Decision Regarding The Dismissal Of The Material Damages Lawsuit Against The Defendant Due To The Waiver Of The Insurance Company Due To The Circulation Of The Waiver To The Defendant, And The Decision Regarding The Should Not Award Legal Expenses And Attorney’s Fees Against The Defendant
T.C. JUDICIARY
17th Civil Chamber
Main: 2014/15380
Decision: 2014/13064
Date of Decision: 30.09.2014
INDEMNITY CASE – DISMISSAL OF THE FINANCIAL INDEMNITY CASE AGAINST THE DEFENDANT DUE TO WAIVER OF THE WAIVER OF THE INSURANCE COMPANY TO THE DEFENDANT AND THE REQUIREMENT NOT TO AWARD LEGAL EXPENSES AND ATTORNEY’S FEE AGAINST THE DEFENDANT – REVERSAL OF THE JUDGMENT
SUMMARY: The lawsuit is related to the claim for pecuniary and non-pecuniary damages arising from a traffic accident. Since the waiver of the insurance company also extends to the defendant A., it was not deemed correct to dismiss the lawsuit for pecuniary compensation against the defendant A. due to the waiver and not to award trial expenses and attorney’s fee against him, while it was not deemed correct to make a judgment against the defendant Ali.
(6098 S. Code Art. 61, 162, 163, 167)
Case: At the end of the trial of the compensation lawsuit between the parties; upon the appeal of the judgment on the rejection of the lawsuit against the defendant insurance company for the reasons written in the decision, and the judgment that there is no need to make a decision for the other defendant, by the defendant A. Ç.’s attorney, the file was examined and considered:
Decision: The plaintiff’s attorney stated that his client’s vehicle was damaged as a result of the collision of the vehicle, of which the defendants were the driver and compulsory financial liability insurer, with his client’s vehicle at the intersection, that he could not use his vehicle for a long time due to the accident, and that he was victimized, and requested a decision to collect the damage amount of 13.400 TL determined through the determination of evidence, 3.000 TL non-pecuniary damages, determination costs and attorney consultation fee from the defendants, and declared that he waived the lawsuit against the defendant insurance company with his petition dated 17.08.2012, one day after the lawsuit date. In addition, the plaintiff’s attorney stated in his statement at the hearing dated 26.02.2013 that due to the payment, the lawsuit for pecuniary damages against the insurance company was no longer relevant and that there were no claims for pecuniary damages from these defendants.
The court dismissed the lawsuit against the defendant Mapfre Sigorta AŞ. due to waiver, decided that there is no room for a decision since the lawsuit against A. has no subject matter, and decided to collect the cost of the determination and attorney’s fee from the defendant A. on the grounds that he was right to demand the cost of the determination since it was necessary to make a mandatory determination for the determination of the fault status, and the decision was appealed by the defendant A..
The lawsuit is related to the claim for pecuniary and non-pecuniary damages arising from a traffic accident.
1The driver, the operator and the ZMSS, who caused the damage, are jointly and severally liable for the pecuniary damage in accordance with Article 61 of the TCO No. 6098 in force on the date of the lawsuit.
In joint liability, as a rule, each of the debtors is responsible for the entire debt according to Articles 162 and 163 of the TCO No. 6098. As a matter of fact, Article 88/1 of the Highway Traffic Law No. 2918 stipulates joint and several liability for traffic incidents. Pursuant to Article 167 of the TCO No. 6098, the responsible parties also have the right of recourse to each other according to the rate of fault in the internal relationship.
In the concrete dispute; the defendant A. is jointly and severally liable for the material damage together with the other defendant insurance company, and since the plaintiff’s attorney waived the lawsuit against the insurance company after the lawsuit was filed, this waiver has been extended to the defendant A., who has full joint liability with the insurance company, in accordance with Article 166 of the TCO.
The defendant Ali is not liable for the original receivable and its accessories like the insurance company.
Since the waiver of the insurance company also extends to the defendant A., it was not deemed correct to dismiss the financial compensation lawsuit against the defendant A. due to the waiver and not to award trial expenses and attorney’s fee against him, while it was not correct to make a written judgment against the defendant Ali.
2-According to the reason for reversal, it is not necessary to examine the appeal objection regarding the award of attorney’s fee in favor of the defendant A. at this stage.
Conclusion For the reason explained in subparagraph (1) above, it was decided on 30.09.2014 with the dissenting vote of Member A.Ş. Serkaya and majority of votes that the appeal objections of the defendant A. Ç. be accepted and the judgment be DISMISSED, and for the reason explained in subparagraph (2) above, it is not necessary to examine the other appeal objections for the time being, and the prepaid fees be returned to the appellant A. Ç. upon request.
VOTE AGAINST
I do not agree with the opinion of the majority that the local court decision should be reversed on the grounds that the defendant insurance company and the defendant A. Ç. are jointly and severally liable for the damage occurred, and since the waiver of the plaintiff in terms of the insurance company will also extend to the defendant A., the case should be dismissed in terms of this defendant and it cannot be decided to collect the judicial expenses from the defendant A.
