Supreme Court of Mauritius, 6 mai 2026, 2026 INT 112 – Nabheebucus v CFAO Mobility (Mauritius) Ltd

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Nabheebucus v CFAO Mobility (Mauritius) Ltd

2026 INT 112

THE INTERMEDIATE COURT OF MAURITIUS (Civil Division)

In the matter of:- CN 1428/2019 Abdool Rahman Nabheebucus PLAINTIFF v. CFAO Mobility (Mauritius) Ltd DEFENDANT

JUDGMENT

1. The Plaintiff, who purchased a brand-new Volkswagen Polo from the Defendant, avers that he encountered several problems with the said car ever since its acquisition. The Plaintiff primarily complains about an abnormally noisy air- conditioning (A/C) system and, thus, contends that the Defendant has failed to deliver to him a car that was free from defect. Despite the Defendant’s numerous tests and interventions on the car, the A/C problem remains, to date, unresolved. The Plaintiff is, hence, seeking replacement of the vehicle altogether or, alternatively, a full refund of the purchase price. Moral damages are also sought.

2. The Defendant denies the Plaintiff’s assertions and rejects any form of liability. It avers in its defence that any alleged defect with the car has been attended to and that the vehicle is in good running condition. The Defendant further pleads that the purported defaulting air-conditioning system has been completely renewed free of charge, following which the Plaintiff took the car without protest.

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The case for the Plaintiff 3. The Plaintiff gave evidence in support of his claim. He explained the circumstances of the purchase of the Volkswagen Polo 1.6 CL HB car from the Defendant in March 2018. He highlighted from the outset that he was wrongly made to believe by a préposé of the Defendant that the car was made in Germany when in fact its country of origin was South Africa. He, nevertheless, took delivery of the car as there was no practicable solution to that situation. The Plaintiff stated that as soon as he took possession of the car, problems started to crop up. At first, the issues were only minor and were promptly attended to by the Defendant. He referred, in particular, to a defective wiper which had to be replaced barely a few days after having taken the car. Despite those inconveniences, the Plaintiff affirmed that he was generally happy with the car and was prepared to ignore those initial setbacks. However, a more serious problem emerged in relation to the car’s air-conditioning system, which he was not ready to accept. The A/C made an abnormally loud and irritating noise when activated. The problem persisted despite repeated technical verifications and interventions at the Defendant’s workshop.

4. The Plaintiff expatiated on the exact nature of the problem and explained that when he was driving the car for a while, the A/C system became annoyingly noisy. The Plaintiff related in detail his continued communication with the Defendant’s préposés regarding the issues with the car, which he supported with documentary evidence. Being given that the Defendant was unable to resolve the main problem with the car, namely the purportedly defective A/C system, he had no other option than to initiate the present court action.

5. Under cross-examination, the Plaintiff confirmed that, all throughout his interactions with the Defendant, he made it clear that he was willing to overlook all issues with the car provided the alleged A/C problem was sorted out. The Plaintiff stated that when the issue was first reported to the Defendant in April 2018, the latter detected a problem with the A/C fan module and the said module was replaced free of charge. Because the Plaintiff was still complaining about the noise, the Defendant replaced the whole A/C compressor in January 2019 at its own costs. The Plaintiff admitted that when he went to the Defendant for the servicing of his car in December 2019, he did not complain about any abnormal noise with the A/C, but highlighted that the problem was still present.

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6. Mr. Mohamed Ally Bhoyroo, Motor Surveyor, was then called to testify on behalf of the Plaintiff. He stated that he inspected the car on 13 April 2019 at Castel. His assistant, Mr. Vincent Salva, and himself heard the sound which was abnormal, loud and irritating. The A/C fan was making more noise than the engine, which is untypical. He did not carry out a decibel measurement of the sound. He was of the view that there was a manufacturing defect with the A/C fan which the Defendant could not repair. He produced a thread of emails between the Plaintiff and himself (Document M), a joint expert report co-signed by Mr. Salva (Document N), and a CD (registered as Document P) containing two videos recorded by Mr. Salva during the examination of the car and witnessing the sound made by the A/C system.

