LEGAL OPINION
CANCELLATION OF OBJECTION CASE CAN BE CONVERTED INTO COMPENSATION OR DEBT CASE BY “AMENDMENT”
Summary
1) The lawsuit filed as “cancellation of objection” may be converted into a “claim (compensation) lawsuit” through “amendment”.
2) The subject matter of the action for cancellation of objection is the “cancellation” of the objection to the execution proceeding without judgement, and it cannot be requested (without amendment) that the entire receivable determined during the proceedings should be taken under judgement.
3) There cannot be a partial request in the cancellation of objection case. If the fee is paid for a part of the execution proceeding amount, but not for the entire amount, this situation cannot be considered as a partial lawsuit. If the court will decide “cancellation of the objection”, the missing fee must be completed.
4) If the objection is decided to be cancelled, a separate lawsuit, “balance receivable (compensation) lawsuit” will have to be filed for more than the receivable subject to the follow-up.
5) In cases where the receivable (compensation) is illiquid, uncertain and requires a judgement (even if the calculated receivable exceeds the amount of the follow-up), “execution denial compensation” cannot be awarded.
6) In the concrete case, it is not necessary to go into all these details, it is sufficient to transform the “cancellation of objection” case into a “claim (compensation) case” through “amendment”.
7) After the cancellation of objection case is converted into a “compensation case” through “amendment”, since the subject of the lawsuit is compensation “due to death”, it should be continued and concluded as an “indefinite receivable case” in accordance with Article 107 of the CCP No. 6100.
8) Since the lawsuit is a claim for compensation arising from a wrongful act, it should be requested to award interest from the date of the incident in terms of the liability of the defendant operator and from the date of default in terms of the insurance company.
I- EXAMINATION OF THE CASE
Case : Cancellation of the objection.
1- Subject of the case:
26.02.2010 in the traffic accident that occurred on 26.02.2010, C.D.’s wife and son, who were deprived of the support of his wife and son (since the compensation request requires judgement), while it is necessary to file a direct material and moral compensation lawsuit,
Instead of filing a lawsuit, the attorney for the plaintiffs initiated an “execution proceeding without judgement” over the said amount, assuming that they could receive the entire amount of 150.000 TL, which was the Compulsory Financial Liability (Traffic) Insurance limit on the date of the incident, as compensation; and filed a “cancellation of objection lawsuit” upon objection.
2- Compensation for deprivation of support is not a liquid receivable and requires a judgement; direct enforcement proceedings cannot be made.
a) As stated above, compensation for deprivation of support is not a liquid receivable and requires a judgement. As if it is a liquid receivable, direct enforcement proceedings cannot be initiated.
b) On the other hand, the liability of the insurer due to traffic accidents is regulated in Articles 91.et seq. of the TCC numbered 2918, and since the “Compulsory Financial Liability (Traffic) Insurance”, which the operator is obliged to have as per the law, is not an accident (amount) insurance as in personal accident and seat insurances, but a type of liability (damage) insurance, the full amount of the guarantee amount in the insurance policy (like the amount insurance) cannot be taken, and the amount that the insurer will be obliged to pay is only up to the calculated compensation amount. If the total amount of the calculated support indemnity exceeds the limit (sum assured) at the date of the accident, then the full limit is paid; the operator and the driver or third parties who are not insurers are liable for the balance.
3- Both cancellation of the objection and collection of the receivable cannot be requested.
While the subject of the lawsuit is the “cancellation” of the objection to the execution proceeding “without judgement”, the attorney for the plaintiffs, at the beginning of the petition and in the 2nd paragraph of the “conclusion” section, requested a decision to be made “Cancellation of the objection over 20.000 TL, without prejudice to their rights regarding the excess”.
This request of the plaintiffs’ counsel is wrong in many respects: Namely
a) Only “cancellation of the objection” can be requested in the “cancellation of objection” lawsuit filed upon objection to the execution proceeding without execution. In other words, both “cancellation of the objection” and “collection of the receivable” cannot be requested in the same case, and the court cannot decide as requested.
In the decisions of the Court of Cassation on this subject, it is stated as follows
Cancellation of objection and collection of receivables are different types of lawsuits in terms of their qualifications and results. Although only the cancellation of the objection is requested in the petition, both the collection of the receivable and the cancellation of the objection cannot be decided.
11.HD.16.01.2006 E.2005/159 K.2006/87
Cancellation of the objection and collection of the receivable cannot be requested together. In such a case, the court should ask the plaintiff to explain whether the lawsuit is for the cancellation of the objection or for the collection of the receivable; accordingly, the lawsuit should be concluded as a cancellation of the objection or as a lawsuit for the receivable. 9.HD.24.09.2001 E.2001/15124 K 2001/14417
In cancellation of objection cases, the judge shall be satisfied with the cancellation of the objection and shall not decide on the collection of the receivable. This is because the cancellation of objection lawsuit filed pursuant to Article 67 of the EBL is different from the receivable lawsuit in terms of the form and duration of the lawsuit and its results.
