T.C.

SUPREME

13.law office

B. 2010/1116

D.2010/12853

Date 11.10.2010

REQUEST FOR REFUND OF THE DEFECTIVE PRODUCT (The Existence of a Time Limit Cannot be Mentioned in the Case When the Service Distracts the Consumer with Repairs that Cannot be Completed and the Malfunction Repeats with Certain Periods)

STATUTE OF LIMITATIONS (Request for Refund of Defective Goods – The Existence of a Statute of Limitations Cannot be Mentioned in the Case When the Service Distracts the Consumer with Inconclusive Repairs and Repeats the Malfunction with Certain Periods)

SHAME ARISING FROM THE SELLER’S GROSS DEFECT (If the Fault of the Goods Sold is Hidden from the Consumer by the Seller’s Gross Defect or Fraud, the Statute of Limitations Cannot be Used)

REQUEST FOR THE REFUND OF THE DEFECTIVE VEHICLE (If the Case Has Not Expired – Since the Vehicle in Question Is Still in the Plaintiff’s Use, the Interest on the Defective Vehicle Must Be Executed From the Date of Return to the Defendant Party)

4077/m.4/4,23

ABSTRACT: The case is a request for refund of the cost of defective goods. It is inconceivable that the results of keeping service employees who are working to repair the vehicle by trial and error and who are on the path of changing parts in the service will cost the consumer. In the face of the fact that the service distracts the consumer with repairs that cannot be completed, and the malfunction repeats itself for certain periods, there can be no mention of the existence of a statute of limitations in the case. As a matter of fact, in Article 4/4 of the TKHK No. 4077 amended by law No. 4822, “However, if the fault of the goods sold is hidden from the consumer by the seller’s gross defect or fraud, the statute of limitations cannot be used.” the provision has been implemented.

Cases heard in consumer courts are subject to a simple trial procedure, the statute of limitations of which can be extended until the first hearing of the def. The case has not been subject to a statute of limitations. However, since the vehicle in question is still in the plaintiff’s use, interest must be paid on the said receivable from the date of return of the defective vehicle to the respondent.

CASE: At the end of the trial of the decency goods refund case between the parties, a summons was sent to the interested parties after the defendant’s D… Auto lawyer appealed the decision to partially accept and partially reject the case for written reasons without a hearing by the plaintiff’s lawyer with a hearing. On a certain day, the hearing was started with the fact that the defendant’s deputy and the plaintiff’s deputy had arrived, and after the oral statements of the lawyers present were listened to, they were left for another day for a decision. This time, the file was examined, it was determined that the appeal petition was in due course, and it was discussed and considered as necessary:

DECISION: The plaintiff requested that the defendant be decided to collect the amount of TL 70.929,00, claiming that the vehicle he purchased from G… Otomotiv Limited Company had a manufacturing defect and that the other defendant was the importer of the vehicle.

The defendants have argued for the dismissal of the case.

The court decided to dismiss the case against the defendant G… Otomotiv Limited Liability Company, to accept the case against the other defendant; judgment, plaintiff and defendantSh. it has been appealed by the.

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 and defendant D… Automotive A.Sh.other appeals of the appeal, which fall outside the scope of the following paragraphs, must be rejected.

2-The plaintiff was found guilty on 4.5.2006 by the defendant G… Otomotiv Ltd. Şti.it is understood from the evidence in the file that there was a manufacturing defect in the vehicle he bought from and that it was a hidden shame. However, in court, the defendant G… Otomotiv Ltd. Şti.on the grounds that there is a statute of limitations on the duration of the, it was decided to dismiss the case against this defendant due to the statute of limitations. The vehicle subject to the lawsuit was taken to the authorized service five times between 9.12.2006 and 25.4.2008 due to the same malfunction (low traction). The vehicle was decommissioned between 9.12.2006 and 25.4.2008. In the face of the evidence in the file, there is no doubt that there is a manufacturing error in the vehicle and it is a hidden shame. Authorized service stations are obliged to have employees who can accurately and completely diagnose a malfunction and error, fix it as soon as possible and in full.

It is inconceivable that the results of keeping service employees who are working to repair the vehicle by trial and error and who are on the path of changing parts in the service will cost the consumer. In the face of the fact that the service distracts the consumer with repairs that cannot be completed, and the malfunction repeats itself for certain periods, there can be no mention of the existence of a statute of limitations in the case. As a matter of fact, in Article 4/4 of the TKHK No. 4077 amended by law No. 4822, “However, if the fault of the goods sold is hidden from the consumer by the seller’s gross defect or fraud, the statute of limitations cannot be used.” the provision has been implemented. (Decision No. 18.2.2004/ 2004/ 4-29 E-2004/83 K of the Supreme Court of Cassation). While the court should decide on the merits of the case from the point of view of the defendant G… Otomotiv Limited Liability Company, the refusal of the case from the statute of limitations in writing is contrary to the procedure and law.

3-Defendant D… Automotive A.Sh.in the response petition, the statute of limitations was def, and the court decided to accept the case against this defendant on the grounds that this statute of limitations was not within the def period. article 23/2 of the TKHK No. 4077, amended by law No. 4822, states: “Cases to be heard in consumer courts shall be settled in accordance with the provisions of the seventh chapter of the TKHK and the fourth chapter.” the provision has been implemented. In this case, the cases heard in the Consumer courts are subject to simple trial procedure and the statute of limitations may be extended until the first hearing of def. The date of the first hearing in the concrete case is 27.11.2008. The defendant is D… Automotive A.Sh.the petition for an answer to the statute of limitations of the is dated 6.11.2008. So, the defendant is D… Automotive A.Sh.although the statute of limitations of is within the period of def, 2. for the reasons described in the paragraph, the case has not been subject to a statute of limitations. However, since the vehicle in question is still in the plaintiff’s use, the interest should be executed from the date of return of the defective vehicle to the defendant party on the said receivable, while the interest execution from the date of the notice of 2.5.2008 is the reason for the violation.

CONCLUSION: For the reasons described in the first paragraph, the plaintiff and the defendant D… Otomotiv A.Sh.refusal of other appeals of the for the benefit of the plaintiff of the decision appealed for the reasons described in the second paragraph, for the reasons described in the third paragraph, the defendant D… Otomotiv A.Sh.for the benefit of the, TL 750.00 trial attorney’s money is received mutually and paid to each other, TL 960.00 received in advance. it was unanimously decided on 11.10.2010 to return the appeal fee to defendant D… Oto and plaintiff upon request.

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