General Assembly of the Law 2017/694 E. , 2020/71 K.
“Text Of Jurisprudence”
COURT :Consumer Court
.
1. At the end of the trial between the parties for the case “Return of decadent property-compensation”, Izmir 1. The defendant in the Consumer Court …Inc. in respect of the dismissal of the case, the defendant … Automotive Industry and Trade A.Sh. and the defendant Cakirlar Motor Vehicles San and Ltd. Şti. the Supreme Court of Cassation decided on the partial acceptance of the claim for non-pecuniary damages by accepting the request for a double replacement of the vehicle in terms of 13. As a result of the examination conducted in the Legal Department, it was overturned, and the Court’s decision to demolish the Private Apartment was resisted.
2. The decision to resist the defendant … Automotive Industry and Trade Inc.Sh. it has been appealed by the deputy.
3. After it is understood that the decision to resist was appealed during the examination by the General Assembly of the Law and as of the date of the decision to resist, provisional Article 3 of the Code of Civil Procedure No. 6100 has been issued. 438 of the Code of Civil Procedure No. 1086 (as amended by Law No. 5236 of 26.09.2004), which is being implemented in accordance with Article 438 of the Code of Civil Procedure. in accordance with the second paragraph of the article, the defendant … Automotive Industry and Commerce A. Since the decisions to resist cannot be heard in the appeal review.Sh. after the rejection of the deputy’s request for a hearing was decided and the documents in the file were read, the requirement was discussed:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The deputy plaintiff filed a petition dated 15.03.2011; one of the defendants of his client, Chakirlar Motor Vehicles San. Tic. Ltd. Şti. den, the defendant of the manufacturer on 28.09.2009 (29.09.2009) … Automotive Industry and Trade A.Sh. the 2010 model Hyundai Getz private car bought brand, but even before 12000 miles a year while I was in the path of the vehicle if it is left to an Authorized Service inspection of the vehicle with the withdrawal being hit by a small stone that punctured the radiator with the radiator, water discharge within the engine suffered severe damage to the temperature indicator in the determination of AFC was determined that the situation occurred due to a lack of protective equipment in the vehicle and this situation is understood that there is a manufacturing error, repairs done under warranty has not been accepted by asserting that despite wanting to be modified with the times without defect of the vehicle, unless the sales price is 20 000 TL 3.000 TL non-pecuniary damages, the rate must be used for the vehicle service from the date of receipt 1.200 TL paid for the rental vehicle costs due to this event they detect obliged to supply, the notice requested that the amounts of exploration costs and gratuitous insurance premiums to be calculated from 01.06.2010, when the vehicle remains on the road, together with commercial interest, be decided jointly and severally from the defendants.
The defendant’s answer:
5. Plaintiff, defendants … Automotive Industry and Trade Inc.Sh., Çakırlar Motor Vehicles San. Tic. Ltd. Şti. and Aksigorta A.Sh.he filed a lawsuit against the.
5.1. Of the defendants … Automotive Industry and Trade Inc.Sh. the deputy filed a response petition dated 24.05.2011; the event in question and aggregate paving stones of the road conditions, which is described as arising from the way of the fault that occurred through the engine cooling radiator deemed as a manufacturing fault that occurred as a result of shock, whether they be No. 4077 on the protection of consumers Law (TKHK) and looking to change the terms of the regulations on the warranty certificate application procedures of car, whether the plaintiff’s case is proposed as the basis of detection cannot be used as evidence because of the report have been taken unilateral, stating that the plaintiff has no right to demand the cost of renting a car, that the claims for material and moral damages are unfounded, that the demand for interest on the refund of the price is not possible, he argued for the rejection of the case; if it is decided to accept the plaintiff’s refund and interest claims, the plaintiff has requested that the settlement and deduction be decided by taking into account the use of the vehicle subject to the lawsuit by the plaintiff from the date of sale to the date of the lawsuit, determining the plaintiff’s use of the vehicle and calculating it together with the advance interest from 29.09.2009, taking into account this price when establishing the judgment.