In the case at hand, with the petition dated 16.8.2012, the plaintiff H. A. claimed that his vehicle was damaged in the accident that occurred on 5.7.2012 and demanded the collection of pecuniary (joint and several) and non-pecuniary damages (only from the defendant Ali) from the defendants operator-driver A. Ç. and the insurance company, and filed the petition on 16.8.2012. One day later, on 17.8.2012, the plaintiff petitioned the court, stating that the defendant insurance company was mistakenly named as a defendant and that they waived the lawsuit against this defendant and requested that the lawsuit petition not be sent, and the trial continued without any notification to the insurance company. At the preliminary examination hearing held on 26.2.2013, the plaintiff’s attorney stated that “after the lawsuit was filed, 13.400 TL as vehicle damage was covered by the insurance company (payment date (10.9.2012)-there is no subject matter of the lawsuit in terms of damage compensation, and that they continue the lawsuit in terms of detection expenses (1.488,00 TL)”, and the plaintiff repeated in his petition dated 8.4.2013 that there is no damage in terms of vehicle damage. The court dismissed the case due to waiver in terms of the defendant insurance on the grounds as written, dismissed the case in terms of the defendant A. since there was no subject matter of the case, and dismissed the case in terms of the claim for attorney’s fee of 600.00 TL (also in terms of moral damages), which he claimed to have made during the damage assessment, and the plaintiff did not appeal against this decision.
According to the provisions of Articles 61-62-163 of the Code of Obligations and Articles 85 et seq. of the TCC, the principles of joint and several liability must be applied between the defendants. There is no disagreement between us and the majority according to these legal regulations. The issue that needs to be emphasized here is whether the waiver of one of the jointly liable parties will affect the other, and whether the plaintiff’s petition dated 17.8.2012 will be accepted as a waiver regulated by the CCP.
According to Article 166 of the Code of Obligations, “If one of the debtors has terminated the whole or part of the debt by performance or exchange, it releases the other debtors from the debt to this extent.
If one of the debtors is relieved from the debt without performing to the creditor, the other debtors may benefit from this only to the extent permitted by the situation or the nature of the debt.
The release agreement concluded by the creditor with one of the debtors releases the other debtors from the debt to the extent of the released debtor’s share of participation in the debt in the internal relationship.
In the concrete case, the plaintiff’s vehicle was damaged in the accident that occurred on 5.7.1012, and according to the report dated 23.7.2012 submitted by the expert commissioned by the plaintiff, the damage to the vehicle was 13,400 TL and the second hand market value was 13,000 TL. According to the appraisal made by the insurance company, the second hand market value was reported to be 10,500 TL and the salvage was 4,000 TL.
The date of payment made to the plaintiff by the defendant insurance is 10.9.2012. The lawsuit was filed on 16.8.2012 with fees. The fact that the plaintiff filed a new petition on 17.8.2012, one day after submitting the petition to the court, stating that the insurance company was mistakenly named as a defendant and that they waived the lawsuit against the insurance company and that they request that the lawsuit petition not be sent to the insurance company is not a statement that waives the essence of the right. (The court did not send the lawsuit petition to the insurance company according to this statement and did not make the insurance company a party to the lawsuit. However, it was shown in the title of the decision and the decision was notified to him and no situation was created against him). In fact, what the plaintiff meant by this statement is understood from the statement made during the preliminary examination hearing and the petition dated 8.4.2013.
The claimant states that the amount related to the damage has been paid to him by the non-suiting insurance company and that he continues his lawsuit regarding his other claims. It is understood that no payment was made to the plaintiff before the plaintiff submitted his petition characterized as “waiver”. However, it is understood that the insurance company opened a damage file and had an expert examination before the date of the lawsuit. As it is understood from the examination of the contents of the petition, the insurance company did not claim any reason for rejecting the payment request, but only requested joint and several collection in the conclusion section of the petition. For these reasons, as mentioned in Article 166/2 of the B.K. “If one of the debtors is released from the debt by performing, the debtors can only benefit from it to the extent permitted by the situation and the nature of the debt”, the development of the concrete event cannot be accepted as a release from debt, and the plaintiff’s intention is to declare that he will not continue the lawsuit against the insurance company shown as the defendant. In this case, the court should have completed the formation of the parties and made a judgment according to the result of the plaintiff’s statement against this request according to Article 123 of the CCP.
However, no expenses were incurred in the proceedings in terms of insurance, the insurance made a payment during the proceedings, and with this payment, the defendant Ali was released from his debt related to the damage, and there was no subject of the case in terms of damage. Considering that the plaintiff, whose claim for other legal protection and non-pecuniary damages was rejected, did not appeal, I am of the opinion that the judgment of the local court should be upheld since it is correct to award trial expenses in favor of the plaintiff who was right to file a lawsuit on the date of the lawsuit.