3.Law office
Base Number : 2020/3188
Decision Number: 2020/4776
“Justice Text”
COURT: CONSUMER COURT
At the end of the trial of the lawsuit between the parties, the judgment given by the plaintiff’s lawyer for the partial acceptance and partial rejection of the lawsuit due to the reasons stated in the verdict, without a hearing, the defendant … San.ve Tic. Inc. Upon the appeal by his lawyer with a hearing, a summons was sent to the relevant parties. On a certain day, no one came from the defendant or the plaintiff who appealed. The other defendant … Ofisi A.Ş. The hearing started with the arrival of the deputy lawyer … and after hearing the verbal statements of the attendant, the decision was left for another day. This time, it was determined that the appeal petition was in time, the file was examined, and the necessity was discussed and considered.
DECISION
The plaintiff claimed from the defendants that he received fuel from the fuel station of … Petrol Sanayi ve Ticaret A.Ş. to his vehicle with the number plate number, but the pump officer discharged gasoline instead of diesel fuel, and that a malfunction occurred in the vehicle in this way, upon his application to the defendant company … The defendant in the case, which was merged for the repair of the vehicle by the administrators … Automotive San. Trade Ltd. Sti. in the main case, preserving their rights regarding the surplus, claiming that only the fuel filter of the vehicle was changed and the gasoline in the tank was cleaned, but the vehicle malfunctioned again on the following day, and that the vehicle was damaged on a large scale as a result of the fault of the defendants; 15,000,00 TL for the cost of the damaged parts, 600,00 TL for the repair and labor costs of the damaged parts, 1,000,00 TL for the depreciation of the vehicle, 150,00 TL as the towing expense, 3,540,00 TL for the car rental fee, distribution and collection of the vehicle requested a decision to collect from the defendants a total of 23,567,00 TL, of which 2.800.00 TL for the expenses paid to the service and 477.00 TL for the determination costs and expenses; in the combined action, by repeating the case put forward in the original lawsuit, a request is made numerically and without including a demand result in the petition.
without indicating the amount … Automotive San. Trade Ltd. Şti. as the defendant and demanded that the case opened with the original file be combined; With the correction petition dated 30.03.2016, after stating that they increased the repair and labor cost of the damaged parts demanded as 600.00 TL with the damaged part price requested as 15,000,00 TL, the improvement requests were accepted. with; In line with the other claims stated in the lawsuit petition and the improvement petition, it requested a decision to collect the damaged parts, repair and labor costs of 27.256.00 TL together with the interest.
The defendants requested that the case be dismissed.
As a result of the trial made by the court in accordance with the decision of reversal, in the main case; the defendant … St. ve Tic. Inc. to the partial acceptance of the lawsuit brought against him, 15.600.00 TL of the 27.256.00 TL receivable as damaged parts and labor cost, starting from the date of the lawsuit and 11,656.00 TL together with the legal interest, starting from the date of correction, 30.03.2016, from the named defendant to the plaintiff. The defendant … San. and Tic. A.Ş. to be given to the plaintiff, rejection of the request for the surplus, … Ofisi A.Ş. Rejection of the lawsuit filed against, in the combined lawsuit; the dismissal of the case was decided; the judgment is from the plaintiff and the defendants who are the defendants in the main lawsuit… Petrol Sanayi ve Ticaret A.Ş. appealed by.
1-According to the articles in the file, the evidence on which the decision is based, legally compelling reasons, and especially if there is no inaccuracy in the evaluation of the evidence, all of the defendant’s objections and the plaintiff’s other appeal objections, which are outside the scope of the paragraph below, should be rejected.
2-The plaintiff requested compensation for the damages incurred by the employees of the fuel station belonging to the defendant Industry and Trade Inc., by putting the wrong fuel in his vehicle. The court, in the main case, the defendant … Sanayi ve Ticaret A.Ş. It was decided that the case be partially accepted, the other defendant …Ofisi A.Ş. It was decided to reject the case on the grounds that there was no fault in the occurrence of the damage. First of all, it should be noted that in the concrete case, one of the defendants … Petrol Sanayi ve Ticaret A.Ş. is the dealer of the other defendant … Ofisi A.Ş. (Petrol Ofisi), the fuel station operated by Petrol Sanayi ve Ticaret A.Ş. There is no dispute between the parties regarding the vehicle’s malfunction. The dispute is gathered at the point of whether the provider has joint responsibility due to the service provided by the dealer.
In the third paragraph of Article 4/A of the Law No. 4077, which was in force at the date of the damage, it is stated that “The supplier, dealer, agency and the creditor according to the fifth paragraph of Article 10, are liable for the defective service and the defective service.
He is jointly and severally liable for all kinds of damages caused by the service and for the consumer’s optional rights in this article. Not knowing that the service provided is defective does not remove this responsibility.
According to Article 3 of the aforementioned Law titled “Definitions”;
“In the implementation of this Law,
d) Service: Any activity other than providing goods for a fee or benefit,
g) Provider: Refers to natural or legal persons that provide services to consumers within the scope of their commercial or professional activities, including public legal entities. has a provision.
In a concrete dispute, it is not possible to give defective goods to the plaintiff, however; Pursuant to the first paragraph of Article 4/A of the aforementioned Law; “…Material, legal, material or legal matters that are contrary to the quantity affecting the quality or quality determined in the advertisements and announcements notified by the supplier or in its standard or technical rule, or that reduce or eliminate its value in terms of the purpose of benefiting or the benefits expected by the consumer from it. or services that contain economic deficiencies are considered defective services. According to this; In the incident that took place in which the defendant’s vehicle was replaced by gasoline instead of diesel by the employee of the defendant … Sanayi ve Ticaret A.Ş., there was a dispute regarding … Petrol Sanayi ve Ticaret A.Ş. selling and rendering services as the dealer of the other defendant … Office. There is a defective service in accordance with the first paragraph of Article 4/A of the aforementioned Law, since there is a service that contains material deficiencies that eliminate the benefits expected by the consumer in terms of the purpose of benefit determined in the advertisements and advertisements reported by the provider.
In accordance with the third paragraph of article 4/A, the supplier and the dealer are jointly responsible for the defective service and all kinds of damages caused by the defective service and the consumer’s optional rights in this article. Moreover, the fact that the service provided is not known to be defective does not remove this responsibility (H.G.K.’s decision dated 19.09.2012 and numbered 2012/13-153 E., 2012/598 K.). Ignoring this issue explained by the court, the dismissal of the case on the grounds that the defendant … Office did not have any fault in causing the damage is contrary to the procedure and the law, and requires reversal.
CONCLUSION: All the objections of the defendant, who appealed the decision for the reasons explained in paragraph (1) above, and all other appeals of the plaintiff that are not within the scope of the second paragraph, the judgment being appealed for the reasons explained in paragraph (2) is OVERFINED for the benefit of the plaintiff, the appeal fee paid in advance is returned to the appellants upon request. With reference to the provisional article 3 of the HMK numbered 6100, it was unanimously decided on 24/09/2020, with the possibility of rectification within 15 days from the notification of the decision, pursuant to the 440th article of the HUMK numbered 1086.
