Venkataya v Cockram Motors (CHCH) Limited T/A Cockram Nissan Reference No. MVD 234/2017 [2017] NZMVDT 183 (17 November 2017)

Last Updated: 20 December 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

[2017] NZMVDT 183
Reference No. MVD 234/2017

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN DAVENDRA VENKATAYA

Purchaser

AND COCKRAM MOTORS (CHCH) LIMITED T/A COCKRAM NISSAN

Trader

MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

R C Dixon – Assessor

HEARING at Christchurch on 22 September 2017

DATE OF DECISION 17 November 2017
APPEARANCES

D Venkataya, Purchaser
K Chaipanit, Partner of Purchaser
J J Wilson, General Manager of Trader
J Tait, Service Manager of Trader
S Bavin, Technical Specialist, Nissan New Zealand

DECISION

Mr Venkataya's application is dismissed.

REASONS

Introduction

[1] Davendra Venkataya’s new Nissan Navara Ute has a vibration when travelling at or around 100 km/h. Mr Venkataya says the vibration is so bad that his children refuse sit in the back seat. He wishes to reject the vehicle.
[2] Extensive investigations by Cockram Nissan have failed to find anything wrong with the vehicle. Nissan New Zealand has confirmed the vehicle’s “vibration excitation force” is normal. So, the question for the Tribunal’s decision is whether Mr Venkataya’s vehicle failed to comply with the guarantee of acceptable quality. Alternatively, are the vibrations he and his family are experiencing a normal, if unwelcome, feature of this type of vehicle?

Did the vehicle fail to comply with the guarantee of acceptable quality?

[3] Section 6(1) of the Consumer Guarantees Act 1993 (the Act) provides that where goods are supplied to a consumer there is a guarantee “that the goods are of acceptable quality”. According to s 2 of the Act, “goods” includes vehicles.
[4] The meaning of acceptable quality is defined in s 7 of the Act (as far as is relevant) as follows:

7. Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

[5] The question whether a vehicle is of acceptable quality is considered from the point of view of a reasonable consumer who is fully acquainted with the state and condition of the vehicle, including any hidden defects.
[6] Mr Venkataya is a motor mechanic. In 2016 he purchased a new Nissan Navara NP300, also known as a "D23", for his business and family use. He was familiar with this type of vehicle, having previously owned a Nissan Navara "D40" model. Mr Venkataya did not experience the same amount of vibration in the D40 as he does in his present vehicle.
[7] Before purchasing the new vehicle, Mr Venkataya took a demonstrator for a test drive. He noticed that it had a similar vibration to the one he is now complaining about. He mentioned it to the Cockram Nissan salesman. The salesman told him the vehicle needed a wheel alignment. Mr Venkataya accepted this explanation and went ahead with the purchase in December 2016, taking delivery of his new Navara in January 2017. When he collected the vehicle he noticed that it had the same vibration issues he had noticed in the demonstrator. He mentioned this to Cockram Nissan, which agreed to carry out a wheel alignment and balance. However, these steps did not remove the vibration.
[8] Between April and June 2017, Cockram Nissan did extensive testing to see if it could find the source of the vehicle's vibration. Cockram Nissan road tested the vehicle with Mr Venkataya and found a “slight vibration when sitting at 104 km/h”. Cockram Nissan checked the vehicle’s tyre pressures and made sure its wheel nuts were torqued according to specification. Cockram Nissan also took a vibration recording of the vehicle using a mobile phone app “vib-sensor” which records vibrations on three axes, using the phone’s accelerometer. Cockram Nissan sent the recordings to Nissan Techline, part of Nissan New Zealand, for analysis. Cockram Nissan also put the vehicle on a hoist to check its drive shaft. Suspecting the driveshaft may be imbalanced, the technician attached a magnet to it. But no material reduction was noted in the vibration on a further road test.
[9] Cockram Nissan's attempts to diagnose the cause of the vibration included replacing various parts on Mr Venkataya's vehicle with parts taken from a donor vehicle, to try and isolate whether the vibration was coming from that part of the vehicle. The following parts were swapped:

• (a) the rear axle. This was done because the technician had observed the right hand rear axle bearing was rumbling. However, this did not reduce the vibration.
• (b) the differentials and front and rear drive shafts. This resulted in a slight change to the vibration but it remained present.
• (c) the transfer case. Again, this improved the vibration slightly but not much.
• (d) Mr Venkataya’s 20-inch low profile wheels and tyres, which were swapped with the vehicle’s original 16 inch wheels and tyres. Again, this did not remove the vibration.

