Zakaria M Yatim J:

[1] The plaintiff's claim against the defendant is for a sum of RM56,084 being the balance of the sum due and owing to the plaintiff under a contract for the sale of one complete set of ACE Skyrak Passenger/Material Hoist Model MK 25 (the said machine). The plaintiff also claims interest at the rate of 1% per month as from June 1979 to the date of full payment and costs.

[2] In its statement of defence, the defendant alleged that the plaintiff was in breach of the conditions on description, fitness for the purpose and merchantability implied under ss 15 and 16(1) of the Sale of Goods Act 1957. The defendant also counterclaimed against the plaintiff for breaches of contract.

[3] In its counterclaim the defendant said that by reason of the breaches of contract on the part of the plaintiff, the defendant had suffered loss and damage totalling RM750,800 together with interest thereon at 6% per annum from 28 April 1979 to date of realisation and costs. The defendant also asked for a declaration that the plaintiff is liable to indemnify the defendant against all sums which the defendant may be found liable to pay to the estate and/or dependants of the deceased workman and to the injured workman as a result of the incident that occurred on 28 April 1979.

[4] It is not in dispute that the plaintiff and the defendant entered into a contract on 10 August 1978 for the sale of one complete set of the said machine. The sale is not disputed by the defendant. The purchase price and the question of the balance sum outstanding are also not disputed. It is also not in dispute that on 28 April 1979 the said machine was being used to transport two workmen to the 21st storey of the building under construction when it failed to stop at the intended height and subsequently crashed to the ground. As a result one workman sustained severe injuries and died. The other workman sustained severe injuries and was hospitalised.

[5] I shall now consider whether the plaintiff had been in breach of conditions on description, fitness for the purpose and merchantability implied under ss 15 and 16(1) of the Sale of Goods Act 1957.

[6] With regard to sale by description, Mr L H Ng, Counsel for the plaintiff in his written submission conceded that the sale of the said machine was a sale by description and there was consequently an implied condition that the goods should correspond with the description under s 15 of the Act.

[7] I agree with Mr L H Ng that there was no evidence in this case that the machine did not correspond with the description in the sales contract and the brochure. In fact DW2, who was employed by the defendant at the material time confirmed that the machine as described in the brochure and sales contract was sold by the plaintiff to the defendant and installed at the defendant's construction site. Mr Radhakrishnan, Counsel for the defendant stated in his written submission that the defendant was not relying on the breach of implied condition under s 15 of the Act on the basis of the evidence before the Court.

[8] I shall next deal with the question of the condition on fitness for purpose. Section 16(1)(a) of the Act states as follows:

16. (1) Subject to this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not) there is an implied condition that the goods shall be reasonably fit for such purpose:

Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied