T.C. SUPREME
17.Legal Department

Basis: 2014/10275
Decision: 2014/9522
Decision Date: 12.06.2014

A CLAIM FOR DAMAGES-IT IS NECESSARY TO DETERMINE THE RATES OF DEFECTS OF THE PARTIES IN THE ACCIDENT AND THE LOSS OF VALUE CAUSED BY THE PLAINTIFF’S VEHICLE – THE NEED TO OBTAIN A REPORT FAVORABLE TO A DETAILED REASONED AUDIT – VIOLATION OF THE PROVISION

Abstract: in a concrete case, accident detection protocol damage files, invoices, detection report and the entire file scope should be evaluated together and decided according to the result by taking a detailed, reasoned, audit-friendly report, while the establishment of a provision with incomplete examination is also not accurate. The sentence had to be broken.

(6098 P. K. m. 162, 163, 166, 168) (2918 S. 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; within the period of the provision given for partial acceptance of the case for reasons written in the decision, the defendant Cem Otomotiv Nak. MUT. Renown. Tic. Co. The dossier was reviewed and considered due to be appealed by the Attorney General:

Attorney of the plaintiff, the defendant party vehicle, his client’s vehicle was damaged by hitting, the cost of damage was paid by Casco insurance, the vehicle according to the detection report 8,000 TL loss of value, the defendant driver, parked because of the car belonging to his client is 100% defective by stating that 8,000 TL legal interest to process from the date of the accident requested collection from the defendants; 24.10.2013 session of the defendant HDI insurance A.He has stated that he has waived the lawsuit against the sh.

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

The Defendant Is Cem Otom. Renown. Tic. Co. C. K., In the session dated 17.4.2013, he defended the dismissal of the case, stating that there would not be such a loss of value in the vehicle.

In court, the defendant HDI insurance A.Defendants Inan Dash and Cem Otom with legal interest that will be processed from the date of the event 9.4.2012 of compensation for loss of value of US $ 8,000 with the acceptance of the case against other defendants due to rejection of the case against sh. Renown. Tic. Co. It was decided to collect from shti; the verdict was sent to the defendant Cem otom. Renown. Tic. Co. It was appealed by the.

1-according to the information and documents in the file, in the justification of the court’s decision, there is no direction contrary to the procedure and law in the discussion and evaluation of the evidence based on the defendant Cem Otom. Renown. Tic. Co. It was necessary to decide on the rejection of other appeals that fell outside the scope of the following paragraphs of the shti.

2-the case is related to a claim for financial compensation caused by a traffic accident. At the Hearing dated 24.10.2013, the attorney of the plaintiff declared that he had waived his claim against the defendant insurance company; the court decided to reject the case against the defendant insurance company due to waiver. However, the file of the attorney of the plaintiff is also available Osmaniye 2.in the power of attorney dated 19.4.2012 05015, which is held in the notary public, there is no authority to waive the case. The plaintiff’s attorney was not asked about the waiver statement, whether the plaintiff had given the original consent. In this case, the court does not have the authority to waive the plaintiff’s attorney, the plaintiff Mehmet Yildirim’den whether the plaintiff’s attorney has the authority to waive the case against the defendant insurance company by asking whether a decision should be made according to the result of the establishment of the provision as written was not considered correct.

According to the admission, the defendant HDI insurance A.Sh is the zmss company of the vehicle in which the other defendants are the operator and driver, and although the defendant’s insurance company attorney has argued that his client is not responsible for loss of value; ZMSS company is liable for actual damage at the rate of the insured’s defect, limited to the maximum policy limit. As part of the actual damage, there is also a loss of value caused by a traffic accident. Therefore, the defendant zmss company is also liable for loss of value with the policy limit. No. 6101 of TBK 162 to 168.in its articles, the provisions of teselsul are regulated among debtors. Act 162.”fiduciary indebtedness arises if each of the multiple debtors informs the creditor that they have agreed to be responsible for the entire debt. If there is no such notification, fiduciary indebtedness arises only in cases provided for by law”. 163.article ” the creditor may request the performance of all or part of the debt from all debtors if he wills, and from only one if he wills. The liability of debtors continues until the full debt is paid”. 166 of the same law entitled “termination of debt”.Article 3.” the presentation agreement of the creditor with one of the debtors frees other debtors from debt at the rate of the share of the debtors in the internal relationship ” provisions of TBK 168, as regulated.Article 2.”if the creditor improves the condition of one of the borrowers to the detriment of others, he shall suffer the consequences”.

