The Consumer Court Has Jurisdiction In The Lawsuit Against The Service Providing Expertise Report
General Assembly of Civil Chambers
Principal Number: 2013/1203
Decision Number: 2014/442
“Case Law Text”
COURT : Ankara 10th Civil Court of First Instance
DATE : 27/06/2012
NUMBER : 2012/310-2012/310
At the end of the trial held due to the “pecuniary compensation” lawsuit between the parties; Upon the review of the decision dated 14.06.2011 and numbered 2009/168 E., 2011/213 K. given by Ankara 10th Civil Court of First Instance on the partial acceptance and partial rejection of the lawsuit, upon the request of the plaintiff and the defendant M.. E… attorneys, the decision of the 13th Civil Chamber of the Court of Cassation dated 07.03.2012 and numbered 15783/5615 E., K;
(…The plaintiff stated that on 18.03.2007, he bought the vehicle offered for sale by the defendant Fahrettin in the second-hand car market on 18.03.2007, the license of which belonged to Muzaffer, one of the defendants, from the other defendant Erol, who was the representative of Muzaffer, for 33.000,00 TL, that he gave his vehicle worth 10.000,00 TL to the defendant Muzaffer, and that he paid 23. 000,00 TL to the defendant Muzaffer by hand, that when he went to the other defendant company for expertise before buying the vehicle, they gave verbal confirmation that there was no problem with the vehicle, that he suffered financial losses due to service fees when the vehicle constantly malfunctioned, and that as a result, he learned on 12.2.2009 that the real problem with the vehicle was that the vehicle was totaled due to flooding. 2.2009 that the real problem with the vehicle was that the vehicle was totaled due to flooding, and requested the retroactive cancellation of the contract without prejudice to his rights regarding the excess, the award of compensation for negative damages, the collection of the vehicle price of 33.000,00 TL from Muzaffer, Erol and Fahrettin together with legal interest, and the collection of 5.700,00 TL expenses that were wrongfully taken as a result of the negligence of the service from Volan Küçükyılmaz Ltd. Şt.
The defendants requested the dismissal of the lawsuit.
The court decided to partially accept the lawsuit and the judgment was appealed by the plaintiff and the defendant M.. E… appealed.
Pursuant to Article 294 of the Code of Civil Procedure No. 1-6100, the court shall pronounce the judgment at the end of the trial. In any case, the announcement of the verdict shall be made by reading the result of the verdict into the minutes of the hearing. In cases where only the conclusion of the judgment is pronounced due to compelling reasons, the reasoned decision must be written within one month starting from the date of pronouncement. Pursuant to Article 297/2 of the CCP, in the conclusion part of the judgment, the judgment given on each of the claims, the obligations imposed on the parties and the rights granted to the parties must be shown under the sequence number; clearly, in a way that does not arouse doubt and hesitation. Pursuant to Article 298/2 of the CCP, the reasoned decision cannot be contrary to the announced judgment. In fact, there is no legal possibility for the judge, who has withdrawn his hand from the case by writing and pronouncing the short decision, to change this decision. The fact that the short decision and the reasoned decision are different from each other creates a situation contrary to Article 141 of the Constitution regarding the publicity of the trial and the public announcement of the decisions and the above-mentioned mandatory articles of the CCP. In addition, this issue is related to public order and it is a duty imposed on the judge by law.
In the concrete case, in the short decision, the court partially accepted the lawsuit against the defendant Muzaffer and decided to accept the lawsuit over TL 33.000,00 on the condition that the vehicle is returned, and in the reasoned decision, it was decided to partially accept the lawsuit against the defendant Muzaffer, to cancel the contract dated 22.03.2007 made at the notary public regarding the sale of the vehicle, and to collect the vehicle price of TL 33.000,00 from the defendant Muzaffer with legal interest to be accrued from the date of the lawsuit. It is clearly understood that the reasoned decision and the judgment in the short decision are contrary to the principle and the provisions of the law that the short decision and the reasoned decision should be in conformity with each other. As explained above and as adopted in the Case Law Unification Decision dated 10.4.1992 and numbered 1991/7 Esas 1992/4 and dated 10.4.1992, it is necessary to revoke the contradictory judgment in order to make a new decision without being bound by the short decision, but in a way that the contradiction between the short decision and the reasoned decision will be eliminated and will not create any hesitation in execution.
