T.C.

SUPREME COURT
GENERAL ASSEMBLY OF LAW

2009/13-183

2009/243

3.6.2009

CLAIM FOR MATERIAL AND NON-PECUNIARY DAMAGES (Due to the Defective Vehicle / In Which the Plaintiff Individually and Clearly States His Claims and What They Do Not Claim – That the Amount Ruled by the Judge is Proportional to the Claim / That There is No Violation of the Principle of Commitment to the Claim)

THE JUDGE IS BOUND BY THE CLAIM (The Claim for Compensation Due to the Defective Vehicle’s Storage / Plaintiff’s Claims and What They Do Not Claim Individually and Clearly State – The Judge Will Also Take Into Account that He Has Decided in Accordance with the Claims)

STORAGE OF THE DEFECTIVE VEHICLE (Due to the Claim for Compensation / The Plaintiff’s Claims and Non-Claims Stated Individually and Clearly – The Amount Ruled by the Judge is Proportional to the Claim / There is No Violation of the Principle of Commitment to the Claim)

1086/m.74

SUMMARY: The lawsuit is related to the claim for material and non-pecuniary damages. The plaintiff claimed that he could not use the defective vehicle during the final case and had to keep the vehicle in a closed garage and asked for compensation for his damage. The judge is bound by the claims and defenses of the two parties and it is clear that he cannot rule on more than the claim or on anyone else. In the concrete case, the costs incurred for the vehicle; garage fee, casco insurance costs, motor vehicle tax and traffic visa fees were counted in the individual case petition, and the total price was requested.

The acting plaintiff has clearly stated that they do not have a request and a lawsuit to remedy the damage caused for the period that cannot be used due to the fact that the vehicle remains in service. The Local Court decided to partially accept the case by taking this request into consideration. Therefore, it is understood that the decision was made by the court before the request was exceeded. In that case, the decision to resist, which is in accordance with the procedure and the law, must be approved.

CASE: At the end of the trial for the case of “material and moral compensation” between the parties; Denizli Asliye ( Dec.Mah.In his capacity )3.05.07.2007 day and 2006/570 E, which were issued by the Civil Court on the partial acceptance of the case.-2007/252 K. the Court of Cassation of decision No. 13.26.02.2008 days of the Legal Department and 2007/13096 E – 2008/2623 K.by decree No. 13 of the Supreme Court of Cassation, upon request of the plaintiff’s deputy to examine the decision correction as a result of its violation.15.07.2008 days and 2008/7488 E of the Legal Department.-9920 K. with Ref No.;

(… The plaintiff has requested the collection of 7 087 576 745 TL material and 3 000 000 000 TL moral compensation by claiming that the 0 km vehicle he bought from the defendants was replaced by a court decision that was finalized due to a manufacturing error, that the vehicle in question was stored in a closed garage, that he could not use it, that he paid a garage fee, casco insurance fee, motor vehicle tax, traffic visa fee, and that his spiritual structure was impaired.

The defendants have argued for the dismissal of the case.

The court decided to partially accept the case, collect 3.791,98 YTL with interest from the date of the case, reject the claim for moral damages; the decision was overturned on 26.02.2008 day 2007/13096 of our Department, 2008/2008, 2008, the plaintiff requested correction of the decision, which was overturned this time.

1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the plaintiff’s objections to other decisions that fall outside the scope of the following paragraph must be rejected.

2-The plaintiff claimed that he could not use the defective vehicle during the final case and had to keep the vehicle in a closed garage and asked for compensation for his damage. Denizli 4, which is located in the file.In the discovery made on 01.03.2002 in the file No. 2001/599 of the Court of First Instance Law (Consumer), it is understood that the court found that the vehicle was at 10016 km and was still chocked from 4 places, in the delivery record dated 25.07.2003, the vehicle was at 10053 km. Again, in the expert report dated 24.04.2002 given in the finalized file, it was found that the vehicle remained in service for 78 days due to malfunctions. As a result, the plaintiff may ask for the damages to be compensated for these periods when he cannot use the vehicle. According to the results of the research conducted by the court on this issue, a provision should be established, while the establishment of a provision in writing with the acceptance of some requests is contrary to the procedure and law and is the reason for the violation. However, since it was understood that these issues were completely overlooked in the appeal review conducted by our Department, it was decided that the court decision would be overturned as described just above with the acceptance of the plaintiff’s request for a correction of the decision…),

At the end of the re-trial, the grounds were overturned and the file was returned to its place; the court resisted the previous decision.

