T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
2009/13-183
2009/243
3.6.2009
Claim for material and moral compensation ( due to defective vehicle/plaintiff’s claims and what they do not claim individually and clearly-the amount ruled by the judge is proportional to the claim/there is no violation of the principle of commitment to the claim )
The judge is bound by the claim ( the claim for compensation due to the storage of the defective vehicle/the plaintiff’s claims and what they do not claim individually and clearly states – the judge will also take into account that he has decided in accordance with the claims )
Protection of the defective vehicle ( due to the claim for compensation/plaintiff’s claims and what they do not claim individually and clearly-the amount the judge has ruled is proportional to the claim/there is no violation of the principle of commitment to the claim )
1086 / m.74
Abstract: the case is related to the claim for material and moral compensation. The plaintiff sought compensation for his damages, claiming that he could not use the defective vehicle during the final trial and 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 more than the demand or anyone else. In a concrete case, the costs of the vehicle; garage fee, insurance costs, motor vehicle tax and traffic visa fees are counted in the individual lawsuit petition and the total price was requested.
The attorney for the plaintiff has clearly stated that they do not have a request or claim to remedy the damage caused for the period that cannot be used due to the vehicle remaining in service. The Local Court decided to partially accept the case by taking this request to the evil eye. Therefore, it is understood that the decision was made by the court without exceeding the demand. In that case, the decision to resist, which is in accordance with the procedure and the law, must be upheld.
CASE: At the end of the trial held due to the case of “material and moral compensation” between the parties; Denizli First Instance ( Dec.Mah.In his capacity) 3.05.07.2007 day and 2006/570 E, issued by the Civil Court for partial acceptance of the case.-2007/252 K. decision No. 13 of the Supreme Court.26.02.2008 days of the Legal Department and 2007/13096 E-2008/2623 K.by proclamation No. 13 of the Supreme Court, upon request of the plaintiff’s deputy, to review the correction of the decision as a result of its violation.15.07.2008 day of the Legal Department and 2008/7488 E.-9920 K. with the numbered announcement;
(…The plaintiff claimed that the 0 km vehicle purchased from the defendants was replaced by a court decision that was finalized due to a manufacturing error, the vehicle subject to the lawsuit was stored in a closed garage, could not use it, paid garage fee, insurance fee, motor vehicle tax,traffic visa fee and impaired spiritual structure, asking for the collection of 7 087 576 745 TL of material, 3 000 000 000 TL of moral compensation.
The defendants argued for dismissal of the case.
The court decided to partially accept the case, collect try 3.791,98 with interest from the date of the case, reject the request for moral compensation; as a result of the appeal of the parties, the decision was violated by the announcement of our office on 26.02.2008 2007/13096 basis, 2008/2623, this time the plaintiff requested correction of the corrupted decision.
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, the lack of a hit in the evaluation of the evidence, the plaintiff must reject other objections to correcting the decision that fall outside the scope of the following bend.
2-the plaintiff claimed that he could not use the defective vehicle during the final case and had to keep the vehicle in a closed garage and sought compensation for the damage. File: Denizli 4.In the discovery made on 01.03.2002 in the 2001/599 main file of the Court of First Instance law ( consumer), it is understood that the court found that the vehicle was at 10016 km and that it was still 4 wedges, in the delivery protocol dated 25.07.2003, the vehicle was at 10053 km. Again, in the expert report dated 24.04.2002, given in the final file, it was found that the car remained in service for 78 days due to failures. In this case, the plaintiff may request that his damages be eliminated for these periods in which he cannot use the vehicle. According to the conclusion of the investigation by the court on this issue, the provision should be established in writing with the acceptance of some requests and the establishment of the provision is contrary to the procedure and the law and is the reason for the violation. However, in the appeal review conducted by our Department, it was decided that the court decision would be overturned as described above with the acceptance of the plaintiff’s request for correction of the decision, as it became clear that these issues had been completely overlooked… ),
At the end of the re-trial, the court resisted the previous decision by reversing the file on the grounds that it was corrupted.