[10] Nissan Techline provided a report to the Tribunal setting out its analysis of the vibration recordings taken at Cockram Nissan using the mobile phone vib-sensor app. These recordings occurred on 24 April 2017 (at 104 km/h) and 6 June 2017 (at 95 km/h). The 6 June 2017 recording also compared the vehicle with another vehicle of the same model.
[11] Nissan Techline’s report shows the vibration excitation force of the vehicle was within the design standard, leading it to conclude that the vibration was normal.
[12] Nissan New Zealand’s technical specialist Steve Bavin, who prepared the report and who appeared at the Tribunal hearing to speak to it, commented that the frequency of the peak vibration suggested that the main excitation force was “first order tyre/wheel vibration”. He noted that where wheels and tyres are not original equipment, as is the case with the low profile 20 inch tyres on Mr Venkataya’s vehicle, the vibration level was noticeably higher.
[13] Mr Bavin's and Cockram Nissan’s service manager and general manager's evidence was that there is no option available to adjust the vehicle’s springs to soften the ride and reduce vibration level. They pointed out that, as a light commercial vehicle designed to carry and tow heavy loads, it was normal for the vehicle to have a rougher ride with more vibrations than would be noticeable in an ordinary domestic car.
[14] Cockram Nissan also pointed out at the hearing that Mr Venkataya’s vehicle, a “D23” model, has coil spring suspension in the rear wheels. The previous model “D40” (Mr Venkataya’s earlier Nissan Navara) had leaf spring rear suspension. The Tribunal's Assessor Mr Dixon noted that coil spring suspension relies almost completely on hydraulic dampeners for dampening effect. Leaf spring suspension has an additional dampening effect in its own right, in addition to that from the hydraulic dampeners. This is a possible reason why Mr Venkataya finds his new Navara vibrates more than his previous Navara.
[15] Mr Venkataya produced two reports:

• (a) A report from Cooper Tyres, which balanced the vehicle’s wheels but found that the vibration was still present. It also carried out a wheel alignment and tried replacing Mr Venkataya's wheels with the original wheels and tyres, but this did not fix the problem. Cooper Tyres concluded that the “vibration was very noticeable on [the] open road going round a slight bend”.
• (b) A report from an AA inspector, who drove the vehicle and experienced “vibration ... coming predominantly from the rear of the vehicle”.

[16] Mr Dixon and I asked for the vehicle to be brought in for the hearing. We carried out a road test after the hearing in which Mr Dixon drove the vehicle while I rode as passenger for several minutes on the motorway at about 100 km/h. We both noted that the vehicle had firm suspension, through which it was possible to feel road bumps and undulations. My observation was that riding in the vehicle felt similar to flying through light turbulence in an aeroplane, with a constant jiggling motion which could be felt through the seat. However, neither Mr Dixon nor I detected anything that felt abnormal about the way the vehicle rode. Rather, it felt like we were riding in a small truck, heavy and high off the road with suspension designed to carry large loads. In other words, neither of us noticed anything unusual having regard to the nature and characteristics of the vehicle.
[17] We accept that Mr Venkataya and his family are unhappy with the vibration they are experiencing in the vehicle. All those who have tested the vehicle including Cockram Nissan and the authors of the reports Mr Venkataya produced have experienced the vibration themselves. But the question for consideration is whether a reasonable consumer who was fully acquainted with the state and condition of the vehicle would regard this vibration as being acceptable having regard to the factors in paragraphs (f) to (j) of the definition of acceptable quality in s 7(1) of the Act (above).
[18] In particular, it is relevant that this is a light commercial ute. Mr Dixon and I consider that a reasonable consumer would not expect its ride to be as smooth and comfortable as the ride experienced in a domestic sedan. We do not think there is any basis for concluding that the vehicle is unsafe. Nor is it apparent that there is any defect in the vehicle, following the rigorous testing carried out by Cockram Nissan.
[19] It comes down to whether the vehicle is fit for all the purposes for which vehicles of the type in question are commonly supplied. Such vehicles, which have double cabs, are commonly used not only as commercial vehicles but also as family vehicles. Mr Venkataya's point is essentially that the vibration makes the vehicle unsuitable for private use, as his family cannot travel in the vehicle in comfort.
[20] On balance, although we accept Mr Venkataya finds this vehicle unacceptable for his and his family's own personal needs, we do not accept that Mr Venkataya’s concerns about the vibration are sufficient to indicate that the vehicle fails to comply with the guarantee of acceptable quality. In short, there is not enough evidence to conclude that there is anything wrong with this vehicle that a reasonable consumer would find unacceptable. The evidence we have before us indicates the vehicle is performing as it is intended to and that nothing is wrong with it. It is just a relatively rough-riding vehicle, a factor which is mainly attributable to its light-commercial build.
[21] Without intending to criticise Mr Venkataya's choice of vehicle, it may be that in future he needs to consider selecting a vehicle that has a smoother ride. Alternatively, he may need to purchase a separate vehicle for family use and one for use at his work. These are matters for him to decide in the future. In the meantime, I conclude that he is not entitled to reject the vehicle. His claim must be dismissed.

J S McHerron
Adjudicator