General Assembly of Law
Principal Number: 2017/1087
Decision Number: 2020/125
“Islamic Text”
COURT: Civil Court of First Instance
1. At the end of the trial due to the “compensation” lawsuit between the parties, the decision regarding the rejection of the lawsuit petition given by the Bursa 1st Civil Court of First Instance in terms of jurisdiction was overturned by the 17th Civil Chamber of the Court of Cassation upon appeal by the plaintiff’s attorney. .
2. The decision to resist was appealed by the plaintiff’s attorney.
After the documents in the file were examined by the General Assembly of Law, the necessity was discussed.
I. TRIAL PROCESS
Plaintiff’s Claim:
4. In the petition of the plaintiff’s attorney dated 08.05.2012; In the unilateral traffic accident caused by the vehicle of which the defendants are the operator, driver and traffic insurer, the plaintiff claimed that the warning and warning lamps and the fan belonging to the Institution were damaged and demanded a decision to collect 171,765.62 TL from the defendants.
Response of the Defendant:
5.1. Defendant Neova Sigorta A.Ş. the attorney’s reply petition dated 29.05.2012; The place of accident is Sakarya, the place where the client company’s headquarters is located is Kadıköy. He requested that he should show the competent court, therefore, that the objections of jurisdiction be accepted and the file be sent to the competent Kadıköy courts.
5.2. In the reply petition dated 02.07.2012, the defendant … attorney; Since the case was not filed in the court in the jurisdiction where the tortious act took place and in the court of the place where the client’s residence is located, he requested the rejection of the case with the acceptance of the jurisdiction objection.
5.3. Defendant … In his reply petition dated 08.06.2012; stated that there was no fault in the occurrence of the accident and defended the rejection of the case.
First Instance Court Decision:
6. With the decision of Bursa 1st Civil Court of First Instance dated 30.01.2013 and numbered 2012/313 E., 2013/43 K.; Due to the jurisdiction of the court, on the grounds that the accident is within the jurisdiction of Bilecik, the insurance company does not have a head office or branch in Bursa, the defendant … and …’s place of residence is Rize, and therefore the competent court is Rize. decided.
Special Chamber Ruling Decision:
7. The plaintiff’s attorney filed an appeal against the above-mentioned decision of the Bursa 1st Civil Court of First Instance.
8. With the decision of the 17th Civil Chamber of the Supreme Court dated 06.03.2014 and numbered 2013/11017 E., 2014/3155 K.;
“…The attorney of the plaintiff claimed that the plaintiff suffered damage in the accident caused by the vehicle of which he was the operator, driver and traffic insurer of the defendants, and demanded and sued for the collection of 171,765.62 TL from the defendants.
The attorney of the defendant insurance company and the attorney of the defendant … filed an objection to authority.
The defendant … his attorney defended the dismissal of the case.
The court decided that the accident was within the jurisdiction of Bilecik, the insurance company did not have a head office and branch in Bursa, the defendant … and …’s residence was Rize, and therefore the competent court was Rize, and the defendant’s attorney and the defendant insurance company’s attorney appealed against the verdict. has been done.
The case is related to the claim for financial compensation arising from a traffic accident.
In accordance with Article 110 of the Highway Traffic Law No. 2918 and Article C.7 of the ZMSS General Conditions, lawsuits regarding legal liability due to motor vehicle accidents can be filed in one of the courts of the place where the head office or branch of the insurer or the agency that made the insurance contract is located, as well as in the court of the place where the accident occurred. can be opened. Considering that the plaintiff’s attorney filed the case in Bursa, where the Regional Directorate, which is the more authorized body of the insurer than an agency, is located, the rejection of the authorization objection and the fact that the matter should be entered into the merits of the matter, was not considered correct to give a written decision…” and the decision was overturned by a majority of votes.
Decision to Resist:
9. With the decision of Bursa 1st Civil Court of First Instance dated 02.12.2014 and numbered 2014/543E., 2014/558 K.; The place where the tortious act took place was not Bursa, in addition, in accordance with the general jurisdiction rule, a decision of non-authorization was given on the grounds that the residence address of the defendants was Rize, the issue of jurisdiction can be observed ex officio by the court at every stage of the case or it can be evaluated in case of an objection to authority by the parties. The court of the place where that branch is located is authorized in cases related to the transaction of that branch, in accordance with Article 14 of the CPC, as the administration is authorized to represent in all provincial centers of our country. If not, decide to resist on the grounds that this situation will cause abuse of the right and whether the abuse of the right should be supported by laws or not, and that the defendants have objected to authority in accordance with the procedural law, public order and procedural economy. science.
Appeal of the Decision to Resist:
10. The decision of resistance was appealed by the plaintiff’s attorney within the time limit.
II. DISPUTE
11. Dispute brought before the General Assembly of Law through resistance; It is gathered at the point of whether the court authorized to hear the case is Bursa courts or Rize courts.
III. REASON
12. In Article 110 of the Highway Traffic Law No. 2918, which regulates the competent and authorized court, it is regulated that lawsuits related to legal liability due to motor vehicle accidents can be filed in one of the courts of the place where the head office or branch of the insurer or the agency that made the insurance contract is located, as well as in the court of the place where the accident occurred. .
13. Authorized courts were also determined in Article C.7 of the General Conditions of Highways Motor Vehicles Compulsory Liability Insurance (Traffic Insurance), and the rule of authority in the Law was repeated exactly.
14. Article 10 of the Regulation on the Establishment and Working Principles of Insurance Companies and Reinsurance Companies states that it is free for companies to organize within the country by opening regional directorates and branches, or to open branches or representative offices abroad, without prejudice to the provisions of other relevant legislation. It has been regulated that the company must notify the Undersecretariat within one month following the commencement of the activity and the termination of the activity. Considering this existing regulation, it was allowed to establish a regional directorate in accordance with the provisions of the Regulation on the Establishment and Working Principles of Insurance Companies and Reinsurance Companies, and it was accepted that a structuring called a regional directorate could be established between the general directorate and branches and agencies.
15. The same principles have been adopted in the decision of the General Assembly of Law No. 2017/17-1110 E., 2017/860 K. dated 24.06.2017.
16. In the concrete case; The accident occurred on the Sakarya-Pamukova road (Bilecik jurisdiction) on 17.01.2011. The residence of the defendants … and … is Rize, and the head office address of the defendant company is Istanbul. The plaintiff’s attorney filed the case in Bursa, where the regional directorate is located. Since the courts of the head office or the place where the branch or the agency that made the insurance contract are located are deemed competent pursuant to the Law, the court of the place where the regional directorate, which is the higher authority inspecting the agency and the branch, works in line with the orders and instructions of the headquarters and has more authority than the branch, is also authorized. must do. Considering that the plaintiff’s attorney filed the case in Bursa, where the Regional Directorate, which is the more authorized body of the insurer than an agency, is located, the court should reject the objection of authorization and enter the merits of the case and make a decision according to the result.
17. In that case, it is necessary to comply with the decision of the Special Chamber to overturn the decision of the General Assembly of Law, but it is against the procedure and the law to resist the previous decision.
18. Therefore, the decision to resist must be overturned.
IV. CONCLUSION
For the reasons explained;
Due to the acceptance of the plaintiff’s attorney’s objections and the decision to resist, due to the reasons given in the decision of the Special Chamber to overturn, pursuant to Article 429 of the Code of Civil Procedure no. – Pursuant to paragraph 3, it was decided unanimously on 11.02.2020 that the way of rectification is closed.