7. In cross-examination, Mr. Bhoyroo affirmed that the noise problem arises as a result of weather temperature. He stated that there was no need to carry out a test drive as the loud noise could be heard as soon as the engine was turned on. He admitted that all vehicles would make a normal noise when the engine is put on and when the A/C is switched on. He conceded that the loudness of the noise has to be determined from inside the car. However, the two videos produced in evidence were recorded outside the car. He asserted that there was no need to carry out a noise comparison with another vehicle of the same type. He confirmed that the A/C condenser fan was working properly and cooling down the engine as it should do, but with a heavy sound. The witness stated that there was no need to mention the prevailing outside temperature on the day the test was carried out in his report. He denied being biased in favour of the Plaintiff and maintained that he was giving an independent opinion. He agreed that it was the first time in Court that he mentioned that the car had a manufacturing defect and made no prior mention of that in his report.

The case for the Defendant 8. Mr. Belal Ghanty, Service Manager, deposed on behalf of the Defendant and confirmed that the Plaintiff first complained about the noisy A/C in April 2018. The car was brought to the workshop for verification. After running the car through the diagnostic machine, no fault was detected. According to the witness, it was normal for the A/C fan to speed up and make a louder noise when the temperature rises.

9. As the customer was still complaining about the noise, the manufacturer was contacted and, in May 2018, the car’s logs were sent for verification at the manufacturer’s end to determine whether there was any abnormality with the car. As

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the customer was still dissatisfied, in June 2018, the Defendant’s technical department swapped a fan from a vehicle of the same type – i.e. same model of vehicle, with the same specifications – and found no difference in the noise output. The witness stated that the Plaintiff was not happy when informed accordingly. The latter came back with the same complaint in July 2018, and after running the car through the diagnostic machine again, the defendant still found no fault. The noise levels were within range. The Plaintiff brought the car back in December 2018, but yet again nothing wrong was found. On 10 January 2019, the A/C compressor was renewed as there was a small leak detected – the witness added that that minor leak had no connection with the customer’s complaint about the alleged noisy A/C fan. There were no further visits from the Plaintiff until 27 December 2019 when he brought in his car for servicing. There was no complaint on his part about the noise on that day. The car was again brought for servicing on 26 January 2021, and there was again no protest about the alleged noisy A/C fan.

10. On another score, Mr. Ghanty highlighted that, according to the Defendant’s records, the Plaintiff made a down-payment to the tune of Rs 500,000. for the purchase of the car on 09 March 2018. He was remitted the car’s registration book – which mentions the car’s country of origin – on 28 March 2018 and paid the balance due a couple of days later. There is no indication of any complaint made by the purchaser about the car’s country of origin on the delivery note issued on 30 March 2018 (Document R).

11. Under cross-examination, the witness strongly affirmed that there was no manufacturing defect with the Plaintiff’s car. Mr. Ghanty was unaware whether the Plaintiff had received an official quotation before he bought the car.

12. Mr. Louis Christophe Legrand, Technician at the Defendant’s workshop, testified that he was a trained technician from the Volkswagen Academy in South Africa and produced his certification (Document V). The witness explained the working of the A/C system on the present type of car. He is aware of the complaints made by the Plaintiff about the noisy A/C system on his brand-new Volkswagen car. As there was an alleged issue about the A/C fan, it was recommended by a German consultant at the company that the fan should be changed and that was done. There was no difference noted regarding the sound made by the new fan as compared to the original one. For him, it was normal for the fan to run at high speed when the A/C is turned on as the temperature rises. This was confirmed by a Volkswagen engineer in South Africa. Be that as it may, the Plaintiff kept on complaining.

