TC
HIGH COURT
13th LAW OFFICE
E. 2010/1116
K. 2010/12853
Date: 10/11/2010
Claim for refund of the price of a defective product (given that the service provider kept the consumer waiting with unrecoverable repairs and the defect recurred over specific periods, the statute of limitations does not apply in this case)
Statute of limitations (claim for refund of the price of defective goods – the fact that the service provider has kept the consumer waiting with unrecoverable repairs and that the defect has recurred over specific periods cannot be invoked in cases where the statute of limitations applies)
Embarrassment arising from the seller’s gross negligence (if the embarrassment caused by the sold goods due to the seller’s gross negligence or fraud has been concealed from the consumer, the statute of limitations does not apply)
Claim for return of the defective vehicle (the claim is not barred by the statute of limitations – interest begins to accrue from the date the defective vehicle is returned to the defendant, provided the court rules that the plaintiff continued to use the vehicle in question)
4077 / Art. 4/4, 23
Summary:
The case concerns a claim for the refund of the purchase price of a defective product. It is inconceivable that the costs resulting from service personnel attempting to repair the vehicle through trial and error and opting to replace parts would be borne by the consumer. Given that the service center kept the consumer waiting with unrecoverable repairs and the defect recurred over specific periods, the existence of a statute of limitations cannot be invoked in this case. Indeed, Article 4/4 of Law No. 4077 (amended by Law No. 4822) provides that “the statute of limitations shall not apply if the defect in the sold goods or the seller’s gross negligence or fraud was concealed from the consumer.”
Cases heard in consumer courts are subject to a simplified litigation procedure, and the statute of limitations may be raised until the first hearing. The case has not yet been barred by the statute of limitations. However, since the vehicle in question is still in the plaintiff’s possession, interest should begin to accrue from the date the defective vehicle is returned to the defendant.
Case: At the conclusion of the trial regarding the return of the goods, which had been removed from the category of criminal offenses, the defendant D… Automobile’s attorney appealed the decision without a hearing, and the decision partially granting the claim, based on the reasons stated in the notice, was sent to the relevant parties. The hearing began with the attendance of the defendant’s attorney and the plaintiff’s attorney on a specific date, and after the oral statements of the present attorneys were heard, the decision was postponed to another date. This time, it was determined that the appeal was filed within the time limit; the case file was reviewed, and the matter was discussed and evaluated:
Decision:
The plaintiff alleged that the vehicle purchased from the defendant G… Automotive Limited Company had manufacturing defects; the other defendant, being the importer of the vehicle, was ordered to pay the amount of 70,929.00 TL.
The defendants requested that the case be dismissed.
The court decided to dismiss the case against the defendant G… A utomotive Limited Company and to accept the case against the other defendant, D… Automotive AP; the plaintiff and the defendant D… Automotive AP objected to this decision.
1-Based on the documents in the file, the evidence upon which the decision is based, the legally required grounds, and particularly the absence of any dispute regarding the evaluation of the evidence, the plaintiff and defendant D… Automotive A’s other objections, which fall outside the scope of the summonses below, must be dismissed.
2-It is clearly evident from the evidence in the file that the vehicle purchased by the plaintiff from the defendant G… Automotive Ltd. Co. on May 4, 2006, had a manufacturing defect and was secretly defective. However, according to the court, the lawsuit against the defendant G… Automotive Ltd. Co. was dismissed on the grounds of the statute of limitations. The vehicle in question was taken to an authorized service center five times between December 9, 2006, and April 25, 2008, due to the same defect (low traction). In light of the evidence in the case file, there is no doubt that the vehicle had a manufacturing defect and that this constituted a latent defect.
Authorized service centers must have the resources to accurately and thoroughly diagnose faults and defects and to resolve them as quickly as possible.
It is inconceivable that service personnel would attempt vehicle repairs through trial and error or resort to replacing parts, as this would impose costs on the consumer. Given the reality that the service provider has kept the consumer waiting with fruitless repairs and that the malfunction recurs at regular intervals, the statute of limitations cannot be invoked in this situation.
Indeed, Article 4/4 of Law No. 4077 (amended by Law No. 4822) states:
“However, the statute of limitations shall not apply if the defect in the sold goods or the seller’s gross negligence was concealed from the consumer.” (Decision No. 18.2.2004 of the Supreme Court of the Republic of Kazakhstan, Case No. 2004/4-29 E-2004/83 K). The court must evaluate the merits of the case from the perspective of the defendant, G… Automotive Limited Company; dismissing the case in writing on the grounds of the statute of limitations is contrary to procedure and law.
3-In the response filed by the defendant D … Automotive AP, it was determined that the statute of limitations period had expired, and the court decided to accept the case on the grounds that this statute of limitations period did not fall within the timeframe specified in Article 23/2 of Law No. 4077. Pursuant to Article 23/2 of the TKhK, as amended by Law No. 4822, it was ruled that “cases to be heard in consumer courts shall be handled in accordance with the provisions of Chapter Seven and Section Four of the Code of Civil Procedure.” In this case, cases heard in consumer courts are subject to the simplified procedure, and the statute of limitations may be raised until the first hearing.
The date of the first hearing in the present case is November 27, 2008. The defendant D… Automotive AP’s answer pleading asserting the expiration of the statute of limitations is dated November 6, 2008. Therefore, the defendant is D… Automotive AP. Although the statute of limitations period for the case falls within the defendant’s statute of limitations period, the case has not been barred by the statute of limitations for the reasons explained in the paragraph. However, since the vehicle in question is still in the plaintiff’s possession, interest should begin to accrue from the date the defective vehicle was returned to the defendant; the basis for the breach is interest from the date of the notice dated May 2, 2008.
Conclusion: Based on the reasons stated in the first paragraph, the decision regarding the dismissal of the plaintiff’s and defendant D… Otomotiv AP’s other objections; based on the reasons stated in the second paragraph, in favor of the plaintiff; and based on the reasons stated in the third paragraph, regarding the defendant D… Otomotiv AP’s decision regarding the benefit from the fraud, the payment of 750.00 TL in litigation costs by mutual receipt, and the advance collection of 960.00 TL, it was decided by unanimous vote on October 11, 2010, to refund the appeal fee to the defendant D… Otomo tiv and the plaintiff upon request.