TURKISH SUPREME COURT
11th Civil Chamber
Case No.: 2003/13739
Decision: 2004/8533
Date of Decision: 09/20/2004
Case:
In the case heard before the Şereflikoçhisar 2nd Criminal Court of First Instance between the parties, regarding the decision dated 06/26/2003 and numbered 2002/98-2003/107, an appeal was filed by the plaintiff’s attorney, the attorney for the defendant’s accomplice, and certain attorneys for the defendants. Following the hearing of the report prepared by the reviewing judge, Ata Durak, regarding the case file, the petition, trial transcripts, and all documents in the file were read and examined, and the matter was discussed and evaluated:
Decision:
The plaintiff’s attorney argued that the defendant, acting as an insurance agent on behalf of the cooperative and the rights holders, had purchased livestock to be distributed to members—who were required under Article 8, Paragraph 3 of the contract to insure their cattle for one year—for the purpose of obtaining a loan from the Ministry of Agriculture and Rural Affairs cooperative.
that the defendant, acting as an insurance agent on behalf of the cooperative and the rights holders, had arranged insurance on behalf of the plaintiff for the animals purchased to be distributed to the members; in the plaintiff’s status report regarding bank loans, the plaintiff alleged that the defendants nevertheless refused to pay the insurance premium debts and that the enforcement proceedings initiated in this regard were suspended due to the defendants’ unjustified objections. The plaintiff filed a lawsuit seeking the collection of 40% of the compensation for the rejection of enforcement from the defendants and the annulment of the defendants’ objections.
The defendant cooperative and some of the defendants’ attorneys argued that no insurance contract had been signed between their clients and the plaintiff, requesting the dismissal of the case. They also filed a counterclaim seeking 40% compensation from the plaintiff.
Based on the evidence presented, the court decided to reject the plaintiff’s and the defendant’s claims for compensation on the grounds of bad faith, reasoning that there was no written document proving the existence of an insurance contract between the parties and that the conditions for compensation had not been met due to bad faith.
The aforementioned decision was appealed by the plaintiff, the defendant cooperative, and some of the defendants.
1-
Based on the information and documents in the case file, there is no procedural or legal irregularity in the discussion and evaluation of the evidence in accordance with the court’s reasoning; therefore, it is necessary to rule that all objections made in the absence of the defendants’ representatives be dismissed.
2-
Regarding the plaintiff’s attorney’s objections: Based on Article 11/h of the Regulation on State Assistance for Investment Activities of Agricultural Cooperatives, published in the Official Gazette dated April 30, 1990, and an examination of the information and documents in the file, in accordance with the provisions of the protocol specified in General Letter No. 5797 dated August 31, 1999,
between the Ministry of Agriculture and Rural Affairs and the bank, and Articles 8 and 3 of the agreement with the cooperative members, the amount to be paid to fulfill the insurance conditions for the animals was to be paid to the A. BP. As understood from the General Directorate of TCZ, it is understood that the bank in question made payments to the defendants after notifying the bank’s Şereflikoçhisar Branch that the cows belonging to the defendants were insured, and that the insurance coverage was initiated by the plaintiff’s agent through separate policies issued in the defendants’ names.
Pursuant to Article 1263 of the Turkish Commercial Code, insurance contracts are not subject to formal requirements. Therefore, insurance policies are not a condition for the validity of the contract but merely a means of proving the parties’ rights and obligations. Many of the documents mentioned above are also present in the evidence file, and the defendants have collected their claims based on these documents. Furthermore, the plaintiff’s issuance of a policy without the defendant’s application is inconsistent with the normal course of business. In light of this, the court has accepted that a valid insurance contract was established between the parties and that the amount of the claim the plaintiff may seek must be determined and decided accordingly; however, the written judgment is incorrect and must be set aside.
Conclusion:
For the reasons explained in paragraph (1) above, due to the reasons explained in paragraph (2), the defendant’s representative’s objections are rejected, due to the reasons explained in paragraph (2), the plaintiff’s representative’s objections are accepted, and due to the reversal of the decision in favor of the plaintiff, the remaining amount is 2,220,000 as stated below. On September 20, 2004, it was unanimously decided that the appeal fee would be collected from the cooperating defendant and certain defendants who filed the appeal, and that the appeal fee paid by the plaintiff who filed the appeal would be refunded to him if he so requested in advance.