Illegality of the General Conditions of 02.08.2016
The General Conditions for the Amendment of the General Conditions for the Compulsory Motor Liability Insurance of the Motorways of Motorways published in the Official Gazette dated 02.08.2016 and numbered 29789 are contrary to the Constitution, the Human Rights Conventions, the Basic Laws and the universal principles of liability law.
I-)Article 4 of the General Conditions No 29355 of 14/5/2015
C.7. to make it compulsory for the injured person to apply to the relevant insurer before proceeding with the case referred to in Article 36 of the Constitution “the right to freedom of search”limitation.
According to Article 36 of the Constitution entitled Freedom of Rights: Everyone, through legitimate means and ways claimant and defendant has the right to a fair trial.
The UN Covenant on Civil and Political Rights (UNCLOS) and the ECHR also include specific provisions on freedom of expression. Article 10 of the BMEIB titled “Right to an Effective Remedy”, “Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him or her by the constitution or by law.” It was called.
The ECHR (Article 6),”Everyone has the right to the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, both in respect of settlement of disputes concerning her civil rights and obligations and in the determination of any charges against her.“It is called. Also in the contract (art. 13), “Any person whose rights and freedoms granted in this Convention have been violated shall have the right to apply to a national authority for remedy, even if the offense has been committed by persons carrying out their performance.” It is called.
The applicant’s application to the insurance company and as a result of this application C.7. in the case that the conditions mentioned in the case in question can be opened, It means the deprivation of those who are protected by the Constitution and international conventions from the freedom to “sue”.
The most effective and assured way of asserting and proving the right of an injured person against an unfair practice or transaction is that the right of litigation can be exercised before the judicial authorities, It is undisputed that granting individuals the right to sue before the judicial authorities is a precondition for a fair trial. It is clear that the right to a fair trial is a violation of the right to a fair trial if it is de facto or legally temporarily closed down or restricted to the circumstances that make its use impossible.
It is undisputed that article 36 of the Constitution, which regulates the right to a case, does not include a special reason for limiting this right.
II- Adoption of a lawsuit with the amendment as a prerequisite according to the response from the preliminary application to the insurance companies
It is contrary to Article 10 of the Constitution and insurance companies are granted ”privilege” in violation of the Constitution.
According to paragraph 1 of Article 10 of the Constitution titled eşitlik equality before the law ,“ Everyone is equal before the law ”and under paragraph 4“ no person, family, group or class can be granted privileges. ”
It is a “privilege” granted to insurance companies to make the rights of individuals who are injured by the amendment to be subject to the response from the Insurance Company.
It is a right granted to individuals by the Constitution to apply to the judiciary in terms of resolution of the dispute and it is against the law to restrict a right guaranteed by the Constitution and National Conventions in favor of Insurance Companies with the General Conditions.
III-) Annex: 6 Requesting the reports of the Health Committee in the documents required for compensation payments.
The compulsory addition of the Health Board Reports in the applications made will cause a delay in the elimination of the damages of the victims.
Within the framework of the Regulation on Health Board Reports, it is mandatory for at least 1 year from the date of the accident in order for the victims to receive the medical board report. Determining a person’s disability rate may require more than 12 months, depending on the type of disability.
Before the regulation was made, Medical companies agreed on the disability compensation files by the insurance companies could be reconciled in accordance with the determined rate by providing examination of all the treatment documents of the injured persons.
However, the inclusion of the reports of the Health Committee in the documents to be requested in the application will require that the victims who have suffered an accident have to wait at least 1 year from the date of the accident.
While the treatment documents of the persons injured due to the accident will be evaluated and the results will be provided in a shorter time, the inclusion of the health committee reports in the documents to be requested in the application will cause the insurance companies to prolong the process in a bad way.
Since the right to file a lawsuit is subject to rejection from the application made to the insurance company within the framework of the General Conditions or if the answer does not meet the demand, the right of individuals to file a lawsuit is also restricted.
For this reason, it is not certain whether the insurance company will make the payment after the health committee reports are obtained or not, It will be left to the insurer’s enjoyment to accept the health committee and to pay on the basis of this.
If the injured person waiting to receive the medical board report cannot reach a consensus with the insurance company after the report has been received, he will have waited for a long time.
IV-) Inclusion of bank account information of the right holder in the documents required for compensation payments
a) The calculation of the compensation to be paid to persons who have been harmed by death and bodily damages must be made by actuarial account experts.
compensation account principles are determined in accordance with the basic principles of the Liability Law, through the opinions of the doctrine and the resolutions of the Supreme Court, and the amount of compensation varies according to the disability rate, age, income status and defect status of the injured person. In order to reach a consensus in the application, the proposal made by the insurance company should be evaluated by the experts.
Sending money to damaged persons who are not familiar with the calculation method will result in loss of rights.
It is a known fact that insurance companies do not pay the full amount of the actual loss incurred and therefore there are thousands of difference lawsuits filed and the compensation received in these difference lawsuits is very high.
Direct payment by the insurance companies to the beneficiary will result in underpayment of damages.
b) In applications made through the proxy, sending money to the proxy’s account will prevent the loss of rights as it will enable the attorney who has knowledge about whether the compensation can meet the real damage and will make the case go to the lawsuit in case an offer is made under the compensation that the injured person can receive.
In addition, the applications made through the attorney’s attorney’s receivables from the attorney’s contract can be collected in terms of the attorney’s account information is also important in terms of payment of compensation.
If the money is sent to the account of the injured person after the receipt of the compensation, the attorney will have to wait for the injured person to pay him / her in order to collect his / her receivables from the attorney’s contract, If the compensation is finalized and the collection is made as a result of the application, it can be abused by the abusive persons to pay the attorney to the attorney.
In the case that the attorney refrains from paying the attorney’s receivable from the contract, the attorney will have to start the execution proceedings for the collection and may have difficulty in collecting the receivable as well as perhaps not being able to collect it.
Compulsory insurance is a public obligation and is a price that must be paid to the insurance companies in return for permission to operate in the insurance field.
It is the liability of the insurance company to pay the damages incurred in full and on time in case the damage occurs in exchange for the insurances that are obliged to be made in accordance with public order. It is the Constitutional obligation of the State to ensure that the damage incurred is met in real numbers as soon as possible and to control it.
Ensuring the right and justice by making all current legal arrangements in this direction and eliminating the grievances as soon as possible is a conscientious obligation first of all, It should be ensured that the arrangements made in order to prevent the creation of gaps that will cause abuse of individuals or institutions shall not be in contradiction with the principles of universal law, the Constitution, and International conventions.
While insurance companies operating in many countries are granted privileges that are not applicable in any other country, compensation is paid in a shorter period and higher amounts in similar cases,making arrangements that are open to delayed and malicious approaches for our citizens to receive their compensation is one of the most severe examples of violations of the “right to life” of all individuals equal before the law.
Atty. Ayşegül BİNGÜL