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13. Mr. Legrand expressed doubt about the accuracy of Mr. Bhoyroo’s report and seriously questioned the latter’s finding that it was “totally abnormal that this vehicle is doing this loud noise when putting the A/C on.” Mr. Legrand asserted that a more systematic testing with appropriate parameters (for instance, as regards temperature) would have yielded reliable results – “kuma li capave dire sa, li pas meme tester li avec aukaine instrument, aukaine parametrage li pena …”.

14. Under cross-examination, the witness reiterated that no defect was detected on the car. Mr. Legrand highlighted that the car’s A/C system was working properly and was cooling well, and the engine cooling system was normal.

Analysis and finding 15. I have thoroughly considered the evidence on record and the submissions of Learned Counsel on both sides.

16. At the very outset, I wish to deal with the country-of-origin issue made live both in the pleadings and during the proceedings. It is common ground that the car in question originated from South Africa. The Plaintiff testified to the effect that he was made to believe that the car he was buying would come from Germany. Regardless, now that evidence has been heard, it has become evident that this alleged “misrepresentation” is not being invoked as a “vice du consentement” prompting the invalidation of the contract altogether. It cannot be seriously argued that the car’s country of origin was truly a determining factor for the purchase. On the contrary, it would seem that the Plaintiff is merely trying to play up that issue following the emergence of other alleged technical problems with the car. I note that the Plaintiff emphatically stated in the course of his testimony that he was prepared to overlook the country-of-origin issue provided the A/C problem was resolved. It is also significant that the Plaintiff signed an unreserved and unconditional delivery note (Document R), and took delivery of the car, even before taking cognizance of the particulars of the vehicle – including its country of origin – as contained in its registration book (Document C). If anything, that was reckless on the Plaintiff’s part to say the least.

17. Now, according to article 1603 of the Code Civil Mauricien (CCM), “[Le vendeur] a deux obligations principales, celle de délivrer et celle de garantir la chose qu’il vend.”

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As highlighted in this Court’s ruling of 19 October 2022 – vide Nabheebucus v CFAO Motors (Mauritius) Ltd [2022 INT 295] –, an action “en garantie” is incompatible with one “en responsabilité contractuelle”. The stance of the Plaintiff on that point – as conveyed by Learned Counsel for the Plaintiff in Court and reiterated in the closing “Speaking Notes on behalf of the Plaintiff” dated 09 May 2025 – is that the Plaintiff’s action is not grounded on hidden defects (“vices cachés") but on a breach of contract, inasmuch as the vendor is alleged to have failed in its “obligation de conformité” – vide Plastic Recycling Co. Ltd v. Kween Ltd (2004) SCJ 26; Philippe v. Autoworld Ltd (2017) SCJ 178; Boodadoo v. Cars-on-Line Auto Imports Ltd (2020) SCJ 111. In a nutshell, “l’obligation de conformité exige du vendeur la délivrance d’une chose exactement semblable à ce qui a été convenu et la responsabilité du vendeur sera engagée dès lors qu’il existe une différence, même si celle-ci n’est pas apparente.” – Encyclopédie Dalloz Commerciale, Verbo Ventes Commerciales, cited in Plastic Recycling (supra) and Philippe (supra).

18. In that connection, I also find the following extracts from Répertoire de Droit Civil – Encyclopédie Numérique Dalloz – Vente (3° effets) worth reproducing: “215. Dire que le vendeur est tenu de délivrer une chose conforme signifie non seulement que le bien délivré doit être celui-là même qui a été désigné par le contrat, mais en outre que ce bien doit présenter les qualités et caractéristiques que l'acquéreur est en droit d'en attendre. Celles-ci s'apprécient au regard des normes administratives et au regard des qualités convenues entre les parties. La question de savoir si la délivrance conforme s'étend à l'usage que l'acquéreur entend faire de la chose suscite, quant à elle, une réflexion spécifique. … 219. Mais, quant à la qualité, la délivrance conforme ne saurait s'apprécier à la lumière des seules stipulations du contrat. D'abord, il peut arriver que celles-ci soient obscures ou imprécises ; en ce cas, l'article 1602, alinéa 2, du code civil énonce : « Tout pacte obscur ou ambigu s'interprète contre le vendeur ». La Cour de cassation en a déduit que, dans une vente d'ordinateur, les juges du fond ne sauraient s'arrêter au seul fait que le bon de commande ne précise pas l'étendue de l'engagement du vendeur, pour écarter la contestation de l'acquéreur faisant valoir que la capacité réelle de l'ordinateur délivré est inférieure à celle convenue (Cass. 1 re civ. 13 oct. 1993, D. 1994. 211). 220. Ensuite, au-delà des stipulations contractuelles, les juges ne doivent pas hésiter, en cas de difficulté, à prendre en compte les

