In cases of consumer protection courts tend to stand on his side. In one condition: that the consumer makes their demands within reasonable limits.
Having bought in the store are very expensive sandals known Italian company «Prada», Moscow to extend their term of service has decided to stick to the sole polymer plates and 31 May 2007 ordered a repair shop LLC "Euro Shu Service related work, paying for it is 600 rubles. However, in the form shoes after work pleasure of new clothes M. faded: she found on one of the strap sandals cut in 0.5 cm above the edge of the sole.
M. refused to work and, given the considerable sums of money paid for the shoes, consult an attorney. However, arriving at the repair shop, they, after careful examination of footwear made in the bill the following mark: "Upon receipt of lilac sandals« Prada »on the right of them from the inner side near the foot was found cut the strap, put the signature under which Moscow and a member of the studio. After that, Moscow has LTD claim is directed to the following requirements: Company must not only recover its costs of $ 20 100 rubles. (19 500 rubles. - Cost sandals plus 600 rubles. - The cost of installation artist runup to them), but also to pay an additional 24 500 rubles. (19 500 rubles. - Penalty plus 5000 rub. - Compensation for moral harm).
These requirements for the recovery of cash settled MA follows.
In accordance with Clause 1, Article. 35 of the RF from February 7, 1992 ¹ 2300-1 «On Protection of Consumer Rights" (in force at that time in Russia) case of full or partial loss of (injury) things, adopted by the consumer, the Executive shall in the absence of uniform items of similar quality reimburse the consumer price of a double-damaged items, as well as costs incurred by the consumer. Cost of sandals is 19 500 rubles. Consequently, in the same amount of AM is to be paid the penalty. As for the costs incurred by the consumer, in this case, they amounted to 600 rubles. (cost Work on installing rolling on sandals), which the Executive is also required to reimburse.
In addition, according to Art. 15 of the RF from February 7, 1992 ¹ 2300-1 in the case of violation of consumer rights to compensation by the Executive shall be caused to the latter pecuniary damage. M. appreciated moral damage caused to it in 5000 rubles. She hoped to be acquired sandals in the summer of 2007 and, finding damage straps, experienced mental suffering, because, firstly, sandals lost their attractiveness and quality, and secondly, MA afraid to put them on because the strap can be completely off and use the purchased shoes will be impossible. In addition, AM was forced to seek to the Executive's claim and experience the unpleasant moments of communication with its employees on this issue.
Company denied the claim Moscow, which, however, is not surprising. After all, by the requirements specified otherwise can not be described as maximalist.
It should be noted that such a sharp reaction to the violation occurs, many customers, probably it is due to a desire to punish the offender as soon as possible stricter. Therefore, when Moscow after refusing the studio went to court, she rashly put forward in the lawsuit are the same requirements. However, the position of consumers "Blood thirsty" abuser, and the position of the legislator does not always coincide.
In this case, MI on the advice of a lawyer changed its position. Claim on the amount of material damage, she outlined in such a way that Magistrate to decide for themselves this size in monetary terms, and determine the amount of compensation for moral damage. Moreover, the claim was delete the requirement to recover the cost of rolling out the installation on the sole of her sandals (600 rub.), because this work was qualitatively and to the very outcome of the claims from Moscow was not.
Nevertheless, new demands MA studio was not satisfied. From the perspective of the performer, the defect has arisen in the shoes of its manufacture, so the Company has asked the court a petition for examination by agreeing to bear the costs of its implementation.
To the experts were given the following questions:
1. What is the cause of defect on the right strap sandals
2. Is this defect manufacturing defects, there was a result of operation or when a mechanical force resulting from the installation of sheet prevention?
According to provide expert advice "on the strap right vzeroshivanie polupary, setting on the brink of the following women's summer shoes brand« Prada », formed in the production of shoes as a result of the preparation of a protracted vamps to edge gluing operations. The linear character vzeroshivaniya, his location clearly on the verge of a trace, and the lack of injuries on the edge of the foot (ibid.) exclude the probability of mechanical action during the installation Preventive stickers. Vzeroshivanie not affect the appearance of the shoe and its performance characteristics, do not exceed established for this type of footwear tolerances, is not a defect.
Based on this conclusion, the magistrate found the claim is not subject to Moscow's satisfaction. The court granted the representative of the Company to recover with M. expenditure incurred by the respondent in connection with the examination, in the amount of 3000 rubles. and decided to recover from the Moscow State income fee amounting to 430 rubles.
