The Court Of The Place Where The Regional Directorate Is Located Is Also Competent In The Lawsuit Filed Against The Insurance Company Due To A Traffic Accident
General Assembly of Civil Chambers
Principal Number: 2017/1087
Decision Number 2020/125
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the “compensation” lawsuit between the parties, the decision of the Bursa 1st Civil Court of First Instance regarding the rejection of the lawsuit petition on the grounds of jurisdiction was reversed by the 17th Civil Chamber of the Court of Cassation upon appeal by the plaintiff’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resistance was appealed by the plaintiff’s counsel.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed.
I. JUDICIAL PROCESS
Plaintiff Request:
4. In the petition dated 08.05.2012, the plaintiff’s attorney claimed that the warning and warning lights and the ventilator belonging to the plaintiff Institution were damaged in a one-sided traffic accident caused by the vehicle in which the defendants were the operator, driver and traffic insurer, and requested a decision to collect 171,765.62TL from the defendants.
Defendant Response:
5.1. In the reply petition dated 29.05.2012, the attorney of the defendant Neova Sigorta A.Ş. stated that the place of accident is Sakarya and the headquarters of his client company is Kadıköy, according to the established jurisprudence of the Court of Cassation, in the event that two different courts have jurisdiction in the trial of a case, the plaintiff has the right to choose in the first place, and if the plaintiff uses his right of choice incorrectly, the defendant should show the competent court by notifying only one court by objecting to the jurisdiction, therefore, he requested that the file be sent to the competent Kadıköy courts by accepting the jurisdiction objections.
5.2. In the reply petition dated 02.07.2012, the attorney of the defendant … requested that the objection of jurisdiction be accepted and the lawsuit be dismissed since the lawsuit was not filed in the court in the jurisdiction where the tortious act occurred and in the court where his client’s domicile is located.
5.3. In his reply petition dated 08.06.2012, the defendant … stated that he had no fault in the accident and defended the dismissal of the lawsuit.
Decision of the Court of First Instance:
6. With the decision of Bursa 1st Civil Court of First Instance dated 30.01.2013 and numbered 2012/313 E., 2013/43 K.; on the grounds that the accident occurred within the jurisdictional borders of Bilecik, the insurance company does not have a headquarters and branch in Bursa, the residence of the defendants … and … is Rize, therefore the competent court is Rize, it was decided that the court lacks jurisdiction, and upon request, the file will be sent to the Rize Duty Civil Court of First Instance authorized to hear the case.
Special Chamber Reversal Decision:
7. The plaintiff’s attorney appealed against the above-mentioned decision of Bursa 1st Civil Court of First Instance within the prescribed period.
8. With the decision of the 17th Civil Chamber of the Court of Cassation dated 06.03.2014 and numbered 2013/11017 E., 2014/3155 K;
“…The plaintiff’s attorney claimed that the plaintiff suffered damages in the accident caused by the vehicle in which the defendants were the operator, driver and traffic insurer, and demanded and sued for the recovery of 171.765,62 TL from the defendants.
The counsel for the defendant insurance company and the counsel for the defendant … objected to jurisdiction.
Counsel for the defendant … defended the rejection of the lawsuit.
The court ruled for lack of jurisdiction on the grounds that the accident occurred within the jurisdictional borders of Bilecik, the insurance company does not have a headquarters and branch in Bursa, the settlement of the defendants … and … is Rize, and therefore the competent court is Rize, and the judgment was appealed by the plaintiff’s attorney and the defendant insurance company’s attorney.
The lawsuit is related to the claim for financial compensation arising from a traffic accident.
Article 110 of the Highway Traffic Law No. 2918 and Article C.7 of the General Terms and Conditions of the Insurance Funds Insurance System stipulate that the lawsuits regarding legal liability due to motor vehicle accidents can be filed in one of the courts where the insurer’s head office or branch office or the agency concluding the insurance contract is located, as well as in the court where the accident occurred. Considering that the plaintiff’s attorney filed the lawsuit in Bursa, where the Regional Directorate of the insurer, which is a more authorized body than an agency, is located, it was not deemed correct to reject the objection of jurisdiction and to make a decision as written while the matter should be entered into the merits…” and the decision was reversed with a majority of votes.
