Where is the garage located as regards the contravention point?
Is a test drive necessary or do we have a TWOC argument like this one:-
2230281180 Sadiq Abubakar v London Borough of Ealing
The Appellant attended in person. The Appellant's friend and witness Tasnim Hoque also attended. The Enforcement Authority did not attend and had not been expected.
The Appellant explained that his vehicle was collected for repairs by 22 Motors, a mechanic, on Monday 24 April 2023. The Appellant did not get his vehicle back from 22 Motors until 28 April 2023. The Appellant explained that he selected 22 Motors as they had a service where they collected your vehicle from you and returned it, after completion of the work, within 24 - 48 hours. The Appellant needed repair to a scratch and the body work of the vehicle, and a lower bumper to be replaced.
The Appellant told me that he has a tracking device on his vehicle, and he noticed that after the vehicle was collected from his then address on 24 April at 12:10 (HA1 4HA) it had been moved to different locations at 15:35; 18:56;
19:49; 22:25 and 22:48 on that date. The tracking device shows that it was moved on 25 April 2023 at 12:45; 13:30; 13:57 and 14:08. The Appellant telephoned the mechanic to ask them why they had been using his vehicle beyond simply driving it to the garage. The Appellant was told that the mechanic had to collect paint samples, and supplies for repairs, but that if any charges were incurred the mechanic would pay for them. The Appellant told me that he was particularly concerned about the night time journeys in case the vehicle was damaged.
The Appellant showed me the tracking entries for the week 24 April to 28 April, which showed the above times and entries and the relevant postcodes. I directed that screenshots of the complete entries be submitted by email to the Tribunal so that they could be uploaded to the system. The Appellant explained that the images from the tracking system that he had already submitted were copies of the entries sent to 22 Motors, which were only for the Tuesday 25 April as it was that date which the PCN was issued. The final entry on 25 April, at 14:08 is for postcode TW5 9HA, which is where 22 Motors is, on Vicarage Road. This was supported by a Google search Ms Hoque showed me on her mobile telephone using that postcode.
The entry for 13:57 on 25 April 2023, shows postcode UB1 1NT as the starting point. This is the location of the alleged contravention. I find that the entry shows that the vehicle was driven from the location of the alleged contravention at about 13:32 to arrive in its next location and park at 13:57. This is consistent with the Civil Enforcement Officer's photographs, which show the vehicle being driven away at 13:32 on 25 April.
Ms Hoque gave evidence relating to messages that she received from the Appellant on the date of the vehicle being collected and telephone conversations that she had with various individuals at 22 Motors. Ms Hoque confirmed that the Appellant told her about discovering on his tracker that the vehicle was being moved without his consent after collection. Ms Hoque told me that she interprets for her father and has had a lot of contact with garages in doing so, so she telephoned 22 Motors on the Appellant's behalf to ask that they pay the penalty charge. The Appellant described speaking to different people who contradicting themselves and each other by telling her that they were the owner, or the manager.
The Appellant told me that he has also challenged the fee, which he was required to pay to 22 Motors for release of his car, with the Motor Ombudsman. The Appellant has submitted a copy of his complaint to the Ombudsman, which was consistent with his account of events today. The Appellant mentions in that statement that he found his sunglasses to have been taken, and his chewing gum to have been replaced.
I found the Appellant and Ms Hoque to be compelling and reliable witnesses.
It is normally the case that the registered keeper is liable for a penalty charge. However, there are some exceptions. One of these is where the vehicle is taken without the owner's consent. This is usually the case where a vehicle has been stolen. Liability does not normally pass, and is not normally avoided, where a registered keeper has given their vehicle to a mechanic for repair. However, in the present case, based on the evidence, I find that the mechanic far exceeded any circumstances of use of the vehicle which would be expected in the process of carrying out repairs. I do not find the mechanic's explanation to the Appellant, that they went to Tesco and to collect a paint sample, sufficient explanation for nine different trips including at night time. The evidence from the tracker shows that the mechanic, or someone on behalf of 22 Motors, for their own transport, unrelated to the repairs, over the course of 24 and 25 April 2023. I therefore find that at the time of the alleged contravention the vehicle had been taken without the Appellant's consent.
I therefore allow this appeal
Mike
