
defendant and on two occasions he tele-faxed handwritten memoranda to the
defendant. The memoranda were tendered into evidence as exhibits 9 and 10.
Under
cross examination Tendai A. Munyavi maintained his stance. He clearly was not
shaken at all.
The
next witness for the plaintiff was Harrison Shumbamhini. He is a holder of a
class 1 panel beating certificate with ten years working experience in the
industry. He came in as an expert witness. He testified that his duties
involved assessing damages and estimates of the cost of repairs of such
damages.
As
regards this case his evidence was to the effect that he personally examined
the motor vehicle in question. His findings were essentially to the effect that
the motor vehicle had not been repaired to standard. Though he only examined
the motor vehicle a few days before trial his findings were consistent with the
plaintiff's complaints and the AAZ report that the plaintiff had secured.
He
made a comparative analysis of his physical examination of the motor vehicle,
the AAZ technical report and quotation Q4456/05 done by the defendant. His
conclusion after this analysis was that some of the damages reflected in the
AAZ technical report coincided with those in quotation Q4456/05. He made
particular reference to such aspects as the chassis, the center pillar, the
damaged doors and fender.
It
was thus his expert opinion that the repair work done on the motor vehicle was
sub standard. When asked about reasonable repair costs he indicated that repair
costs for such old motor vehicles were bound to be on the higher side because
of the scarcity of spare parts. Dealers who had the spare parts tended to sell
them at a premium. When shown the quotations the plaintiff had secured from
some garages Harrison Shumbamhini indicated that these were reasonable in the
light of the scarcity of the spare parts. He deemed the cost of US $5824-00
reasonable in the circumstances.
There
was not much to challenge from his evidence. In my view he gave his evidence
well.
The
defendant thereafter gave evidence through Misheck Muzvongi and Tichaona
Masike.
Misheck
Muzvongi is a co-founder and director of the defendant's company. He holds a
class 1 journeyman in panel beating qualification. His evidence was to the
effect that he first met the plaintiff in May 2005 when the plaintiff had been
involved in an accident whereby his motor vehicle was hit from behind. The
defendant repaired the plaintiff's motor vehicle. He next met the plaintiff
when the plaintiff's motor vehicle was involved in a road accident with a motor
vehicle driven by the defendant's employee. After the accident he said the
plaintiff and the defendant agreed that the defendant, as the liable party,
repairs the plaintiff's motor vehicle. The parties further agreed that after
the repairs the defendant was to take the motor vehicle to AAZ for a technical
inspection. To that end an endorsement was made on quotation Q4456/05 that: “To
give AA report after repairs.” The repairs were to be done per the above
quotation which captured all the repair work to be done as a result of the
accident in question
It
was his evidence that repairs were done to standard and the motor vehicle was
taken for technical inspection at AAZ. An AAZ report was furnished to the
defendant. That report was given to the plaintiff when he came to collect the
motor vehicle. According to Misheck Muzvongi that report showed that the motor
vehicle had been repaired to the required standard. After handing over the
report to the plaintiff the defendant did not retain a copy there of hence the
defendant was unable to produce a copy of the report in court.
It was also his evidence that in September
2006 the plaintiff brought the motor vehicle back after he had been involved in
another accident. The defendant repaired the motor vehicle to the plaintiff's
satisfaction and the plaintiff paid for the repairs.
As
far as Misheck Muzvongi was concerned, there were no complaints of poor
workmanship by the plaintiff from the time he took the motor vehicle to
September 2006 when he came back after another accident. Naturally therefore,
the claim by the plaintiff is hard to comprehend. Misheck Muzvongi could however not produce
any documents to show that after the repairs the plaintiff acknowledged
satisfaction with the repairs. Equally there were no documents showing that in
September 2006 plaintiff was involved in another accident or that he paid any
money for the repairs done by defendant in September 2006.
