Defective Vehicle Court Of Cassation Decision
T.C.
JUDICIARY
GENERAL ASSEMBLY OF LAW
2009/13-183
2009/243
3.6.2009
DEMAND FOR MATERIAL AND MORAL INDEMNIFICATION ( Due to Defective Vehicle / The Plaintiff Indicated His Demands and Non-Demands One by One and Clearly – The Amount Judged by the Judge is Proportional to the Demand / There is No Violation of the Principle of Dependence on the Demand )
THE JUDGE IS BINDED BY THE REQUEST ( Claim for Compensation Due to Storage of Defective Vehicle / The Claimant Clearly and Individually Stated the Claims and Non-Claims – It Will Be Considered That the Judge Decides in Accordance with the Claims )
PRESERVATION OF THE DEFECTIVE VEHICLE ( Claim for Compensation Due to Defective Vehicle / The Plaintiff Clearly and Individually Stated His Demands and What He Did Not Demand – The Amount Awarded by the Judge is Proportional to the Demand / There is No Violation of the Principle of Dependence on the Demand )
1086/m.74
SUMMARY: The lawsuit is related to the claim for pecuniary and non-pecuniary damages. The plaintiff claimed that he could not use the defective vehicle during the finalized lawsuit and that he had to keep the vehicle in a closed garage and requested compensation for his damages. It is clear that the judge is bound by the claims and defenses of the two parties and cannot award more than the claim or anything else. In the concrete case; the expenses incurred for the vehicle were counted in the petition one by one, including garage fee, motor insurance costs, motor vehicle tax and traffic visa fees, and the total amount was requested.
The plaintiff’s attorney clearly stated that they did not have a request and lawsuit for the compensation of the damages incurred for the period when the vehicle could not be used due to the vehicle being in service. The Local Court decided to partially accept the lawsuit by taking this request into consideration. Therefore, it is understood that the court made a decision without exceeding the demand. In that case, the decision to resist, which is in accordance with the procedure and the law, should be upheld.
CASE: At the end of the trial held due to the “pecuniary and non-pecuniary damages” lawsuit between the parties; Denizli Asliye (with the title of “Consumers’ Court”) 3rd Civil Court of First Instance decided to partially accept the lawsuit on 05.07.2007, 2006/570 E.-2007 /252 K. dated 26.02.2008 and numbered 2007/13096 E – 2008/2623 K. of the 13th Civil Chamber of the Court of Cassation; and upon the request of the plaintiff’s attorney for review of the decision, upon the request of the 13th Civil Chamber of the Court of Cassation dated 15.07.2008 and numbered 2008/7488 E.-9920 K;
( … The plaintiff claimed that the 0 km vehicle he purchased from the defendants was replaced by a finalized court decision due to a manufacturing defect, that the vehicle subject to the lawsuit was kept in a closed garage, that he could not use it, that he paid garage fees, motor vehicle insurance, motor vehicle tax, traffic visa fees and that his mental structure deteriorated and requested the collection of 7 087 576 745 TL pecuniary compensation and 3 000 000 000 TL non-pecuniary compensation.
The defendants defended the rejection of the lawsuit.
The court decided to partially accept the lawsuit, to collect TRY 3.791,98 with interest from the date of the lawsuit, and to reject the claim for non-pecuniary damages; as a result of the appeal of the parties, the decision was reversed by the decision of our Chamber dated 26.02.2008 with the decision numbered 2007/13096 main, 2008/2623, and the plaintiff has requested a correction of the reversed decision this time.
1-According to the writings in the case, the evidence on which the decision is based and the reasons in accordance with the law and especially the fact that there is no inaccuracy in the appreciation of the evidence, the plaintiff’s other correction of decision objections other than the scope of the following paragraph should be rejected.
2- The plaintiff claimed that he could not use the defective vehicle during the finalized lawsuit and that he had to keep the vehicle in a closed garage and requested compensation for his damages. It is understood that in the discovery made on 01.03.2002 in the file numbered 2001/599 of Denizli 4th Civil (Consumer) Court of First Instance in the file, the court determined that the vehicle was at 10016 km and that it was still chocked from 4 places, and that the vehicle was at 10053 km in the delivery report dated 25.07.2003. Again, in the expert report dated 24.04.2002 given in the finalized file, it was seen that the vehicle remained in service for 78 days due to malfunctions. As such, the plaintiff may request compensation for the damages for these periods when he could not use the vehicle. While the court should make an investigation on this issue and make a judgment according to the result, it is contrary to the procedure and the law to establish a written judgment by accepting some of the demands and this is a reason for reversal. However, since it is understood that these issues were inadvertently overlooked in the appellate review made by our Chamber, it has been decided to accept the plaintiff’s request for correction of the decision and to revoke the court decision as explained above…),
The case was reversed on the grounds of reversal and the file was returned to its place and at the end of the retrial; the court resisted the previous decision.
The General Assembly of Civil Chambers examined the decision and after it was understood that the appeal was filed in due time and after the papers in the file were read, the necessity was discussed:
DECISION 1-According to the writings in the file, the evidence on which the decision is based, the reasons that are in accordance with the law, and especially the fact that there is no inaccuracy in the appreciation of the evidence, all the appellate objections of the defendants should be rejected.