Amendment Is Possible After The Court Of Cassation’s Reversal Decision
3rd Civil Chamber 2020/8247 E. , 2021/3030 K.
“Case Law Text”
COURT : COMMERCIAL COURT
As a result of the trial of the pecuniary and non-pecuniary compensation lawsuit between the parties, the judgement given for the partial acceptance of the lawsuit was appealed by the plaintiff’s attorney with a hearing; on 23/03/2021, which was set as the hearing date, the plaintiff Asil … and his attorney Av. … and the defendant …. attorney Av. …, the other defendant Özel İskenderun… Hospital San. ve Tic. A.Ş. and the other defendant …, and the other defendant … and the other defendant …. The open hearing started and after the verbal explanations of the attorneys present were heard, it was deemed appropriate to leave the matter to 14.00 hours for the examination and decision, and at the appointed time, all the papers in the file were read, the explanations of the Examining Judge were heard and the necessity was considered:
JUDGEMENT OF THE COURT
The plaintiff stated that the defendant doctor … performed cataract surgery on both of his eyes on 11/08/2009 despite all his objections and that he lost both of his eyes due to complications in his eyes as a result of the use of non-sterile devices during the surgery, that the defendant doctor … accepted that he was at fault and that he covered some of the hospital expenses, but that he could not cover more, that he was insured and that if they applied to his insurance, the compensation and expenses would be covered by the insurance, and thereupon the defendant ….
However, the insurance company stated that a lawsuit should be filed against the doctor first, and that the insurance company would pay this compensation within the scope of the policy if the court ruled for compensation, and without prejudice to their right to claim and sue for more, for the time being, 10. 000,00 TL pecuniary compensation to be collected jointly and severally from the defendants together with the highest interest to be accrued from the date of surgery to the date of payment, 200. 000,00 TL non-pecuniary damages together with the highest interest from the date of the incident, jointly and severally from the defendants, limited to the policy limit in terms of the insurance company, and with the petition of amendment, he requested the collection of a total of 337,086.64.-TL ‘material damages and 200,000.00 TL non-pecuniary damages from the defendants (the defendant … company to be held responsible up to the policy amount).
The defendants requested the dismissal of the lawsuit.
The court, with the acceptance of the lawsuit in terms of the claim for financial compensation for incapacity for work, 10. 000,00 TL incapacity for work financial compensation claim to be given to the plaintiff by jointly and severally collecting from the defendant … and … Hospital as of 11/08/2009, the date of the incident in terms of the defendant … and … Hospital, together with the legal interest rates to be processed as of 23/07/2010, the date of the lawsuit in terms of the other defendant Ergo Insurance Company, together with the legal interest rates to be processed as of 23/07/2010, the date of the lawsuit. 000,00 TL non-pecuniary damages to be awarded to the plaintiff by jointly and severally collecting from the defendants jointly and severally,
being responsible for the policy limit in terms of the defendant …, together with the legal interest rates to be processed from the date of 11/08/2009, which is the date of the incident in terms of the defendant … and … hospital, and from the date of 23/07/2010, which is the date of the lawsuit in terms of the other defendant Ergo insurance company, and to reject the claim of the plaintiff’s attorney for extra non-pecuniary damages, and the judgement was appealed by the parties.
1-According to the writings in the file, the evidence on which the decision is based, the reasons in accordance with the law and especially the appreciation of the evidence, all of the defendants’ and the plaintiff’s other appellate objections other than the scope of the following subparagraphs should be rejected.
2-As it is known, amendment is a way that allows one of the parties to correct a procedural action partially or completely for one time and does not require the approval of the other party. In Article 176 of the CCP (Article 83 of the HUMK), amendment is defined as “Each party may partially or completely amend the procedural actions it has taken.” Pursuant to Articles 177 and following of the CCP No. 6100, amendment can only be made until the end of the investigation, and according to the decision of the Court of Cassation HGK dated 04.02.1948 and numbered 1944/10 Esas 1948/3 Karar, amendment can be made until the end of the investigation and trial. In accordance with the established case law of our Chamber, it was accepted that amendment could not be made after the judgement was reversed by the Court of Cassation.
However, the Law No. 7251 on the Amendment of the Code of Civil Procedure and Certain Laws entered into force after being published in the Official Gazette dated 28.07.2020 and numbered 31199. With Article 18 of the aforementioned law, the following paragraph was added to Article 177 of the Law No. 6100 to come after the first paragraph and the other paragraph was levelled accordingly. “(2) When the file is sent to the court of first instance after the reversal decision of the Court of Cassation or the lifting decision of the regional court of appeal, if the court of first instance takes an action regarding the investigation, amendment may be made until the investigation is completed.
However, the legal situation arising by complying with the reversal decision cannot be eliminated.” and it is clearly stipulated that amendment can be made after the reversal decision of the Court of Cassation. In the concrete case, since it is not possible to make amendment after the reversal of the local court decision by the Court of Cassation for whatever reason in accordance with the Unification Decision of the Court of Cassation, since it is understood that the amendment cannot be made after the reversal, the plaintiff’s amendment dated 06.04.2018 was accepted as never made and the judgement was established.
As such, considering the fact that the case has been amended and within the framework of the above-mentioned Law No. 7251 on the Amendment of the Code of Civil Procedure and Certain Laws, the issue should be discussed and evaluated in terms of the amended part, and a decision should be made in accordance with the result, but it is contrary to the procedure and the law to make a decision in writing, and it required the judgement to be reversed.
3- The plaintiff filed the present case with the request for the collection of the pecuniary and non-pecuniary damages he suffered, and the court decided to collect the damages from the defendants together with the legal interest to be accrued. The defendant … and the hospital are merchants, and the business that is commercial for one party is considered commercial for the other party. As such, the plaintiff may request the collection of his receivable with advance interest. In this case, while the court should have decided to apply advance interest to the accepted receivable in terms of these defendants, the decision to apply legal interest is contrary to the procedure and law and required a reversal.
4- On 22.04.2010, the plaintiff submitted a petition to the file regarding the claim from the defendant … company. It is necessary to investigate whether the said petition has been notified to the defendant … company and if there is a proper notification, it is necessary to decide to collect the claims against this defendant together with the interest to be accrued from the default date, and it requires a reversal.
CONCLUSION:
For the reason stated in subparagraph 1 above, the other appellate objections of the defendants are rejected, for the reasons explained in subparagraphs 2,3,4, the judgement is DISMISSED in favour of the plaintiff, the attorney fee of 3.050,00 TL for the Court of Cassation hearing is taken from the defendants and given to the plaintiff,
The prepaid appeal fee shall be refunded to the appellant upon request, the balance appeal fee of 5.679,90 TL shall be charged to the appellant defendant …, the balance appeal fee of 5.679,90 TL shall be charged to the appellant defendant Özel İskenderun … Hastanesi San. ve Tic. A.Ş., and the remaining appeal fee of 5.538,25 TL to be charged to the appellant defendant …Ş., it was unanimously decided on 23/03/2021 on 23/03/2021, with the way of correction of the decision being open within 15 days from the notification of the decision in accordance with Article 440 of the HUMK No. 1086 with reference to the provisional article 3 of the CCP No. 6100.
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