Supreme Court of Appeals
Case Number: 2017/1087
Decision Number: 2020/125
“Text of Justice”
COURT: First Instance Court
At the end of the trial concerning the “compensation” case between the parties, the decision to reject the petition on the grounds of jurisdiction of the Bursa 1st Criminal Court of First Instance was overturned by the 17th Criminal Chamber of the Court of Cassation upon the objection of the plaintiff’s lawyer.
The plaintiff’s attorney filed an appeal against the objection decision.
After the documents in the file were examined by the 3rd General Assembly of the Law, the necessity of this was discussed.
I. COURT PROCESS
The Plaintiff’s Request:
In the plaintiff’s attorney’s petition dated 08.05.2012; In a traffic accident caused unilaterally by the vehicle operated by the defendants, whose driver and traffic insurer they are, the plaintiff claimed that the warning lights and fan belonging to the Institution were damaged and requested a decision ordering the defendants to pay 171,765.62 TL. Defendant’s
Response:
5.1. In its response dated May 29, 2012, the defendant Neova Sigorta A.Ş., through its representative, stated that the accident occurred in Sakarya, while the headquarters of the client company is located in Kadıköy, and requested that evidence be submitted to the competent court and that the jurisdiction objections be accepted and the file be transferred to the competent Kadıköy courts.
5.2. In the defendant’s attorney’s response dated July 2, 2012, it was requested that the jurisdiction objection be accepted and the case be dismissed because the lawsuit was not filed in the court where the tort was committed, but in the court where the client resides.
5.3. The defendant… stated in their response dated 08.06.2012 that there was no fault in the occurrence of the accident and argued for the dismissal of the case.
First Instance Court Decision:
With the decision of the Bursa 1st Civil Court of First Instance dated 30.01.2013 and numbered 2012/313 E., 2013/43 K.; The court ruled that the accident occurred within the jurisdiction of Bilecik, that the insurance company did not have a head office or branch in Bursa, that the defendants … and … resided in Rize, and that therefore the competent court was in Rize.
Special Chamber Decision:
The plaintiff’s attorney appealed the above-mentioned decision of the Bursa 1st Criminal Court of First Instance.
With the decision of the 17th Civil Chamber of the High Court dated 06.03.2014 and numbered 2013/11017 E., 2014/3155 K.;
“…The plaintiff’s attorney claimed that the plaintiff suffered damages in an accident caused by a vehicle used by the defendants, for which he was the driver and traffic insurer, and filed a lawsuit demanding the collection of TL 171,765.62 from the defendants.
The attorney for the defendant insurance company and the attorney for the defendant… filed an objection with the court.
lass=”yoast-text-mark” />>The defendant… and his attorney argued for the dismissal of the case.
>The court ruled that the accident occurred within the jurisdiction of Bilecik, that the insurance company did not have a head office or branch in Bursa, that the defendant… and… resided in Rize, and therefore that the competent court was the court in Rize.
>>The case concerns a claim for material damages arising from a traffic accident.
According to Article 110 of the Highway Traffic Law No. 2918 and Article C.7 of the General Conditions of ZMSS, lawsuits regarding legal liability arising from motor vehicle accidents may be filed in one of the courts where the insurance company’s head office or branch is located. The lawsuit may be filed in the court where the insurer or the agent who concluded 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, which is a more competent body than the agent, is located, it was deemed incorrect to rule in writing that the objection to jurisdiction should be rejected and that the merits of the case should be examined, and the decision was overturned by a majority vote.
Appeal Decision:
With its decision dated 02.12.2014 and numbered 2014/543E., 2014/558 K. dated 02.12.2014; ruled that the place where the wrongful act was committed was not Bursa and that the court had no jurisdiction based on the general jurisdiction rule, as the defendants’ place of residence was in Rize. The court may examine the issue of jurisdiction ex officio at any stage of the proceedings or evaluate it if the parties object to the issue of jurisdiction. In accordance with the provision that “the court where the defendant resides at the time the lawsuit is filed has jurisdiction,” the defendant’s objection regarding jurisdiction was evaluated, and it was decided that the administration has the authority to represent itself in all provincial centers of our country.
The court where the branch is located, relying on the relevant provision, decided to object on the grounds that this situation would lead to abuse of rights and that abuse of rights should not be supported or protected by law; the defendants objected to the competent authority in accordance with procedural law, public order, and procedural economy.
Appeal of the Objection Decision:
The plaintiff’s attorney appealed the objection decision within the prescribed time limit.
II. DISPUTE
The dispute brought before the General Assembly of the Supreme Court by way of appeal concerns whether the court with jurisdiction to hear the case is the courts of Bursa or the courts of Rize.
III. REASON
Article 110 of the Highway Traffic Law No. 2918, which regulates the competent and responsible court, states that cases concerning legal liability arising from motor vehicle accidents may be filed in one of the courts where the insurer or the agent who concluded the insurance contract has its headquarters or branch, and also in one of the courts where the accident occurred.
Article C.7 of the General Conditions of Compulsory Motor Vehicle Liability Insurance (Traffic Insurance) also specifies the competent courts, repeating the competent authority rule in the Law.
>Article 10 of the Regulation on the Establishment and Operation of Insurance and Reinsurance Companies states that companies are free to organize themselves by opening regional directorates and branches within the country or by opening branches or representative offices abroad, without prejudice to the provisions of other relevant legislation.
The company must notify the Undersecretariat within one month of commencing operations and within one month of ceasing operations. Taking this regulation into account, it has been permitted for the regional directorate to be structured in accordance with the provisions of the Regulation on the Establishment and Operation Principles of Insurance and Reinsurance Companies, and it has been accepted that a structure called a regional directorate can be established between the head office and branches and agencies.
The same principles have been adopted in the decision of the General Assembly dated 24.06.2017 and numbered 2017/17-1110 E., 2017/860 K.
In the specific example, the accident occurred on January 17, 2011, on the Sakarya-Pamukova road (Bilecik jurisdiction). The defendants’ residences are in Rize, while the defendant company’s head office is in Istanbul. The plaintiff’s lawyer filed the lawsuit in Bursa, where the regional directorate is located. As required by law (Article 2918 of the KTK), the courts where the head office, branch, or agency that arranged the insurance contract is located are considered competent. In this case, there is also a regional directorate that supervises the agency and branch, operates under the orders and instructions of the head office, and has more authority than the branch. In this case, the local court should also be considered competent.
Considering that the plaintiff’s attorney filed the lawsuit in Bursa, where the Regional Directorate, which is a more competent body than the insurance company’s agency, is located, the court should reject the jurisdiction objection, examine the merits of the case, and decide accordingly.
In this case, it is necessary to comply with the Special Chamber’s decision to invalidate the General Assembly’s decision; however, to oppose the previous decision is contrary to procedure and law.
Therefore, the resistance decision should be revoked.
IV. CONCLUSION
For the reasons explained above;
the plaintiff’s attorney’s objections were accepted and a decision to oppose was taken, in accordance with the Special Chamber’s reasons for overturning the decision and Article 429, paragraph 3 of the Code of Civil Procedure, and on February 11, 2020, it was unanimously decided to close the appeal.