Defective Vehicle
T.C.
JUDICIARY
13TH CIVIL CHAMBER
E. 2010/1116
K.2010/12853
T.11.10.2010
REQUEST FOR THE REFUND OF THE PRICE OF THE DEFECTIVE GOODS (It is not possible to talk about the existence of statute of limitations in the case in the face of the fact that the service keeps the consumer busy with repairs that do not get results and the recurrence of the malfunction with certain periods)
Statute of Limitations (Request for Refund of the Price of the Defective Goods – The Presence of Statute of Limitations in the Case cannot be Mentioned in the Face of the Service Keeping the Consumer Delayed with Unsatisfactory Repairs and Repetition of the Fault with Certain Periods)
DEFECT ARISING FROM THE SELLER’S MAJOR FAULT (If the defect of the sold goods is concealed from the consumer by the seller’s gross fault or fraud, the statute of limitations cannot be utilized)
REQUEST FOR THE RETURN OF THE DEFECTIVE VEHICLE (The Lawsuit Is Not Time-Barred – Since the Vehicle Subject to the Lawsuit is Still in the Use of the Plaintiff, Interest Should Be Charged on the Judgment from the Date of Return of the Defective Vehicle to the Defendant)
4077/m.4/4,23
SUMMARY: The lawsuit is a request for the refund of the price of defective goods. It is inconceivable that the consequences of having service employees who try to repair the vehicle by trial and error and change parts should be attributed to the consumer. In the face of the fact that the service keeps the consumer busy with repairs that do not yield results and the malfunction recurs with certain periods, the existence of statute of limitations cannot be mentioned in the case. As a matter of fact, Article 4/4 of the Law No. 4077 amended by the Law No. 4822 stipulates that “However, if the defect of the goods sold is concealed from the consumer by the seller’s gross negligence or fraud, the statute of limitations cannot be utilized.”
The lawsuits in the consumer courts are subject to simple trial procedure, and the statute of limitations defense can be asserted until the first hearing. The case is not time-barred. However, since the vehicle subject to the lawsuit is still in the use of the plaintiff, interest should be charged on the awarded receivable from the date of return of the defective vehicle to the defendant.
CASE: At the end of the trial of the lawsuit for the return of the price of the defective goods between the parties, the judgment given for the partial acceptance and partial rejection of the case for the reasons written in the judgment was appealed by the defendant D… Oto attorney and the plaintiff attorney without a hearing, and a summons was sent to the relevant parties. The hearing was started on the specified day when the defendant’s attorney and the plaintiff’s attorney arrived, and after the oral explanations of the lawyers present were heard, it was left to another day for the decision. This time, it was determined that the petition of appeal was in due time and the file was examined, the requirements were discussed and considered:
DECISION The plaintiff claimed that the vehicle he purchased from the defendant G… Automotive Limited Company had a manufacturing defect, and that the other defendant was the importer of the vehicle, and requested a decision to collect 70.929,00 TL, the price he paid.
The defendants defended the rejection of the lawsuit.
The court decided to dismiss the lawsuit against the defendant G… Otomotiv Limited Company and to accept the lawsuit against the other defendant; the judgment was appealed by the plaintiff and the defendant D… Otomotiv A.Ş.
1- According to the writings in the case, the evidence on which the judgment is based, the reasons in accordance with the law and especially since there is no inaccuracy in the appreciation of the evidence, the other appellate objections of the plaintiff and the defendant D… Otomotiv A.Ş., which are not covered by the following subparagraphs, should be rejected.
2- It is understood from the evidence in the file that the vehicle purchased by the plaintiff from the defendant G… Otomotiv Ltd. Şti. on 4.5.2006 had a manufacturing defect and had hidden defects. However, the court decided to dismiss the lawsuit against this defendant due to statute of limitations on the grounds that the defendant G… Otomotiv Ltd. The vehicle subject to the lawsuit was taken to the authorized service five times between 9.12.2006 and 25.4.2008 due to the same fault (low traction). In the face of the evidence in the file, there is no doubt that there is a manufacturing defect in the vehicle and that this is a hidden defect. Authorized service stations are obliged to have personnel who can diagnose the fault and defect correctly and completely, and fix it as soon as possible and completely.
It is inconceivable that the consequences of having service employees who try to repair the vehicle by trial and error and change parts in the service should be charged to the consumer. In the face of the fact that the service keeps the consumer busy with repairs that do not produce results and the malfunction recurs with certain periods, the existence of statute of limitations cannot be mentioned in the case. As a matter of fact, Article 4/4 of the Law No. 4077 amended by the Law No. 4822 stipulates that “However, if the defect of the goods sold is concealed from the consumer by the seller’s gross negligence or fraud, the statute of limitations cannot be utilized.” (Decision of the Court of Cassation HGK dated 18.2.2004 and numbered 2004/ 4-29 E-2004/83 K). While the court should have decided on the dismissal of the lawsuit in terms of the defendant G… Automotive Limited Company, the dismissal of the lawsuit due to statute of limitations as written is contrary to the procedure and the law.
3- Defendant D…. Otomotiv A.Ş. filed a defense of statute of limitations in its reply petition, and the court decided to accept the lawsuit against this defendant on the grounds that this defense of statute of limitations was not in due time. Article 23/2 of the Law No. 4077 amended by the Law No. 4822 stipulates that “The cases to be heard in the consumer courts shall be carried out in accordance with the provisions of the seventh chapter, fourth chapter of the HUMK.” In this case, the lawsuits in the consumer courts are subject to simple procedure and the statute of limitations defense can be asserted until the first hearing. In the concrete case, the first hearing date is 27.11.2008. The reply petition of the defendant D… Otomotiv A.Ş., in which the defendant D… Otomotiv A.Ş. defends the statute of limitations, is dated 6.11.2008. In this case, although the defendant D… Otomotiv A.Ş.’s defense of statute of limitations is in due time, the lawsuit is not time-barred for the reasons explained in paragraph 2. However, since the vehicle subject to the lawsuit is still in the use of the plaintiff, it is a reason for reversal to charge interest from the date of the notice dated 2.5.2008, while interest should be charged from the date of return of the defective vehicle to the defendant.
CONCLUSION: For the reasons explained in the first subparagraph, the other appellate objections of the plaintiff and the defendant D… Otomotiv A.Ş. are rejected, for the reasons explained in the second subparagraph, the appealed decision is reversed in favor of the plaintiff, and for the reasons explained in the third subparagraph, in favor of the defendant D… Otomotiv A.Ş. A.Ş. for the reasons explained in the second subparagraph and for the reasons explained in the third subparagraph, 750.00TL hearing attorney fee to be paid to each other, and 960.00 TL appeal fee taken in advance to be returned to the defendant D… Oto and the plaintiff upon request, it was unanimously decided on 11.10.2010.