The law was examined by the General Assembly and discussed as necessary after it became clear that the decision to resist was appealed during the period and the papers in the file were read:
Decision: 1-all appeals of defendants must be dismissed 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 the lack of accuracy in the evaluation of the evidence.
2-as for the appeal of the plaintiff’s attorney;
The case relates to a claim for material and moral compensation. The plaintiff purchased from the defendant because of a production error Zero Kilometer of the vehicle caused it to be replaced with a new one for free for the acceptance of the decision Supreme Court review of the case determined through the aforementioned date case opened with the execution of the tool was delivered to the defendant by way of 09.07.2001 25.07.2003 whether they have been preserved and were placed in a closed garage was leased dates between in this period the vehicle; garage fee, insurance costs, motor vehicle tax and traffic visa fees as a total of 7,087,576,745 TL. costs were made, in addition, the plaintiff was unable to use the vehicle for about 2.5 years during the trial, his spiritual structure deteriorated, he suffered moral damage, stating that 3,000,000,000.- TL, together with moral compensation, total; 10.087.576.745.- TL requested and sued the defendant to decide on the collection together with the interest of the compensation and with the right to the excess.
Defendants, the plaintiff put the vehicle on the ground floor of the building under construction, did not pay any fees, a vehicle that does not go to traffic does not need insurance, as well as taxes can not be requested, stating in response to the decision to dismiss the case. The court’s decision on the partial acceptance of the case was overturned by the Special Department for the above-mentioned reason.
Court; in the case, the garage fee for the vehicle subject to the lawsuit, insurance costs, motor vehicle tax and traffic visa fees, including a total of 7,087,576,745 TL.the costs of requested at the hearing of the plaintiff’s attorney dated 31.10.2008 also, the vehicle is unavailable for the period incurred because of the elimination of about 78 days remain in service request and stated that this is not the case, the plaintiff presented the receipts and documents, automobile insurance, insurance, visa fees and motor vehicle tax total traffic 3.391 TRY. it is fixed that it pays, also 400 UAH. in the previous decision,it was resisted on the grounds that a total of 3,791.00 YTL of material compensation should be accepted with the acceptance of the garage fee, the request for moral compensation in the case of vehicle exchange was rejected and the final provision was formed in this direction, and the conditions of the claim for moral compensation were not formed.
74 Of The Code Of Civil Procedure.”the judge may not rule more than the demand or anyone else.”as contained in the regulation, 75/1 of the same law.”other than the exceptions appointed by the law, the judge may not take into account what one of the two parties does not say or the reasons for the claim, and may not even be in cases that may remind them.”the provision is located at.
As can be seen from this clear provision of the law, it is clear that the judge is bound by the claims and defenses of both parties and cannot rule more than the demand or anyone else.
In a concrete case, the costs of the vehicle subject to the lawsuit are counted in the individual lawsuit petition, including garage fee, insurance costs, motor vehicle tax and traffic visa fees, for a total of TL 7,087,576,745. have been in demand.
At the Hearing dated 31.10.2008, the attorney of the plaintiff clearly stated that they did not have a request or claim to remedy the damage caused for the period that could not be used due to the fact that the vehicle remained in service for 78 days. The Local Court decided to partially accept the case by taking this request to the evil eye.
Hence the court, HUMK.’s 74 and 75. it is understood that the decision was made by observing the clauses and without exceeding the demand. In that case, the decision to resist, which is in accordance with the procedure and the law, must be upheld.
Conclusion: 1-rejection of all appeals of defendants ‘ attorneys for the reason described in Paragraph ( 1 )Above, refund of the advance costs of the appeal upon request,
2-for the reasons described in Paragraph ( 2 )above, it was unanimously decided on 03.06.2009 that the decision to resist was upheld, since the necessary application fee was received in advance, there was no room for another fee to be received.
