02 Mar THE DECISION ON THE REFUSAL OF THE CLAIMANT FOR MATERIAL COMPENSATION DUE TO THE REFUSAL OF THE WAIVER OF THE WAIVER ABOUT THE INSURANCE COMPANY TO THE DEFENDANT AND THE NEED NOT TO JUDGE THE COSTS OF PROCEEDINGS AGAINST HIM AND THE POWER OF ATTORNEY DUE TO THE WAIVER.
T.C. THE DECISION OF THE SUPREME COURT
17.law office
Base: 2014/15380
Decision: 2014/13064
Date of Decision: 30.09.2014
COMPENSATION CASE – REFUSAL OF THE CLAIM FOR FINANCIAL COMPENSATION AGAINST THE DEFENDANT DUE TO THE ORDER OF THE WAIVER ABOUT THE INSURANCE COMPANY TO THE DEFENDANT AND THE NEED NOT TO JUDGE THE COSTS OF PROCEEDINGS AGAINST HIM AND THE POWER OF ATTORNEY DUE TO THE WAIVER – VIOLATION OF THE PROVISION
ABSTRACT: The case is related to the claim for material and non-pecuniary damages arising from a traffic accident. Respondent A. of the waiver about the insurance companydefendant A. Because of the order of the although the financial compensation case against him should be dismissed due to the waiver and the trial costs and the power of attorney fee should not be ruled against him, it was not considered correct to establish a provision about defendant Ali.
(6098 P. K. m. 61, 162, 163, 167)
Case: At the end of the trial of the compensation case between the parties; the decision to dismiss the case against the defendant insurance company for reasons written in the decision, there is no room to decide from the other defendant’s side, within the period of defendant A. C. upon appeal by the deputy, the file was reviewed and considered necessary:
Decision: the plaintiff’s attorney of the defendant’s liability insurance for the driver and the client with the result of collisions at the intersection of the client tool tool, it would suffer an accident due to tool whether you use it for a long time, the victim of the situation, stating the evidence was determined through the assessment of the cost of the damage 13.400 TL, GBP 3.000 spiritual compensation, costs and attorney determined that the defendant be given to decide on the collection of the consultation fee that you have requested, with the petition dated 17.08.2012, which he filed one day after the date of the lawsuit, the defendant has declared that he has waived the lawsuit against the insurance company. In addition, the deputy plaintiff reported in his statement at the hearing dated 26.02.2013 that the case for financial compensation from the insurance company due to the payment remained without issue, and there were no claims for financial compensation from these defendants.
In court, the defendant Mapfre Sigorta A.Ş. the case against him was dismissed due to a waiver, A.defendant A. The determination expense and power of attorney fee on the grounds that he is right to claim the determination cost because there is no room to decide that the subject matter of the case against the ’does not remain, and the determination must be made as a mandatory basis for the determination of the status of the defect.it has been decided to collect it from defendant A. it has been appealed by the.
The case concerns a claim for material and non-pecuniary damages arising from a traffic accident.
1-The driver, operator and ZMSS that caused the damage are subject to Article 61 of the TCC No. 6098, which is in force at the date of the lawsuit.in accordance with its article, it is severally liable for material damage.
In fiduciary responsibility, as a rule, each of the debtors is subject to the Law No. 6098.162 and 163 of the.according to its articles, it is responsible for the entire amount of the debt. As a matter of fact, Article 88/1 of the Road Traffic Code No. 2918 provides for the liability of the individual for a traffic incident. TBK No. 6098.No. 167.in accordance with the article, according to the ratio of defects in the internal relations of the responsible persons, they also have the right to appeal to each other.
In a concrete dispute; defendant A. since the other defendant is jointly and severally liable for material damage together with the insurance company and the plaintiff’s dec has waived the claim against the insurance company after the lawsuit has been filed, this waiver is between the insurance company and defendant A, who has full consolation between them.see also TBK 166.it is in accordance with its article.
The defendant is not responsible for the principal receivables and fer’is such as the insurance company in Ali.
Respondent A. of the waiver about the insurance companydefendant A. Because of the order of the although the financial compensation case against him should be dismissed due to the waiver and the trial costs and the attorney’s fee should not be ruled against him, it was not considered correct to establish a written judgment about defendant Ali.
2-Defendant A. According to the reason for the violationat this stage, it was not considered necessary to examine the appeal against the ruling on the power of attorney fee in favor of the.
Conclusion: For the reason described in paragraph (1) above, defendant A. C. that there is no place for the consideration of the other appeal appeal for the reason described in paragraph (2) for the time being, that the fee received in advance is subject to DETERIORATION of the provision by accepting the appeals of the deputy, the respondent A. C.on 30.09.2014, Member A.Sh. It was decided by Serkaya’s vote against and by a plurality of votes.
