In traffic accidents causing material damage, the parties may organise an accident report between themselves. In cases where the parties are in disagreement about the preparation of the accident report, the traffic police can be called for assistance. In the event that the accident report is not issued in traffic accidents where material damage has occurred, it may make it difficult to make a claim from the compulsory traffic insurance or voluntary insurance for the repair of the damage or to ensure that the vehicle is totalled.
In this section, to briefly explain the concepts of ‘compulsory traffic insurance’ and ‘voluntary insurance (motor insurance)’; Compulsory traffic insurance is an insurance which is compulsory to be taken out by every vehicle owner and guarantees the bodily and material damages that may be caused to the other party in case of damage. Vehicles that do not have compulsory traffic insurance are not allowed to drive.
PROVISIONAL INSURANCE (MOTOR INSURANCE)
Voluntary insurance (motor insurance) aims to cover the damages to be incurred by the vehicle belonging to the insured. In cases where the vehicle is damaged, burnt, stolen, etc. against the will of the insured, it is made to ensure that the insured is compensated. Therefore, motor insurance covers the damage to the insured’s vehicle, not the damage to the other vehicle.
Pursuant to the Highway Traffic Law, both the damaging driver and the owner of the undertaking, if any, are jointly and severally liable for the loss of value. In addition, the compulsory insurer of the vehicle and the voluntary insurer, if any, shall be liable for the part exceeding the liability. (Balcı-Tokbaş-Demirağ, ‘Vehicle Value Loss with Questions’, p. 40) Pursuant to Article 86/1 of the Highway Traffic Law; ‘The operator or the owner of the undertaking to which the vehicle operator is affiliated shall be released from liability if he proves that the accident was caused by a force majeure or the gross fault of the injured party or a third party, without the fault of himself or the persons for whose actions he is held responsible and without a defect in the vehicle affecting the accident.’
According to this provision, if the operator or the owner of the undertaking to which the vehicle operator is affiliated can prove that the causal link is broken due to force majeure, theft or hijacking of the vehicle without the gross negligence of the injured party, the third party or the fault of the operator, he will be released from liability. Otherwise, since the operator and the owner of the undertaking to which the vehicle operator is affiliated are liable on the basis of danger, they are liable without fault in accordance with the provision of TCO71.(Court of Cassation 17.HD. 2016/7008 E. 2016/11431 K.) In these cases where the operator and the owner of the undertaking are not held responsible, the insurer will not be held responsible. On the other hand, the driver and his assistants are subject to fault liability, not hazard liability. In this case, in order for the driver and his assistants to be held liable for the loss in value of the vehicle, they must be at fault. However, if the accident is not caused by the driver but by a technical fault, the operator is responsible. Because the operator is responsible for the regular maintenance and repair of the vehicle.
In practice, the damages caused by the accident are covered by insurance companies. In material damage traffic accidents involving loss of vehicle value, in order for the owner of the damaged vehicle to make a claim in this direction, the other party must be at fault in the accident and there must be a loss of value in the vehicle. In this context, in order for the loss of vehicle value to be in question, the part damaged and repaired as a result of the accident must not have been subject to repair before. Therefore, replacing or repairing a part that has changed as a result of a previous accident will not cause a loss of value in the vehicle.
While the loss of vehicle value is covered by compulsory traffic insurance, voluntary insurance (motor insurance) generally does not cover the loss of value or offers it as additional assurance. In this context, in cases where the claim is for voluntary insurance, the application is either rejected by the insurance company according to the concrete case, or accepted in cases where additional assurance is taken or considered within the scope of assurance. On the other hand, in cases where the other party is more at fault, the damage is covered by its own insurance.
APPLYING TO THE INSURANCE COMPANY, FILING A LAWSUIT?
As a result of the accident, the person who has a loss of value in his/her vehicle will be able to request compensation from the insurance company with the report explaining the loss of value and the loss of value in the vehicle. However, should he/she first apply to the insurance company or file a lawsuit?
Article 97 of the Highway Traffic Law No. 2918; ‘The injured party must make a written application to the relevant insurance institution before filing a lawsuit within the limits stipulated in the compulsory financial liability insurance. In the event that the insurance company does not respond to the application in writing within 15 days at the latest from the date of application, or if there is a dispute that the response does not meet the request, the injured party may file a lawsuit or apply to arbitration within the framework of Law No. 5684.’ Based on this provision, insurance companies argue that the lawsuits filed without applying to the insurance company should be dismissed procedurally.
However, the notification of the lawsuit petition to the insurance company is also an application. Therefore, the defendant insurance company has the right to request the dismissal of the lawsuit in accordance with Article 331 of the Code of Civil Procedure No. 6100, if it provides a written response within 15 days from the date of receipt of the lawsuit petition or makes a payment that will not cause a dispute. In such a case, the lawsuit will not be subject to litigation and the defendant insurance company will not be condemned to trial expenses since it did not cause the lawsuit to be filed. However, unlike filing a lawsuit, an application to arbitration cannot be made without applying to the insurance company.(Balcı-Tokbaş-Demirağ, ‘Vehicle Value Loss with Questions’, p. 34)
In case of a dispute arises as a result of the application made to the insurance company, according to the provision C.7. of the General Terms and Conditions of Compulsory Financial Liability Insurance for Road Motor Vehicles, which entered into force on 01 June 2015, ‘The Insurance Arbitration Commission may also be applied for the resolution of the dispute.’ In the event of an application to arbitration, litigation will not be possible until the decision of the arbitration commission. However, it is possible to file a lawsuit directly without resorting to arbitration due to the dispute.