T.C. THE DECISION OF THE SUPREME COURT
17.law office

Base: 2014/10275
Decision: 2014/9522
Date of Decision: 12.06.2014

COMPENSATION CASE – THE PARTIES TO THE ACCIDENT MUST DETERMINE THE DEFECT RATES AND THE LOSS OF VALUE CAUSED BY THE PLAINTIFF’S VEHICLE – THE NEED TO OBTAIN A REPORT CONDUCIVE TO A DETAILED REASONED AUDIT – VIOLATION OF THE PROVISION

ABSTRACT: In a concrete case; in matters of determining the defect rates of the parties to the accident and the loss of value incurred in the plaintiff’s vehicle, the accident detection minutes, damage files, invoices, detection report and the entire file scope should be evaluated together, a detailed, reasoned, audit report should be taken and decided according to the result, while it is also not correct to establish a provision with incomplete examination. The decision had to be overturned.

(6098 P. K. m. 162, 163, 166, 168) (2918 P. K. m. 85) (6100 p. K. m. 168, 266)

Case and Decision: At the end of the trial of the compensation case between the parties; the defendant Cem Otomotiv Nak within the period of the provision on the partial acceptance of the case for reasons written in the decisionthe defendant Cem Otomotiv Nak. Mut. Renown. Tic. Ltd. Upon appeal by the deputy of the STI, the file was reviewed and considered necessary:

The plaintiff’s attorney, the defendant’s vehicle slammed into the client’s insurance of the vehicle that was paid sigortasinc hasarladig the cost of the damage to the vehicle, according to a report that there is a loss in the value of TL 8.000 discovered in the defendant’s vehicle parked in the driver due to the shock of the client is 100% legal interest from the date of the accident, noting that the defective TL 8.000 you have requested to process the collection of the defendant; the defendant in the law on Joint Stock Companies dated 24.10.2013 session HDI Insurance stated that they had given up on.

HDI Insurance Corporation Counsel for the defendant, the flaws percent of the insured up to the limit by a maximum of GBP 22,500 Policy, their responsibilities, they found that, upon application of the plaintiff’s insurance company, the cost of the damage was paid for by the company 19.000 TL, value loss, within the scope of consequential damages remains, and that they are not responsible for the loss of value, moreover, to see the policy that exists 3.500 TL limit of detection report, accident compensation claim, noting that the amount and interest from the date of dismissal do not accept defended.

The defendant is Cem Automotive Industry Trade Company representative C. K. at the session dated 17.4.2013, he defended the rejection of the case by stating that there would be no such loss of value in the vehicle.

By the court, the defendant is HDI Insurance A.The rejection of the case against Ş due to the waiver, the acceptance of the case against the other defendants and the legal interest of the 8.000 TL depreciation compensation that will be processed from the date of the incident on 9.4.2012, the defendants Inan Daş and Cem Otom. Renown. Tic. Ltd. It has been decided to collect it from Sti; the verdict is Cem otom, the defendant. Renown. Tic. Ltd. It has been appealed by the Sti.

1-According to the information and documents contained in the file, on the grounds of the court decision, there is no procedural and illegal direction in discussing and evaluating the evidence based on the defendant Cem Otom. Renown. Tic. Ltd. It was necessary to decide on the rejection of other appeals of the Sti that fell outside the scope of the following paragraphs.

2-The case concerns a claim for financial compensation arising from a traffic accident. At the hearing dated 24.10.2013, the deputy plaintiff declared that he had waived his case against the defendant insurance company; the court decided to dismiss the case against the defendant insurance company due to the waiver. However, the file of the plaintiff’s attorney is also available in Osmaniye 2.the power of attorney No. 05015 yevmiye dated 19.4.2012, issued by the notary’s office, does not have the right to waive the case. It was also not asked whether the plaintiff’s original had granted permission for the plaintiff’s attorney’s waiver statement. In this case, the court should make a decision according to the result by asking the plaintiff Mehmet Yildirim if the plaintiff’s attorney has a waiver statement filed against the defendant insurance company, since the plaintiff’s attorney does not have a waiver authority, while it was not considered correct to establish a provision as written.

According to the admission, the defendant is HDI Insurance A.Although the company is the ZMSS company of the vehicle operated and driven by the other defendants, and the defendant has argued that the deputy insurance company is not responsible for the loss of value of his client; The ZMSS company is responsible for the actual damage, including liability limited to the maximum policy limit, at the rate of the insured’s defect. Within the scope of actual damage, there is also a depreciation caused by a traffic accident. Therefore, the defendant ZMSS company is also liable for loss of value with the policy limit. 162 to 168 of the Turkish Commercial Code No. 6101.in its articles, the provisions of decency between debtors are regulated. 162 of the Code.in the article “if each of the multiple debtors declares that he agrees to be responsible for the entire debt to the creditor, a fiduciary indebtedness arises. If there is no such notification, the fiduciary indebtedness arises only in the cases provided for by law”. 163.the article also states that “the creditor may request the performance of all or part of the debt from all of the debtors if he wishes, or from someone alone if he wishes. The debtors’ liability continues until the entire debt is paid off”. 166 of the same Law entitled “Termination of Debt”.§ 3.the provisions of the “creditor’s presentation agreement with one of the debtors frees other debtors from debt at the rate of the debtor’s participation share in the debt in the internal relationship” are regulated in the subparagraph of the 168 of the TCC.article 2.the provision “If the creditor improves the condition of one of the debtors to the detriment of others, he will suffer the consequences of this” is regulated in the subparagraph.

