TC
SUPREME
LAW OFFICE
Main Case No.: 2012/10984 Decision No.: 2014/2469 Date: 02/13/2014
In the case heard in Antalya on December 1, the commercial review decision No. 2007/4 dated 12/08/2011 issued by the court and the hearing scheduled for Case No. 2011/481, as requested by the defendant’s attorney, were rescheduled to another date and held on February 11, 2014, with Attorney M. He. due to the intensity and short duration of the hearing, following the review conducted after the hearing, a decision regarding the continuation of the hearing was discussed and rendered after the reading and examination of the hearing minutes and all documents in the file.
Pursuant to Article 9 of the agency agreement between the defendant and the agency where the insurance premium was paid, profit-sharing pension policies and other life insurance policies are collected on the first business day following the date on which personal income accruals are collected from the insured by the cash company or A. Pension Inc. The insured must deposit funds into one of the bank accounts registered in their name via online transfer.
My client fulfilled this obligation because the defendant failed to complete the agency process, did not send the policy, and did not issue it. Additionally, enforcement proceedings were initiated on the grounds that an objection was raised without just cause. The defendant continued to reject the objection to the cancellation request, and a lawsuit was filed, arguing that enforcement damages should be awarded.
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The defendant’s justification is that there is no contract between the plaintiff and my client, that no money was paid to the company by my client, that no insurance was provided, and that there was no application form submitted by the plaintiff for the issuance of an insurance policy. Th e plaintiff’s agent, EB, argued that the funds deposited into their account had no connection to the client company and that the money allegedly paid to the agent was based on the insurance policy, thereby requesting the dismissal of the case.
According to the court’s decision, in accordance with the full scope of the case file, the claim for compensation, the defense, the expert report, and the subject matter of the case are governed by Article 19 of the Private Pension Brokerage Regulation No. 24681, which was in effect at the time of payment, and Article 23 of the Private Pension Brokerage Regulation No. 25391, which repealed the aforementioned Regulation.
The article states that an individual pension agent may not collect any funds under the guise of entry fees, contribution shares, or similar terms, and furthermore, the agent lacks such authority under the agency agreement entered into between the defendant and the agent; since the funds deposited into the agent’s account were not transferred to the defendant’s insurance company account, the agent could not establish this agreement, and therefore, the defendant is not liable for the refund of funds collected by the agent without authorization, and the court ruled to dismiss the case.
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The plaintiff has appealed this decision. Th e case concerns a claim for the recovery of premium payments made by the defendant insurance company to the agent. The plaintiff claims that he paid the premium to the defendant’s authorized agent’s account to issue an insurance policy, but the agent did not return the money and he does not know whether a policy was issued or not; therefore, he is demanding the return of the funds he deposited.
Th e court is examining the circumstances as of the date of the payment in question, based on the defendant’s claim that the funds transferred to the account—which were sent for a purpose other than premium payment in the context of agency activities outside of the Emrullah Ridge agency—were intended to establish a relationship with the agency, and that this must be proven, given the absence of evidence in the file sent to the agency indicating that the payment constituted a life insurance premium.
In this specific case, the plaintiff paid a total of 30,079.65 TL to the account of the third-party agency. 1. Article 9 of the Agency Agreement titled “URGENCY AND RESPONSIBILITIES” between the defendant and the third-party agency states that the agency is authorized to work under an agency power of attorney in the Life and Personal Accident Insurance branches in which the company participates, to receive insurance proposals, and to collect premium advances related to these proposals.
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In the article, it is stated that the agent does not have the authority to collect insurance premiums, pension policies, or other life insurance branch policies subject to profit sharing; that premium advances (deposits) are collected from the insured; and that they must be deposited in cash with the company or the Inc. by 12:00 PM on the first business day following the collection date. As for Emeklilik A.Ş., it is specified that the payments must be deposited via online transfer into one of the bank accounts registered in its name.
In this case, unless it is proven that the plaintiff paid the insurance premium through authorized agents and that these payments were made for any purpose other than the relationship established to facilitate such payments, it has been concluded that the decision to dismiss the case with written grounds is incorrect, as the defendant, in situations where there is an internal agency relationship between the companies and the defendant has no obligation to transfer funds to its authorized agents, may face potential liability due to the plaintiff’s payment to the insurance company’s agent; therefore, the decision must be reversed in the plaintiff’s best interest.
CONCLUSION:
For the reasons explained above, on February 13, 2014, by unanimous vote, in the plaintiff’s best interests, it was decided to uphold the plaintiff’s objections and to reverse the decision by ordering the defendant to refund the advance payment made by the defendant, pursuant to the plaintiff’s appeal.