The
second witness for the defendant was one Tichaona Masike. He is the defendant's
employee who worked on the motor vehicle in question. At the time he was a
panel beater. He has since risen to panel beater class 1 and is the defendant's
workshop foreman. His evidence was to the effect that at the time the
plaintiff's motor vehicle was brought for repairs in November 2005, he was a
panel beater with the defendant. He is the one who worked on the motor vehicle.
When he was through with the repairs one Gedion Muzvongi took the motor vehicle
for a test drive. Gedion Muzvongi is a co-founder of the defendant company and
is also a director of the defendant. There was not much to be gained from
Tichaona Masike's evidence as he did not directly deal with the plaintiff. He
also could not confirm that after the repairs the motor vehicle was taken to
AAZ for inspection or that such a report was ever obtained. What he could
confirm was that when the plaintiff took the motor vehicle there were some
outstanding items still to be attended to and the plaintiff was to return the
motor vehicle later for those items to be attended to.
As with Misheck Muzvongi, Tichaona Masike
contended that the plaintiff came back in September 2006 after a third
accident. On that occasion the motor vehicle was satisfactorily repaired.
Unfortunately as was the case with Misheck Muzvongi, Tichaona Masike could not
produce or refer to any documentary proof of such other accident or repairs. It
was a case of his mere say so.
A
careful analysis of the evidence and the manner it was given favors the
plaintiff's version. It is not in dispute that exhibit 2 formed the basis of
the repairs to be carried out. It is also not in dispute that parties agreed
that after the repairs the defendant was to take the motor vehicle to AAZ for a
technical inspection and report on the work done. Such a report was to act as
confirmation to the plaintiff that the repairs had been done to standard. The
report was to be furnished to the plaintiff. Though the defendant's witnesses
said that such a report was in fact given to the plaintiff, neither witness
could produce evidence of this. It was mere say so by the witnesses.
The
plaintiff on the other hand contended that no such AAZ report was ever obtained
or furnished to him. He was never given such a report either at the time he
collected the motor vehicle or at any time thereafter. The plaintiff's version
is supported by the fact that even from the defendant's evidence it is conceded
that at the time the motor vehicle was collected there were some outstanding
items to still be attended to and for which the plaintiff had been asked to
return the motor vehicle later. According to the defendant the three
outstanding items were the air conditioner, the complishment and the fitting of
mud flaps.
Apart
from producing the AAZ report the defendant could have called witnesses from
AAZ or even the one who took the motor vehicle to AAZ but this was not done.
The defendant could also have tendered the document the plaintiff signed
showing that he was satisfied with the repair work. This the defendant did not
do. According to Harrison Shumbamhini it is a practice in the panel beating
business for clients to be asked to sign documents showing their satisfaction
with the repairs done. In this case the plaintiff never signed any such
document.
It
may also be noted that there were a number of inconsistencies and
contradictions in the defendant's case which, in my view, tended to further
discredit the defendant's version. For instance in paragraph 3 of its plea the
defendant denied that it took long to repair the plaintiff's motor vehicle and
that as a result of such delay the parties agreed that the plaintiff would use
the motor vehicle while the defendant would attend to all the agreed
outstanding areas to the satisfaction of the plaintiff. In its plea the
defendant contended that the motor vehicle was repaired in full and that when
the plaintiff took the motor vehicle it was not for temporary use but it
signified the end of the defendant's commitment regarding the motor vehicle.
In
paragraph 3.3 the defendant pleaded that:-
“There were no
agreed areas to be further attended to by the defendant as all the repairs had
been completed to the plaintiff's satisfaction.”
However
when the plaintiff's version was put to
Misheck Muzvongi here in court he admitted in his evidence that there
was indeed an arrangement for the plaintiff to bring the motor vehicle for outstanding items to be
attended to. He in fact went on to mention some of the outstanding items. Under
cross examination Misheck Muzvongi could not explain the contradiction between
what was stated in the plea and his admission that such an arrangement was indeed
made. Misheck Muzvongi went on to state
that the plaintiff was pressing that he needed to use the motor vehicle hence
the motor vehicle was released to him before full completion. Had the defendant
repaired the motor vehicle promptly surely the plaintiff would not have been
impatient.