In the concrete case, the plaintiff’s deputy filed a lawsuit against the operator, driver and traffic insurance company of the opposing vehicle that caused the damage by hitting the vehicle belonging to his client in the lawsuit petition, demanding that the loss of value of 8.000 TL be collected jointly and severally from all the defendants. There is a deconstructive liability relationship arising from the law between the defendants. The defendant insurance company is subject to Article 85 of the KTK No. 2918.he assumed the legal responsibility of the enterprise regulated in the article, limited to the policy limit. At the hearing dated 24.10.2013, the deputy plaintiff declared that he had waived the lawsuit against the defendant insurance company and continued the lawsuit against the other defendants. The accident subject to the lawsuit occurred on 9.4.2012; a ZMSS policy with a term of 31.12.2011/31.12.2012 was issued to cover the date of the accident with the defendant insurance company. The policy shows a coverage limit of TL 20,000 per vehicle for property damages. The defendant insurance company’s deputy argued in the reply petition that the policy limit was TL 22,500 on the date of the incident, TL 19,000 of which was paid to the plaintiff’s casco company as the cost of damage, and that the remaining policy limit of TL 3,500 remained. The issues of how much the defendant insurer’s policy limit was at the time of the incident, whether the plaintiff paid the cost of damage to the casco company, if he paid it, and how much the cost of damage paid were not investigated. The defendant insurance company is jointly and severally liable, together with other defendants, for the loss of value within the policy limit against the plaintiff. Acting plaintiff, defendant HDI Insurance A.He has waived his case against Ş to the detriment of the other defendants. The defendant, Cem Otom, is the one who operates the vehicle in this way. Renown. Ltd. The defendant of the Sti has blocked the right of recourse to the insurance company. HMK’s 168/2.in accordance with the article, the waiver statement of the plaintiff’s attorney will also apply to other defendants, limited to the policy limit. The plaintiff, who is the creditor, must bear the consequences of the waiver statement. In other words, according to the defense of the defendant insurance company’s attorney, if the balance policy limit is 3,500 TL; with the waiver of the plaintiff’s attorney, the other defendants will not be liable for the 3,500 TL of the loss of value that will be determined, and there will be a legal result for them, as if the case was waived. In this case, by the court, first of all, the defendant is HDI Insurance A.9.4.2012 On the date of the accident, the maximum policy limit per vehicle for property damage should be asked by the Association of Insurance and Reinsurance Companies of Turkey, then the respondent insurer will pay the claimant’s casco company the cost of damage due to this accident, if the payment has been made in a dream; considering that the amount of this should be investigated before both insurance companies, the cost of damage paid by the defendant, the balance policy limit deducted from the policy limit, and the plaintiff’s waiver statement related to the balance policy limit, the defendant who appealed to Cem Otom. Renown. Tic. Ltd. While the company should not be held responsible for the loss of value to be determined, including the amount of the balance policy, it is also not correct to decide that the defendant entity is responsible for the entire loss of value of 8,000 TL, as written.

3-HMK’s 266.according to the article “the court decides on the receipt of an expert’s vote and opinion at the request of one of the parties or spontaneously, in cases where the solution requires special or technical knowledge, outside the law. An expert may not be contacted in matters that can be resolved with general and legal knowledge required by the profession of a judge”.

In cases of material compensation caused by a tort, the parties’ defect rate and the actual amount of damage must be determined by the ingenuity of an expert expert on the subject. Because the person who caused the damage can be held responsible for the actual damage caused at the rate of his defect.

In the concrete case, the deputy plaintiff requested the defendants to jointly and severally collect the loss of 8.000 TL of value caused by the vehicle by stating that the vehicle operated by the defendants, the driver and the ZMSS company caused damage by hitting the parked vehicle belonging to his client. The Defendant is HDI Insurance A.The cost of damage caused by an accident in the plaintiff’s vehicle that is the subject of the lawsuit is determined by the plaintiff’s non-claim casco insurance company (Axa Sigorta A.A) the cost of damage due to the request and application of his client, the insurance company, which is covered by Axa Insurance A.He argued that he had paid for it. In this case, the subject of the lawsuit is Axa Insurance A.Sh and defendant HDI Insurance A.The damage files related to this damage must be arranged with Sh.

In this case, the court, firstly, the non-claimant Axa Sigorta anonim cımpany (the plaintiff’s casco insurance company) and the defendant HDI Sigorta anonim cımpany bringing the damage files issued due to the accident subject to the lawsuit, about the defendant driver Osmaniye 2.If the case file numbered 2012/461 and 2013/292 of the Criminal Court of First Instance has returned from the appeal review, the request for this file from the court will be made by the expert committee on vehicle damage and defects, which will then be selected from institutions or organizations such as ITU or the scientific committee of the General Directorate of Highways, in matters of determining the defect rates of the parties to the accident and the loss of value caused by the plaintiff’s vehicle, the accident detection minutes, damage files, invoices, detection report and the entire file scope should be evaluated together, a detailed, reasoned, audit report should be taken and decided according to the result, while it is not accurate to establish a provision as written with incomplete review.

Conclusion: the reasons for that are described in the paragraphs above, No. 1, defendant appeals the denial of the appeal poet Cem Automobile industry and Trade Limited Company, 2, and No. 3 for reasons that are described in the paragraphs that the defendant’s appeal of the automobile industry and trade limited company Cem Appeal judgment with acceptance of corruption for the benefit of from the appeal of the defendant, at the request of the defendant, who retrieved the mortar in advance Cem automobile industry and Trade Limited on the day 12.06.2014 provision sirketigeri Appeals unanimously, it was decided.