Absence Of Radiator Protection In The Vehicle Is A Hidden Defect
General Assembly of Civil Chambers 2017/694 E. , 2020/71 K.
“Case Law Text”
COURT :Consumer Court
.
1. At the end of the trial held due to the “return of defective goods-compensation” lawsuit between the parties, the decision of İzmir 1st Consumer Court regarding the dismissal of the lawsuit in respect of the defendant …Ş., the acceptance of the request for replacement of the vehicle with a like-kind vehicle in respect of the defendant … Otomotiv Sanayi ve Ticaret A.Ş. and the defendant Çakırlar Motorlu Araçlar San ve Ltd. Şti. and the partial acceptance of the claim for non-pecuniary damages was reversed as a result of the review made by the 13th Civil Chamber of the Court of Cassation, and the Court resisted the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the representative of the defendant … Otomotiv Sanayi ve Ticaret A.Ş.
3. After it was examined by the General Assembly of Civil Chambers and it was understood that the decision of resistance was appealed in due time, and after it was understood that the Code of Civil Procedure No. 1086 (26.09.2004 dated 26.09.2004 and numbered 5236), which was being applied according to the provisional article 3 of the Code of Civil Procedure No. 6100 as of the date of the decision of resistance (26.09.2004 dated 26.09.2004 and numbered 5236). 2004 dated 26.09.2004 and before its amendment by Law No. 5236), it was decided to reject the request of the defendant … Otomotiv Sanayi ve Ticaret A.Ş.’s attorney for a hearing, since a hearing cannot be held in the appellate review of the resistance decisions, and the documents in the file were read and discussed:
I. JUDICIAL PROCESS
Plaintiff’s Claim
4. In the statement of claim dated 15.03.2011, the plaintiff’s attorney stated that his client was one of the defendants Çakırlar Motorlu Araçlar San. Tic. Ltd. Şti. on 28.09.2009 (29.09.2009), the manufacturer of which was the defendant … Otomotiv Sanayi ve Ticaret A.Ş. but the vehicle was on the road at 12000 km before even one year had elapsed, the vehicle was towed to the authorised service and it was determined that the radiator was punctured by a small stone hitting the radiator of the vehicle and the engine was severely damaged by the discharge of the water inside, In the determination they had made,
it was understood that the situation occurred due to the absence of the overheat indicator and protective equipment in the vehicle, that this situation was understood to be a manufacturing defect, and that although they wanted the repair to be made within the scope of the warranty, it was not accepted, and they demanded that the vehicle be replaced with a defect-free equivalent, if not, the sales price of 20. 000TL, 3.000TL non-pecuniary damages, 1.200TL paid for the rental vehicle that had to be used from the date the vehicle was taken to the service, the detection costs they had to spend due to this incident, the costs of issuing a notice and the amounts of the unpaid insurance premiums, together with the commercial interest to be calculated from 01.06.2010, when the vehicle was on the road, jointly and severally from the defendants.
Defendant response:
5. The plaintiff claimed that the defendants … Otomotiv Sanayi ve Ticaret A.Ş., Çakırlar Motorlu Araçlar San. Tic. Ltd. Şti. and Aksigorta A.Ş. and filed a lawsuit.
5.1. The attorney of … Otomotiv Sanayi ve Ticaret A.Ş., one of the defendants, in his reply dated 24.05. 2011 dated 24.05.2011; it is certain that the incident in question occurred as a result of the impact of the road pavement stone called gravel, which is caused by road conditions, on the engine cooling radiator, it is not possible to evaluate this malfunction as a manufacturing defect, the conditions required by the Law No. 4077 on the Protection of Consumers (TKHK) and the Regulation on the Application Principles of the Warranty Certificate for vehicle replacement have not been met,
The plaintiff defended the dismissal of the lawsuit by stating that the determination report that the plaintiff put forward as the basis of the lawsuit cannot be used as evidence since it was taken unilaterally, that the plaintiff has no right to demand the vehicle rental fee, that the material and moral damages claims are baseless, and that it is not possible to demand interest on the refund; If it is decided to accept the plaintiff’s claims for refund and interest, considering that the vehicle subject to the lawsuit was used by the plaintiff from the date of sale to the date of the lawsuit, the plaintiff’s use of the vehicle should be determined and the advance interest from 29. 09.2009 together with the advance interest as of 29.09.2009, and to decide on the settlement and offsetting of this amount by taking this amount into account while making the judgement.
