Compulsory Liability Insurance (Traffic Insurance)
During the operation of a motor vehicle operated on the road; in case of injury, death or damage to a person, liability arises because of injury, death or harm to third parties arises. The type of insurance that is obliged to be made by the law and covers these damages within a certain limit is Compulsory Liability Insurance.
With the entry into force of the Code of Obligations no. 6098 on 1 July 2012, ‘Physical Damage’ was revised in Article 54. However, in the new regulation, the definition of bodily harm is not made and only bodily damages are stated.
Physical damage is the difference between the situation of the damaged person’s assets after the traffic accident and the situation that would have occurred if such an case had not occurred.
Material damages as a result of the violation of body integrity In accordance with Article 54 of the TBK;
- Treatment costs ,
- Loss of earnings,
- Losses due to loss or loss of working power ,
- Losses resulting from the shaking of the economic future are counted as.
Since there is no explicit definition of bodily losses in the Turkish Code of Obligations, the situations in which the bodily losses are covered are not defined in a clear and definite limit.Therefore, Article 56 TBK states that physical harm in the violation of body integrity is included in the concept of physical damages by the arrangement which is “in the case that a person’s physical integrity is impaired, judge may decide that an appropriate amount of money be paid to the injured as non-pecuniary damages.”
Calculation of Disability Compensation
As a result of a traffic accident, the victim may have physical, mental or physical illnesses. It is an important consideration to calculate the damage that may arise or may arise in the case of permanent incapacity. The income to be taken into account when calculating the amount of compensation may vary according to the year, promotion, wage increase and premiums of the person who is disabled due to an accident.
If the person does not have any work, the income of the injured person will be calculated over this amount by accepting the minimum wage. The calculation shall be made on the net minimum wage on the date of the report.
Compensation Calculation Principles were revised upon the entry into force of the General Conditions of Motor Vehicles Compulsory Financial Liability Insurance on 01.06.2015. This new regulation will cover traffic accidents after 01.06.2015. In accordance with these general conditions, it is regulated that the determination of the income of the person shall be based on taxable income provided that it is proved. If the loss cannot prove that the declared income is taxed with the document, the calculation shall be made on the minimum wage valid at the date of the compensation account.
The Supreme Court Decisions on the subject
“ In the actuary expert report based on the provision, the plaintiff was working within the company named B .. on the date of the accident, the monthly salary was TL 884,00 (1.7 times the minimum wage) on 04/03/2008 when he quit his job, the salary at the date of the accident was not known and therefore the calculation was according to the fee received. However, the work to be done by the court, the plaintiff in the company started on 04/04/2003 on the date of the accident, taking into account that the date of the accident is 11/12/2004 plaintiff from the date of the accident to the date of leaving the salary from the date of the payment of fees and known period of these fees, leaving the date The minimum wage should be calculated from the beginning, while the plaintiff’s final wage based on the calculation was not considered correct.”(Supreme Court17. Law office 27/04/2015 History Basis No:2013/18452 Decision NO:2015/6099)
Legal Nature of Compensation Cases
Compensation for bodily damages arising from traffic accidents opened after 1.10.2011 is a case of uncertain receivable contained in article HMK.107. Even if the plaintiff can claim damages as an uncertain receivable case, as well as compensation claims to be filed as an uncertain receivable case, it will still be necessary to consider the case as an uncertain receivable case.
Indefinite receivable case Article 107 of the Civil Procedure Law states that “cases where it is impossible or impossible for him to determine the amount or value of the receivable on the date of the opening of the lawsuit, the creditor may open an uncertain receivable case by specifying the minimum amount or value. As soon as it is possible to determine the exact amount and value of the receivable as a result of the information or investigation provided by the other party, the plaintiff may increase the claim stated at the beginning of the case without being subject to the prohibition to extend the claim. ”
Since the lawsuits arising from physical damages are within the scope of the uncertain receivable lawsuit, a lawsuit may be filed for a portion of the receivable in the case of pecuniary compensation, treatment expenses, temporary and permanent incapacity compensation. The remainder of the receivable will be able to increase the amount of the claim for one-off damages, without the threat of time-out, as the damage is complete. Thus, the plaintiff, who has suffered harm before the whole damages are yet to be determined, will not face high fees and expenses in the opening of the case. The claimant will be able to increase the amount of the claim after the actuary expert has calculated the amount of loss.