2- According to the reason for reversal, the other appeals of the plaintiff and the defendant M.. E…’s other appellate objections do not need to be examined).
The case was reversed 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 case and after it was understood that the decision of resistance was appealed in due time and after the papers in the file were read, the necessity was discussed:
Lawsuit is related to the claim for pecuniary compensation.
The local court’s decision on partial acceptance of the claim was appealed by the plaintiff and the defendant M.. E… attorneys, it was reversed by the Special Chamber with the reasoning written in the title section above, and the court resisted the previous decision.
The resisting decision was appealed by the attorneys of the plaintiff and the defendant M… E. attorneys bring an appeal.
During the discussion at the General Assembly of Civil Chambers, the nature of the dispute and the defendant ….. Mot. Vehicle. Truz. Construction. Ltd. Şti., whether the case should be heard and concluded in the Consumer Court or in the Civil Court of First Instance was evaluated as a preliminary problem.
It is useful to make the following explanations on the preliminary question of jurisdiction.
In Article 1 titled “Purpose” of the Law No. 4077 on the Protection of Consumers (Law No. 4077 TKHK) amended by Law No. 4822; after explaining the purpose of the law, in Article 2 titled “Scope”; “This law covers all kinds of consumer transactions in which the consumer is one of the parties in the goods and services markets for the purposes specified in the first article”. In Article 3 of the Law, goods refers to movable goods subject to shopping, immovable goods for residential and vacation purposes, and software, audio, video and similar intangible goods prepared for use in electronic media. Seller includes real or legal persons, including public legal entities, who offer goods to consumers within the scope of their commercial or professional activities. Consumer is defined as a natural or legal person who acquires, uses or benefits from a good or service for commercial or non-professional purposes.
In order for a legal transaction to be considered to be within the scope of the TKHK No. 4077, there must be a legal transaction regarding the sale of goods and services between the parties whose definitions are given above within the purpose of the law. In the concrete dispute, since it is claimed that the defendant (…..Mot. Araç. Truz. Truz. İnş. Ltd. Şti.), which provides vehicle maintenance and repair services, provides expertise services on whether there are any defects in the vehicle purchased by the plaintiff (buyer) from other defendants, it is understood that the relationship between the parties remains within the scope of the TKHK No. 4077.
Article 23 of the LPC No. 4077 stipulates that all disputes related to the implementation of this law shall be heard by the consumer courts. The plaintiff and the defendant ….Mot. Araç. Truz. İnş. Ltd. The dispute between the plaintiff and the defendant _COPYMot. Araç. Truz. İnş. Şti. arises from the pre-sale expertise service, and since it is within the scope of the TKHK, the Consumer Court is authorized to hear the case. Although it can be considered that the general court has jurisdiction as a rule, taking into account the titles of the other defendants; Since the case should be continued in the special court in cases where the cases in the general court and the special court should be heard together, the case should be heard in the Consumer Court in terms of these defendants.
In addition, the regulations regarding jurisdiction are of public order and are observed ex officio at every stage of the proceedings, even if the parties do not assert them. There is no vested right in matters related to jurisdiction. In this case, while the court should send the file to the consumer court by deciding on the lack of jurisdiction, it is contrary to the procedure and the law to have made a decision by examining the merits of the matter.
As such, while the local court should take this situation into consideration and decide accordingly, resisting the previous decision is against the procedure and the law.
With this different reasoning, the decision to resist must be reversed; other appellate objections have not been examined according to the reason for reversal.
CONCLUSION : 1- The appeals of the counsels for the plaintiff and the defendant M.. E… attorneys’ appeal objections are accepted and the decision of the Court of Cassation should be reversed for the different grounds and reasons shown above, in accordance with Article 429 of the Code of Civil Procedure, taking into account the reference of the provisional Article 3 of the Code of Civil Procedure No. 6100. It was unanimously decided on 02.04.2014, in accordance with Article 440/I of the Code of Civil Procedure No. 1086, to return the pre-appeal fee to the depositor upon request, to not examine the other appellate objections regarding the merits of the matter at this stage according to the reason for the reversal, to be open for decision correction within 15 days from the notification of the decision in accordance with Article 440/I of the Code of Civil Procedure No. 1086.
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