5.2. The defendant …Ş. attorney and the defendant Çakırlar Motorlu Araçlar San. Tic. Ltd. Şti. requested the decision to dismiss the lawsuit.
Court Decision
6. With the decision of İzmir 1st Consumer Court dated 27.12.2012 and numbered 2011/364 E., 2012/1030 K. dated 27.12.2012 and numbered 2011/364 E., 2012/1030 K.; with the decision dated 27.12.2012 and numbered 2011/364 E. and numbered 2012/1030 K.; the failure occurred as a result of a crack caused by a piece of stone hitting the radiator of the vehicle subject to the lawsuit and causing the cooling water to decrease and cause overheating, the vehicle is not mechanically and materially resistant to impact, this issue is a hidden defect caused by manufacturing, therefore, the plaintiff’s right to use his optional rights according to Article 4 of Law No. 4077 and related regulations arose, and the defendants …
Otomotiv Sanayi ve Ticaret A.Ş. and Çakırlar Motorlu Araçlar San. Tic. Ltd. Şti., it was decided to accept the plaintiff’s request for replacement with a defect-free equivalent and 1.200TL car rental fee, and to partially accept the claim for non-pecuniary damages (1.500TL); the case against Aksigorta A.Ş. was dismissed on the grounds that this defendant was not responsible for the defective vehicle.
Special Chamber Reversal Decision:
7. The attorney of the defendant … Otomotiv Sanayi ve Ticaret A.Ş. appealed against the above-mentioned decision of the Local Court within the time limit.
8. With the decision of the 13th Civil Chamber of the Court of Cassation dated 11.03.2014 and numbered 2013/8741 E., 2014/6808 K;
“…
1- The plaintiff claimed that the vehicle purchased from the defendant Çakırlar Oto Ltd. Şti was defective and requested replacement and compensation. It is understood that the court decided to accept the request for replacement on the grounds that the vehicle subject to the case was not mechanically and materially resistant to impact, referring to the expert committee report dated 05/04/2012, which was obtained by instruction during the trial. The dispute between the parties is whether this malfunction is caused by user error or manufacturing defect, and according to the content of the file examined; It is fixed that the malfunction that occurred in the vehicle subject to the case occurred as a result of the stone hitting the radiator of the vehicle during the journey, piercing the radiator and causing it to overheat, and there is no dispute on this issue.
In the expert report dated 08/07/2010 issued by the plaintiff party after the determination made by Balıkesir 1st Civil Court of First Instance with the file numbered 2010/92 Different Business, it is stated that the vehicle subject to the lawsuit does not have a part to protect the radiator in case of gravel splash, on the other hand, the defendants claimed that the protective part is a part that should be evaluated within the scope of equipment and that this part is not available in the vehicle subject to the lawsuit due to the price and model difference,
but it is understood that the court did not conduct an investigation on this issue. As such, while the court should investigate whether the radiator protective part specified in the expert report dated 08/07/2010 is available in the vehicles of the same model as the vehicle subject to the lawsuit and make a judgement accordingly, it is contrary to the procedure and the law to decide to accept the lawsuit with the written justification, and it is a reason for reversal.
2-Article 49 of the Code of Obligations (CO) numbered 818, which is regulated under the chapter of tortious action, is also applied to behaviours contrary to the contract with the reference to Article 98/2 of the same law. However, in order for the request for moral compensation to be accepted according to the aforementioned article, the existence of an unlawful, unjustified attack on personal rights is a prerequisite, among other conditions. It is not possible to accept that the defendant’s refusal to accept the plaintiff’s request for repair under warranty constitutes an attack on personal rights. If so, it cannot be said that the conditions for non-pecuniary damages exist in this case. Nevertheless, the court’s award of non-pecuniary damages is contrary to the procedure and the law and requires reversal.
3- Although it is understood that the court has decided to collect 1200.TL from the defendant as the car rental fee for the benefit of the plaintiff, it is understood that the documents regarding the proof of material damage are not in the file. For this reason, it is contrary to the procedure and law to decide to accept the plaintiff’s request for the car hire fee as written, while it should be decided to reject it, and it requires reversal.
