17. Law Office 2018/1547 E. , 2018/12611 K.

“text of jurisprudence”

COURT : Court of First Instance

At the end of the trial on the compensation case between the parties, the decision regarding the partial acceptance of the case was appealed by the plaintiff’s attorney within the time limit for the reasons written in the Decrees, the file was examined, the necessity was considered:

-DECISION-

The plaintiff’s attorney stated that the workplace belonging to the plaintiff was insured by the defendant with the “Commercial Risk Insurance Policy”, the workplace was damaged in the earthquake that occurred on 23.10.2011 and was found to be a moderately damaged structure, the cost of retrofitting the workplace is 177,790.18 TL. that it was determined as 535.00 TL, taking into account the earthquake exemption in the policy with the DASK coverage limits upon application to the defendant. that the damage cost has been calculated and paid, that the defendant has not covered the actual damage, the plaintiff’s minimum is 76,670.00 TL. stating that he has the right to request, 70.000,00 TL without reserving his rights regarding the surplus. he demanded the collection of the compensation from the defendant together with the legal interest to be processed from the date of the earthquake; with the reclamation petition dated 06.03.2014, he increased his claims to 112.715,00 TL.
The defendant’s attorney, 151.000,00 TL for the cost of the building in the policy. that a guarantee has been given and that there is a 5% earthquake exemption, 565.00 TL calculated in the opened file. he defended the dismissal of the case by stating that they had paid the damage fee to the plaintiff, that the damage caused at the plaintiff’s workplace remained within the scope of DASK guarantees, and that the defendant could be held responsible for damage exceeding this limit.
According to the claim, defense, trial and evidence collected by the court; 2.115,00 TL with the partial acceptance of the case. it was decided to collect the compensation from the defendant together with the legal interest to be processed from the date of the case, to reject the excess request; the verdict was appealed by the plaintiff’s attorney.
1-The case relates to a claim for compensation within the scope of the workplace insurance policy, which also includes earthquake coverage.
The party owned the plaintiff by the defendant to the plaintiff suffered by the insured for the damages due to the earthquake of independent parts 3 and No. 4 to demand compensation from the defendant filed a suit in the hand; by the court, the defendant granted the plaintiff held by optional earthquake coverage policy for the workplace by accepting the compulsory earthquake insurance accepted that the defendant was responsible damages in excess of the limits of the guarantee and the demand was partly decided upon the adoption. It is accepted by the plaintiff that the workplace belonging to the plaintiff does not have a DASK policy, and also by the plaintiff party. With the term policy of 02.02.2011-02.02.2012 arranged by the defendant, the insured workplace is 151.000,00 TL. the building was insured with the cost and earthquake coverage was also provided in the policy. In the special conditions section of the policy; “with the policy, the building of the earthquake is given the guarantee if necessary, pursuant to Decree Law No. 587 guarantee the supply of compulsory earthquake insurance compulsory earthquake insurance earthquake insurance is optional for limits in excess of the limit shall have effect as” involving provision is also issued when the defendant on the remaining benefits from the damages of the earthquake that is responsible Dask is the acceptance.
Since the starting point of the defendant’s liability is earthquake damage above the mandatory earthquake insurance coverage limit, it becomes important to accurately determine how much the mandatory earthquake insurance coverage limit applicable to the plaintiff’s workplace is as of the date of the earthquake subject to the lawsuit. The court requested information from the company operating as an out-of-court Anadolu Insurance agency on this issue; with the reply dated 22.01.2014, the claimant’s workplace area and the DASK coverage limit calculated according to the unit prices m2 of 110.600,00 TL. reported; the DASK limit in this article has been accepted by the court and it has been decided that the defendant’s liability for damages exceeding the amount reported. However, in this article adopted by the court, the DASK guarantee limit calculated for the year 2014 has been announced, and the earthquake subject to the lawsuit occurred on 23.10.2011. Since there is a 3-year difference between the date in the letter response and the earthquake date subject to the lawsuit, the mandatory earthquake insurance coverage limit, which should be based on a lower one, has been set high to the detriment of the plaintiff. Dec. Since this erroneous determination explained led to the incorrect determination of the plaintiff’s damages, it was necessary to decide to overturn the court decision.
2-The plaintiff claims that the damage caused by the earthquake incident at the workplace insured by the defendant is due to the defendant
he wants his collection. When the expert panel report dated 14.02.2014, which the court based on the judgment, was examined, it was found that no calculation was made regarding the damage caused at the plaintiff’s workplace; only, from the insurance price of TL 151,000.00 in the policy, a 5% earthquake exemption fee and a discount related to joint insurance were applied, deducting TL 535.00 paid by the defendant, the plaintiff’s damage was 112,715.00 TL. it is seen that it has been identified as. This report, which does not contain any calculation about the costs required for the elimination of earthquake damage caused at the plaintiff’s workplace (the amount of actual damage that the plaintiff needs to be compensated for), is not suitable for basing the judgment.
In this case, the court; as of 2011, the date of the earthquake subject to the lawsuit, the mandatory earthquake insurance coverage limit applicable to the plaintiff workplace should be re-investigated in order to accurately determine according to the date of the incident; then, the real determination of the amount of damage caused by the earthquake taken into account that requires specific technical knowledge and expert civil engineers, lawyers and insurance from another expert committee consisting of the earthquake in the history of free-market rates, according to the plaintiff in the workplace, which is required for the elimination of the cost of reconstruction and repair damage, how it will be with regard to receiving the reasoned report and convenient to control; according to the special condition in the policy containing the discretionary earthquake coverage arranged by the defendant … company, the actual damage caused should be decided according to the result (taking into account the claimant’s procedurally acquired right) by determining whether it remains within the DASK coverage, but with incomplete examination, the provision facility in written form was not considered correct.
CONCLUSION: For the reasons explained in paragraphs (1) and (2) above, it was unanimously decided on 24/12/2018 to OVERTURN the judgment by accepting the plaintiff’s attorney’s appeals; to return the fee received in advance to the appellant plaintiff upon request.

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