3. Legal Department 2020/8247 E. , 2021/3030 K.
“Text Of Jurisprudence”
COURT : COMMERCIAL COURT
As a result of the trial of the case for material and moral compensation between the parties, the provision for partial acceptance of the case was appealed by the plaintiff’s deputy on a trial basis; on 23/03/2021, which was set as the day of the hearing, the plaintiff was dec … and his deputy Av. … with the defendant …. hunt the deputy. …, the other defendant is a private Iskenderun… Hospital San. and tic. A.Sh. hunt the deputy. …, the other defendant … is the acting Av. … they’re here. An open hearing was started, and after listening to the oral statements of the deputies present, it was considered appropriate to leave the work until 14.00 to be examined and decided, all the papers in the file were read at a certain time, the statements of the Examining Judge were listened to and considered necessary:
Decision Of The Supreme Court
The plaintiff accused the doctor …’s all on 11/08/2009, despite coming up against, had cataract surgery on both eyes during the surgery and non-sterile devices are lost due to complications resulting from the use of both eyes in the eyes of the defendant doctor …’s himself acknowledged that he was wrong, but he can’t afford the hospital bills and some more Meet himself is insured, compensation and insurance costs would be covered by insurance in case of contact, and said that the company apply to the defendant, however, that a case against the insurance company that the doctor should be opened first by the court for compensation in the case of a reduction in the work covered by the policy will pay for the insurance indemnity reported, citing the case without prejudice to the rights of the surplus and the demand on, for now 10.000,00 TL the date of surgery until the date of payment of pecuniary compensation will operate with the highest interest rates jointly and severally accused collection, He asked the defendants to decide on joint and partial collection of 200,000.00 TL of moral compensation with the highest interest from the date of the incident, limited to the policy limit in terms of the insurance company, and a total of 337,086.64 with a petition for reclamation.-TL’ requested the collection of financial compensation and moral compensation of TL 200,000.00 from the defendants (defendant … holding his company responsible for the same amount as the policy amount).
The defendants have asked for the case to be dismissed.
By the court, the case with the adoption of the incapacity of yonunen demand financial compensation, 10.000,00 TL incapacity of the request for financial compensation from the defendant and the date of the event, which is the direction of the hospital 11/08/2009 from the date of the other defendant, ergo insurance company to process from the date the case with the history of 23/07/2010 in terms of legal policy with interest rates in terms of the limit of the defendant … the defendant to be responsible with granting to the plaintiff jointly and severally with the collection, the case of moral damages in terms of the partial acceptance 100.000,00 TL for non-pecuniary damages from the defendant and the date of the event, which is the direction of the hospital 11/08/2009 from the date of the other defendant, ergo insurance company to process from the date the case with the history of 23/07/2010 in terms of legal policy with interest rates in terms of the limit of the defendant … the defendant with the plaintiff jointly and severally responsible with the collection to be given, the surplus of the denial of moral compensation on the plaintiff’s attorney, made a decision, the provision was appealed by the parties.
1-According to the articles in the file, the evidence on which the decision is based, the mandatory reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, all defendants’ and plaintiff’s other appeals that fall outside the scope of the following paragraphs must be rejected.
2-As is known, reclamation is a way that allows one of the parties to partially or completely correct a procedural transaction, one-time, and does not require the approval of the counterparty. HMK’s 176th. in Article 83 of the HUMK.1) reclamation; “Each of the parties may partially or completely correct the procedural actions it has taken. it has been described as “.According to Articles 177 and its continuation of HMK No. 6100, reclamation can only be carried out until the end of the investigation, and according to the decision of the Supreme Court of HGK No. 1944/10 and 1948/3 of 04.02.1948, reclamation can also be carried out until the end of the investigation and trial. In accordance with the established case law of our department, it was also accepted by the Supreme Court that reclamation could not be carried out after the verdict was overturned.
However, the Law No. 7251 on Civil Procedure and the Law on Amendments to Some Laws were published in the Official Gazette dated 28.07.2020 and numbered 31199 and entered into force.18 Of the aforementioned law.the following paragraph has been added to Article 177 of the Law numbered 6100 with its article to come after the first paragraph and the other paragraph has been amended accordingly. “(2)When the file is sent to the court of first instance after the decision of the supreme Court to overturn or the decision of the district court of justice to remove it, if the court of first instance takes an action on the investigation, correction can also be made until the end of the investigation. However, the legal situation arising from complying with the decision to overturn cannot be eliminated.” by introducing the provision, it has been clearly stipulated that correction can be made after the Supreme Court’s decision to overturn it. In the concrete case, in accordance with the Decision of the court to Merge the Case Law, for whatever reason, it was not possible to reform after the decision of the local court was overturned by the Supreme Court, since it was understood that it could not be reformed after the violation, the plaintiff’s correction dated 06.04.2018 was never made, and the verdict was established. As such, considering that the case has been corrected and in terms of the part that has been corrected within the framework of the Law on Amending Certain Laws with the Civil Procedure Code No. 7251 mentioned above, it is also against the procedure and the law to discuss, evaluate and make a decision in writing, while an appropriate decision should be made, and the decision in writing is contrary to the procedure and required the provision to be overturned.
3-The plaintiff filed the lawsuit at hand with the request to collect the material and moral damage suffered; it was decided to collect the damages ordered by the court from the defendants together with the legal interest to process. The defendant is a merchant associated with the hospital, and the business that is commercial for one party is considered commercial for the other party. As such, the plaintiff may request the collection of his/her receivables with advance interest. In this case, the court should decide on the accepted receivable in such a way that the advance interest is carried out from the point of view of these defendants, while the fact that it was decided to apply legal interest is contrary to the procedure and law and required to cancel it.
4- The plaintiff submitted the petition to the file on 22.04.2010 in connection with the fact that the defendant … made a request from his company. If there is a proper notification by investigating whether the petition in question has been notified to the defendant … company, it is necessary to decide on the collection of claims from the defendant with interest that will be processed from the date of default and required to cancel it.
CONCLUSION: The above 1. for the reason specified in the paragraph, the defendants reject all the plaintiff’s other appeals of the plaintiff, the provision is OVERTURNED for the plaintiff’s benefit for the reasons described in paragraphs 2,3,4, the $ 3,050.00 Supreme Court hearing power of attorney fee is taken from the defendants and given to the plaintiff,
refund of the appeal fee received in advance to the appellant on request, loading of the balance appeal fee of 5,679.90 TL to the appellant, the balance appeal fee of 5,679.90 TL to the appellant, the defendant who appealed the balance appeal fee of 5,679.90 TL to the Private Iskenderun Hospital San. and tic. A.Sh.the defendant who appealed the balance appeal fee of TL 5,538.25 to be uploaded to …Ş.440 of HUMK No. 1086 with the reference to provisional article 3 of HMK No. 6100. in accordance with the article, it was unanimously decided on 23/03/2021 that the way to correct the decision would be open within a 15-day period from the notification of the decision.
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