In an uncertain receivable case, the claimant will be able to correct his case within the conditions of correction after increasing the amount of the claim.
Parties of The Compensation Case
Claimant: A person who has suffered bodily harm in his claims for pecuniary damage.
3. obligatory financial liability insurer (ZMSS) of the damaging vehicle,
4. Own insurance insurer,
5. Compulsory transport insurer in road passenger transport,
6. discretionary liability insurance,
7. Road Passenger Transportation Compulsory Seat Personal Accident Insurance.
However, if the damage is requested by the joint responsibility, it may request from one of those responsible or demand from all or several of them.
The Supreme Court Decision On The Subject
“In accordance with Article 1 of the General Conditions of Motor Vehicle Discretionary Liability Insurance, the insurer is liable to the limit of the optional liability insurance coverage limit, starting from the amount that is above (above) the mandatory liability insurance policy limit. The defendant insurance company is the vehicle’s discretionary financial liability insurer.
There is no conflict between the parties at the point where the vehicle does not have compulsory traffic insurance. In this case, the court decided to refuse the case in written form while deciding the rejection of the case for the defendant insurance company, considering that the amount of the pecuniary indemnity provided by the court was within the mandatory financial liability insurance coverage limits valid at the date of the risk and that the vehicle should be directed against the Assurance Account due to the absence of the compulsory traffic insurance.” (SUPREME COURT 17.
Law office 23/02/2015 History BASIS NO: 2013/16633 DECISION NO:2015/326)
Responsibility of the Operator
Article 85 / III of the KTK states that” In order to be held responsible for the traffic accident caused by a motor vehicle which is not in operation, the operator must prove the existence of a defect or a defect in the vehicle that caused the accident or the person responsible for the actions of the accident.” For keeping the operator responsible by usual liability basis with this arrangement:
- a) There must be a harm
- b)The damage must be caused by a motor vehicle
- c) The damage must result from an accident on the road
- d) The damage must be caused by a traffic accident involving a vehicle which is not in operation or after the accident.
- e)There must be an appropriate causal link between the traffic accident or assistance after the accident and the damage
- f)The operator must not have provided a salvation box specified in Article 86 of the KTK.
Relationship with Criminal Law
ARTICLE 74- When the judge decides whether the offender has a fault and whether he has the power to discriminate or not, the judge is not bound by the provisions of the criminal law regarding responsibility, nor is he bound by the acquittal decision issued by the criminal judge.
Likewise, the decision of the criminal judge on the assessment of the defect and the determination of damage does not bind the judge of the law.
(Turkish Code of Obligations No. 6098)
“In the face of this explicit provision, there is no hesitation as to whether the principles such as acquittal, defect and degree, amount of damage, power of appeal and adequacy of imposition and causality given by the criminal court will not bind the judge. ”
(Supreme Court H.G.K.’the 10.1.975days and 1971/406 E., 1975/1 K.; H.G.K.’the 23.1.1985 gün ve 1983/10-372 E., 1985/21 K.; H.G.K.’nun 27.4.2011
days and 2011/17-50 E., 2011/231 K. numbered postings)
In order to reach a settlement in a legal dispute, it is not necessary to wait for the opinion of the judge and criminal judge.
Financial claims arising from traffic accidents expire in two years from the date of the accident and within ten years starting from the day of the accident.
If the case arises from a criminal act and the penal code provides for a longer period of time for that act, this period also applies to claims for pecuniary damage.
Accordingly, the time-out period shall be 15 years in case of death.
If the driver dies in unilateral accidents, the period for requesting compensation for lack of support is 2 years as the penalty time limit cannot be applied.