- Law Office17. Law office
BASIS NO: 2017/1035 DECISION NO: 2019/9243
Plaintiff’s attorney stated that his client’s house was severely damaged in the Erciş earthquakes that occurred on 23/10/2011 and 10/11/2011, that the competent authorities decided to demolish this house on 27/12/2010, Ergo Sigorta A.Ş. He claimed that he had earthquake insurance taken out within his body, that the 168 m2 area of the house was shown as 59 m2 in the policy, that this situation was corrected with the addendum dated 19/11/2011, that the missing premiums were paid as 168 m2, therefore the necessary payments were made as soon as possible.
The defendant’s attorney, all claims arising from insurance contracts, Article 1268 of the previous TCC and Article 1420 of the new TCC and c.7 of Earthquake Insurance General Conditions. It is subject to a two-year statute of limitations, the lawsuit was filed after the statute of limitations, a damage file was created after the earthquake dated 23/10/2011, the payment was made according to the price determined in the appraisal report, but it was returned twice by the plaintiff, He claimed that the annexation of the flat area was made on 19/11/2011 after the earthquake and that the policy was created according to the statements, and demanded that the case be dismissed.
../…
- 2nd –
2017/1035
2019/9243
In accordance with Article 1420 of the TCC, the claims arising from the insurance contract are subject to a 2-year statute of limitations, as the case is for the compensation of the damage suffered within the scope of the “compulsory earthquake insurance policy”, the policy start date is 27/10/2010 and the expiry date is 27/12/2011. It was decided to reject the case due to the statute of limitations, on the grounds that it is subject to a policy and there is more than 2 years between the policy expiry date and the lawsuit date; The judgment was appealed by the plaintiff’s attorney in due time.
The case is about the claim for compensation pursuant to the compulsory earthquake insurance policy.
The residence belonging to the plaintiff was insured by the defendant with the policy dated 27/12/2010-2011, and an addendum dated 19/11/2011 was issued over the actual square meters due to the deficient square meter of the residence in the policy, within the policy term on 23/10/2011 and 10/11/2011. earthquakes occurred, after the first earthquake, the plaintiff notified the defendant insurance company on 09/11/2011, 14.400,03 TL was paid to the plaintiff due to the damage, the payment was refunded on 02/04/2012, the refunded amount was 30/11 It is understood that it was sent back to the plaintiff on /2012, that the plaintiff did not receive the payment, and returned to the institution on 15/01/2013, and upon the request of the plaintiff, the payment was paid to the claimant insured on 23/01/2013, and the case date was 22/08/2014.
Pursuant to Article 1420 of the TCC numbered 6102, which is in force as of the date of the risk, all claims arising from the insurance contract become time-barred after two years, starting from the due date of the receivable. In the article titled C.7 Timeout of the General Conditions of Compulsory Earthquake Insurance, which was published on 13/05/2011; It is stipulated that all claims arising from the insurance contract will be time-barred in two years from the expiry of the contract.
Article 133/1 of the UK No. 818, which should be applied in terms of the dispute that is the subject of the case. In the article, the debtor’s acknowledgment of his debt is counted among the reasons for cutting the statute of limitations. In Article 135 of the same Law, it is regulated that if the statute of limitations is interrupted, a new period will start to run as of the cutoff, and if the debt is acknowledged with a promissory note or fixed by a provision, the new period will always be 10 years.
../…
– 3 –
2017/1035
2019/9243
Based on the compulsory earthquake insurance between the parties, the payment was made by the defendant party on 16/02/2012 based on the damage notification made by the plaintiff. With this payment, the payment of the cost related to the risk to the claimant has been undertaken (confessed), since Article 133/1 of the UK Due to the acknowledgment of the debt, the statute of limitations has been terminated as of the date of payment, and a new ten-year period has started to run, and the 10-year statute of limitations has not expired as of the date of the lawsuit.
In the face of the material and legal facts disclosed by the court; Considering that the statute of limitations has been interrupted due to the payment made by the defendant and the 10-year limitation period, which has started to run again, has not expired as of the date of the lawsuit, the rejection of the defendant’s statute of limitations and the plaintiff’s claim for damage should be examined and a decision should be made according to the result. The decision to reject it due to the statute of limitations was not considered correct and the verdict had to be overturned.
CONCLUSION: For the reasons explained above, it was unanimously decided on 10/10/2019 that the objections of the plaintiff’s attorney be accepted and the fee paid in advance to be overturned the verdict, to be returned to the appellant upon request.