In a concrete case, the attorney of the plaintiff filed a lawsuit against the operator, driver and traffic insurance company of the opposite vehicle, which caused damage by hitting the vehicle belonging to his client, and requested joint and mutual collection of the loss of US $ 8,000 from all defendants. There is a fiduciary liability relationship between defendants arising from the law. Defendant insurance company 2918 No. 85 of KTK.he assumed the legal responsibility of the business regulated in the article to be limited to the policy limit. At the Hearing dated 24.10.2013, the attorney of the plaintiff declared that the defendant had waived the case against the insurance company and continued the case from the point of view of the other defendants. The accident subject to the lawsuit occurred on 9.4.2012; 31.12.2011/31.12.2012 term zmss policy was arranged to cover the date of the accident before the defendant insurance company. The policy shows a guarantee limit of 20,000 TL per vehicle for property damages. In the response petition, the defendant’s insurance company attorney argued that the policy limit was TL 22,500 on the date of the event, of which TL 19,000 was paid to the plaintiff’s insurance company as a damage fee, and that the policy limit remained TL 3,500. How much is the policy limit of the defendant insurer at the date of the incident, whether the plaintiff paid the cost of damage to the Casco company, if he paid, how much is the cost of damage paid, were not investigated. The defendant insurance company is jointly and severally liable to the plaintiff for loss of value with the policy limit. Acting plaintiff, defendant HDI insurance A.He waived his lawsuit against the sh to the detriment of other defendants. In this way, the operator of the vehicle, the defendant Cem Otom. Renown. Co. Shti’s right to appeal to the defendant insurance company has been blocked. HMK 168/2.according to the article, the waiver statement of the attorney of the plaintiff will also be distributed to other defendants, limited to the policy limit. The claimant in the position of creditor must bear the conclusion of the waiver statement. In other words, according to the defense of the defendant’s insurance company attorney, the balance policy limit is 3,500 TL; with the waiver of the attorney of the plaintiff, other defendants will not be liable for TL 3,500 of the loss of value to be determined, and the legal result will arise as if the case was waived from their point of view. In this case, the court, first of all, the defendant HDI insurance A.9.4.2012 on the date of the accident, the maximum policy limit per vehicle for property damage is asked by the Association of insurance and reinsurance companies of Turkey, then the defendant insurer, whether the plaintiff has paid the Casco company the cost of damage due to this accident, if the recourse has been made; considering that the amount of this is investigated by both insurance companies, the cost of damage paid by the defendant is deducted from the policy limit and the balance policy limit is determined, and the plaintiff’s waiver statement is related to the balance policy limit, the defendant Cem Otom appealed. Renown. Tic. Co. Although the company should not be held liable for any loss of value to be determined, limited to the amount of the balance policy, it is also not correct to decide that the defendant is responsible for the entire loss of US $ 8,000, as written.

3-HMK 266.according to the article “the court decides to obtain the vote and opinion of the expert, 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 cannot be applied to issues that can be resolved with general and legal knowledge required by the profession of a judge.”

In cases of material compensation arising from tort, the parties must be determined by expert expert on the rate of defect and the actual amount of damage. Because the Harmer can be held responsible for the actual damage caused by the defect.

In a concrete case, the attorney of the plaintiff claimed that the vehicle in which the defendants were the operator, driver and ZMSS company was damaged by hitting the parked vehicle belonging to his client, and the loss of US $ 8,000 in value caused by the vehicle was jointly and severally collected from the defendants. Defendant HDI insurance A.Attorney, the cost of accidental damage caused in the plaintiff’s vehicle subject to the lawsuit, the plaintiff’s non-litigation Casco insurance company (Axa Insurance A.S) the cost of damages due to the request and application of his client, the Casco company, AXA Insurance A.He argued that he paid Sh. In this case, the case is Axa Insurance A.Defendant HDI insurance A.Damage files for this damage must be edited.

In addition, the defendant driver Inan Dash was drunk at 2.15 promil at the time of the incident, Osmaniye 2.2012/461 Criminal Court-2013/292 numbered in the file, and endanger the traffic safety for the crime opened the criminal case about crimes to cause injury to more than one person, the defendant in a trial as a result of the injury giving rise to more than one person would be punished with a prison sentence for the crime by the defendant is understood to have been appealed and the verdict was decided. In the accident detection report, it was stated that the defendant driver was defective for violating the rule of improper direction change maneuvers, in the expert report dated 2.4.2012, organized as a result of the determination made by the plaintiff, there was damage to the plaintiff’s vehicle in the amount of 24,400 TL, including VAT, according to the characteristics, model, etc.and damages, there will be a loss of value in the amount of 8,000 TL. The plaintiff’s vehicle is a 2011 Renault Megane HB car. The Defendant Is Cem Otom. Renown. Tic. Co. A representative of the company openly objected to the determination report, the amount of compensation set out in the report. The determination report, which is unilaterally commissioned by the plaintiff and explicitly contested, does not bind the defendant. Although the court decided to obtain a report from an expert accountant, and the report was issued by an expert Pınar Aral, it was not understood how the expert had expertise in matters of profession, vehicle damage and defect. In addition, the expert report is prepared in the form of a summary of the documents contained in the file and is not suitable for making a decision.

In this case, the court, first of all, is not suing Axa Insurance A.From sh (plaintiff’s Casco insurance company) and defendant HDI insurance A.Bringing the damage files issued due to the accident subject to the case from sh, Osmaniye 2 about the defendant driver.If the Case File No. 2012/461 of the Criminal Court of first instance has returned from the appeal review, the request of this file from the court will then be selected from institutions or organizations such as ITU or the scientific delegation of the General Directorate of highways from the expert Expert Council on vehicle damage and defects, accident detection protocol damage files, invoices, detection report and the entire scope of the file should be evaluated together and decided according to the result by taking a detailed, reasoned, audit-friendly report, while the provision is not accurate as it is written with incomplete examination.

Conclusion: for the reasons described in Paragraph 1 Above, the defendant Cem Otom. Renown. Tic. Co. For the reasons described in paragraphs 2 and 3, the defendant Cem Otom. Renown. Tic. Co. Cem Otom, the defendant who appeals against the violation of the provision for the benefit of this defendant who has appealed with the acceptance of the appeals of shti, in case of request of the advance fee. Renown. Tic. Co. It was decided by unanimous decision on 12.06.2014.