Unemployment Insurance
T.C.
JUDICIARY
GENERAL ASSEMBLY OF LAW E. 2017/11-91 K. 2018/924 T. 18.4.2018
– UNEMPLOYMENT INSURANCE (Considering that there are three separate credit cards subject to the lawsuit, it is necessary to evaluate which credit cards are written in the insurance policy issued between the parties and whether the plaintiff has active hostility in terms of which one or which ones – Claim for Receivable)
– THE PRINCIPAL INSURED (It is Possible for the Pledgee to Insure His/her Interest in the Goods on His/her Own Behalf as the Pledgee, as well as for someone else to Insure the Pledged Goods on behalf of the Pledgee – The Insurance Compensation must first be given to the Pledgee or his/her Express Consent must be Obtained)
At the end of the trial held due to the “Receivable based on insurance policy” lawsuit between the parties; Upon the request of the plaintiff’s attorney for the appellate review of the decision dated 26.09.2012 and numbered 2011/657 E., 2012/454 K. given by Ankara 6th Commercial Court of First Instance regarding the dismissal of the lawsuit, with the decision of the 11th Civil Chamber of the Court of Cassation dated 10.01.2014 and numbered 2013/9679 E., 2014/448 K:
“…The plaintiff’s attorney claimed that his client was insured by the defendant company with the Credit Card Unemployment Insurance Policy, according to this policy, in case his client became unemployed, his credit card debts should be paid by the defendant … company, his client was terminated on 31.03.2011, but no payment was made by the defendant, and claimed and sued for the collection of 8.000,00 TL together with the advance interest from 31.03.2011, without prejudice to his rights regarding the excess.
The defendant’s attorney argued that the plaintiff did not have the capacity for active hostility, that Akbank T.A.Ş. was the beneficiary of the policy and the holder of the right of dain-i mürtehin, that the personal expenses of the plaintiff were covered by the policy, but that the expenses subject to the lawsuit were not the personal expenses of the plaintiff and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit due to lack of capacity for active hostility, on the grounds that, according to the claim, defense and the entire file scope, the bank, which is the holder of the right of the dain-i mürtehin, has declared that it has a conditional consent, but the conditional consent is not valid, and therefore the plaintiff does not have the capacity for active hostility.
The decision was appealed by the plaintiff’s counsel.
The lawsuit is related to the claim for receivables based on the insurance policy.
The plaintiff has submitted some account statements to the file, claiming that the credit card debts have been paid to the bank of the payee-in-interest. In this case, the court should determine whether the credit card debts subject to the lawsuit have been paid by the plaintiff to the bank, and considering that there are three separate loans subject to the lawsuit, which credit cards are written in the insurance policy issued between the parties and whether the plaintiff has the capacity of active hostility in terms of which one or which ones, it was not correct to make a written judgment, and it required a reversal…”
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
The General Assembly of Civil Chambers examined the resisting decision and discussed the necessity after it was understood that the appeal was filed in due time and the documents in the file were read:
DECISION : The lawsuit is related to the claim for receivables based on the credit card unemployment insurance policy.
The plaintiff’s attorney claimed that his client was insured by the defendant company with a credit card unemployment insurance policy, according to this policy, if his client became unemployed, his credit card debts should be paid by the defendant … company, his client was terminated on 31.03.2011, but no payment was made by the defendant, and demanded and sued for the collection of 8.000 TL from the defendant together with the advance interest of 31.03.2011, without prejudice to the rights regarding the excess.
The defendant attorney argued that the court has no jurisdiction, the plaintiff does not have active capacity (capacity), Akbank T.A.Ş. is the beneficiary of the policy and the holder of the right of dain-i mürtehin, the personal expenses of the plaintiff are covered by the policy, but the expenses subject to the lawsuit are not the personal expenses of the plaintiff and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit due to lack of capacity, on the grounds that although the bank, which has the right of the claimant, has conditionally consented to the plaintiff, the consent is not valid, and therefore the plaintiff does not have the capacity of active hostility.
Upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons shown in the title section above.
In addition to the grounds in the first decision, the court stated that the bank, which is the holder of the right of dain mürtehin, is not a party to the case, and that it is not correct to make a judgment in a way that may affect its rights regarding the substantive law (rights arising from the pledge right) in a case in which it is not a party, and to establish a judgment for the pledge right holder who is not a party to the case, The decision to resist was rendered on the grounds that the fact that the receivables of the pledge right holder bank arising from the credit relationship in the form of a busy loan were zeroed for a moment was not a reason that terminated the pledge right, and that the fact that the receivable debt status was zeroed for a moment would not affect the result, since the pledge right would also provide assurance for the bank’s receivables that would arise later.
The decision was appealed by the plaintiff’s counsel.
The dispute that came before the General Assembly of Civil Chambers through the decision of the General Assembly of Civil Chambers is centered on the determination of whether the credit card debts subject to the lawsuit have been paid by the plaintiff to the bank, and whether the plaintiff has the capacity of active hostility in terms of which credit cards are included in the insurance policy issued between the parties.