Further
on, Misheck Muzvongi told court that the plaintiff took the motor vehicle for
good at the end of February or beginning of March 2006. However in paragraph 5
of the defendant's supplementary synopsis of evidence it is stated that repairs
were completed on 16 February 2006 and the motor vehicle was taken to AAZ for
inspection. The plaintiff thereafter took the motor vehicle.
It
may further be noted that in his evidence–in-chief Misheck Muzvongi stated that
when the plaintiff took the motor vehicle for the first time the AAZ report had
been obtained. Under cross-examination he now said that the AAZ report was only
obtained after the plaintiff had come back with the motor vehicle and the three
outstanding items had been attended to. Misheck Muzvongi and Tichaona Masike
were not agreed as to who took the motor vehicle for a test drive. They also
were unable to say when and who had taken the motor vehicle to AAZ for
inspection.
Misheck
Muzvongi also gave evidence to the effect that when the plaintiff brought the
motor vehicle in September 2006, they told him that the motor vehicle would be
ready in three days time and that was met. However from the defendant's own
evidence, as portrayed in documents tendered, the motor vehicle was at the
defendant's place for much longer than the three days.
I
am of the view that the inconsistencies and contradictions in the defendant's
case make the defendant's evidence unreliable and at best a patched up version
designed to avoid liability.
I
am of the view that the plaintiff's evidence was the more credible. The
plaintiff's evidence was consistent and logical in its sequence.
I
thus find that the plaintiff's motor vehicle was not repaired to standard. No
AAZ report was obtained by the defendant at all as the motor vehicle was never
taken there for inspection. The defendant simply took advantage of the
plaintiff's impatience due to the defendant's delay in completing the repairs
to release the motor vehicle to the plaintiff without the AAZ inspection.
The
defendant is found liable on the first issue.
The
second issue is whether or not the defendant should be ordered to complete the
repairs or to pay the plaintiff the costs of the repairs.
The
plaintiff's claim was for an order compelling the defendant to complete the
repairs as listed in paragraph 11 of the plaintiff's declaration.
Alternatively,
Repair costs of
the items listed in paragraph 11 of plaintiff's declaration in the sum of $2
000 000 000-00 or as valued by a valuer to be agreed upon by both parties.
The
prayer to compel the defendant to complete the repairs was not amended. The
plaintiff only amended the quantum in the alternative prayer to a sum of
USD5824-00
The question of
specific performance was not argued at lengthy by counsel for both parties.
Equally during trial not much was said about the practicality of such an order.
What was clear from the evidence was that the defendant is still in the panel
beating business and so there was no case of impossibility of performance. It
was not disputed that the defendant was still able to repair the motor vehicle
to the appropriate standard.
The
factors to consider in deciding whether to order specific performance or not
have been dealt with in a number of cases.
In
Intercontinental Trading (Pvt)
Ltd v Nestle Zimbabwe (Pvt)
Ltd 1993 (1) ZLR 21 (H) ROBINSON J had occasion to deal with factors to be
considered in cases were specific performance is sought. The learned judge
quoted in extensor from the judgment of HEFER JA in Benson v South Africa Mutual
Life Assurance Society 1986 (1) SA 776 (A) at 782D-J and 783A-F thus:
“In Haynes v King William's Town Municipality (supra) at 378 DE VILLIERS AJA dealt with the matter in the
following terms:
'it is correct,
as Mr. Miller states, that in our law a plaintiff has the right of election
whether to hold a defendant to his contract and claim performance by him of
precisely what he had bound himself to do, or to claim damages for the breach …
This right of choice a defendant does not enjoy; he cannot claim to be allowed
to pay damages instead of having an order for specific performance entered
against him….'
It is, however,
equally settled law with us that, although the court will as far as possible
give effect to a plaintiff's choice to claim specific performance, it has a
discretion in a fitting case to refuse to decree specific performance and leave
the plaintiff to claim and prove his id
quod interest. The discretion which a court enjoys, although it must be
exercised judicially, is not confined to specific types of cases, nor is it
circumscribed by rigid rules. Each case must be judged in the light of its own
circumstances”.