5.2. The defendant …Sh. deputy and defendant Çakırlar Motor Vehicles San. Tic. Ltd. Şti. the deputy requested that the case be dismissed.
ruling:
6. Izmir 1. The decision of the Consumer Court dated 27.12.2012 and dated 2011/364 E., 2012/1030 K. by his numbered decision; the fault occurred as a result of a crack caused by a piece of stone coming into the radiator of the vehicle subject to litigation, cooling water was lost and caused a fire, the vehicle was not mechanically and materially shockproof, this issue is a hidden shame caused by manufacturing, so the plaintiff’s Law No. 4077 4. according to the article and the related regulations, the right to exercise their electoral rights arises from the defendants … Automotive Industry and Trade A.Sh. and Cakirlar Motor Vehicles San. Tic. Ltd. Şti. in the case filed against him, the plaintiff’s request for a shameless exchange and a rental fee of 1,200 TL was accepted, the claim for moral compensation was partially accepted (1,500TL); one of the defendants was Aksigorta A.It has been decided to dismiss the case against Ş on the grounds that this defendant has no responsibility for the defect of the vehicle.
The Decision to Spoil the Private Apartment:
7. Within the time limit against the above-mentioned decision of the Local Court, the defendant … Automotive Industry and Trade Inc.Sh. the deputy appealed.
8. Supreme Court 13. The Law Department has a certificate dated 11.03.2014 and dated 2013/8741 E., 2014/6808 K. by his numbered decision;
“…
1-The plaintiff has a lawsuit at hand and the defendant is Çakırlar Oto Ltd. He claimed that the car he bought from Sti was defective and requested a change and compensation in double time. It is understood that the court decided to accept the change request on the grounds that the vehicle subject to the case is not mechanically and materially shockproof by referring to the expert panel report dated 05/04/2012, which was received by instruction during the trial. The dispute between the parties is at the point of whether this malfunction is caused by a user error or a manufacturing error, according to the contents of the file being reviewed Dec; it is fixed that the malfunction in the vehicle subject to litigation occurred as a result of a stone entering the car’s radiator during cruising, piercing the radiator and causing it to heat up, and there is no dispute about this.
Balikesir 1, which is based on the case at hand by the plaintiff party. The court of First Instance of the file created after the detection process, which were built with various job No. 2010/92 08/07/2010 expert report dated; in the case in the event of splashes in the vehicle to protect the radiator does not have part of the aggregate stated that davalilarca on the other hand, the protective piece is a piece of hardware that should be evaluated in the context of the price and the model as a result of the difference in the case of this piece asserted that although the subject is not in the vehicle by the court in this regard have not been researched. As a result, the court investigates whether the radiator protective part specified in the expert report dated 08/07/2010 is present in the same model vehicles as the vehicle subject to the case, and the decision to accept the case on written grounds is contrary to the procedure and law, while the conclusion should be established according to the conclusion, the reason for the violation is contrary to the procedure and the law.
Chapter 49 of the Code of Obligations No. 2-818 (BK), which is organized in the unfair action chapter. article 98/2 of the same law is also applied to acts contrary to the convention. However, in order for the request for moral compensation to be accepted in accordance with the provision of this article, the existence of an unlawful, unjustified attack on the rights of a person, among other conditions, is also necessary. It is not possible to accept that the defendant’s refusal to accept the plaintiff’s request for repairs under the warranty is an attack on his personal rights. If so, there can be no mention of the existence of the conditions of non-pecuniary compensation in this case. Despite this, the court’s decision on non-pecuniary compensation is contrary to the procedure and law and requires overturning.
3-As the cost of renting a car for the benefit of the plaintiff with the decision made by the court 1200.TL it is understood that it was decided to collect the from the defendant, but it turns out that the documents on the proof of material damage are not present in the file. Therefore, it is contrary to the procedure and the law to refuse the claimant’s request for the rental price of the car, while it is necessary to decide whether to accept it in writing, and this requires overturning it.
4-According to the reasons for the violation, there was no need to examine the defendant’s other appeals.” the decision on the grounds has been overturned.