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caractéristiques de la chose en considération desquelles la vente est censée avoir été conclue, ou, si l'on préfère, les qualités de la chose qui, au regard de la nature de celle-ci, sont présumées être entrées dans le champ contractuel (P. RÉMY, obs. RTD civ. 1988. 368) …”. [Emphasis added].

19. In the same vein, I note the following from Répertoire Commerciale Dalloz, mars 1996, Vo Ventes Commerciales, section 2 – Obligation de Délivrance: “355. L’obligation de délivrance, c’est-à-dire de remettre à l’acheteur la chose vendue est l’obligation essentielle du vendeur. Elle s’exécute selon le mode et le lieu et à l’époque prévue par le contrat ou les usages et dans certains cas par la loi. Mais délivrer la chose, ce n’est pas seulement la mettre en possession de l’acheteur, c’est lui remettre une chose conforme, c’est-à-dire non seulement identique à ce qui a été convenu, mais « mettre à sa disposition une chose qui corresponde en tous points au but recherché par lui» (Cass. 1re civ. 20 mars 1989. D. 1989, IR 178). … … 359. La chose livrée doit présenter les qualités prévues par la convention et toutes celles qui sont nécessaires à rendre la chose propre à l’usage qui a été prévu par les parties lors de la conclusion du contrat. Le défaut de qualité constitue un manquement grave à l’obligation de délivrance du vendeur, justifiant la résolution de la vente. Tel sera le cas par exemple, lorsque le contrat prévoyait une marchandise «de qualité supérieure» et que celle livrée est de qualité inférieure (Cass. Civ. 4 déc. 1871, DP73.1.201; pour un contrat portant sur une qualité inexistante, V. Cass. Req. 15 févr. 1875, DP 75.1.465). A fortiori si la chose livrée est impropre à la consommation (CA Montpellier, 12 déc. 1922, Gaz. Pal. 1923.1.178). Toutefois, si la différence de qualité est légère, le juge pourra ne pas prononcer la résiliation du contrat mais ordonner la réfaction du prix pour tenir compte de cet écart de qualité. 360. C’est à l’acheteur de faire la preuve d’une part, de la qualité qui a été prévue au contrat, d’autre part, de la difference de qualité de chose livrée par le vendeur. Les juges du fond ont un pouvoir d’appréciation souverain (Cass. Com. 31 oct. 1949, Bull. civ. II, no345, 10 juin 1974, ibid. IV, n0185).”

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[Emphasis added].

20. In the present matter, the Plaintiff pitched his claim on a purported major defect in the vehicle that was sold to him by the Defendant, namely an abnormally noisy A/C fan system rendering the use of the car particularly irritating and embarrassing. It is, therefore, incumbent on him to establish that the car which was delivered to him did not display “les qualités et caractéristiques que l'acquéreur est en droit d'en attendre.”