Resist Decision:
9. Bursa 1st Civil Court of First Instance dated 02.12.2014 and 2014/543E, 2014/558 K. With the decision dated 02.12.2014 and numbered 2014/543E, 2014/555 K.; the place where the tortious act took place is not Bursa, in addition, in accordance with the general rule of jurisdiction, the decision of lack of jurisdiction was made on the grounds that the residence address of the defendants is Rize, the issue of jurisdiction can be considered by the court ex officio at every stage of the case, as well as if the parties object to jurisdiction, and in the procedure, ‘the competent court is the court of the place of residence of the defendant real or legal person on the date the lawsuit is filed’, the defendant … ‘s jurisdictional objection was evaluated and found to be appropriate, since the administration has units authorized to represent in all provincial centers of our country,
if the provision of Article 14 of the CCP is relied upon, the court where that branch is located is competent in cases related to the transaction of that branch. In accordance with Article 14 of the CCP, the court where that branch is located is authorized in cases related to the transaction of that branch, if the provision is relied on, this situation will cause abuse of right and abuse of right should not be supported and protected by laws, and the defendants objected to jurisdiction in accordance with procedural law, public order and procedural economy.
Appeal of the Resistence Decision:
10. The resisting decision was appealed by the plaintiff’s counsel within the prescribed period.
II. DISPUTE
11. The dispute before the General Assembly of Civil Chambers by way of resistance is whether the competent court to hear the case is the Bursa courts or the Rize courts.
III. REASON
12. Article 110 of the Highway Traffic Law No. 2918, which regulates the competent court, stipulates that lawsuits regarding legal liability due to motor vehicle accidents may be filed in one of the courts where the insurer’s head office or branch office or the agency concluding the insurance contract is located, as well as in the court where the accident occurred.
13. In Article C.7 of the General Terms and Conditions of Compulsory Financial Liability Insurance for Motor Vehicles (Traffic Insurance), the competent courts have been determined and the jurisdiction rule in the Law has been repeated.
14. Article 10 of the Regulation on the Principles of Establishment and Operation of Insurance Companies and Reinsurance Companies stipulates that companies are free to organize in the country by opening regional directorates and branches, and to open branches or representative offices abroad, without prejudice to the provisions of other relevant legislation; however, the company must notify the Undersecretariat within one month following the commencement and termination of such activities. Considering this regulation, it is permitted to establish regional directorates in accordance with the provisions of the Regulation on the Establishment and Working Principles of Insurance Companies and Reinsurance Companies, and it is accepted that a structure called regional directorate can be established between the general directorate and branches and agencies.
15. The same principles were also adopted in the decision of the General Assembly of Civil Chambers dated 24.06.2017 and numbered 2017/17-1110 E., 2017/860 K.
16. In the concrete case; the accident occurred on 17.01.2011 on Sakarya-Pamukova road (within the jurisdictional borders of Bilecik). The place of residence of the defendants … and … is Rize and the headquarters address of the defendant company is Istanbul. The plaintiff’s attorney filed the lawsuit in Bursa, where the regional directorate is located.
Since the courts where the headquarters or the branch office or the agency that concluded the insurance contract are located are considered competent pursuant to the Law (2918 p. KTK), it is necessary to accept that the court where the regional directorate is located, which is the higher authority that supervises the agency and the branch office, works in accordance with the orders and instructions of the headquarters and has more authority than the branch office, is also competent. Considering that the plaintiff’s attorney filed the lawsuit in Bursa, where the Regional Directorate, which is a more authorized body of the insurer than an agency, is located, the court should reject the objection of jurisdiction and decide on the merits of the matter accordingly.
17. In that case, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with, resisting the previous decision is against the procedure and the law.
18. Therefore, the decision of resistance should be reversed.
IV. CONCLUSION
For the reasons explained;
It was unanimously and definitively decided on 11.02.2020, with the acceptance of the appellate objections of the plaintiff’s attorney, to DISMISS the decision of resistance in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied with reference to the provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons shown in the Special Chamber’s reversal decision, and to close the way of decision correction in accordance with subparagraph 440/III- 3 of the same Code.
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