The Decision to Resist:
9. Izmir 1. The decision of the Consumer Court dated 15.09.2015 and dated 2015/17 E., 2015/930 K. by his numbered decision; A private apartment and the rental fee of moral damages should be given to the decision of the denial of the requests have been complied with that ruling, the vehicle prior to ruling on the reasons for the change request times without defect to the file all the reports that have been provided and, in particular, reached a commission of three experts from the Middle East Technical University in the reports of the radiator resistant to external factors and pulses should be designed to have the characteristics to be drilled with the little stone, according to the fact that the car in question can crack with a small stone impact, the mechanical and material properties of the radiator are not resistant to this impact, and the current shame is considered a hidden shame caused by manufacturing, as well as the driver may not notice it according to the speed of cooling water discharge with the current blow, since there is no information and documents submitted to the file or determined on this subject, the main thing to be evaluated is that the fact that there is a hidden defect caused by manufacturing should be accepted due to the fact that there is not enough solid material and material used for the radiator, while the Supreme Court decision on overturning the defendant’s hardware-related defense should be evaluated when examining the issue, if the protective part of the radiator is not included in the equipment of this vehicle, the defendant should not offer the vehicle that is not part of the protection for sale, if it is offered for sale, this time the decision was made to resist on the grounds that it is necessary to make its design and material resistant to external impacts, that is, the plaintiff has chosen the model and equipment that his budget allows, and it is unthinkable that he will suffer the consequences of a malfunction that will occur in a top model or because he has not chosen this part that is optional.
Appeal of the Decision to Resist:
10. During the period of the decision to resist, the defendant … Automotive Industry and Trade Inc.Sh. it has been appealed by the deputy.
II. DISPUTE
11. The dispute that has come before the General Assembly of Law by way of resistance is being brought to the point of whether it will be effective to investigate whether there are radiator protective parts in the same model vehicles to determine whether the conditions for replacing the vehicle subject to the case with a shameless one exist.
III. reason
12. First of all, it is useful to focus on the concept of “shame” in resolving the dispute.
13. 4 of the Law No. 4077 on Consumer Protection (TKHK), which should be applied as of the date of the lawsuit, the regulation on the month. it is included in the article.
14. Article 1 of the said article. in the paragraph; “the packaging on the label or in the manual introduction and promised by the dealer identified in the standard or quality and/or quantity or value or in terms of the consumer or purpose which is contrary to allocate that reduces or eliminates the benefits expected from it, financial, legal, or economic deficiencies that contains the defective goods or defective goods or services is considered a service.” it is said, and in the ongoing paragraphs, the formal conditions related to this are considered.
15. 194 of the Code of Obligations (BK) No. 818 of the Republic of Moldova. item:
“The dealer is responsible for the fact that the mebiin mentioned and promised qualities against the customer are mutual, as well as for the fact that it is safe from the shame that, for a material or legal reason, its value or maximum interest is assessed in a fair or important way.
Even if the dealer does not know the existence of these defects, he is responsible for them”.
16. As can be seen, the concept of shame in BK No. 818 and TKHK No. 4077 described above are 4. the concepts of shame contained in the article coincide with each other.
17. A defect is that there are no qualities that should normally be present in a product in accordance with the provisions of a contract and a law, or there are disorders that should not be present.
18. In this context, when determining the content of the concept of “shame”, the provisions of the contract should be looked at first. The first dec to look at when considering a contract is whether there is an explicit agreement between the parties on what characteristics the goods sold should contain. In the event that there is no agreement on it, based on the interpretation of the agreement, it will be examined whether the parties have tacitly entered into an agreement on this issue. In cases where it is not even an implied agreement, the entire agreement will be considered and the characteristics that the goods must carry will be determined according to the rule of honesty. In this sense, shame will arise in the form of the fact that the product does not have the qualities that it should have according to the contract, or if there is no special provision in this regard, taking into account the nature and content of the contract, the lack of the qualities that should be present in the product.
19. The shame of the goods sold can be in the form of open or hidden shame. Obvious defects are defects that can be seen at first glance or understood by a simple examination. In contrast, hidden defects are defects that cannot be noticed at first glance and are understood by a detailed examination to be performed later. Such defects are usually defects related to the structure of the goods and understood by its use.
