Fueling The Vehicle With The Wrong Type Of Fuel Is Defect
The dealer and the provider are liable for all damages arising from the accidental filling of a vehicle with gasoline instead of diesel fuel. Because in this case, which is characterized as defective service, not knowing that the service provided is defective does not eliminate this responsibility. You can review the Sample Court of Cassation Decision.
3. Department of Law
Principal Number : 2020/3188
Decision Number: 2020/4776
“Case Law Text”
COURT :CONSUMER COURT
At the end of the trial of the receivable lawsuit between the parties, the judgment given for partial acceptance and partial rejection of the lawsuit for the reasons written in the judgment was appealed by the plaintiff lawyer without hearing and by the defendant … San.ve Tic. A.Ş., and the defendant … San… ve Tic. A.Ş. appealed with a hearing, and a summons was sent to the relevant parties. On the appointed day, no one came from the appellant and the plaintiff. The other defendant … Ofisi A.Ş. attorney … arrived and the hearing was started and after the verbal explanations of the present were heard, it was adjourned to another day for the decision. This time, it was determined that the petition for appeal was in due time and the file was examined, the requirements were discussed and considered.
DECISION
The plaintiff stated that he refueled his vehicle with the license plate number … from the fuel station belonging to the defendant … Petrol Sanayi ve Ticaret A.Ş., but the pump attendant discharged gasoline instead of diesel fuel to the vehicle, thus the vehicle malfunctioned, upon his application to the defendant … company, the defendant company administrators sent the vehicle to the defendant … Otomotiv San. Tic. Ltd. Şti. for repair, where only the fuel filter of the vehicle was changed and the gasoline in the tank was cleaned, but on the following day, the vehicle malfunctioned again, claiming that large-scale damage occurred to the vehicle as a result of the fault of the defendants, and reserving their rights regarding the excess, in the main lawsuit; 15.000,00 TL for the cost of damaged parts, 600,00 TL for repair and labor costs of damaged parts, 1. 000,00 TL, 150,00 TL for towing costs, 3.540,00 TL for car rental costs, 2.800,00 TL for the costs paid to the service for the distribution and collection of the vehicle, and 477,00 TL for the costs and expenses of determination, totaling 23.567,00 TL;
in the combined lawsuit, by repeating the case asserted in the original lawsuit, without including a claim conclusion in the petition and without a numerical demand without showing the amount … Otomotiv San. Tic. Ltd. Şti. as the defendant and requested the consolidation of the lawsuit with the original file; and with the amendment petition dated 30.03.2016, they increased their claims for the cost of the damaged parts, which was requested as 15.000,00 TL, and the repair and labor costs of the damaged parts, which were requested as 600,00 TL, by 11. 656.00 TL, and with the acceptance of the amendment requests, the defendants requested a decision to collect 27.256,00 TL damaged parts, repair and labor costs of damaged parts together with interest in line with the other claims for receivables stated in the lawsuit petition and the amendment petition.
The defendants requested the dismissal of the lawsuit.
The court, as a result of the trial conducted by complying with the reversal order, in the main case; the defendant … San. ve Tic. A.Ş. in the main lawsuit, to partially accept the lawsuit filed against the defendant … San… ve Tic. A.Ş., and to award the claimant TL 15.600,00 of the receivable of TL 27.256,00 as the cost of damaged parts and workmanship together with legal interest starting from the date of the lawsuit for TL 15.600,00 and TL 11.656,00 starting from the date of 30.03.2016, which is the date of amendment, and to award the total amount of TL 6.490,00,
which is the cost of towing, vehicle rental, distribution and collection of the vehicle, together with the legal interest to be processed from the date of the lawsuit, to the defendant … San… ve Tic. And Tic. A.Ş., and dismissal of the claim for excess, dismissal of the lawsuit filed against … Ofisi A.Ş., and dismissal of the lawsuit in the combined lawsuit; the judgment was appealed by the plaintiff and … Petrol Sanayi ve Ticaret A.Ş., one of the defendants in the main lawsuit.