4-According to the reasons for reversal, it was not deemed necessary to examine the other appellate objections of the defendant.”
Decision of Resistence:
9. The decision of İzmir 1st Consumer Court dated 15.09.2015 and 2015/17 E., 2015/930 K. numbered decision; The reversal decision of the Special Chamber regarding the rejection of the claims for non-pecuniary damages and car rental fee was complied with, and the reversal decision regarding the request for the replacement of the vehicle with a defect-free equivalent was complied with, together with the previous reasons, in all the reports brought to the file and especially in the reports of the three-person expert committee from the Middle East Technical University, radiator should be designed to be resistant to external factors and not to be pierced by small stone impacts, and since the vehicle subject to the lawsuit can be cracked with a small stone impact,
it is concluded that the mechanical and material properties of the radiator are not resistant to this impact and the existing defect is considered as a hidden defect caused by manufacturing, in addition, it is possible that the driver may not notice this according to the speed of discharge of the coolant with the current impact, Since there is no information and document submitted to the file on this issue or determined, the main issue to be evaluated is that it should be accepted that there is a hidden defect caused by production due to the fact that materials and materials of sufficient strength are not used for the radiator, and when the issue that the defence of the defendants in the Court of Cassation reversal judgement that it is related to the hardware should be evaluated is examined,
If the protective part of the radiator is not included in the equipment of this vehicle, the defendant party should not offer the vehicle without a protective part for sale, and if it offers it for sale, this time it has to make its design and material resistant to external impacts, in other words, the plaintiff has chosen the model and equipment that his budget allows, and it is unthinkable that he will bear the consequences of the failure that will occur in the upper model or because he did not choose this optional part.
Appeal of the Resistence Decision:
10. The resisting decision has been appealed by the attorney of the defendant … Otomotiv Sanayi ve Ticaret A.Ş. within the time limit.
II. DISPUTE
11. The dispute that came before the General Assembly of Civil Chambers by way of resisting is whether the investigation of whether there is a radiator protective part in the same model vehicles regarding the determination of whether the conditions for the replacement of the vehicle subject to the lawsuit with a defect-free equivalent exist or not will be effective on the merits.
III. REASON
12. In the solution of the dispute, firstly, it is useful to focus on the concept of “defect”.
13. The regulation regarding the defect is included in Article 4 of the Law No. 4077 on the Protection of Consumers (TKHK), which should be applied as of the date of the lawsuit.
14. Paragraph 1 of the aforementioned article states; “Goods or services which are contrary to the quality and/or quantity stated in the packaging, labelling, introduction and user manual or promised by the seller or determined in the standard, or which contain material, legal or economic deficiencies that reduce or eliminate their value in terms of allocation or intended use or the benefits expected by the consumer from them, shall be deemed defective goods or defective services.”, and the following paragraphs list the formal conditions regarding this.
15. Article 194 of the abrogated Code of Obligations (CO) numbered 818 states
“The dealer undertakes to the customer that the goods shall be free from defects which, by reason of a material or legal cause, impair or materially diminish the value or the intended benefit of the goods, as well as from the qualities mentioned and promised by the dealer to the customer.
Even if the dealer does not know the existence of these defects, he is liable for them”.
16. As it can be seen, the concept of defect in the CO No. 818 and the concept of defect in Article 4 of the above-mentioned Article 4 of the CPL No. 4077 overlap with each other.17. Defect is the absence of the qualities that should normally be present in a good according to the provisions of the contract and the law, or the presence of defects that should not be present.
18. In this framework, while determining the content of the concept of “defect”, firstly; the provisions of the contract should be examined. The first issue to be examined when considering the contract is whether there is a clear agreement between the parties as to which features the goods sold should contain. In the absence of an agreement, it will be examined whether the parties have implicitly made an agreement on this issue based on the interpretation of the contract.
In cases where there is not even an implied agreement, the entire contract will be taken into consideration and the characteristics that the goods should bear will be determined according to the rule of good faith. İn this sense, the defect will arise in the event that the goods do not have the qualities that the goods should have according to the contract, or even if there is no special provision on this issue, considering the nature and content of the contract, the defect will arise as the lack of the qualities that should be present in the goods.
