Decision On The Necessity Of Determining The Fault Ratios Of The Parties In The Accident And The Loss Of Value Of The Plaintiff’s Vehicle
T.C. JUDICIARY
17th Civil Chamber
Main: 2014/10275
Decision: 2014/9522
Date of Decision: 12.06.2014
COMPENSATION LAWSUIT – DETERMINATION OF THE FAULT RATIOS OF THE PARTIES IN THE ACCIDENT AND THE LOSS OF VALUE OF THE PLAINTIFF’S VEHICLE – THE NECESSITY OF OBTAINING A DETAILED REASONED REPORT SUITABLE FOR AUDIT – REVERSAL OF THE JUDGMENT
SUMMARY: In the concrete case; while it is necessary to determine the fault ratios of the parties in the accident and the loss of value damage to the plaintiff’s vehicle by evaluating the accident report, damage files, invoices, inspection report and the entire file scope together, a detailed, reasoned, auditable report should be taken and a decision should be made accordingly, it is not correct to make a judgment with incomplete investigation. The judgment must be reversed.
(6098 S. Code Art. 162, 163, 166, 168) (2918 S. Code Art. 85) (6100 S. Code Art. 168, 266)
Lawsuit and Decision: At the end of the trial of the compensation lawsuit between the parties; the judgment on partial acceptance of the lawsuit due to the reasons written in the judgment was sent to the defendant Cem Otomotiv Nak. Mut. San. Tic. Ltd. Şti, the file was examined and considered:
The plaintiff’s attorney stated that the defendant’s vehicle hit and damaged his client’s vehicle, the damage cost was paid by the insurance company, there was a loss of value of 8.000 TL in the vehicle according to the assessment report, the defendant driver was 100% at fault for hitting his client’s parked vehicle and demanded the collection of 8.000 TL from the defendants with the legal interest to be accrued from the date of the accident; In the session dated 24.10.2013, he declared that he waived the lawsuit against the defendant HDI Sigorta A.Ş.
Defendant HDI Sigorta A.Ş. defended the dismissal of the lawsuit by stating that they are liable up to a maximum policy limit of 22.500 TL in proportion to the fault of the insured, that 19.000 TL damage amount was paid to the relevant company upon the application of the plaintiff’s car insurance company, that the loss of value is within the scope of indirect damages and that they are not responsible for the loss of value, that there is a policy limit of 3.500 TL, that they do not accept the determination report, the amount of compensation and the interest demand from the date of the accident.
Defendant Cem Otom. San. Tic. Ltd. Şti representative C. K. defended the dismissal of the lawsuit in the session dated 17.4.2013, stating that there would not be such a loss of value in the vehicle.
The court dismissed the lawsuit against the defendant HDI Sigorta A.Ş. due to waiver, accepted the lawsuit against the other defendants and awarded 8.000 TL depreciation compensation with legal interest to be accrued from 9.4.2012 event date to the defendants İnan Daş and Cem Otom. San. Tic. Ltd. Şti. with legal interest to be accrued from the date of the incident on 9.4.2012; the judgment was rendered against the defendant Cem Otom. San. Tic. Ltd. Şti appealed by the defendant Cem otom.
1-According to the information and documents in the file, the reasoning of the court decision, the discussion and evaluation of the evidence relied upon, there is nothing contrary to the procedure and the law, the defendant Cem Otom. San. Tic. Ltd. Şti’s other appellate objections that are not covered by the following subparagraphs should be rejected.
2- The case is related to the claim for financial compensation arising from a traffic accident. At the hearing dated 24.10.2013, the plaintiff’s attorney declared that he waived his lawsuit against the defendant insurance company; the court decided to dismiss the lawsuit against the defendant insurance company due to waiver. However, the plaintiff’s attorney does not have the authority to waive the lawsuit in the power of attorney dated 19.4.2012 and numbered 05015, issued by Osmaniye 2nd notary public. It was not asked whether the plaintiff’s principal gave consent to the statement of waiver of the plaintiff’s attorney. In this case, since the plaintiff’s attorney is not authorized to waive the lawsuit, the court should ask the plaintiff Mehmet Yıldırım whether the plaintiff’s attorney consented to the statement of waiver of the lawsuit filed against the defendant insurance company and make a decision accordingly, but it was not deemed correct to make a judgment as written.