VOTE AGAINST
Dear majority, the defendant is the insurance company and the defendant is A. C.that they are jointly and severally liable for the damage caused, the plaintiff’s waiver from the direction of the insurance company to the defendant A.since it will also affect the defendant, the dismissal of the case from the point of view of this defendant and the costs of the trial of defendant A.I do not agree with their opinion that the decision of the local court should be overturned on the grounds that it cannot be decided whether to take it from .
In the current case, plaintiff H. With his petition dated 16.8.2012. A. the defendants claim that their vehicle was damaged in the accident that occurred on 5.7.2012, the operator-driver A. C. and he requested the collection of material (joint-part-time) and non-pecuniary damages (only from defendant Ali) from the insurance company, and filed the lawsuit petition on 16.8.2012. A day later on 17.8.2012 upon application to the court, the defendant to withdraw the case against the defendant and the defendant’s insurance company may inadvertently showed that you have requested the petition be sent to the insurance company without any notice to the judge continued. In the preliminary hearing that was held on plaintiff attorney 26.2.2013, “case opened after damage to the vehicle that are covered by the insurance as 13.400 TL (payment date (10.9.2012)-damages is not the case that the subject of the case in terms of the identified terms of costs (1.488,00 TL) continue” reported, the plaintiff 8.4.2013-day in petition that does not have vehicle damage in terms of damage again. The refusal of the respondent for waiving the insurance aspect on the grounds that it is written by the court, the respondent A. in terms of the fact that there is no room to make a decision because there is no subject matter of the case, the plaintiff has rejected the case in terms of a claim for a lawyer’s fee of 600.00 TL (also in terms of non-pecuniary compensation), which he claims to have made during the determination of damage, against this decision, the plaintiff has not appealed.
61-62-163 of the Code of Obligations.for example, KTK.according to the regulations of articles 85 and dec, the principles of fiduciary responsibility between the defendants must be applied. According to these legal regulations, there is no dispute between us and the Dec majority. The issue to be discussed here is whether the waiver on the part of one of the fiduciary officers will affect the other, according to the petition of the plaintiff dated 17.8.2012. the issue is whether it will be considered a waiver.
166 of the Code of Obligations.according to the provision of the article “If one of the debtors has terminated all or part of the debt by performance or exchange, at this rate it will also relieve other debtors of the debt.
If one of the debtors has got rid of the debt without making a statement to the creditor, the other debtors can only take advantage of this to the extent that the situation or the nature of the debt allows.
The discharge agreement concluded by the creditor with a business from the debtors also relieves other debtors of the debt at the rate of the debtor’s share of participation in the debt in the internal relations.
In a concrete case, the plaintiff’s vehicle was damaged in an accident on 5.7.1012, according to the report of 23.7.2012 submitted by the plaintiff’s expert witness, the damage to the vehicle is 13,400 TL the second-hand market value is 13,000 TL. According to the expert review conducted by the insurance, the second-hand market value was reported to be 10,500 sov and 4,000 TL.
The date of payment to the plaintiff by the defendant insurer is 10.9.2012. The lawsuit was filed on 16.8.2012. The fact that the plaintiff filed a new petition on 17.8.2012, the day after filing the petition to the court, stating that they showed the insurance to the defendant, waived the lawsuit against the insurance company and requested that the lawsuit petition not be sent to the insurance company is not a declaration that waives the essence of the right. (According to this declaration, the court did not send a lawsuit petition to the insurance company and did not make insurance a party to the case. However, the decision was shown in the title of the decision and the decision was communicated to him and no case was created against him.) Essentially, what the plaintiff means by this statement is understood from the statement he made during the preliminary examination hearing and the petition dated 8.4.2013, which he made at the stage.
Because he informs that the cost of the damage has been paid to him by the insurance company outside the case, he continues his case with respect to his other claims. It is understood that no payment was made to him before the plaintiff filed his petition, which is called a “waiver”. However, it is understood that the insurance has filed a damage file and conducted an expert examination before the date of the lawsuit. As it is clear from the examination of the contents of the lawsuit petition, he did not give a reason for refusing the insurance payment request, but only requested a joint part-time fee in the conclusion section of the lawsuit petition. For these reasons, B.K.166/2.as mentioned in the article “If one of the debtors has got rid of the debt, the debtors can only take advantage of it to the extent permitted by the situation and the nature of the debt“ in the face of the provision that the development of a concrete event cannot be considered getting rid of the debt, as well as informing that the plaintiff will not continue the case from the point of view of the insurance company, which is shown as the defendant, which he means. In this case, the work that needs to be done by the court must first complete the organization of the party and comply with HMK 123.according to the article, the plaintiff’s statement against this request should have been ruled according to the result as a statement.
However, no insurance costs were incurred in the trial, he paid insurance during the trial, with this payment, the defendant Ali got rid of his debt related to the damage, and did not remain the subject of the lawsuit in terms of damage. Considering that the plaintiff, whose claim for moral compensation related to other legal protection and was rejected, did not appeal, I am in the opinion that the decision of the local court will be upheld, since it is correct as a result of the judgment of the trial costs in favor of the plaintiff who was right to file a lawsuit on the date of the case.
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