Agree with this decision, the magistrate could not have MS, so trained lawyers sent an appeal to the Golovinsky district court in Moscow. The main arguments on which it requested the annulment of the decision of the magistrate, were as follows:
1. In the court did not investigate the evidence.
The trial transcript does not reflect the fact that examination of material evidence - right polupary sandals «Prada», ie this evidence has not been investigated for the presence of defects, their nature, location, impact on the appearance of shoes. If the plaintiff and the employee could Ltd. detect defects at acceptance of footwear after the runup to the sole, means that such defects were seen, moreover, their character was determined by these persons as mechanical damage. Inspection of footwear was also needed to determine the need for expertise.
2. In the court session was not studied written proof - a receipt number 036525 dated 31 May 2007 "Euro Shu Service Receipt and issuance sandals.
The court decision is no reference to the study of the evidence, and he was not assessed. Receipt indicates the presence between the plaintiff and the LLC contractual relations, the term of shoes from the defendant, and also confirms the status of shoes in its acceptance of plaintiff's employees and the Company upon delivery of result of the work to the plaintiff.
3. Court was not entitled to settle the issue without the involvement of the manufacturer, since it affects the rights and duties of the latter.
In considering the dispute the magistrate on the basis of expert opinion has determined that the damage is caused during the production process, ie the fault of the manufacturer. However, the court is not the manufacturer was involved in the case. Meanwhile, the establishment of this fact by the court allows the plaintiff to file a suit to attract to the responsibility of the manufacturer of shoes, while in evidence will be appended to a judicial decision based on expert opinion. Refute a judicial decision maker will not that violate the principle of adversarial proceedings and equality of the parties, as well as lead to the assignment of responsibility the discovery of the defect on the manufacturer, which, in turn, is a violation of the right to a fair trial.
4. Conclusion of the expert is not evidence in this case.
In the trial magistrate determined the need for expertise to answer the following questions:
1) What is the cause of defect on the right strap sandals
2) Is this defect manufacturing defects, there was a result of operation or when a mechanical force resulting from the installation of sheet prevention?
Plaintiff questioned the appropriateness of obtaining a specialist response to the first question, because the parties recognized the existence of damage and the cause of its formation does not matter.
The second issue of the magistrate limited the specialist point of installation sheet prevention, while the damage might occur during the period from May 31 2007 (adoption of footwear defendant) before June 8, 2007 (receipt of shoes consumer). The operation takes the installation of sheet to prevent minor time, thus not investigated was the period of time prior to the respondent works with shoes and after the performance of these works. The judge did not investigate this period and therefore not given the way in which damage could occur during this time or not.
Plaintiff considers expert opinion inadmissible evidence on the following grounds:
a) In case there is a refined statement of claim, which contains the modified object of the claim compared to the original: instead of demanding the return of the full cost of sandals in connection with their damage claims filed for the recovery of costs due to damage things. This affects any circumstances be proved;
b) The expert concluded there is no description of the damage, therefore, the damage itself was not examined by the expert. The expression "small vzeroshivanie long edge, setting a trace on the brink of 1,5-1,8 mm in cross-section vamps in the right polupare from the inside "is not a description of damage, as there is no reference to the state of the surface of the skin, its structure, the length of injury and other components to make conclusion of the difference (identity) of this section of sandals from the other parts. It was doubtful whether the offer to buyers shoe stores «Prada» for 19 500 rubles. with injuries that were discovered after acceptance M. sandals from the defendant;
c) the conclusion of the expert about the origin of damage in the production of footwear is unfounded: the expert did not describe the technology of work performance and the applicable with equipment that raises doubts about the admissibility of expert opinion as evidence;
d) According to the plaintiff, or one of the issues raised by the court expert does not answer;
e) during examination organoleptic method was used, ie was carried out with the help of the sense organs, which possesses any average man. Thus, questioning the wisdom of the examination with the use of special equipment and expertise;
f) expertise and representation of the interests of the defendant in the trial conducted by the representatives of the same organization, whereas, according to h. 2 tbsp. 85 GIC RF judge shall not engage in personal contact with actors, if it calls into question his lack of interest in the outcome of the case.
By virtue of Art. 67 GIC Russia does not have any evidence to the court a pre-determined force, and according to Art. 86 GIC RF expert opinion for the court is not necessarily and assessed by the court according to the rules established by Art. 67 GIC RF.
In Golovinsky district court of Moscow judge took into account the arguments of M. It was examined physical evidence - women's sandals, as the case was brought Sold as an interested person. In addition, the court raised the question of the appointment of a second examination. At this stage, LLC has proposed to complete the dispute AM agreement, specifying the amount to pay her compensation for the injury.
Relationships to compensate for damage described in the present case, are governed by the provisions of Chap. 59 Civil Code, the RF Law on February 7, 1992 ¹ 2300-1 "On Protection of Consumer Rights, Rules of consumer services in Russia, approved by Government Russia on August 15, 1997 ¹ 1025 (in the red. From February 1, 2005).