However, there is no inconsistency in the court’s determination of the amount of the claimant’s receivable by expert examination. In this case, although the reasoning of the court decision should be amended and the judgement should be approved by correcting the judgement, since it is understood that it has somehow been reversed by our Chamber, it has been deemed appropriate to accept the plaintiff’s request for correction of the decision. 9.HD.01.07.1994 E.1994/5279 K.1994/7130
b) In the above two decisions, it was deemed appropriate to “have the plaintiff’s attorney explain whether the lawsuit is for cancellation of the objection or a claim for debt; accordingly, the lawsuit should be concluded as cancellation of the objection or a claim for debt”; In the last decision, while the local court decision was in the form of “cancellation of the objection”, it was corrected and approved as “claim for debt”; however, these decisions contradict the decisions of other chambers of the Court of Cassation, which we will explain below, that the “cancellation of objection” case can be converted into a “claim for debt” through “amendment”.
c) What is correct in the above-mentioned decisions of the Court of Cassation
“Cancellation of objection and receivable lawsuit are different types of lawsuits in terms of their qualities and results; for this reason, the collection of the receivable cannot be requested together with the cancellation of the objection; in such cases, the judge should be satisfied with the cancellation of the objection and cannot also decide on the collection of the receivable.” .
4- An action for cancellation of objection may be converted into a “claim for receivable” through “amendment”.
Various chambers of the Court of Cassation have accepted that the “cancellation of objection” lawsuit may be converted into a “claim lawsuit” through “amendment”, both in terms of “procedural economy” and in terms of Article 67 of the Enforcement and Bankruptcy Law and Article 83 of the CCP (6100/CCP.176).
Examples of the decisions of the Court of Cassation on this subject are given below. To summarise
It is possible to convert the lawsuit filed as a cancellation of objection lawsuit into a debt lawsuit by filing an amendment petition. (2004/m.67 1086/m.83)
19.HD.01.02.2006 E2005/10973 K2006/742
While the case is related to the “cancellation of the objection” to the execution proceeding based on Article 67 of the EBL, the plaintiff’s attorney has requested the execution of the case as a debt case with the “amendment” petition, and it was not correct for the court to decide to dismiss the case instead of examining and concluding the case as a debt case.
15.HD.23.01.2006 E.2005/7729 K.2006/173
While the case was a request for “cancellation of the objection” for the collection of the plaintiff’s receivables from the defendant company, the cause of action was changed to “claim for receivables” with the “amendment” petition submitted during the trial, and a decision should be made accordingly.
11.HD.16.06.2003 E.2003/797 K.2003/6447
The plaintiff requested the “cancellation of the objection” in the petition of lawsuit; later on, with the “amendment” petition, the plaintiff requested that the lawsuit be considered as a “debt claim”. In this case, it is obligatory to see and finalise the case as a debt claimant.
13.HD.09.02.2009 E.2008/9694 K.2009/1327
5- Our opinion on the request for “partial cancellation” in the petition
At the beginning and at the end of the statement of claim, the plaintiffs’ attorney requested a decision to be made “Cancellation of the objection over 20.000 TL without prejudice to their rights regarding the excess”, and if the lawsuit for cancellation of the objection through “amendment” is to be converted into a “receivable lawsuit”, this should be accepted as a “partial request”; In accordance with Article 107 of the CCP No. 6100 (since the expert calculation report has been given and the amount of compensation has been determined), the advance fee should be completed and the calculated compensation should be decided to be collected from the defendants.
6- The compensation amounts for which the defendants will be liable:
a) In the Expert Report dated 23.06.2012, 178.675,09 TL for widow Ayten Dosdoğru and 12.945,03 TL for son Burak Dosdoğru, in total 191.620,12 TL compensation for deprivation of support was calculated.
b) The calculated compensation amount exceeds the traffic insurance limit of 150.000 TL as of the date of the incident. Therefore, the defendant insurance company shall be liable for 150.000 TL. and the interest to be accrued from the date of default and the judicial expenses and attorney’s fees in proportion to the entire compensation.
c) The defendant operator, on the other hand, shall be liable for the full amount of the calculated compensation; in case the insurance company pays 150.000 TL, the operator shall complete the balance receivable.
CONCLUSION AND RECOMMENDATION
1) The first attorney of the plaintiffs, instead of filing a direct action for compensation for deprivation of support as a type of receivable that requires a trial, has filed an execution proceeding over the insurance limit, filed this “cancellation of the objection” action upon objection; instead of requesting only “cancellation of the objection” in the petition, he made a procedural error and requested a “partial cancellation” of 20.000 TL. .
2) Since it is necessary to determine the receivable subject to the proceedings in the cancellation of the objection case, the proceedings followed a course not different from the normal receivable (compensation) cases; and the amounts of each plaintiff’s receivables (compensation for deprivation of support) were determined by the expert calculation report, and the final stage (decision stage) has been reached.
3) The most correct thing to do at this stage, as accepted by the decisions of the Court of Cassation, is to convert the “cancellation of the objection” case into a “compensation case” through “amendment” and to request the award of compensation over the amounts calculated in the expert report by depositing the advance fee.
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