According to the acceptance; the defendant HDI Sigorta A.Ş. is the ACMSS company of the vehicle operated and driven by the other defendants, and although the defendant insurance company attorney defended that his client is not responsible for the loss of value damage; the ACMSS company is responsible for the actual damage in proportion to the fault of the insured, limited to the maximum policy limit. The actual loss also includes the loss of value resulting from the traffic accident. Therefore, the defendant ZMSS company is also liable for the loss of value with the policy limit. Articles 162 to 168 of the TCO No. 6101 regulate the provisions on succession among debtors. Article 162 of the Law states that “if each of the multiple debtors notifies the creditor that he accepts to be responsible for the entire debt, joint and several indebtedness arises. If there is no such notification, joint and several liability arises only in the cases stipulated by law”. Article 163 states that “the creditor may demand the performance of the whole or part of the debt from all or only one of the debtors. The liability of the debtors shall continue until the debt is paid in full”. Paragraph 3 of Article 166 titled “Termination of the Debt” of the same Law stipulates that “the release agreement concluded by the creditor with one of the debtors releases the other debtors from the debt in proportion to the released debtor’s share of participation in the debt in the internal relationship”, and paragraph 2 of Article 168 of the TCO stipulates that “if the creditor improves the situation of one of the debtors to the detriment of the others, he bears the consequences of this”.
In the concrete case, the plaintiff’s attorney, in the petition of lawsuit, filed a lawsuit against the operator, driver and traffic insurance company of the other vehicle that hit the vehicle belonging to his client and caused damage to it, and demanded the collection of 8.000 TL loss of value from all defendants jointly and severally. There is a joint and several liability relationship between the defendants arising from the law. The defendant insurance company assumed the legal liability of the operator regulated in Article 85 of the KTK numbered 2918, limited to the policy limit. At the hearing dated 24.10.2013, the plaintiff’s attorney declared that he 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, and the defendant insurance company issued an ACMSS policy with a maturity of 31.12.2011/31.12.2012 to cover the date of the accident. The policy showed a coverage limit of 20.000 TL per vehicle for material damages. In the reply petition, the defendant insurance company’s attorney argued that the policy limit was 22.500 TL on the date of the incident, of which 19.000 TL was paid to the plaintiff’s car insurance company as damage cost, leaving a policy limit of 3.500 TL. It has not been investigated how much the policy limit of the defendant insurer was on the date of the incident, whether the plaintiff paid the damage amount to the car insurance company, and if so, how much the paid damage amount was. The defendant insurance company is jointly and severally liable to the plaintiff, together with the other defendants, for the policy limit and the loss in value. The plaintiff’s attorney waived his lawsuit against the defendant HDI Sigorta A.Ş. to the detriment of the other defendants. In this way, the vehicle operator, defendant Cem Otom. San. Ltd. Şti’s right of recourse to the defendant insurance company. Pursuant to Article 168/2 of the CCP, the waiver statement of the plaintiff’s attorney shall extend to the other defendants limited to the policy limit. The plaintiff, as a creditor, must bear the consequences of the waiver statement. In other words, if the balance policy limit is 3.500 TL according to the defense of the defendant insurance company’s attorney; with the waiver of the plaintiff’s attorney, the other defendants will not be responsible for 3.500 TL of the loss of value damage to be determined, and the legal result will arise for them as if the lawsuit has been waived. In this case, the court, first of all, should determine the liability of the defendant HDI Sigorta A.Ş. on the 9.4. 2012 accident date, the maximum policy limit per vehicle for material damages should be asked from the Association of Insurance and Reinsurance Companies of Turkey, and then the defendant insurer should be asked whether the defendant insurer paid the damage amount to the plaintiff’s car insurance company due to this accident, and if recourse payment was made; investigating the amount of this amount before both insurance companies, determining the balance policy limit by deducting the damage amount paid by the defendant from the policy limit and considering that the plaintiff’s waiver statement is related to the balance policy limit, the defendant Cem Otom. San. Tic. Ltd. Company should not be held liable for the loss of value to be determined, limited to the balance policy amount, it is not correct to decide that the defendant operator is responsible for the entire loss of value of 8.000 TL as written.
