Responsibility Of The Operator
T.C.
Supreme Court
11th Civil Chamber
Principal No: 2013/2031 Decision No: 2014/6091 Date of Decision: 28.3.2014
In the case between the parties, the hearing examination of the decision dated 16.01.2012 and numbered 2008/105-2012/18 given by Tunceli Civil Court of First Instance on 16.01.2012 was requested by the attorneys of the parties, and on 25.03.2014, which was determined for the hearing, it was understood by roll call that there was no one else present and the defendant principal H.Y. After listening to the report prepared by the Examining Judge and after reading and examining the petitions, pleadings, hearing minutes and all documents in the file, the matter was discussed and discussed:
The counsel for the plaintiffs stated that T.D., the son and brother of their client
died on 26.12.2006 in a one-sided accident that occurred on 26.12.2006 while he was a passenger in a vehicle driven and managed by the defendant H.Y., which was engaged in intercity passenger transportation without obtaining the necessary permits, that the defendant company was the operator of the vehicle, that this matter was fixed by the testimony of F.S., whose testimony was taken as the aggrieved complainant in the file numbered 2007/115 of Elazığ Heavy Penal Court, and that, without prejudice to their rights regarding the excess, the amount of 1.000 TL for each plaintiff
8.000 TL pecuniary and 30.000 TL non-pecuniary damages in total 38.000 TL, and with the amendment petition, the plaintiffs demanded and sued the defendants jointly and severally for 10.145,65 TL pecuniary and 3.750 TL non-pecuniary damages for A.D., together with the legal interest to be accrued from the date of the incident.
The counsel for the defendant H.Y. argued that it was wrong to attribute all the fault to his client.
The defendant company’s attorney argued that the vehicle driven and managed by the defendant H.U. did not have any direct or indirect commercial relationship with the client company, that the ticket submitted by F.S., whose testimony was consulted in the criminal file, was not related to the client, that there was no title, emblem, etc. on the ticket that could be associated with the client company, and requested the dismissal of the lawsuit.
The court, according to the claim, defense expert report and the entire file scope, the defendant H.Y. was deemed to be fully negligent and his conviction was decided in accordance with the expert reports received in the file numbered 2008/136-529 E-K decision of Elazığ 1st Assize Court and the report prepared by the Forensic Medicine Institute Traffic Specialization Department, the defendant company attorney defended that his client has no commercial ties with the defendant H.Y. and does not have the title of operator, and if there is no vehicle belonging to the defendant H. Although there is no vehicle belonging to the defendant H. in the vehicle certificate of the defendant company, in the statements of the plaintiff witness A.A.Y., the defendant H.’s vehicle works under the defendant travel company, carries passengers on the intercity road route between Elazığ and Tunceli, the name of the company was on the vehicle for a period of time, the defendant transports with the passenger tickets issued by the company, the phone numbers on the tickets belong to the defendant company, the transportation business is continuous, the defendant company receives commission, the complainant F. S. stated in his statement taken in the criminal file that “when he came to Hozot Garage on the date of the incident and went to the travel agency named C.T. Dersim, a young person there showed him the vehicle that was leaving by cutting tickets and giving them to him”, the defendant H.Y. ‘s intercity transportation within the defendant company with the vehicle owned by the defendant H.Y., on the grounds that the defendant company has formed the opinion that the defendant company has the title of operator, it was decided to reject the plaintiffs’ claims for pecuniary damages separately due to waiver, and to accept the plaintiffs’ claims for non-pecuniary damages and to collect 3.750.00 TL separately from the defendants jointly and severally together with the legal interest to be processed from the date of the incident.
The decision was appealed by the attorneys of the parties.
1-The decision rendered by the court was appealed by the plaintiffs’ counsel, and it was not determined that this appeal petition was recorded in the appeal book, and the receipt indicating that the appeal fee was deposited was not found in the file.
The procedure for filing a petition of appeal is explained in Article 434 of the Code of Civil Procedure.
Accordingly, the petition of appeal must be registered in the appeal book and the appeal fee must be deposited. Since the petition of appeal filed by the attorney of the plaintiffs requesting appeal without these procedures is not capable of examination, it was necessary to decide to reject the appeal request.
2-According to the information and documents in the case file, the reasoning of the court decision, and the fact that there is nothing contrary to the procedure and the law in the discussion and evaluation of the evidence relied upon, it is necessary to decide to reject all the objections of the defendant company’s attorney and the defendant H.Y.’s guardian, which are not deemed appropriate.
CONCLUSION: For the reasons explained in subparagraph (1) above, the appeal request of the plaintiffs’ attorney is rejected, for the reasons explained in subparagraph (2) above, all the appeals of the defendant company’s attorney and the defendant H.Y.’s guardian are rejected and the judgment, which is in accordance with the procedure and the law, is APPROVED, the following balance of 4,05 TL appeal judgment fee is to be collected from the appellant, the following balance of 935,30 TL appeal judgment fee is to be collected from the appellant defendant C.. T. Dersim Ltd. Şti., and the remaining amount of 956,45 TL written below shall be collected from the appellant defendant H.Y.’s guardian C.Y. It was unanimously decided on 28.03.2014.