The Court in Charge of Disputes Arising from the Diagnosis and Treatment Service – The Decision of the Court of Cassation

T.C. SUPREME
13. Legal Department Main No: 2012/21184
Decision No: 2012/20509
Decision Date: 28.09.2012
THE CASE OF CANCELLATION OF THE APPEAL – WHEN THE CONCRETE EVENT IS EVALUATED
Deconfliction BETWEEN THE PARTIES DIAGNOSIS AND TREATMENT
WHICH IS DUE TO THE SERVICE – DEFINED IN THE LAW
IN THIS WAY, IT IS UNDERSTOOD THAT THE CONSUMER AND THE DEFENDANT ARE THE SELLER
– DUE TO THE VIOLATION OF THE PROVISION
Summary: a legal process within the scope of the Law No. 4077 on staying for the acceptance of definitions is given in the legislation between the parties relating to the sale of goods and services must be of a legal process. the relevant article of the law No. 4077 provides that all kinds of disputes related to the implementation of this law will be dealt with in consumer courts. When the concrete incident is evaluated, it is understood that the dispute between the parties arises from the diagnosis and treatment service and that the plaintiffs are the consumer (the recipient of the treatment fee) and the defendant is the seller (the service provider) as defined Decisively in the Law. In this case, the Consumer Court is responsible for hearing the case, not the General Court. The regulations related to the duty 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 duty. Then the court
a decision of non-duty must be made.
(4077 P. K. m. 1, 2, 3, 23) (818 P. K. m. 41, 47)
Lawsuit: At the end of the trial of the cancellation of the objection between the parties, the file was examined by the parties’ lawyer upon appeal within the period of the judgment given for partial acceptance and partial rejection of the case for the reasons written in the decision, and the case was discussed and considered Decisively:
Decision: Counsel for the plaintiffs, plaintiff K.I.’s in the hospital because of low back pain from the company other defendant the defendant be examined by a physician and therapy was initiated, but at the time the correct diagnosis is not put at another hospital because of the wrong treatment and stem cell therapy that has seen more spiritual and temporal application, without prejudice, citing what the damage was 1000 TL material, 300.000 TL non-pecuniary damages to the collection, they wanted financial compensation demands are going to increase with the petition Correctional 400.000 TL. The defendants have argued for the dismissal of the case.
Before the Court, plaintiff K.I. for 34.586,84 TL material, 75.000 TL moral compensation, M.I. on the other hand, it was decided to collect moral compensation of 25.000 TL from the defendants at the rate of their defects; the verdict was appealed by the parties.
1- the Purpose of the Law No. 4077 on Consumer Protection, amended by the law No. 4822, is entitled 1. after the purpose of the law is explained in Article 2 of the scope title. the provision is included in the article. 3 Of the Law. in the item goods; movable goods which is the subject of shopping, housing and leisure real estate and prepared to be used in electronic media, software, audio, video and similar intangible goods, in exchange for a service fee refers to the supply of goods outside of any activity or interest. Seller; it covers natural or legal persons who offer goods to the consumer within the scope of their commercial or professional activities, including public legal entities. The consumer, on the other hand, is defined as a natural or legal person who acquires, uses or benefits from a good or service for commercial or non-professional purposes.
Again, in Article 3 / d of the aforementioned law, it is defined as.
In order for a legal transaction to be recognized as remaining within the scope of law No. 4077, there must be a legal transaction related to the sale of goods and services between the parties Deciphered above within the purpose of the law. 23 of the law No. 4077. the article stipulated that all kinds of disputes related to the implementation of this law will be dealt with in consumer courts.
When the concrete incident is evaluated, it is understood that the dispute between the parties arises from the diagnosis and treatment service and that the plaintiffs are the consumer (the recipient of the treatment fee) and the defendant is the seller (the service provider) as defined Decisively in the Law. In this case, the Consumer Court is responsible for hearing the case, not the General Court. The regulations related to the duty 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 duty. In that case, while a decision of dismissal should be made by the court, the establishment of a verdict by entering into the merits of the case is contrary to the procedure and the law and is the reason for the violation. 2- According to the reason for the violation, there is no need to examine the other appeals of the parties for now.
Conclusion: For the reasons explained in the first paragraph, the appealed decision will be OVERTURNED, for the reasons explained in the second paragraph, there is no place for the examination of other appeals of the parties, 1.99,00 TL each received in advance. a unanimous decision was made on 28.09.2012 to return the appeal fee to the defendants upon request and to return the appeal fee of TL 21.15 received in advance to the plaintiffs upon request.

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