Dask (Natural Disaster Insurance Pool) – Compensation – Statute Of Limitations
17th Civil Chamber17th Civil Chamber
CASE NO : 2017/1035 DECISION NO: 2019/9243
The plaintiff’s attorney claimed that his client’s house was heavily damaged in the Erciş earthquakes that occurred on 23/10/2011 and 10/11/2011, a demolition decision was made by the competent authorities, this house had earthquake insurance under Ergo Sigorta A.Ş. on 27/12/2010, the surface area of the house, which was 168 m2, was shown as 59 m2 in the policy, this situation was corrected with the addendum dated 19/11/2011, this situation was corrected, the missing premiums were paid by accepting it as 168 m2, therefore, the necessary payments were made as soon as possible.
The defendant attorney stated that all claims arising from insurance contracts are subject to a two-year statute of limitations pursuant to Article 1268 of the former TCC and Article 1420 of the new TCC and Article c.7 of the General Terms and Conditions of Earthquake Insurance. . article, the lawsuit was filed after the statute of limitations, the damage file was created after the earthquake dated 23/10/2011, a damage file was created after the earthquake dated 23/10/2011, the payment was made according to the price determined in the expertise report, but it was returned twice by the plaintiff, the plaintiff received the payment on 23/01/2013, the apartment surface area addendum was made on 19/11/2011 after the earthquake, the policy was created according to the statements, and requested a decision to dismiss the lawsuit.
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2017/1035
2019/9243
The court decided to dismiss the lawsuit due to statute of limitations on the grounds that the lawsuit is for the compensation of the damage suffered under the “compulsory earthquake insurance policy”, the policy start date is 27/10/2010 and the end date is 27/12/2011, the claims arising from the insurance contract are subject to a 2-year statute of limitations pursuant to Article 1420 of the TCC, and there is more than 2 years between the policy end date and the lawsuit date; the judgment was appealed by the plaintiff’s attorney within the time limit.
The lawsuit is related to the claim for compensation pursuant to the compulsory earthquake insurance policy.
The plaintiff’s residence was insured by the defendant with a policy dated 27/12/2010-2011, an addendum dated 19/11/2011 was issued on the actual square meter due to the underestimation of the square meter of the residence in the policy, earthquakes occurred on 23/10/2011 and 10/11/2011 within the policy term, after the first earthquake, the plaintiff filed a damage report to the defendant insurance company on 09/11/2011, the plaintiff was paid 14. 400,03 TL payment was made to the plaintiff due to the damage, the payment was returned on 02/04/2012, the returned amount was sent to the plaintiff again on 30/11/2012, upon the plaintiff not receiving the payment, it was returned to the institution on 15/01/2013 and upon the request of the plaintiff, the payment was paid to the plaintiff insured on 23/01/2013 in line with the request, and the date of the lawsuit was 22/08/2014.
Pursuant to Article 1420 of the TCC No. 6102, which is in force as of the date of the occurrence of the risk, all claims arising from the insurance contract are time-barred after two years starting from the date the receivable becomes due. In the article titled C.7 Statute of Limitations of the General Terms and Conditions of Compulsory Earthquake Insurance, which was published and entered into force on 13/05/2011; It is stipulated that all claims arising from the insurance contract will be time-barred in two years from the termination of the contract.
In Article 133/1 of the Code No. 818, which should be applied in terms of the dispute subject to the case, the debtor’s acknowledgment of the debt is listed among the reasons that interrupt the statute of limitations. In Article 135 of the same Law, it is regulated that if the statute of limitations is interrupted, a new period will start to run from the interruption, and if the debt is confirmed by a deed or fixed by a judgment, the new period will always be 10 years.
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2017/1035
2019/9243
Based on the compulsory earthquake insurance between the parties, the defendant made a payment on February 16, 2012 based on the damage report made by the plaintiff. Since the payment of the price related to the risk to the plaintiff was undertaken (acknowledged) with this payment, pursuant to Article 133/1 of the Code of Civil Procedure, the statute of limitations was interrupted as of the date of payment due to the acknowledgment of the debt and the new ten-year period started to run, and the 10-year statute of limitations that started to run as of the date of the lawsuit has not expired.
In the face of the explained material and legal facts, the court; considering that the statute of limitations has been interrupted due to the payment made by the defendant and the 10-year statute of limitations that has started to run again has not expired as of the date of the lawsuit, the defendant’s statute of limitations defense should be rejected and the plaintiff’s claim for damages should be examined and a decision should be made according to the result to be formed, while it was not deemed correct to decide to dismiss the lawsuit due to statute of limitations with incomplete examination and erroneous evaluation, and the judgment should be reversed.
CONCLUSION: For the reasons explained above, it was unanimously decided on 10/10/2019 to accept the appeals of the plaintiff’s attorney and to return the prepaid fee to the appellant upon request.
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