The consumer’s issue:
“I was looking to purchase a fully automatic car, and found one that met the criteria on the website of a dealership, so I decided to buy an 18-month-old SUV in August 2018. The business had asked me whether I wanted to test drive the car prior to the purchase, but it wasn’t possible due to living too far away from the dealership.
However, when it was delivered, I noticed the mileage was slightly higher than the one advertised (i.e. over 20,300 compared to the 19,821 that was advertised), and I also realised it was a semi-automatic and not a fully automatic car, as stated by the business. The other issue was that it jerked slightly when changing gears, and the vehicle also moved forwards when moving backwards, and went backwards when moving forwards.
I informed the business that I wasn’t happy with the car, but the replacement that they were proposing didn’t make financial sense. Therefore, to diagnose the issue with the gearbox, they said that I could book it into a dealership of the same make as my car. However, I was told there was nothing wrong with the vehicle, and that it was a semi-automatic. I wasn’t happy with this, as it had been advertised as having an automatic gearbox.
I asked the dealership to replace the car with a fully automatic one, which they did. But the replacement was older and it cost £1,500 less than the semi-automatic. As a result, I’ve asked the dealership to refund me the difference of £1,500, but they’ve refused.”
The accredited business’ response:
- We advertised the car as an automatic because it doesn’t have a clutch pedal, and there is no need to manually change gears. It’s only the inner workings that are different to what the consumer assumed, and we call this an ETG (Efficient Tronic Gearbox) and the advert clearly stated this.
- With this semi-automatic transmission, the gear changes are more noticeable, and this is why the consumer has noticed some jerking/rolling back of the car.
- We inspected the customer’s vehicle and found no mechanical faults, but some cosmetic issues were repaired when they brought the car in to us.
- In addition, there was a slight issue with the rear passenger seat, which we offered to repair, but we don’t think these warranted a rejection of the car or a replacement.
- We acknowledge that there was a difference of 479 miles between the advertised mileage and that on delivery, but this doesn’t impact the desirability of any used vehicle or its value.
- As a goodwill gesture, we did offer to take the car back as a part exchange at a reasonable rate and supply the consumer with a fully automatic vehicle.
- We sent them details of the car we had found for her and she came back into the showroom wanting to purchase the vehicle.
- The consumer was advised not to proceed with the part-exchange until a full diagnostic check was carried out, but they continued with the transaction regardless. It was their decision to proceed with the purchase knowing there would be a difference in cost of £1,500.
- I don’t believe we are liable to refund this amount to the consumer, as the car was of satisfactory quality and fit for purpose when it was sold to them.
The adjudication outcome:
- The adjudicator reviewed the evidence, and noted that the gearbox had been described as ‘automatic’, and it was reasonable for the consumer to have relied on this.
- They said the use of the abbreviation ‘ETG’ wasn’t commonplace, and it was unreasonable to expect the average consumer to understand what this meant and how this actually differed from a fully automatic car.
- The adjudicator concluded that the car had been mis-represented in the advert and recommended the dealership provided a refund of £1,500 to the consumer.
- However, the business disagreed with The Motor Ombudsman’s adjudication outcome and requested an ombudsman’s final decision.
The ombudsman’s final decision:
- The ombudsman explained that the dealership had a duty to provide clear and accurate information about a vehicle they intended to sell, to enable the consumer to make an educated decision about the purchase.
- She noted the business had gone into detail explaining the difference between an ETG and a semi-automatic car, and stated that the two transmissions in fact did differ. This was also evident by the jerking and rolling back of the car which the consumer had complained about.
- The ombudsman reviewed the advertisement the consumer had relied on, and noted that, when describing the ‘version’ of the car, it included reference to its engine size, colour and the term ‘ETG’. But, immediately below it, under ‘Gearbox’, it stated the car was an automatic.
- She said the average consumer wouldn’t understand what ETG stood for, and when looking at the advertisement, it was reasonable for the consumer to believe the vehicle was fully automatic.
- The ombudsman said the car had been returned by the customer within a week of buying it, and exchanged it with an older one which cost £1,500 less than the semi-automatic. It was therefore considered unreasonable for the dealership to retain this amount from the consumer.
- The ombudsman also noted that the purchase had been made online and over the phone, with the consumer only having had sight of the car at the point of delivery.
- She said this constituted a distance sale, and the consumer was protected by the Consumer Contracts Regulations. This meant that they had the right to return the car and cancel the transaction within 14 days of the vehicle being delivered.
- In conclusion, the ombudsman explained that the faults that had been noted with the car on delivery, and the fact it had been advertised as an automatic rather than a semi-automatic was enough to warrant rejection.
- The consumer’s complaint was therefore upheld in their favour, and the dealership was asked to refund the difference in cost between the semi-automatic and the replacement vehicle which was £1,500.