20. 4/2 of the TKHK No. 4077. in the article, it is stated what the buyer’s electoral rights consist of if the goods are defective, and the consumer has the right to return from the contract, including a refund, replace the goods with a defective one, or request a price reduction or free repair at a defective rate in this case. The seller is obliged to fulfill this request, which the consumer prefers. The consumer has the right to demand compensation from the manufacturer-manufacturer in cases that lead to death or injury caused by a defective product and cause damage to other goods in use, as well as one of these optional rights.
21. 202/1 of BK No. 818 regarding the buyer’s electoral rights. in its article, it is regulated that the buyer may request the termination of the contract or the withholding of the sold and the tendering of the semen in exchange for the lack of its value by informing that the buyer is ready to return the sold if the product is defective.
22. 202/2 of BK No. 818. in the article, it is stated that in case of shame, upon the buyer’s request for termination of the contract, the judge may decide on the tendering of the semen if he does not consider the termination of the contract to be justified.
23. 203 of BK No. 818. in its article, it is regulated that if the seller has certain amounts of things, the buyer, if he wishes, can request the termination of the contract or the replacement of the goods with a shameless amount, without demanding any of the tenzil of the semen.
24. As a matter of fact, the General Assembly of the Law dated 27.06.2019 and dated 2017/13-618 E., 2019/792 K. the same points were pointed out in the numbered decision.
25. Considering the concrete incident in the light of these explanations; There is no dispute between the Local Court and the Private Department that the vehicle malfunctioned as a result of the fact that the cooling water was decayed and caused a fire by a crack caused by a piece of stone coming to the radiator of the vehicle while the subject of the lawsuit was cruising. As explained in detail above, the definition of shame is that there are no qualities that should normally be present in a good, or there are disorders that should not be present. Since the consumer’s expectation of a purchased vehicle is to drive with minimal safety, there should be no hesitation when the car sold with the missing part is defective without the material to protect the radiator from the possible splashing that may occur with each ride.
26. Each private apartment, in the judgment of reversal, the case of vehicles of the same model vehicle to protect the radiator with the subject mentioned in it should be investigated whether you are part of, and therefore from others as mentioned in the defence in the absence of this that it could be a hardware issue if it is specified, which are not in conformity with the launch of the country’s road conditions of the vehicle in the first place, would create a security weakness, and therefore we conclude that the difference in hardware, because the fact that it is not possible to be regarded as, it is not necessary to investigate whether there is a part to protect the radiator mentioned in the same model vehicles.
27. During the negotiations held at the General Assembly of the Law; in the face of the fact that equipment is different in vehicle sales on the market and vehicle prices vary depending on the equipment, the court should evaluate how many types of Getz model vehicles are produced in hardware options, what are the differences between them in terms of the subject of the lawsuit, whether the radiator protection that is allegedly not present in the subject of the lawsuit has anything to do with the price difference, if this protection does not exist, is unique to the subject of the lawsuit and is available in other dec vehicles, although it was suggested that the plaintiff would have to admit that he preferred the vehicle sold at a lower price knowing this issue, and in this case the defendant would not be explained to the defect, it was not correct to decide with the thought that protection should exist, as well as the rationale that the radiator, which should be made of soft material, should be resistant to stone impacts, was not appropriate, this opinion was not adopted by the majority of the Board.
28. As such, the defendant Çakırlar Motor Vehicles San. and Ltd. Şti. about the decision of the local court dated 27.12.2012 and dated 2011/364 E., 2012/1030 K. the decision established by the numbered decision has been finalized without appeal, so Cakirlar Motor Vehicles San. Ltd. Şti.although it is understood that the non-dispute remains, the defendant … Otomotiv San. and tic. A.Sh. on the grounds that the lack of the vehicle is a hidden shame, the decision to resist the acceptance of the request for a double replacement of the vehicle is in place.
