Alcoholic Intoxication Of The Driver Who Is Not At Fault In The Accident Does Not Require The Exclusion Of The Damage From The Coverage
17th Civil Chamber 2018/297 E. , 2018/4514 K.
“Case Law Text”
COURT : Regional Court of Appeal
FIRST RANK
COURT : Commercial Court of First Instance
At the end of the trial of the compensation lawsuit between the parties; … The Supreme Court of Appeals has been examined and the file has been examined and considered, since the review of the decision dated 26.10.2017 and numbered 2017/483 Esas – 2017/732 Decision given by the 8th Civil Chamber of the Regional Court of Appeal on the dismissal of the lawsuit for the reasons written in the decision has been requested by the plaintiff’s attorney within the time period:
-DECISION-
In his petition to the Insurance Arbitration Commission, the plaintiff’s attorney stated that on 25/10/2015, as a result of the collision between the vehicle numbered … and the vehicle numbered …, the driver of which could not be identified, on 25/10/2015, the … plate numbered vehicle belonging to the defendant …, which has motor insurance with the defendant … company, was damaged, the application made to the defendant insurance for the compensation of the damage was rejected with a letter dated 23/11/2015 due to the fact that the driver was intoxicated at the time of the incident,
and that the driver had 1. 29 promil of alcohol, but as it can be understood from the determinations in the accident report, the incident did not occur under the influence of alcohol, within the framework of the established jurisprudence of the Court of Cassation, the defendant … company should pay the damage compensation and requested a decision to collect 57.349,30-TL from the insurance company, without prejudice to their rights regarding the excess.
… Sigorta A.Ş.’s attorney in his reply; arguing that the driver plaintiff was determined to be 1.29 promil alcoholic at the time of the accident and that there is no dispute on this issue, and that the damage incurred in this case is out of the scope of insurance coverage, and requested a decision to dismiss the lawsuit.
The Dispute Arbitration Panel of the Insurance Arbitration Commission decided to reject the application, and upon the plaintiff’s objection to the Appeal Arbitration Panel of the Insurance Arbitration Commission, it was decided to accept the part of the objection regarding the attorney’s fee, and to reject the other objections; The applicant’s attorney filed an appeal against the decision of the Appeal Arbitration Panel within the time limit.
In the petition of appeal, the plaintiff stated that the insurance company should be responsible for the damage incurred, since the fact that his client driver was 1.29 promil alcoholic at the time of the accident was not effective in the occurrence of the accident, and that the established jurisprudence of the Court of Cassation is in this direction, therefore, the decision of the appeal arbitral tribunal is contrary to the procedure and the law.
İn the appeal examination, in the concrete case; the date of occurrence of the damaging event for which compensation is requested is 23/11/2015, there is a new legal regulation that will determine the scope of insurance coverage, and it is clear that the damage that occurred due to the plaintiff’s alcoholism exceeding the legal limit during the incident is outside the scope of insurance coverage, and for this reason, there is no procedural and illegal aspect in the decision of the arbitral tribunal to dismiss the case; It was decided to reject the appeal request, which was not deemed appropriate; the judgement was appealed by the plaintiff’s attorney.
In the concrete case, the plaintiff-insured claims the vehicle damage from his own insurance, and the law and the general conditions attached to the policy have been applied incorrectly. According to Article A/1 of the General Terms and Conditions of Comprehensive Motor Insurance, it is understood that accidents such as the impact of an object with a fixed or moving object as a result of sudden and external effects on the vehicle against the will of the insured or the driver of the vehicle, or the vehicle hitting such an object, collision, overturning, falling, rolling, and the actions of third parties with malicious intent and mischief, and the material damages caused by the burning, theft or attempted theft of the vehicle are covered by this type of insurance.
On the other hand, pursuant to Article 1409 (1282 Art.) of the TCC, the insurer is liable for the risks that occur after the establishment of a valid insurance relationship, and as a rule, the claim that the risk is not covered must be proved by the insurer. In the event that the event occurs not as reported by the insured, but as claimed by the insurer, this way of occurrence is excluded from the coverage listed in Article A.5 of the General Terms and Conditions of Motor Own Damage Insurance. Article A.5 of the General Terms and Conditions of Motor Own Damage Insurance.
In addition, in Article A.5.5 of the General Terms and Conditions of Motor Land Vehicles Comprehensive Motor Insurance, it is stated that the damages incurred during the use of the vehicle by persons who have taken drugs or more than the prohibited amount of alcohol in accordance with the Highway Traffic Law are excluded from the insurance coverage. İn order for the damage to be excluded from the coverage, the driver must have had an accident solely (exclusively) under the influence of alcohol. In other words, the fact that the driver is under the influence of alcohol alone does not require that the damage is excluded from coverage. Moreover, in such a case, the insurer bears the burden of proof that the loss is not covered.
In the concrete case, the insured was found to have drunk 1.29 promil of alcohol in the traffic accident. İn the accident report, it was stated that the driver of the other vehicle was at fault. In the expert report, it was stated that 100% fault was on the other party. Since the court did not conduct a fault investigation, it was not deemed correct to decide to dismiss the case by accepting the risk as non-covered just because the insured, who had no fault in the incident, was intoxicated.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 25/04/2018 to accept the appeals of the plaintiff’s attorney and to VACATE the judgement, to send the file to the court (the arbitral tribunal decision sample) to the Regional Court of Justice in accordance with Article 373/2 of the CCP No. 6100, and to return the prepaid fee to the appellant upon request.
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