T.C.

SUPREME

GENERAL ASSEMBLY OF LAW

2009/13-183

2009/243

3.6.2009

Claim for pecuniary and moral damages ( due to the defective vehicle/where the plaintiff has stated individually and clearly that they do not claim-where the amount ruled by the judge is proportional to the claim/there is no violation of the principle of allegiance to the claim )

The judge is bound by the claim (the claim for compensation for the storage of the defective vehicle/the plaintiff has stated individually and clearly that he or she does not claim-that the judge has decided in accordance with the claims )

Protection of the defective vehicle ( claim for damages/where the plaintiff has stated individually and clearly that they do not claim-where the amount ruled by the judge is proportional to the claim/there is no violation of the principle of allegiance to the claim )

1086 / m.74

Summary: the case is related to the claim for pecuniary and non-pecuniary damages. The plaintiff claimed that he was unable to use the defective vehicle during the final trial and that he had to keep the vehicle in a closed garage. It is clear that the judge is bound by the claims and defenses of the two parties and cannot rule on more than the claim or anyone else. In the concrete case, the costs of the vehicle, the garage fee, the insurance costs of the vehicle, motor vehicles tax and traffic visa fees are counted in the petition and the total cost is claimed.

The plaintiff’s attorney has clearly stated that they have no wish and no case to remedy the damage caused for the period in which the vehicle is unavailable due to its service. The Local Court considered this request and decided to partially accept the case. Therefore, it is understood that the decision was made by the court without exceeding the request. Then the decision to resist, which is in accordance with procedure and law, must be upheld.

Lawsuit: at the end of the trial due to the “pecuniary and non-pecuniary compensation” case between the parties; Denizli First Instance ( Tük.Mah.Adjective) 3.05.07.2007 and 2006/570 E. given by the court of law on the partial acceptance of the case-2007 / 252 K. the Supreme Court of Appeals in its numbered decision 13.26.02.2008 days of law office and 2007/13096 E-2008/2623 K.the court of Cassation 13.15.07.2008 days of the law office and 2008/7488 E.-9920 K. with Ref No.;

(…The plaintiff, the defendants purchased 0 km of the vehicle due to production error was changed by the court decision finalized, the vehicle in the case is kept in a closed garage, can not use, garage fee, insurance cost,Motor Vehicles Tax, traffic visa fee and the spiritual structure of 7 087 576 745 TL material, 3 000 000 000 TL moral compensation

The defendants have argued the dismissal of the case.

The court decided to partially accept the case,to collect the amount of YTL 3.791, 98 from the date of the case with interest, to reject the claim for moral compensation; as a result of the appeal of the parties, the decision was impaired by the decree of our office on 26.02.2008 day 2007/13096 basis, no 2008/2623,

1-according to the articles in the file, the evidence on which the decision is based and the reasons required in accordance with the law, and in particular the lack of a fault in the discretion of the evidence, the plaintiff’s objections to the correction of other decisions outside the scope of the following paragraph should be rejected.

2-the plaintiff claimed that he was unable to use the defective vehicle during the final trial and that he had to keep the vehicle in a closed garage. File found in Denizli 4.It is understood that the discovery made on 01.03.2002 in the file of the first instance law ( consumer )court 2001/599 was determined by the court that the vehicle was at 10016 km and that it was still taken from 4 places into wedges, and that the vehicle was at 10053 km in the delivery report dated 25.07.2003. In the expert report dated 24.04.2002, it was determined that the vehicle remained in service for 78 days due to failures. In this case, the plaintiff may request that the damages be removed for those periods in which he is unable to use the vehicle. While the court should be able to establish a provision according to the results of this investigation, it is against the procedure and the law to establish a provision in writing with the acceptance of some requests. However, since it was understood that these matters had been overlooked in the appeal review conducted by our department, it was decided that the court’s decision should be overturned as described above by the acceptance of the plaintiff’s request for a correction of the decision.… ),

At the end of the retrial, which was overturned on the grounds that the file was turned down, the court resisted the previous decision.

