dissenting.
The majority concludes that the legal effect of OCGA § 40-8-5 (d) is that the manufacturer’s testing of a new vehicle with the odometer disconnected does not alter the vehicle’s status as a new vehicle, and that therefore appellee’s fraud and breach of contract claims must fail as a matter of law. Because I am of the opinion that the question of whether appellee’s car is still a new car after the manufacturer’s testing is a question of fact, I must dissent.
It is undisputed that appellee’s automobile was tested as part of appellants’ OEP, which allows designated Chrysler employees to drive randomly selected vehicles from work to their homes and return them the following work day. Although there is evidence in the record that OEP vehicles are driven an average of 40 miles, there is nothing in the record to indicate how many miles appellee’s automobile was driven before he purchased it. In Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982), we noted that “an intrinsic quality of a car sold as new [is] that it has neither been damaged nor used to any significant extent.” Moreover, we held in Century Dodge v. Mobley, 155 Ga. App. 712 (2) (272 SE2d 502) (1980), that the question of whether a car is new is one of fact and must be submitted to the jury. Therefore, I cannot agree that appellee’s claims fail as a matter of law.
I agree with the majority’s assertion that OCGA § 40-8-5 is designed to protect the consumer against fraud. However, the statute is silent on whether the seller of a new vehicle must disclose to the consumer that the vehicle has been driven an unknown number of miles with the odometer disconnected, and it is exactly this nondisclosure that forms the basis for the fraud count of appellee’s complaint. Since appellee’s action, which relates to his rights as a consumer and appellants’ obligations as sellers of new cars, is one for which no remedy is provided in OCGA § 40-8-5, the action is not precluded by that statute. See First Ga. Bank v. Webster, 168 Ga. App. 307 (1) (308 SE2d 579) (1983).
Because I believe the trial court properly allowed the fraud question to go to the jury, I would reverse that part of the trial court’s order granting summary judgment to appellants on the punitive damages issue and allowing damages under OCGA § 40-8-5 (g). See Champion v. Martin, 124 Ga. App. 275 (2) (183 SE2d 571) (1971).
I am authorized to state that Presiding Judge McMurray and *41Judge Pope join in this dissent.
Decided December 4, 1989 Rehearing denied December 19, 1989 Fleissner, Cooper, Marcus & Steger, Christopher H. Steger, for appellants. James A. Meaney III, Clifton M. Patty, Jr., for appellee. Word & Flinn, T. Michael Flinn, amicus curiae.