19. The defect in the goods sold may be in the form of open or hidden defects. Explicit defects are defects that can be seen at first glance or can be understood by a simple inspection. On the other hand, hidden defects are defects that cannot be recognised at first glance and can be understood by a detailed examination to be made later. Such defects are generally related to the structure of the goods and can be understood by use.
20. In Article 4/2 of the TPL No. 4077, the optional rights of the buyer in case the goods are defective are specified, and in this case, the consumer has the right to return from the contract including the return of the price, replacement of the goods with a defect-free equivalent, or a price reduction in proportion to the defect, or free repair. The seller is obliged to fulfil this request preferred by the consumer. Along with one of these optional rights, the consumer also has the right to demand compensation from the manufacturer-manufacturer in cases where the defective goods cause death or injury and cause damage to other goods in use.
21. Regarding the optional rights of the buyer, Article 202/1 of the Code No. 818 stipulates that in case of defective goods, the buyer may request the termination of the contract by declaring that he is ready to return the sold goods, or he may retain the sold goods and demand the deduction of the price in return for the deficiency of the value.
22. Article 202/2 of the Code No. 818 stipulates that upon the buyer’s request for termination of the contract in case of defect, the judge may decide to deduct the sums if the circumstances do not justify the termination of the contract.
23. Article 203 of the Code No. 818 stipulates that, if the goods sold are of the same kind, the buyer may, if he so wishes, not demand the termination of the contract or the deduction of the sums, but may demand the replacement of the goods with a defect-free kind.
24. As a matter of fact, the same points were pointed out in the decision of the General Assembly of Civil Chambers dated 27.06.2019 and numbered 2017/13-618 E., 2019/792 K.
25. When the concrete case is evaluated in the light of these explanations; there is no dispute between the Local Court and the Special Chamber that the vehicle malfunctioned as a result of a crack caused by a piece of stone hitting the radiator of the vehicle while the vehicle subject to the lawsuit was travelling, causing the cooling water to decrease and cause overheating. As explained in detail above, the definition of defect is the absence of qualities that should normally be present in a good or the presence of defects that should not be present. Since the expectation of the consumer from a vehicle purchased is to drive with minimum safety, there should be no doubt that the vehicle sold with missing parts without the material to protect the radiator from the gravel splash that may be possible in every drive is defective.
26. Although it is stated in the Special Chamber’s reversal decision that it is necessary to investigate whether there is a part to protect the radiator mentioned in the vehicles of the same model as the vehicle subject to the lawsuit, and therefore, if it is not found in others, it may be a hardware issue as stated in the defence, since it is concluded that placing a vehicle on the market that is not suitable for the road conditions of the country will create a safety weakness in the first place and therefore it is not possible to be accepted as a hardware difference, it is not necessary to investigate whether there is a part to protect the radiator mentioned in the same model vehicles.
27. During the discussions held at the General Assembly of Civil Chambers; In the face of the fact that the equipment is different in vehicle sales in the market and the vehicle prices differ according to the equipment, the court should evaluate how many types of equipment options Getz model vehicles are produced, what are the differences between them in terms of the subject of the lawsuit, whether the radiator protection, which is claimed to be absent in the vehicle subject to the lawsuit, is related to the price difference,
and if the absence of this protection is specific to the vehicle subject to the lawsuit and is present in other equipped vehicles, Although it has been argued that it is not correct to make a decision with the idea that the protection should exist without evaluating that the plaintiff should be accepted to have preferred the vehicle sold at a lower price knowing this issue and that no fault can be attributed to the defendant in this case, and that the reasoning that the radiator, which should be made of soft material, should be resistant to stone impacts is also not appropriate, this opinion has not been adopted by the majority of the Board.
28. As such; the judgement of the local court dated 27.12.2012 and numbered 2011/364 E., 2012/1030 K. on the defendant Çakırlar Motorlu Araçlar San. ve Ltd. Şti. has become final by not being appealed, thus Çakırlar Motorlu Araçlar San. Ltd. Şti. is out of dispute, however, the defendant … Otomotiv San. ve Tic. A.Ş. on the grounds that the deficiency in the vehicle is a hidden defect, the decision of resistance regarding the acceptance of the request for replacement of the vehicle with a duplicate is appropriate.