After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:

DECISION: 1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, all the appeals of the defendants must be rejected.

2- As for the appeal of the plaintiff’s deputy;

The lawsuit is related to the claim for material and non-pecuniary damages. The plaintiff purchased from the defendant because of a production error Zero Kilometer of the vehicle caused it to be replaced with a new one for free for the acceptance of the decision Supreme Court review of the case determined through the aforementioned date case opened with the execution of the tool was delivered to the defendant by way of 09.07.2001 25.07.2003 whether they have been preserved and were placed in a closed garage was leased dates between in this period the vehicle; a total of TL 7,087,576,745 in garage fees, casco insurance costs, motor vehicle tax and traffic visa fees. 3.000.000.000 stating that expenses were incurred, as well as the plaintiff’s inability to use the vehicle for about 2.5 years during the case, his mental structure deteriorated, he suffered moral damage.-Together with non-pecuniary compensation in the amount of TL, the total is; 10.087.576.745.-TL has requested and sued the defendant to decide on its collection together with the interest of the compensation and withholding the rights related to the excess.

The defendants stated that the plaintiff placed the vehicle on the ground floor of the building under construction, did not pay any fees, that a vehicle that does not enter traffic does not need casco insurance, and that it cannot be requested in their taxes, and reported in response to the decision to dismiss the case. The court’s decision on the partial acceptance of the case was overturned by the Special Department for the reason mentioned above.

The court; In the case, a total of TL 7,087,576,745, including garage fees, casco insurance fees, motor vehicle tax and traffic visa fees for the vehicle subject to the lawsuit.the costs of requested at the hearing of the plaintiff’s attorney dated 31.10.2008 also, the vehicle is unavailable for the period incurred because of the elimination of about 78 days remain in service request and stated that this is not the case, the plaintiff presented the receipts and documents, automobile insurance, insurance, visa fees and motor vehicle tax total traffic 3.391 TRY. it is fixed that you pay, also 400 USD. the previous decision was resisted on the grounds that a total of 3,791.00 USD financial compensation case should be accepted with the acceptance of the garage fee, the claim for moral compensation in the vehicle exchange case was rejected and the final provision was made in this respect and the conditions of the claim for moral compensation were not formed.

Article 74 of the Code of Civil Procedure.in its article; “A judge cannot rule more than a request or someone else.” as provided in the regulation, 75/1 of the same law.in its article; “Apart from the exceptions established by the law, the judge cannot take into account the evil eye if he does not say something or the reasons for the claim that one of the two parties has not said, and he cannot even be in a position to remind them.” the provision is contained in the.

As can be seen from this clear provision of the law, the judge is bound by the claims and defenses of both parties and it is clear that he cannot rule on more than the claim or on someone else.

In a concrete case, the costs incurred for the vehicle subject to litigation; garage fee, casco insurance costs, motor vehicle tax and traffic visa fees are counted in the individual lawsuit petition, totaling 7.087.576.745 TL. it has been requested.

At the hearing dated 31.10.2008, the acting plaintiff clearly stated that they had no request and no case to remedy the damage caused for the period that the vehicle could not be used due to its 78-day service stay. The Local Court decided to partially accept the case by taking this request into consideration.

Therefore, by the court, HUMK.’s 74 and 75. it is understood that the decision was made in accordance with the articles and without exceeding the demand. In that case, the decision to resist, which is in accordance with the procedure and the law, must be approved.

CONCLUSION: 1-REFUSAL of all appeals of defendants’ proxies for the reason described in paragraph ( 1) above, refund of the advance fee of the appeal upon request,

2-For the reasons described in paragraph (2) above, it was unanimously decided on 03.06.2009 that there is no need to APPROVE the decision to resist by rejecting the plaintiff’s attorney’s appeals, and that there is no other reason to receive fees other than that the necessary appeal fee has been received in advance.

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