29. However, according to the reasons for the breakdown, the defendant is … Automotive Industry and Trade Inc.Sh. since the other objections of the deputy regarding the merits of the work have not been examined, the file should be sent to the Special Department for examination in this regard.
IV. result:
For the reasons described;
If it is appropriate to resist, the defendant … Automotive Industry and Trade Inc.Sh. 13 of the Supreme Court of Cassation of the file for consideration of other appeals of the deputy on the merits of the work. To be sent to the Legal Department,
However, due to the fact that the way to correct the decision is open, first of all, the General Assembly of Law decision by the court will be notified to the parties to perform the operations, if the way to correct the decision is applied to the General Assembly of Law, if the file is not applied to the General Assembly of Law, and if it is not applied directly to the Court of Cassation 13. TO BE SENT TO THE LEGAL DEPARTMENT,
Provisional Article 3 of the Code of Civil Procedure No. 6100. 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance with the article, the decision was made by a majority vote on 04.02.2020, with a clear way to correct the decision within fifteen days from the notification of the decision.
VOTE AGAINST
Prosecutor; the defendant claimed that the car he bought with an invoice dated 28/09/2009 from Cakir Auto company failed during the cruise, the inspection found that the engine failed due to a stone hitting the radiator, and the warranty process was not applied, considering this to be a user error, while the court found that the vehicle was carrying a manufacturing error, stating that the defective vehicle was returned to him with a new vehicle, if it is not, the sale price is 20,000 Collection of TL together with commercial interest from the defendant, he asked the defendants to decide on the collection of the amounts of the commercial interest of the TL 1,200 that he paid for the rental vehicle with the non-pecuniary damage of the TL 3,000 and the determination costs incurred due to this incident, the warning discovery costs and the insurance premiums that were unanswered and had to be paid from the defendants.
The defendants have requested the dismissal of the case.
According to the Court, the defendant is Ak Sigorta A.The dismissal of the case against Sh, the defendants Hyundai A.Sh and Chakirlar Auto Co., Ltd.In the case filed against Şti, it was decided to accept the request to replace the vehicle with a double one, to partially accept the claim for non-pecuniary damages; the provision, the defendant … A.On appeal by the relevant department; Although the expert expert stated that there is no part to protect the radiator in case of splashing in the vehicle subject to the lawsuit, on the contrary, the defendants suggested that the protective part is a part that should be evaluated within the scope of hardware, due to the difference in price and model, this part is not found in the vehicle subject to the lawsuit, since it is understood that the court has not investigated this issue with a bet, the court has the same model vehicles as the vehicle subject to the lawsuit, 08/07/2010 specified in the expert report dated radiator examined for the presence of the protective component should be established according to the judgment result of the case with procedures to be decided upon the adoption of justification is written while it is against the law, but also moral damages and the cost of the rental car than it needed to be given a bet decision was quashed.
By the Court; Court of Cassation 13. The decision of the Legal Department to disrupt the non-pecuniary compensation and rental price was complied with, and it resisted the disruption aimed at the research.
It was stated by the plaintiff that the vehicle malfunctioned due to a stone hitting the radiator while the vehicle was cruising, and the defendant argued that the vehicle purchased by the plaintiff had the same equipment as the price paid. It is a fact that equipment is different in vehicle sales in the market, vehicle prices differ depending on the equipment. As such, the court should evaluate how many types and models of getz brand vehicles are produced, what are the differences between them in terms of the subject of the lawsuit, whether the radiator protection that is allegedly not present in the dec subject to the lawsuit has anything to do with the price difference. This lack of protection of the case is unique and subject to the vehicle in case of other equipped vehicles, the plaintiff sold with a cost of less preferred knowing these matters would require the adoption of the tool, and in this case, without evaluating whether the defendant should be attributed to defect to, with the idea that it is not correct to be decided should be there to protect the propeller and speed made of a soft material that need to be hit in the Stone the radiator to the radiator is damaged natural with regard to damage, and the stone of the radiator by the court in this matter on the grounds that it should be resilient to the impacts of not get in. For this reason, we cannot agree with the majority’s opinion on the approval, since the court’s decision must be overturned for the specified reasons.
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