21. During his testimony, the Plaintiff strongly conveyed his personal appreciation on the loudness of the A/C on his car, and how annoying that was. Whilst I am mindful of the Plaintiff’s own perception, I am inclined to look for a more objective and empirical confirmation of the alleged defect. To that end, I have scrutinised the testimony of Mr. Bhoyroo who was called on behalf of the Plaintiff to give expert evidence on the subject. I must say that I have not been in the least impressed by the latter’s deposition in Court, nor the findings contained in his report (Document N). There is a marked lack of methodology in the manner in which Mr. Bhoyroo and his colleague, Mr. Vincent Salva, assessed the alleged abnormal noise. Mr. Bhoyroo contented himself with a personal evaluation of the noise and stated that no decibel test was required. I consider that merely qualifying the noise as “loud” and “irritating”, without any technical foundation, is far from being satisfactory. Furthermore, I have carefully viewed and listened to the two video clips produced in evidence by Mr. Bhoyroo (CD – Document P). It is disquieting that both videos were recorded from outside the car, whilst the car bonnet was open, and at very close range of the fan system. Even then, it cannot reasonably be said that the A/C fan system was abnormally loud.

22. I shall now turn to another disturbing feature about Mr. Bhoyroo’s testimony, which emerges from a question put by Learned Counsel for the Plaintiff to him (at the sitting of 18 October 2023 – at p. 11): “Q: When did you actually carry out the survey? A: The survey was carried out on 13 th April 2019.”

23. This aligns with Document N where it is stated that “the survey was carried out [sic] 13 th April 2019 at Castle [sic] in presence of the undersigned [i.e. Mr. M.A.

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Bhoyroo and Mr. Vincent Salva] around 13.25. Above mention [sic] vehicle had then reached a mileage of 5473 kms.” [Emphasis is mine].

24. However, Document M, which is a series of emails between the Plaintiff and Mr. Bhoyroo, gives an unexpected twist to that account. On 15 April 2019, at 1.03 pm, the Plaintiff sent the following email to Mr. Bhoyroo: “Dear Bye Mahmad, … Your assistant Vincent checked the car on Saturday 13 th April 2019. I thought you would have come as well but he told me that you were still taken up in the north of the island. …”. [Emphasis added].

25. This email, which was produced in evidence by none other than Mr. Bhoyroo himself, gives him the lie and indicates that, contrary to what Mr. Bhoyroo affirmed in Court, he never actually examined the car on 13 April 2019. Mr. Bhoyroo’s evidence is thus seriously tainted.

26. On a different note, Document N brings to light a marked lack of objectivity on the part of Messrs. Bhoyroo and Salva in the treatment of their assignment. Instead of focusing on the technical aspect of their task, they expressed biased views against the Defendant as illustrated by the following extract: “The lack of competency of CFAO Motors has cause [sic] moral prejudice to the owner of the vehicle who has no more trust in CFAO repairs. Their lack of competency has also cause [sic] financial issue to the owner who invest [sic] Rs 1,100,000 in a brand-new car but could not enjoy it as most of the time for a vehicle of 5473kms [sic] in mileage was at CFAO for testing purposes. In case CFAO Motors could not find the roots of the problem and as the unique representative of Volkswagen in Mauritius, we are in opinion that they will have to replace the said motor car of the Purchaser with a brand-new motor car of the same make and model or make a full reimbursement of the total amount paid for the vehicle.”

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27. For all the foregoing reasons, Mr. Bhoyroo’s credibility stands utterly compromised and this Court cannot reasonably act on his evidence.

28. Turning now to the Defendant’s line of defence, I am satisfied that the two witnesses called on its behalf convincingly explained that there was nothing wrong with the Plaintiff’s car A/C system/fan. The vehicle was thoroughly examined but no defect was detected. Mr. Ghanty candidly admitted that a leakage with the A/C compressor required the compressor’s replacement, and that was done by the Defendant. The witness stressed that such leakage was unrelated to the alleged abnormal noise issue. I have no reason to doubt his word.

29. It is observed that the repeated complaints of the Plaintiff to the Defendant were not ignored. The vehicle was scanned on several occasions by the Defendant even though no abnormality was revealed. Foreign expertise was also sought, but nothing unusual was noticed. The noise level of the A/C fan was found to be normal. I have not been convinced of the contrary.

30. In the light of all the above, I find that the Plaintiff’s case has not been established on a balance of probabilities. I dismiss it, with costs.

06 May 2026

M. ARMOOGUM Magistrate