Thus, part 1 of article. 1064 Civil Code, which contains general provisions on damages, provides that the harm caused to property of a citizen, non-refundable in full by the person who caused the harm. Applicable in this case is, and art. 714 Civil Code, under which the contractor is responsible for the failure to preserve provided by the customer things which happened in the possession of the contractor in connection with the execution of the contract award.
In turn, paragraph 1, Art. 35 of the RF from February 7, 1992 ¹ 2300-1 provides that, if the work is done with the thing the consumer, the Executive is responsible for the safety of this thing, and in paragraph 2 of the same article establishes the procedure for determining the price of the damaged things: it is determined based on the price thing that existed at the point where consumer demand was to be granted by the Executive on the day of voluntary satisfaction of such claim or on the day of adjudication.
Rules of consumer services in Russia from August 15, 1997 are governed mainly issues contract execution and receipt of result of the consumer. Thus, under paragraph 4. Regulation on the implementation of the agreement shall be in writing (receipt, a document) and should contain the following information: exact name, description and price of things, if the work is done with the thing the consumer. However, according to paragraph 14 of the Rules consumer must, in time and in the manner stipulated in the contract, with the participation of the Executive to inspect and accept work done (its result). If you find deviations from the contract, which deteriorate the result of work or other deficiencies in the consumer should immediately declare this artist. These shortcomings should be described in the instrument or other document evidencing the acceptance.
Of particular importance in describing the things consumers are indications of its defects, because the thing can be damaged by the artist. In this regard, in court the dispute in the trial itself is the thing we study the consumer and the documents that describe its defects. If their description in a document furnished the issuance of the things the consumer does not coincide with those indicated in the documents processed when it is receiving from the consumer, the courts generally recognize that the defects arose from the actions of the Executive. In the present case to establish the presence (absence) of mechanical damage during the inspection of things (on than insisting MA) was sufficient to compare poluparu sandals with damage to the other poluparoy, where damage is absent.
In contrast to determine the presence or absence of mechanical damage, which can be done by the external inspection of the thing, the definition of the size compensation payable to the consumer, often causes difficulties.
As seen from the contents of paragraph 2 of Art. 35 of the RF from February 7, 1992 ¹ 2300-1, the court must first determine the price of the damaged items. In this If MS has for the price of the damaged items amount, consisting of the purchase price and the price of the work performed. How valid is this approach to calculating cost of compensation for the damaged item?
The consumer passes the artist to do the work individually some thing that belongs to the consumer at the right of ownership. He has the right of ownership and if this thing during the execution of the contract is in possession of the Executive, which follows from the lack of between trade them on the transfer of consumer ownership of the artist thing for this period and confirmed by the provisions of Art. 705 of the Civil Code of the risks of the parties. Right ownership of outputs in the form prescribed in sandals runup, the price of which amounted to 600 rubles., performer transmitted to the consumer at the time acceptance of recent work. The works were completed on time and without defects, so the dispute over the outcome of this work was not available. This follows that the price of sandals to increase to 20 100 rubles. (19 500 rubles. + 600 rub.), If not one "but" - the dispute over the size of compensation for damages caused during the execution of the contract award.
It is specifically provided that the law distinguishes between the concept of "damage to things" and "death thing". If the court found that there is a loss things, it would determine the reimbursement MI 20 100 rubles. as a lost thing, including a roll forward, can not be used. The court would compel Moscow to transfer thing with the established coast-down artist.
However, in this case the only thing damaged, so its price should be determined without regard to price of installation runup. This conclusion follows from the fact that at the time of detection of damage to things a dispute about the guilt of the Executive in damage to property of the consumer (polupare sandals, component of a pair of sandals at the cost of 19 500 rubles).. Doing installation overrun amounting to 600 rubles. refers to the obligations of the Executive, to permit dispute by the court the result of this work did not become the property of the consumer. Under a contract of domestic independent artist responsible not only for the guilty, but also for accidental damage to property of the consumer (liability based on the principle of risk), respectively, consumer's risk is limited to circumstances Force Majeure (Part 3 of Art. 401, Part 1, Art. 730, Art. 734 Civil Code).
To determine the amount of compensation payable by the consumer, the court must apply the provisions of paragraph 1 of Art. 35 of the RF from February 7, 1992 ¹ 2300-1 that the Executive is obliged to compensate the consumer price of a double damaged belongings.
Determine the price of things can be damaged as a result of its assessment of the trade organization, and even better - in several organizations. Having several of these indicators, the court in its discretion, determines the price of the damaged items.
Thus, in the present case, the price of sandals under a cash checks and presentation - 19 500 rub., According to the LLC "Shuz-5" - 14 000 rub., OOO "Chic-33" - 14 600 rubles. Ltd., "Shock-8" - 12 600 rubles. Price damaged shoes on a judge's discretion was 13 500 rub.