17th Civil Chamber 2016/11461 E. , 2019/7615 K.
“Justice Text”
COURT: Civil Court of First Instance
At the end of the proceedings on the compensation case between the parties, the decision regarding the partial acceptance of the case, due to the reasons written in the decision, was appealed by the defendant’s attorney in due time, the file was examined, the necessary was considered:
-DECISION-
The plaintiff’s attorney stated that the workplace belonging to the plaintiff and insured by the defendant with the Fire Insurance Policy was damaged in the earthquake in …, the defendant paid the commodity damage, and the defendant was responsible for the damage caused by the earthquake in the workplace building, without prejudice to his rights regarding the surplus, 20.700.00 TL. demanded the defendant’s collection together with the commercial interest that will accrue from the date of the earthquake.
The defendant’s attorney stated that they are not responsible for the damage in the absence of a TCIP policy, that they are liable for damages exceeding the compulsory earthquake insurance cost limited to the coverage in the policy, that the earthquake coverage in the policy is optional, and that since the plaintiff’s loss remains within the limits of TCIP, their companies will not be hostile, and that the joint insurance and exemption provision for earthquake risk will also be subject to damage. argued that the case should be taken into consideration in the determination of the case.
According to the claim, defense, trial and evidence gathered by the court; With the partial acceptance of the lawsuit, it was decided to collect the compensation of 13.811.60 TL from the defendant together with the commercial interest to be accrued as of 17.12.2011; The verdict was appealed by the defendant’s attorney.
The case is about a claim for compensation under the Fire Insurance Policy, which also includes earthquake coverage.
The plaintiff party filed a lawsuit demanding compensation from the defendant for the damage caused by the earthquake to the independent section belonging to the plaintiff and insured by the defendant; The court accepted that optional earthquake coverage was provided for the plaintiff workplace with the policy drawn up by the defendant, and it was decided to partially accept the claim on the grounds that the defendant insurer was responsible for the damage, who did not provide the necessary information that the optional earthquake coverage provided in the policy would be valid, provided that there is compulsory earthquake insurance for the insured workplace.
It is fixed with the reply letter of TCIP dated 18.12.2012, as in the acceptance of both the parties and the court, that the workplace belonging to the plaintiff does not have a TCIP policy. With the Fire Insurance Policy dated 29.04.2011-29.04.2012 issued by the defendant, the insured workplace is 26.550.00 TL. insured with the cost of the building and earthquake coverage is also given in the policy; However, there is no separate statement in the policy that the insurer will be responsible for the damage exceeding the TCIP limit in terms of earthquake coverage; only in terms of earthquake coverage, 20% co-insurance and 2% exemption will be applied.
For the workplace belonging to the claimant, in the 2nd article titled “Scope” of the Decree Law No. 587 on Compulsory Earthquake Insurance, which was in force as of the date of 29.04.2011 and the date of the earthquake, the Fire Insurance Policy including the earthquake coverage was issued by the defendant. Independent sections within the scope of the Law, buildings built as residences on immovables registered in the title deed and subject to private ownership, independent sections within these buildings used for commercial, office and similar purposes, and residences built with a loan given by the State due to natural disasters are covered by compulsory earthquake insurance. subject to” regulation; In the 9th article of the aforementioned Decree Law, the regulation “For the independent sections and buildings within the scope of this Decree-Law, compulsory earthquake insurance shall be taken out by the owners or, if any, usufruct right holders”.
With the Decree Law No. 587, those who are obliged to take out compulsory earthquake insurance and the buildings that are obliged to have this insurance are clearly determined. The workplace belonging to the plaintiff is among the buildings that are required to have compulsory earthquake insurance within the scope of the Decree Law. Non-litigation TCIP is the only authorized institution to make Compulsory Earthquake Insurance; the defendant insurer does not have the right and authority to make compulsory earthquake insurance on its own behalf and account; Considering the fact that the policy issued by the defendant is a Fire Insurance Policy and that the policy provides coverage for many risks other than earthquakes, the court accepts that the earthquake coverage in the defendant policy is optional.
However; The plaintiff, who is obliged to take out the compulsory earthquake insurance within the scope of the Decree Law No. 587, cannot gain the right to demand the earthquake coverage in the policy, since the defendant is not informed that the defendant will be responsible for the damage exceeding the TCIP limit; It is in the nature of an incomplete examination to make a decision without considering the issues that the plaintiff, who does not take out the compulsory earthquake insurance, for which he is obliged as per the legislation, can only be held responsible for the damages exceeding the compulsory earthquake insurance coverage limit and without making the necessary investigations.
In the face of the announced legal and material facts, the court; Taking into account that the starting point of the defendant’s liability is the earthquake damage that is above the compulsory earthquake insurance coverage limit, carrying out the necessary research on the determination of the compulsory earthquake insurance coverage limit valid on 23.10.2011, the earthquake date, for the workplace of the plaintiff; then, obtaining a report from another expert civil engineer on the cost of rebuilding the insured office building according to the free market rates at the date of the earthquake; Considering that if the damage amount to be determined is below the TCIP coverage limit, the defendant will not be hostile to the defendant and in case of damage exceeding the TCIP limit, considering that the defendant can be held responsible for the amount to be determined within the scope of the joint insurance and exemption provisions in the policy, in case of a loss exceeding the TCIP limit, it is necessary to make a judgment in writing. the provision necessitated disrupting the facility.
CONCLUSION: For the reasons explained above, it was unanimously decided on 17/06/2019 that the defendant’s attorney’s objections be accepted and the verdict was quashed, and the advance fee be returned to the appellant upon request.
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