3-According to Article 266 of the CCP, “the court, in cases whose solution requires special or technical knowledge other than law, decides upon the request of one of the parties or spontaneously, to obtain the opinion and vote of the expert. In matters that can be resolved with the general and legal knowledge required by the profession of judge, the expert cannot be consulted”.
In cases of pecuniary damages arising from tort, the fault rate of the parties and the actual amount of damage must be determined by an expert. Because the damaging party can be held responsible for the actual damage incurred in proportion to its fault.
In the concrete case, the plaintiff’s attorney stated that the vehicle, of which the defendants are the operator, driver and ZMSS company, hit the parked vehicle belonging to his client and caused damage to it, and demanded the collection of 8.000 TL loss of value of the vehicle from the defendants jointly and severally. The defendant HDI Sigorta A.Ş. defended that the damage caused to the plaintiff’s vehicle as a result of the accident subject to the lawsuit was covered by the plaintiff’s out-of-court car insurance company (Axa Sigorta A.Ş.), and that his client paid the damage amount to the out-of-court Axa Sigorta A.Ş. due to the request and application of the car insurance company. In this case, damage files related to the accident subject to the lawsuit must have been organized before Axa Sigorta A.Ş. and the defendant HDI Sigorta A.Ş. regarding this damage.
In addition, since the defendant driver İnan Daş was 2.15 promil alcoholic at the time of the incident, a criminal case was filed against him in the file numbered 2012/461-2013/292 of Osmaniye 2nd Criminal Court of First Instance for the crimes of endangering traffic safety and causing injury to more than one person with negligence, and at the end of the trial, it was decided that the defendant was sentenced to imprisonment for the crime of causing injury to more than one person as a result, and it was understood that the judgment was appealed by the defendant. In the accident report, it was stated that the defendant driver was at fault for violating the rule of incorrectly changing the direction maneuvers, and in the expert report dated 2.4.2012, which was prepared as a result of the determination made by the plaintiff, it was stated that the vehicle belonging to the plaintiff had damage amounting to 24.400 TL including VAT, and that a loss of value of 8.000 TL would occur according to the vehicle’s feature, model, etc. and damages. The plaintiff’s vehicle is a 2011 model Renault Megane HB automobile. Defendant Cem Otom. San. Tic. Ltd. Şti representative explicitly objected to the assessment report and the amount of compensation determined in the report. The determination report unilaterally made by the plaintiff and explicitly objected by the defendant is not binding on the defendant. Although the court decided to obtain a report from the expert expert and the report was prepared and submitted by the expert Pınar Aral; it is not understood what kind of expertise the expert has in the profession, vehicle damage and defect issues. In addition, the expert report was prepared as a summary of the documents in the file and is not suitable for making a judgment.
In this case, the court, first of all, should obtain the damage files from the non-suit Axa Sigorta A.Ş. (the plaintiff’s motor insurance company) and the defendant HDI Sigorta A.Ş. due to the accident subject to the lawsuit, and if the case file numbered 2012/461 main 2013/292 decision of Osmaniye 2nd. Criminal Court of First Instance, if the case file numbered 2012/461 main 2013/292 decision has been returned from the appellate review, this file should be requested from the court, and then from the expert board of experts on vehicle damage and defect issues to be selected from institutions or organizations such as ITU or the General Directorate of Highways science committee, While it is necessary to determine the fault ratios of the parties in the accident and the loss of value damage to the plaintiff’s vehicle by evaluating the accident report, damage files, invoices, inspection report and the entire file scope together, and to take a detailed, reasoned, auditable report and to decide accordingly, it is not correct to make a judgment as written with incomplete examination.
Conclusion For the reasons explained in paragraph 1 above, the defendant Cem Otom. San. Tic. Ltd. Şti for the reasons explained in subparagraph 1 above, and for the reasons explained in subparagraphs 2 and 3 above, the defendant Cem Otom. San. Tic. Ltd. Şti for the reasons explained in sub-paragraphs 2 and 3, and the judgment shall be VACATED in favor of this defendant, and the prepaid fee shall be paid to the appellant defendant Cem Otom. San. Tic. Ltd. Şti. on 12.06.2014 with unanimous vote.