General Assembly Of Law
Base Number: 2017/1087
Decision Number: 2020/125
“text of jurisprudence”
Court :Court of First Instance
1. At the end of the trial due to the “compensation” case between the parties, Bursa The Court of Cassation 17 after the decision on the rejection of the petition of the case issued by the Court of First Instance in terms of authority was appealed by the attorney of the plaintiff. The examination by the legal department was eventually broken, and the court resisted the decision to break the private apartment.
2. The decision to resist was appealed by the acting plaintiff.
3. After reviewing the documents in the file of the General Board of law, the requirement was discussed.
I.THE PROCESS OF TRIAL
4. Plaintiff attorney dated 08.05.2012 mortar petition the defendants operated by the driver and vehicle traffic in a car accident caused by unilateral insurer that the plaintiff, citing the fan with alert and warning lights 171.765 enterprise that was damaged,62 TL to decide on the defendant requested that the collection be given.
5.1. Defendant Neova Insurance A.P. deputy 29.05.2012 in the response petition dated transfer; according to the established case law of the Supreme Court, if two separate ground courts are authorized to hear a case, the right to choose in the first place belongs to the plaintiff, if the plaintiff uses the right to choose incorrectly, the defendant must show the competent court by notifying only one court by appealing the authority, so the file must be sent to the competent courts of Kadıkoy with the acceptance of the authority objections.
5.2. The defendant … attorney in the petition of reply dated 02.07.2012; since the case was not filed in the court around the jurisdiction where the tort occurred and in the court where the client’s residence is located, he asked that the case be decided to be dismissed with the acceptance of the authority appeal.
5.3. The defendant … in his response petition dated 08.06.2012; he defended the dismissal of the case, stating that there was no fault in the occurrence of the accident.
The Decision Of The Court Of First Instance:
6. Bursa 1. Court of First Instance dated 30.01.2013 and 2012/313 B., 2013/43 D. according to its decision, it was decided to send the file to the Court of First Instance, which is authorized to look at the case, on the grounds that the accident is in the judicial boundaries of Bilecik, the insurance company does not have a headquarters and branch in Bursa, the defendant … and …the place of settlement is Rize, so the competent court is also Rize.
Decision To Break Up Private Apartment:
7. Bursa 1. The attorney of the plaintiff has appealed against the above-mentioned decision of the Court of First Instance.
8. Supreme Court 17. Law Department dated 06.03.2014 and 2013/11017 B., 2014/3155 D. by numbered decision;
“ … The attorney of the plaintiff requested and sued for the collection of TL 171,765.62 from the defendants, claiming that the plaintiff suffered damage in the accident caused by the vehicle in which the defendants were the operator,driver and traffic insurer.
The defendant’s insurance company attorney and the defendant’s attorney have filed an objection to the authority.
The defendant … his attorney has defended the dismissal of the case.
The decision was made by the court on the grounds that the accident was in Bilecik judicial boundaries, the insurance company did not have a headquarters and branch in Bursa, the defendant … and …the place of settlement was Rize, so the competent court was also Rize, the provision was appealed by the plaintiff’s attorney and the defendant’s insurance company’s attorney.
The case relates to a claim for financial compensation arising from a traffic accident.
Highway Traffic Act No. 2918 No. 110. General Conditions of ZMSS with article C.7.in the article, it is regulated that lawsuits related to civil liability for motor vehicle accidents can be filed in one of the courts where the insurer’s center or branch or the agent who makes the insurance contract is located, as well as in the court where the accident occurred. Considering that the attorney of the plaintiff filed the case in Bursa, where the Regional Directorate, which is the more competent organ of the insurer than an agent, should be entered into the basis of the work with the rejection of the authority appeal, the decision in writing was not considered correct…” on the grounds and with a majority of votes, the decision was broken.
Decision To Resist:
9. Bursa 1. Of the Court of First Instance dated 02.12.2014 and 2014 / 543B, 2014/558 D. by numbered decision; the place where the tort occurred in the Bursa, but also in accordance with the rules of general jurisdiction of residence of the defendant on the grounds that their decision to address given Rize jurisdiction, competence can be observed in all stages of the case by the court of its own motion as this objection has been made by the parties may be considered if, in the manner that ‘the competent court of the defendant the court settlement natural persons or legal entities on the date the case was opened is’ by the provision of the defendant …’s objection were evaluated, since the administration has authorized representative units in all provincial centers of our country, HMK 14. according to the article, the court where that branch is located is authorized in cases related to the operation of that branch, if it is based on its provision, it is decided to resist on the grounds that this will lead to abuse of the right and that the abuse of the right should not be supported and protected by law, the defendants object to authority in accordance with procedural law, public order and procedural economics.
Appeal Of The Decision To Resist:
10. The decision to resist was appealed by the acting plaintiff.
11. A dispute that comes before the General Assembly of law by resisting; the court authorized to look at the case is convened at the point of whether it is the courts of Bursa or the courts of Rize.
12. 110 of the Highway Traffic Law No. 2918 regulating the official and authorized Court. in the article, it is arranged that lawsuits related to civil liability for motor vehicle accidents can be filed in one of the courts where the insurer’s center or branch or the agent who makes the insurance contract is located, as well as in the court where the accident occurred.
13. General Conditions Of Compulsory Financial Liability Insurance For Motor Vehicles(Traffic Insurance) C.In Article 7, competent courts were established, and the rule of authority in the law was repeated in the same way.
14. 10 of the regulation on the establishment and working principles of insurance companies and reinsurance companies. by Opening regional offices and branches of the company in the articles of organization in the country, opening a branch or representative office abroad without prejudice to the provisions of other relevant legislation is released, but in this manner it started its operations that should be notified within one month after termination of the implementation of the activity and are arranged. Considering this current regulation, it was agreed that a regional directorate could be established between the headquarters and branches and agencies in accordance with the provisions of the regulation on the establishment and working principles of insurance companies and reinsurance companies.Dec.
15. Same principles of the General Assembly of law dated 24.06.2017 and 2017/17-1110 E., 2017/860 K. it was also adopted in his numbered decision.
16. In a concrete incident, the accident occurred on Sakarya-Pamukova road (Bilecik judicial borders) on 17.01.2011. The settlement of the defendants … and …is Rize, and the headquarters address of the defendant company is Istanbul. The attorney of the plaintiff filed the case in Bursa, where the regional office is located. Courts of the place where the center or branch or the agent making the insurance contract is located, the law (2918 P. According to KTK), it is necessary to recognize that the court where the regional directorate is located, which is the highest authority that supervises the agency and branch, works in accordance with the orders and instructions of the headquarters and whose authority is greater than that of the branch, is also authorized. A decision must be made on the basis of the work with the rejection of the authority appeal by the court, considering that the attorney of the plaintiff filed the case in Bursa, where the Regional Directorate, which is the more competent body of the insurer than the agent, is entered into and concluded.
17. In this case, it is necessary to comply with the decision to break the special circle adopted by the General Council of law, while resisting the previous decision is against the procedure and the law.
18. Therefore, the decision to resist must be broken.
For reasons described;
Provisional 3 of the Code of Civil Procedure No. 6100 for the reasons shown in the decision to break the special circle of the decision to resist with the acceptance of the appeals of the plaintiff’s attorney. article 429 of the Code of Civil Procedure No. 1086, which is applied by attribution. according to Article 440/III – 3 of the same law. according to bent, the decision was made unanimously on 11.02.2020, with the road to correction closed.