29. However, according to the reasons for reversal, since the other objections of the defendant … Otomotiv Sanayi ve Ticaret A.Ş. attorney regarding the merits of the case have not been examined, the file should be sent to the Special Chamber for further examination.
IV. CONCLUSION:
For the reasons explained;
The resistance is appropriate and the file should be sent to the 13th Civil Chamber of the Court of Cassation for the examination of the other appellate objections of the defendant … Otomotiv Sanayi ve Ticaret A.Ş. attorney regarding the merits of the case,
However, due to the fact that the decision correction path is open, first of all, the court shall fulfil the notification of the decision of the General Assembly of Civil Law to the parties, and if the decision correction path is applied, the file shall be sent directly to the General Assembly of Civil Law, and if not, the court shall send it directly to the 13th LAW CHAPTER of the Court of Cassation,
Pursuant to Article 440 of the Code of Civil Procedure No. 1086, which is being applied according to the provisional Article 3 of the Code of Civil Procedure No. 6100, it was decided by majority of votes on 04.02.2020, with the way of correction of the decision being open within fifteen days from the notification of the decision.
VOTE AGAINST
The plaintiff claims that the vehicle he purchased from the defendant Çakırlar Oto with an invoice dated 28/09/2009 malfunctioned during the journey, that it was determined that the engine malfunctioned due to the stone hitting the radiator and that this issue was deemed to be a user error and the warranty process was not applied, and that the vehicle was found to have a manufacturing defect in the determination made by him through the court, and that the defective vehicle should be returned and a new vehicle should be given to him, and if not,
the sales price of 20. 000TL from the defendant with commercial interest, 3.000TL non-pecuniary damages for the non-pecuniary damage he suffered and 1.200TL he paid for the rental vehicle with commercial interest from the defendants, and the determination costs incurred due to this incident, the costs of issuing a notice and the amount of insurance premiums that remained unpaid and had to be paid from the defendants.
The defendants rejected the lawsuit.
The court decided to dismiss the lawsuit against the defendant Ak Sigorta A.Ş., to accept the request for replacement of the vehicle with a duplicate and to partially accept the claim for non-pecuniary damages in the lawsuit against the defendants Hyundai A.Ş. and Çakırlar Oto Ltd. Upon the appeal by the defendant … A. Ş, the relevant department; The expert stated that the vehicle subject to the lawsuit does not have a part to protect the radiator in case of gravel splashing, on the other hand, the defendants claimed that the protective part is a part that should be evaluated within the scope of equipment, and that this part is not available in the vehicle subject to the lawsuit due to the price and model difference, but the court did not conduct an investigation on this issue,
The decision was reversed on the grounds that it was contrary to the procedure and law to decide to accept the lawsuit with the written justification, while it was necessary to investigate whether the radiator protective part specified in the expert report dated 08/07/2010 was available in the vehicles of the same model as the vehicle subject to the lawsuit, and the decision was reversed on the grounds that the non-pecuniary damages and vehicle rental fee should not be awarded.
The court complied with the reversal decision of the 13th Civil Chamber of the Court of Cassation regarding non-pecuniary damages and rental fee, and resisted the reversal regarding the research.
It was stated by the plaintiff that the vehicle malfunctioned due to a stone hitting the radiator while the vehicle was travelling, and the defendant defended that the vehicle purchased by the plaintiff was equipped as much as the price paid. It is a fact that the equipment is different in vehicle sales in the market and the vehicle prices differ according to 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, and whether the radiator protection, which is claimed to be absent in the vehicle subject to the lawsuit, is related to the price difference.
In the event that this protection does not exist, is specific to the vehicle subject to the lawsuit and is found in other equipped vehicles, it should be accepted that the plaintiff, knowing this issue, prefers the vehicle sold at a lower price, and in this case, without evaluating that no fault will be attributed to the defendant, it is not correct to make a decision with the idea that the protection should exist, and it is natural for the radiator to be damaged by the stone hitting the propeller and gaining speed to damage the radiator, which should be made of soft material, and we do not agree with the reasoning of the court that the radiator should be resistant to stone impacts. For this reason, since the court decision should be reversed for the reasons stated, we cannot agree with the opinion of the majority for approval.
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