4. Legal Department 2021/14845 E. , 2021/2469 K.
“Text Of Jurisprudence”
COURT : Ankara Regional Court of Justice 26. law office
COURT : Ankara 12. Commercial Court of First Instance
At the end of the trial of the compensation case between the parties, a hearing examination of the decision was requested by the plaintiff’s attorney, but the dec plaintiff’s attorney … arrived on Wednesday, 02.06.2021. No one came from the defendant’s side. After it became clear that the appeal petition was filed within the time limit and the deputy plaintiff who was present was heard, the work was examined and adjudication was left for another day due to the lack of time, and the file was examined and considered necessary:
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The deputy plaintiff, the defendant … declared that the plaintiff was injured and disabled in a unilateral traffic accident involving a vehicle in which the plaintiff was a passenger, insured with a ZMMS policy in front of his company, on 03/06/2016; requested that the claimant be decided to collect the caregiver’s expense compensation from the defendant.
The defendant’s deputy requested that the case be dismissed by declaring that the entire disability coverage has been paid and that the caregiver’s expenses are also covered by the disability coverage in accordance with the General Conditions of the ZMMS.
A General Requirements for Compulsory Financial Liability Insurance of Motor Vehicles of Highways by the court of first instance.5 within the framework of the disability guarantee also covers the permanent disability and caregiver expenses, in this case, the defendant has paid the full amount of the policy coverage limit within the scope of the permanent disability coverage that is within the policy limit, the plaintiff’s case has not been located on the ground of refusal, the decision has been made.
The deputy plaintiff against the decision has filed a request for appeal.
A decision was made by the District Court of Justice on the fundamental rejection of the plaintiff’s deputy’s appeal application, and the decision of the District Court of Justice was appealed by the plaintiff’s deputy within the time limit.
The lawsuit is related to a claim for financial compensation consisting of permanent caregiver expense damage due to bodily harm caused by a traffic accident.
The plaintiff claimed that the permanent caregiver’s expense should be covered by the treatment expense coverage and requested balance compensation; while the respondent insurer argued that the loss related to the caregiver’s expense was also covered by the disability coverage and that the limit related to the said coverage had been exhausted. Accordingly, the dispute between the parties is whether the plaintiff’s permanent caregiver expense loss is covered by the “disability coverage” in the ZMSS policy issued by the defendant or by the “treatment expense coverage” and the defendant has paid 310 dec000.00 TL before the case. it is collected at the point where the responsibility of the company ceases.
By the court of First Instance, which entered into force on the date of the general conditions as required by 01.06.2015 ZMSS, carer costs and expenses fall within the scope of disability coverage, and disability coverage on the grounds that the defendant’s responsibility is depleted the limit for the case dismissed on the grounds that it wasn’t granted,the merits of the appeal by the plaintiff’s attorney Regional Justice Court the appeal is dismissed.
A of the General Terms of ZMSS.5-C with the material of the victim sustained permanent disability detected after the completion of the treatment (lifetime) carer costs within the limit of continuous disability coverage, and this coverage, the insurer would be liable is arranged. However; Upon the applications filed against the General Conditions of the ZMSS entered into force on 01.06.2015, by the decision of the Constitutional Court dated 17.07.2020- 2019/40-2020/40; 90 of the KTK. in the article “this Law and the general conditions prepared in accordance with this Law are subject to the procedures and principles provided for” in the section “general conditions prepared in accordance with this Law” has been decided to cancel the phrase on the grounds that it is contrary to the Constitution. According to this cancellation decision; determining the damages that enter and do not enter the insurance coverage; determining which coverage is included in the policy, although the damage is included in the insurance coverage, it is not possible to determine according to the General Terms of the ZMSS. It is clear that the aforementioned determinations should be made in accordance with the provisions of the Code of Obligations, as well as in cases where there are no provisions in the KTK and this law. Therefore, it is necessary to determine the decision of the Constitutional Court regarding the General Conditions of the ZMSS, some of the provisions of which have been canceled because they are contrary to the Constitution, within the framework of the KTK, BK and the established Supreme Court practices.
According to the annulment decision of the Constitutional Court, A of the General Conditions of the ZMSS.5-C the adoption of permanent disability caregiver expenses in accordance with the scope of coverage is not possible; continuous losses the CC BY considering the expense of a babysitter decision to cancel our previous apartment resident applications by treatment expenses, which is located in the coverage of issues that, taken together, the Regional Justice Court concluded that the assessment is not correct.
In the face of the described legal and material cases, the decision should be made taking into account that the permanent caregiver expense loss incurred in the case should be covered by the treatment expenses coverage in the policy, while the decision in writing with a erroneous assessment required to be overturned
CONCLUSION: In accordance with Article 371/1-a of HMK No. 6100, with the acceptance of appeals by the plaintiff’s attorney for the reasons described above, the decision of the District Court of Justice is based on HMK 373/1. in accordance with article 371 of the HMK on the ABOLITION and decision of the Court of First Instance. DETERIORATION in accordance with article; according to Article 373/1 of the same Law, it was decided unanimously on 07/06/2021 that the file should be sent to the Court of First Instance, a sample of the decision should be sent to the District Court of Justice, that the power of attorney fee of TL 3,050.00 should be taken from the defendant and given to the plaintiff represented by the attorney at the hearing, and that the fee received in advance should be returned to the appellant upon request.
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