03 Jan Supreme Court Decision On Compensation Case
T.C SUPREME COURT
13.Legal Department
Basis: 2017 / 5241
Decision: 2018 / 12169
Decision Date: 17.12.2018
Case: at the end of the trial of the compensation case between the parties, the case was examined and considered by the defendants ‘ lawyer during the period of the provision given for the acceptance of the case for reasons written in the declaration.
The plaintiff, the defendant is his “…” from the project named C1-2 Blok D:51 independent department bought on 16.01.2008, the tabernacle is delivered on 15.12.2008, if after delivery own home and the public places of shame about itself as well as the need for the defendant that has been reported by other owners also within the scope of the project, whether it is fulfilling commitments promised to customers, incomplete and defective work by gross negligence and fraud, asserting that premises and the property and value is hidden by citing deficiencies that result in loss of surplus due to damage suffered without prejudice to the rights 15.000.00 for now on.During the trial the defendant given total TL TL with a petition for the collection of breeding to be determined 28.069.00 begged.
The defendants asked for the dismissal of the case, arguing that the plaintiff had been given his apartment in full and complete, that there was no shame and incomplete, and that the obligation to report the shame was not fulfilled during the period.
The court, in accordance with the violation, decided that the financial compensation of us $ 28.069 with the acceptance of the case will be calculated by applying a variable legal interest rate from the date of Reclamation 20/02/2012, together with the processed interest, which will be mutually awarded to the plaintiff; the provision was appealed by the defendants.
1-according to the articles in the file, the decision to overturn was made in accordance with the court’s decision and it is no longer possible to examine the appeals of the jihadis, which have been finalized outside of the current violation, the defendants must reject the appeals that fall outside the scope of the following bend.
2-the case relates to the demand for payment of the depreciation of the housing purchased by the plaintiff due to the work specified in the project and promotions submitted during the sale, but not performed in accordance with them or incomplete.
The defendants requested that the case be dismissed, stating that it was not found to be a disgrace and incomplete, and that the notice of shame was not made during the period.
Since the plaintiff is a consumer, the regulation on consumer law is the 4th amendment of the Consumer Protection Act (TKHK) No. 4077. the item is located.
In the first paragraph of the aforementioned article; “the packaging on the label or in the manual or the dealer promised by the introduction and identified in the standard quality and/or quantity or purpose or which is contrary to the benefits expected from the consumer in terms of value or allocate it reduces or eliminates financial, legal, or economic deficiencies goods, defective goods or defective service or services that contains a is considered.”it is said, and in the ongoing paragraphs, the formal conditions related to it are considered.
It is a shame that one or more of the elements stipulated in the law or contract are missing or should not have qualifications.
As explained in detail above; what are the rights and obligations of the parties if the goods are defective, Law No. 4822 and Law No. 4077 on Consumer Protection 4.separate notice periods have been introduced for the cases where the shame is hidden or open; even if the shame is hidden by a severe defect or deception, it is clearly stated that the statute of limitations cannot be used.
According to the article, the consumer shall conduct the necessary examination (audit) as to whether he is ashamed of the goods and services provided to him, and as a result of this examination, he shall notify the party of the contract providing him with the goods or services within the notice period from the date of provision of the goods or services; if this notification (shame notice) assignment is neglected, the consumer shall lose his legal rights based on shame. TBK No. 6098.223 on this issue. As stated in Article 818 (198/2 of the Code of Obligations), failure to notify of shame will result in the consumer accepting the goods or services subject to performance as they are, and the assumption that occurs in this direction will not be proven in any way.
As of the date of the case, TKHK 4077 is in force.of 4. Article 2. according to the provision of the paragraph; the consumer is obliged to notify the seller of open defects within thirty days from the date of delivery of the goods. In this case, the consumer has the right to return from the contract, including the return of the price, to replace the goods with a double without shame, or to request a discount on the price or free repair at the rate of shame. The seller is obliged to fulfill this demand, which the consumer prefers.
In the law on consumer protection, there is no provision for how long confidential defects will be reported to the seller. As such, 4077 is the 30th anniversary of Tkhk. in accordance with article 6098 of TBK, which is in force on the date of the case, since the settlement of the dispute is necessary in accordance with the general provisions, in cases where there is no provision in this law.223 on this issue. according to the Article, (198 of BC No. 818.article), the buyer is obliged to review the goods he has delivered in accordance with the usual flow of work, as soon as possible, and notify the seller within the appropriate time when he sees a shame that requires the seller’s responsibility. If he neglects this, he is considered to have accepted the sale. However, if there is a shame in the sale that cannot be caused by a normal review, if this shame occurs later, if it does not notify the seller immediately, it is again considered to have accepted the sale together with this shame. In this case, confidential shame should be reported immediately (as soon as possible in accordance with the honesty rule) within the statute of limitations of the case and after the shame has occurred; if it is determined whether the shame is open or confidential, the knowledge of the average (mediocre) consumer should be taken into account.
In the light of these explanations, the concrete event is considered; the independent section purchased by the plaintiff on 16.01.2008 is 15.12 to the plaintiff. It is understood by the scope of the file that it was delivered in 2008 and that this case was filed on 09.06.2010.
By the court sentence in our apartment, ruining any of the provisions in relation to the work requested in the case of the missing social facilities shall be made by the defendants of the deficiencies and the project is completed this way, if there is no case for a decision in this matter will remain subject to decide if that place was given, and the construction of social facilities if there are still those who continue, whether or not it has a material impact resulting from the use of the plaintiff’s property damage in the case of detecting the determination of a concrete, in this work a reduction of a loss, not made, and that if you have social facilities that will be made after the final, because of these, it is stated that the damage suffered by the plaintiff must be calculated according to the relative method and a decision must be made in accordance with the result. In this case, the violation notice issued by the court for the investigation was followed and the expert report based on the decision was also followed; the case determined that the project was not yet fully completed in situ during discovery market … and commercial areas of overlap with the promised, whether located in a messy structure, promised that belongs to a different site, these facilities are not constructed in terms of the location and size of parcels they are built on Island 520 4”… the center of Family Health” the contractor Holding A.P. 546 ada 2 parcels of health services are of the nature of barracks, the plaintiff was not made any promised health facilities, religious facilities and schools were at a distance from the site to be sued, the plaintiff could not easily use and could not be contacted by the site, and the document showing that it was made by the defendants was not in the file; the plaintiff’s purchase of having them done independent of the section that reduce the economic value of open shame, where, where did any tricks to hide the shame of the defendant, the plaintiff independent part of this shame buy, and it is without doubt that at the date of the receipt can be informed easily. Because of the independent section that the plaintiff received, Act 4 of 4077. according to the article, it is also understood that he did not notify the defendant of shame within 30 days from the date of delivery of the goods. As well as the precedent practices of our department in similar disputes in this direction, there is also the decision of the General Assembly of the Supreme Court of law on day 4.12.2015 and the basis of 2015/13-1581 and 2015/2792, which are of the same opinion. In this case, it is against the procedure and the law to decide on the acceptance of this request with misjudgment and written justification, while the decision on the rejection of the case should be made in terms of these items.
Result: 1 described above. bent V. defendants ‘ rejection of other appeals, 2. for the reasons described in the paragraph, the decision appealed for the benefit of the defendants to be broken, the defendant received in advance 479.50 TL expense on request…, the defendant 60.00 TL expense … housing Gayr. Spend £ 59.24 on the partnership of defendants…, construction and … Sun. The return to construction was unanimously decided on 17.12.2018, with the way to correct the decision within 15 days of the notification in accordance with Article 440/I of the Humk.
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