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 since there is no inaccuracy in the appreciation of the evidence, all of the defendant’s and the plaintiff’s other appellate objections other than those covered by the following paragraphs should be rejected.
2- The plaintiff claimed compensation for the damages incurred by the defendant … Sanayi ve Ticaret A.Ş. due to the incorrect fueling of his vehicle by the employees of the fuel station belonging to the defendant … Sanayi ve Ticaret A.Ş. The court decided to partially accept the lawsuit against the defendant … Sanayi ve Ticaret A.Ş. in the main lawsuit, and dismissed the lawsuit against the other defendant … Ofisi A.Ş. on the grounds that it did not have any fault in the occurrence of the damage.
First of all, it should be noted that, in the concrete case, there is no dispute between the parties that the fuel station operated by one of the defendants … Petrol Sanayi ve Ticaret A.Ş. is a dealer of the other defendant … Ofisi A.Ş. (Petrol Ofisi), and that the vehicle malfunctioned due to the wrong fuel put into the plaintiff’s vehicle by the dealer’s employee. The dispute is centered on whether the provider is jointly and severally liable for the service provided by the dealer.
In the third paragraph of Article 4/A of the Law No. 4077 in force at the time of the damage; “The provider, dealer, agency and lender according to the fifth paragraph of Article 10 are jointly and severally liable for defective service and any damage caused by defective service and the consumer’s optional rights under this article. The fact that the service provided is not known to be defective does not eliminate this responsibility.”
According to Article 3 of the aforementioned Law titled “Definitions”;
“In the application of this Law,
d) Service: Any activity other than the provision of goods in return for a fee or benefit,
g) Provider: It refers to real or legal persons, including public legal entities, who provide services to consumers within the scope of their commercial or professional activities.”.
In the concrete dispute, the plaintiff was not provided with defective goods, however; pursuant to the first paragraph of Article 4/A of the aforementioned Law; “…Services that are contrary to the quality or quantity affecting the quality or quality determined in the advertisements and advertisements or standard or technical rule notified by the provider, or that contain material, legal or economic deficiencies that reduce or eliminate their value in terms of the purpose of utilization or the benefits that the consumer expects from them, are considered defective services.”
Accordingly; in the event that the plaintiff’s vehicle was filled with gasoline instead of diesel fuel by the employee of the defendant … Sanayi ve Ticaret A.Ş., there is no dispute that … Petrol Sanayi ve Ticaret A.Ş. sells and serves as a dealer of the other defendant … Office, since there is a service containing material deficiencies that eliminate the benefits expected by the consumer in terms of the purpose of utilization determined in the advertisements and advertisements reported by the provider, there is a defective service in accordance with the first paragraph of Article 4 / A of the aforementioned Law.
Pursuant to the third paragraph of Article 4/A, the provider and the dealer are jointly and severally liable for the defective service and any damages caused by the defective service and the consumer’s optional rights under this article. Moreover, not knowing that the service provided is defective does not eliminate this responsibility (H.G.K.’s decision dated 19.09.2012 and numbered 2012/13-153 E., 2012/598 K.). The decision of the court to dismiss the lawsuit on the grounds that the defendant … Office did not have any fault in the occurrence of the damage by ignoring this issue is contrary to the procedure and the law and requires reversal.
CONCLUSION:
For the reasons explained in subparagraph (1) above, all appellate objections of the defendant and other appellate objections of the plaintiff outside the scope of the second subparagraph are rejected, and for the reasons explained in subparagraph (2) above, the judgment appealed is DISMISSED in favor of the plaintiff, the prepaid appeal fee shall be refunded to the appellants upon request, in accordance with the provisional article 3 of the Code of Civil Procedure No. 6100 and article 440 of the Code of Civil Procedure No. 1086. In accordance with Article 440 of the Code of Civil Procedure No. 1086 with reference to the provisional article 3 of the Code of Civil Procedure No. 6100, it was unanimously decided on 24/09/2020, within a period of 15 days from the notification of the decision.
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