It was a long e-mail, but briefly, my reader wrote: “A problem has occurred with our house and now involves the insurance company. We took a policy out in September 2007 and in November 2007 we were burglarized while asleep in bed. Both the insurance assessor and the gendarme confirmed there was forced entry through the window. The value of the items stolen amounted to a total of YTL 2,800. We were informed that they [the insurance company] required our bank details and offered us the full claim of YTL 2,800. A couple days later we checked with our bank and later on, through a friend, we were informed that the lawyer [of the insurance company] refused to sign the check because we did not have iron bars on our windows.”Upon receiving the e-mail, I asked my reader to send me a copy of the policy and all related paperwork so that I could look into this.
I received the documents and checked the policy you signed with the insurance company. According to the policy, the company does not cover your loss if you do not have iron bars on your windows. The document provided by the forensic expert said that only the balcony door has iron bars. According to the policy conditions, the insurance company seems to be right.
I commented on this issue in May and stated that the declaration of iron bars might have been made in checkboxes. However, it is clearly stated in the insurance policy, clause numbered 399, that the policy is binding when the house has iron bars on windows of a residence on the ground floor.
The situation seems hopeless, but there might be some light at the end of the tunnel in this case because when a consumer signs a contract, s/he has more protection than merchants under Turkish law. I have written many times on consumer protection law, and this is another example of such a case. According to the Consumer Protection Law’s Article 6, the policy signed between you and the insurance company is an agreement drafted in advance and therefore is not binding. The article of the Consumer Protection Law is as follows:
“Unfair terms in contracts
“Article 6 -- A contractual term which has been unilaterally included in the contract by the seller or supplier without it being negotiated with the consumer shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
“Any unfair term included in a contract, which the consumer is a party to, shall not be binding upon the consumer.
“A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a standard contract.
“The fact that certain aspects of a term or one individual term have been negotiated shall not exclude the application of this article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a standard contract.
“Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.
“Consumer contracts required to be drawn up in writing under Articles 6/A, 6/B, 6/C, 7, 9, 9/A, 10, 10/A and 11/A shall be drawn up in character size 12 and in bold characters, and the lack of one or more terms in the contract, forthwith removed by the seller or supplier, shall not affect the validity of the contract.
“The Ministry of Industry and Commerce shall determine the principles and guidelines for the determination of unfair terms existing in standard contracts and their deletion from the contractual text.”
In light of this information, I recommend you go to a courthouse as soon as possible and file a case against the insurance company at the consumer court in order to get a speedy resolution to your problem.
NOTE: Berk Çektir is a licensed attorney at law and available to answer questions on the legal aspects of living in Turkey. Send enquiries to b.cektir@todayszaman.com. The names of the readers are disclosed only upon written approval of the sender.DISCLAIMER: The information provided here is intended to give basic legal information. You should get legal assistance from a licensed attorney at law while conducting legal transactions and not just rely on the information in this corner.
