General Assembly of Law
Base Number: 2013/1203
Decision Number: 2014/442
“Justice Text”
COURT: Ankara 10th Civil Court of First Instance
DATE: 27/06/2012
NUMBER: 2012/310-2012/310
At the end of the trial due to the “pecuniary compensation” case between the parties; Upon the examination of the decision dated 14.06.2011 and numbered 2009/168 E., 2011/213 K. given by the Ankara 10th Civil Court of First Instance regarding the partial acceptance and partial rejection of the case, the plaintiff and the defendants were requested by the attorneys of M. E., the 13th Court of Cassation. With the decision of the Legal Department dated 07.03.2012 and numbered 15783/5615 E., K.;
(…The plaintiff claimed that on 18.03.2007, the defendant Fahrettin bought the vehicle of Muzaffer, the vehicle of which was put up for sale in the second-hand auto market, from the other defendant Erol, who is the attorney of Muzaffer, for 33,000,00 TL, the vehicle worth 10,000,00 TL. He gave Muzaffer, 23,000,00 TL was given to the defendant Muzaffer by hand, when he went to the other defendant company to do an appraisal before buying the vehicle, they gave verbal confirmation that there was no problem with the vehicle, that he suffered financial losses due to the service fees when the vehicle was constantly malfunctioning. Claiming that he learned on 12.2.2009 that the main problem was due to the flood, Muzaffer, Erol and Fahrettin said that the contract should be canceled with retroactive effect and compensation for negative damages, with the legal interest of the vehicle price of 33,000,00 TL, without prejudice to their rights regarding the surplus. Requesting the collection of 5.700.00 TL from Volan Küçükyılmaz Ltd. Şt. business.
The defendants requested that the case be dismissed.
The court decided to accept the case partially, and the judgment was appealed by the plaintiff and the defendant M. E..
Pursuant to Article 294 of the Code of Civil Procedure numbered 1-6100, the court gives the verdict at the end of the hearing. In any case, the interpretation of the verdict is done by reading the result of the verdict in the hearing minutes. In cases where only the result of the judgment is declared due to compelling reasons, the reasoned decision must be written within one month from the date of its issuance. 297/2 of the HMK. Under the serial number of the debts and the rights granted to the parties, with the judgment given about each of the demands in the conclusion part of the provision in accordance with the article; It should be shown clearly and without arousing suspicion and hesitation. 298/2 of the HMK. Pursuant to the article, the reasoned decision cannot be contrary to the result of the sentence implied. In fact, there is no legal possibility for the judge, who has withdrawn 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 the publicity of the proceedings, the 141st article of the Constitution regarding the public declaration of the decisions, and the above-mentioned imperative articles of the HMK. In addition, this issue is related to public order and its observance is a duty imposed on the judge by law.
In the concrete case, while the court was making a judgment, in the short decision, the case was partially accepted by the defendant Muzaffer, and the case was decided to be accepted for 33,000,00 TL on the condition of returning the vehicle. It has been decided to collect the vehicle value of 33,000,00 TL from the defendant Muzaffer with the legal interest that will accrue from the date of the lawsuit. It is clearly understood that the provision in the reasoned decision and the short decision is contrary to the principles and provisions of the law that the short decision explained above and the reasoned decision should be compatible with each other. As explained above, and as adopted in the Judgment Combination Decision dated 10.04.1992 and numbered 1991/7, 1992/4, the court decided again, without adhering to the short decision, but in such a way that the contradiction between the short decision and the reasoned decision would be eliminated and there would be no hesitation in execution. The contradictory provision had to be overturned in order for it to be granted.
2- It was not deemed necessary to examine the other appeals of the plaintiff and the defendant M. E., depending on the reason for the reversal.)
The case was rejected by the court in the previous decision at the end of the re-trial.
After it was examined by the General Assembly of Law, it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessity was discussed:
The case concerns a claim for pecuniary damage.
The decision of the local court regarding the partial acceptance of the case was overturned by the Special Chamber, upon the appeal of M. E. attorneys from the plaintiffs and the defendants, with the reason stated in the title section above; The court has resisted in the previous decision.
The attorneys of M. E., who are among the plaintiffs and defendants, are appealing the decision to resist.
During the meeting at the General Assembly of Law, the nature of the dispute and the defendant ….. Mot. Vehicle. Truss. Ins. Ltd. Şti., the issue of whether the case should be heard and concluded in the Consumer Court or the Civil Court of First Instance has been evaluated as a preliminary issue.
g that creates the front problem
It is useful to make the following explanations about the task.
In the 1st article titled “Purpose” of the Law No. 4077 on the Protection of the Consumer (TKHK No. 4077) amended by the Law No. 4822; After explaining the purpose of the law, in article 2 titled scope; The provision “This law covers all kinds of consumer transactions in which the consumer is one of the parties in the goods and service markets for the purposes specified in the first article”. In the 3rd article of the law, the goods; It refers to movable goods subject to shopping, immovable properties for residential and holiday purposes, and software, audio, video and similar intangible goods prepared for use in electronic environment. Seller; includes natural or legal persons who offer goods to consumers within the scope of their commercial or professional activities, including public legal entities. 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 TKHK numbered 4077, there must be a legal transaction regarding the sale of goods and services between the parties defined above within the scope of the law. In the concrete dispute, since it is alleged that the defendant (…..Mot. Vehicles. Truz. İnş. Ltd. Şti.), which provides vehicle maintenance and repair services, provides appraisal services on whether there is any defect in the vehicle that the plaintiff (buyer) bought from the other defendants, the parties It is understood that the relationship between them is within the scope of TKHK numbered 4077.
Article 23 of TKHK numbered 4077 stipulates that any dispute regarding the implementation of this law will be dealt with in consumer courts. Plaintiff and defendant ….Mot. Vehicle. Truss. Ins. Ltd. Sti. The dispute between the parties stems from the pre-sales appraisal service, and since it falls within the scope of the TKHK, the Consumer Court is responsible for hearing the case. Considering the titles of the other defendants, although it can be thought that the general court is in charge as a rule; In cases where the cases in the general court and the special court must be heard together, the case should be heard in the Consumer Court for these defendants, since the case must be continued in the special court. In addition, the regulations related to the task are related to public order and are observed ex officio at every stage of the proceedings, even if the parties do not put forward. There is no vested right in matters related to the task. In this case, while the court should give a decision of non-jurisdiction to the consumer court and send the file, it is against the procedure and the law to make a decision by examining the merits of the business.
As such, the local court should take this situation into account and decide according to the result, while resisting the previous decision is against the procedure and the law.
With this different reason explained, the decision to resist had to be reversed; According to the reason for the reversal, other appeals were not examined.
CONCLUSION Ç: 1- With the acceptance of the appeal objections of the plaintiff and the defendant M. E.’s attorneys, the decision to resist was withdrawn from the procedure in accordance with Article 429 of the HUMK. It has been determined that there is no room for examination of the other appeals regarding the merits of the work at this stage, according to the reason for the reversal, HUMK numbered 1086 440/I. Pursuant to the article, it was unanimously decided on 02.04.2014, with the possibility of rectification within 15 days following the notification of the decision.