Further on the
judge went on to say that:-
“This does not mean that the discretion is in
all aspects completely unfettered. It remains after all, a judicial discretion
and from its very nature arises the requirement that it is not to be exercised
capriciously, nor upon a wrong principle (Ex
parte Neethling (supra at 335)).
It is aimed at preventing an injustice – for cases do arise where justice
demands that a plaintiff be denied his right to performance – and the basic
principle thus is that the order which the court makes should not produce an
unjust result which will be the case, e.g., if, in the particular circumstances,
the order will operate unduly harshly on the defendant.”
Other
circumstances where court may not grant an order for specific performance
include when performance has become impossible. Where performance is possible
there are other factors that may still influence court not to grant an order
for specific performance. In Zvoma v Amalgamated Motor Corporation (Pvt)
Ltd. 1988 (1) ZLR 60 (H) ADAM J quoted with approval the words of DE
VILLIERS AJA in Haynes v King Williamstown Municipality supra
wherein at p 378-380 the learned JUDGE
said that:-
“As examples of
the grounds on which the courts have exercised their discretion in refusing
specific performance, although performance was not impossible, may be
mentioned: (a) where damages would adequately compensate the plaintiff; (b)
where it would be difficulty for the court to enforce its decree; (c) where the
thing claimed can readily be bought anywhere; (d) where specific performance
entails the rendering of services of a personal nature…(e) where it would operate
unreasonably hardly on the defendant, or where the agreement giving rise to the
claim is unreasonable, or where the decree would produce injustice, or would be
inequitable under all the circumstances…”
Where
specific performance is claimed the onus is upon the defendant to establish the
facts and circumstances which court should consider in the exercise of its
discretion to refuse specific performance.
In casu the defendant did not allude to
impossibility of performance nor to any undue hardship it may suffer if
specific performance were ordered. The defendant did not even indicate how much
it would cost it to complete the repair work as demanded by the plaintiff.
Clearly in my view the defendant should be ordered to complete the repairs in
terms of their agreement.
In
terms of their agreement parties had agreed on a technical inspection by AAZ
and the issuance of a certificate of fitness by AAZ. AAZ was coming in as an independent or
neutral assessor to confirm the quality of work done by the defendant. That
should still be the case.
On
the alternative claim for damages the plaintiff tendered quotations from three
panel beating garages indicating what it would cost for the motor vehicle to be
repaired to the required standard. The three quotations were as follows:
(a) J.ZIVIRA
MOTORS (PVT) LTD - USD 5795-00
(b) J.J. PANEL
BEATERS - USD 4175-00 and
(c) CHRISFREIGHT
(PVT) LTD - USD 5824-00
The
plaintiff opted for the quotation for USD5824-00 as the reasonable cost for the
repairs.
In
its evidence the defendant did not tender any quotations on the cost of repairs
or value of the motor vehicle to counter the plaintiff's quotations. Though it
was stated that repair costs may be in excess of the value of the motor vehicle
there was no indication as to the magnitude of the difference and whether such
difference would be unreasonable in the circumstances.
In
Erasmus v Davis
1969 (2) SA 1 (A) at p 21D MULLER AJA had this to say on the use of cost of
repairs to assess appropriate damages:
“...the cost of
repairs is often used as a yardstick to measure damages, it cannot be used as a
yardstick in circumstances in which it would not be an appropriate method of
assessing damages. It cannot be a proper yardstick in a case where it is not
economical to repair the vehicle and the plaintiff claims the estimated cost of
repairs without bringing into account the salvage of the value of the vehicle…”
In
casu the plaintiff did not bring the
salvage value of the motor vehicle. He never the less seemed to acknowledge
that the repair costs could be higher than the actual value of the motor
vehicle due to scarcity of spare parts for the motor vehicle and not that it
would make him any richer
The
other factor is the defendant's delay in completing the repairs. Had the
defendant complied with its undertaking at the time current costs of repairs
could have been avoided. In any case it is not in every case where costs are
higher that the claim may be deemed untenable as the circumstances of a case
may dictate otherwise.