The credit card unemployment insurance subject to the lawsuit was made in order to guarantee the payment of credit card debt up to 10.000,00 TL in case of unemployment. Article 3.1 of the “General Terms and Conditions of Debt Payment Insurance” of the credit card unemployment insurance policy states that “In case the insured becomes unemployed, the payments to be made by the insured in accordance with the contract are covered under the unemployment coverage”.
By the way, it would be useful to explain the meaning of dain-i mürtehini. Dain and mürtehin mean the pledge creditor. Dain-i mürtehin is a real or legal person who is the first degree creditor from the compensation to be paid due to the debt or loan given to the insured person and this situation is stated in the policy. In the insurances taken out by the owner in favor of the creditor, since the pledge creditor (dain and murtehin) is shown as the insurance beneficiary, i.e. the insured, the right to claim and sue for the insurance indemnity in case of the occurrence of the risk belongs primarily to the pledged creditor who is the insurance beneficiary ( Ulaş, I.: Uygulamalı Zarar Sigortaları Hukuku, Ankara 2012, p.176).
After these explanations, since the local court dismissed the case on the grounds of active hostility (adjective), it would be appropriate to first focus on the concept of adjective in the case in the solution of the dispute.
Title is the relationship between the subjective right subject to the lawsuit and the parties. Although the persons named as plaintiff and defendant in the statement of claim are parties to the lawsuit according to the formal party theory, this does not always mean that these persons have party status. Party status is not a condition of litigation. However, since adjective is an objection, the judge automatically considers the adjective of party, like other objections, as long as he can understand it from the case file ( Pekcanıtez, H./Atalay, O./Özekes M.: Civil Procedural Law, Ankara 2012, pp. 248-249).
After this general explanation on title, the relevant provisions of the abrogated Turkish Commercial Code No. 6762 (TCC) and the relevant provision of the Turkish Civil Code No. 4721, which were in force on the date of the incident, should be analyzed.
Article 1269 titled “Beneficiary” of the abrogated TCC No. 6762 reads as follows “The owner who has an interest that can be measured in money in securing a property against certain risks, the ordinary or pledged creditor of the owner, the agent, lessee, commission agent and other persons who are liable to the owner for the preservation of the property, persons who actually have an interest in the preservation of the property or their legal representatives may insure this interest.”;
Article 1270 titled “Insurance in the name and account of another person” reads as follows “A person may conclude an insurance contract in the name and account of another person; provided that if that person is not authorized to represent the person in whose name and account he acts, he shall be personally liable for the insurance premium.
The person on whose behalf and account the insurance contract is concluded shall benefit from the insurance if he gives his consent before or after the occurrence of the risk.
An insurance contract, which is not understood from the terms of the contract that it is made on behalf and account of another person, is deemed to have been made on behalf and account of the person who made it”.
The provisions of the Turkish Civil Code No. 4721 include the following provisions
The first paragraph of Article 879 of the TCC No. 4721 titled “Right over insurance indemnity” reads as follows: “The insurance indemnity due may be paid to the owner only with the consent of all pledged creditors”.
Pursuant to Article 1269 of the TCC, the pledgee may insure his/her interest in the pledged property on his/her own behalf, and pursuant to Article 1270 of the same Code, it is also possible for another person to insure the pledged property on behalf of and on behalf of the pledgee. Pursuant to Article 4721 of the TCC, the insurance compensation must first be given to the pledgee or his/her explicit consent must be obtained.
As a matter of fact, the same issues were emphasized in the decisions of the General Assembly of Civil Chambers dated 28.09.2012 and numbered 2012/17-394 E., 2012/643 K.
When it comes to the concrete dispute, it is stated in the credit card unemployment insurance certificate that the principal beneficiary is the non-suiting Akbank T.A.Ş. Branch. The plaintiff also claimed that the credit card debt was paid to the bank, and some account statements were submitted to the file. In this case, it is necessary for the court to determine whether the credit card debts subject to the lawsuit have been paid by the plaintiff to the bank, and considering that there are three different credit cards subject to the lawsuit, it is necessary to evaluate which credit cards are written in the insurance policy issued between the parties and whether the plaintiff has active hostility (title) in terms of which one or which ones. In other words, in the context of the credit card payments made by the plaintiff, it should be accepted that the plaintiff has the capacity to have active capacity in the lawsuit, even if the non-suiting bank does not give consent to the lawsuit.
As such, for the reasons explained above, it is contrary to the procedure and the law to resist the previous decision while complying with the reversal decision of the Special Chamber, which was also adopted by the General Assembly of Civil Chambers.
For this reason, the decision of resistance should be reversed.
CONCLUSION : It was unanimously decided on 18.04.2018, with the acceptance of the appeals of the plaintiff’s attorney, that the decision of resistance should be reversed for the reasons shown in the Special Chamber’s reversal decision, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented with the reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217, and that the pre-appeal fee should be returned to the depositor if requested, with the way of decision correction closed.