The law was examined by the General Assembly after it was understood that the decision to resist was appealed during the period and the papers in the file were read.:

Verdict: 1-all appeals of the defendants must be dismissed according to the writings in the file, the evidence on which the decision is based and the reasons required in accordance with the law, and in particular the lack of a fault in the discretion of the evidence.

2-as for the appeal of the plaintiff’s attorney;

Case, material and moral compensation claims related. The plaintiff, because of the production error of the zero km vehicle purchased from the defendants for replacement with a free new one of the decision on the acceptance of the case, passed through the review of the Supreme Court finalized, said the case was opened on 09.07.2001 and the vehicle was delivered to the defendants by way of execution 25.07.2003 rented between the; garage fee, insurance costs, Motor Vehicles Tax and traffic visa fees as a total of 7,087,576,745 TL. he stated that the costs were incurred and that the plaintiff had not been able to use the tool for approximately 2.5 years during the proceedings, that his spiritual structure had deteriorated and that he had suffered moral damage.3,000,000,000.- Total of TL with moral compensation; 10.087.576.745.- TL requested and sued for the decision to collect the compensation from the defendant with interest and with respect to excess rights reserved.

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 did not go into traffic did not need insurance insurance, also taxes could not be required, in response to the decision to dismiss the case. The court’s decision on the partial acceptance of the case has been overturned by the special Office for the reason stated above.

The court; in the case, the garage fee for the vehicle subject to the lawsuit, insurance costs of the insurance, motor vehicles tax and traffic visa fees totaling 7,087,576,745 TL.costs requested, the plaintiff’s attorney at the hearing also dated 31.10.2008 of the vehicle remain in service for the period of 78 days unavailable because of the case and stated that this is not a request for the elimination of the costs incurred, the plaintiff presented the receipt and the documents, automobile insurance, insurance, motor vehicle tax and traffic 3.391 try total visa fees. the payment is fixed, plus 400 YTL. the previous decision was resisted on the grounds that a total of 3,791.00 YTL material compensation case should be accepted with the acceptance of the garage fee,and that the moral compensation claim was rejected in the vehicle Change case and the final provision was made in this respect and the conditions of the moral compensation claim did not occur.

74 Of The Code Of Civil Procedure.in its article, ” the judge may not rule over the demand or anyone else.”as laid down in the regulation, 75/1 of the same law.in its article, ” apart from the exceptions set out by the law, the judge cannot take into account what one of the two parties does not say or the reasons for the claim, and cannot even be present in situations that can remind them.”the provision is contained in.

It is clear from this clear provision of the law that the judge is bound by the claims and defences of the two parties and cannot rule over the claim or anyone else.

In the concrete case, the costs of the vehicle in question of litigation; garage fee, insurance costs of Casco, Motor Vehicles Tax and traffic visa fees are counted in the individual lawsuit petition, a total of TL 7.087.576.745. have been in demand.

At the hearing on 31.10.2008, the plaintiff’s deputy clearly stated that they had no request or lawsuit to remedy the damage caused for the period that the vehicle was unavailable due to 78 days in service. The Local Court considered this request and decided to partially accept the case.

Hence the court, HUMK.of 74 and 75. it is understood that the decision was made by observing the clauses and without exceeding the demand. Then the decision to resist, which is in accordance with procedure and law, must be upheld.

Conclusion: 1-for the reason described in Paragraph ( 1 )Above, all appeals of the attorneys of the defendants will be rejected; upon request, the refund of the Advance Fee for the appeal,

2-it was decided unanimously on 03.06.2009 that the decision to resist was upheld with the rejection of the appeal appeals of the plaintiff’s attorney for the reasons described in the above ( 2 )paragraph, and that since the required appellate fee had been received in advance, there was no place for other charges to be taken.