In Leighton
v Eagle Insurance Co.
Ltd & Ors 2002 (2) ZLR 592 (H) the plaintiff was injured in an accident
involving a motor cycle and a motor vehicle in 1996. He was the driver of the
motor cycle. The other motor vehicle was being driven by the second defendant.
The first defendant was the insurer of the motor vehicle. The plaintiff
claimed, among other things, the cost of repairs of the motor cycle. The
defendant agreed to pay for repairs to restore the motor cycle to the
plaintiff's satisfaction. A sum of Z$ 50 000-00 was spent on repairs but the
plaintiff was not satisfied with the repairs. He returned the motor cycle and
claimed the sum of Z$850 000-00, being the current cost of the spares. At the
time of issuance of summons the value of the motor cycle was not more than Z$
95 000-00. After five years from date of summons the first defendant tendered
Z$150 000-00 as replacement value for the motor cycle. After a careful
consideration of the law on the assessment of damages in such cases SMITH J at
p.597 B-D stated that:
”However, in the
light of the high levels of inflation in this country over the last two years,
such an offer could not be accepted as reasonable. Since the first defendant
only filed its plea on 14 March 2002, more that five years after summons was
issued, I consider that a departure from the normal yardstick is required. The
present day values of goods such as motor cycles have escalated tremendously
since 1996. I consider that in all the circumstances, the claim by the
plaintiff is reasonable, having regard to the value of things today.”
In casu, the defendant admitted liability
for the damage to the plaintiff's motor vehicle on the date of the accident and
offered to repair the motor vehicle to AAZ approved standard. The defendant did
not do so. The cost of repairs has escalated as a result of inflation and
dollarisation that was beyond the plaintiff's control. Restricting the
plaintiff's damages to the value of the motor vehicle as at the time of the
accident would in my view do injustice to the plaintiff yet it is the defendant
who, firstly, did an incomplete sub-standard job. When the plaintiff expressed
dissatisfaction with the work done the defendant would not accept to re-do the
work. It is clearly the defendant's fault that up to this day the motor vehicle
has not been repaired to AAZ approved standard.
The
defendant's contention that the repair costs exceed the value of the motor
vehicle should not disentitle the plaintiff to recover his motor vehicle in the
condition it was in before the accident. In any case as has already been
alluded to the defendant did not proffer any concrete evidence in support of
its contention. The plaintiff is entitled to reasonable repair costs as
evidenced by the quotations he tendered into evidence.
From the three
quotations that the plaintiff tendered he opted for the quotation with the
highest sum. He did not explain why he opted for the highest figure when
another garage could do the work for a lesser amount. I am of the view that he
is entitled to an average of those figures. The three figures are USD5795-00,
USD4175-00 and USD 5824-00. The average of the three figures is USD5264-00. It
is my view that with such an amount he should be able to get the motor vehicle
repaired to his satisfaction.
Accordingly
judgment is hereby entered against the defendant and for the plaintiff as
follows:
- The defendant is hereby ordered to complete repairs
to the plaintiff's Mazda 626 motor vehicle as per paragraph 11 of the
plaintiff's declaration within thirty (30) days of the date of this order
to the plaintiff's satisfaction. Upon completion of the repairs the
defendant is ordered to take the motor vehicle for a technical inspection
by the Auto Mobile Association of Zimbabwe and a report obtained there be
served on the plaintiff.
2. In the event that the defendant fails or
neglects to comply with clause (1) above, the defendant is ordered to pay
repair costs to the plaintiff in the sum of USD 5264-00 with interest at the
prescribed rate from the date of this order to the date of full payment.
- The defendant shall bear the costs of suit.
J Mambara & Partners, plaintiff's legal practitioners
Scanlen &
Holderness, defendant's legal practitioners
