Liability Of The Insurance Company For The Payment To The Agent
T.C.
Supreme Court
11th Civil Chamber
Esas No:2012/10984 Karar No:2014/2469 K. Tarihi:13.2.2014
In the case seen between the parties, the hearing examination of the decision dated 08/12/2011 and numbered 2007/4-2011/481 given by Antalya 1st Commercial Court of First Instance was requested by the plaintiff’s attorney, and on 11.02.2014, which was determined for the hearing, it was understood by roll call that no one else was present, and after the defendant’s attorney Av. M. Ö. was heard, the examination and decision of the case was left to the future due to the intensity of the trial works and the shortness of time. After the report prepared by the Examining Judge was heard and the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the matter was discussed and considered:
The plaintiff’s attorney stated that pursuant to Article 9 of the agency agreement concluded between the defendant and the agency where the insurance premium subject to the lawsuit was deposited, the advance payments collected from the insured in pension policies and other life branch insurances subject to dividends must be paid in cash to the company or A. Emeklilik A.Ş. on the first business day after the day of collection. A.Emeklilik A.Ş., the defendant did not fulfill its obligations, did not supervise its agency, did not issue and send policies, did not pay the premium amount deposited, and made an unjustified objection to the enforcement proceeding, and requested and sued for the cancellation of the defendant’s objection to the enforcement proceeding and for the continuation of the enforcement proceeding and for the judgment for damages for denial of enforcement.
The defendant attorney argued that there is no contract between the plaintiff and his client, there is no money paid by the plaintiff to the client company for the purpose of making an insurance policy and there is no application form requesting insurance, the money deposited by the plaintiff to the account of the agent E. B. has nothing to do with the client company, and it cannot be proved that the money allegedly paid to the agent was paid in accordance with the insurance policy, and requested the dismissal of the lawsuit.
According to the claim, defense, expert report and the entire file scope, the court stated in Article 19 of the Regulation No. 24681 on Private Pension Intermediaries in force at the time of the payment subject to the lawsuit and in Article 23 of the Regulation No. 25391 on Private Pension Intermediation, which repealed this Regulation. Article 23 of the Regulation on Private Pension Intermediation numbered 25391, which repealed this Regulation, regulates that the private pension intermediary cannot collect entrance fees, contributions or similar names under any circumstances, and it is also stated in the agency agreement concluded between the defendant and its agency that the agency does not have such authority, in the case subject to the lawsuit, since the money deposited in the agency account was not transferred to the defendant insurance company account, the contract in question could not be established, therefore, it was concluded that the defendant was not responsible for the return of the money taken by the agency without authorization, and it was decided to dismiss the lawsuit. The plaintiff’s attorney appealed the decision.The lawsuit is related to the claim for the collection of the premium payment made to the agent from the defendant insurance company.The plaintiff claimed that although the defendant made a premium payment to the defendant’s authorized agent account in order to issue an insurance policy, the defendant did not issue and send the policy and did not return the money, and demanded the recovery of the money he deposited.
There is no evidence in the file that the money sent to the agency account of the non-suit Emrullah Bayır, who was operating as the defendant’s agent at the time of the payments subject to the lawsuit, was sent for a purpose other than premium payment, and the payment made to the agent will be made for the purpose of establishing an insurance relationship according to the ordinary course of life, and it must be proved by the claimant that it was made for a purpose other than this. In the concrete case, the plaintiff made a total payment of 30.079,65 TL to the account of the non-suiting agent. In Article 1 of the Agency Agreement between the defendant and the non-suiting agent regarding the “Authority and Responsibilities of the Agent” Article 1 of the Agency Agreement between the Defendant and the non-suiting agency states that the agency is authorized to work in the Life and Personal Accident Insurance branches, which are the subject of the company’s business, with a power of attorney, to receive insurance offers, and to collect premium advances in relation to the said offers, and Article 9. The article stipulates that the agent is not authorized to collect insurance premiums, and that in pension policies and other life branch insurances subject to profit sharing, the agent is obliged to deposit the premium advances collected from the insured in cash to the company or to one of the bank accounts registered in the name of A. Emeklilik A.Ş. by on-line transfer until 12:00 noon at the latest on the first business day after the day of collection. In this case, the non-suiting agency is authorized to collect premium advance, it cannot be proved that the payment made by the plaintiff was made for a purpose other than the premium payment made for the establishment of the insurance relationship, the failure to transfer the collected money to the defendant company concerns the internal relationship between the agency and the defendant company, Since it is not possible to assert this issue against the plaintiff who relied on the authorized agent of the defendant insurance company, it was not deemed correct to decide to dismiss the lawsuit on written grounds, while the defendant insurance company should be held responsible for the payment made to the agent, and the decision should be reversed in favor of the plaintiff for this reason.
CONCLUSION: For the reasons explained above, the appeal objections of the plaintiff’s attorney were accepted and the decision was reversed in favor of the plaintiff and the prepaid appeal fee paid was returned to the appellant upon request, unanimously decided on 13.02.2014.