“… Article 47 of the Code of Obligations No. 818; In the event of death or bodily harm falling within the scope of regulation of this article, the judge will order a moral compensation in accordance with equity <taking into account the special conditions>. As this matter is clearly understood from the wording of the article, the essence of life and bodily integrity, which it aims to protect, also requires this.
The aim of moral compensation is to satisfy the victim rather than to punish the perpetrator. Non-pecuniary compensation aims to partially and to the extent possible return the peace of mind that has been disturbed by the damage of the person who has suffered bodily harm, and the pain and suffering that has been felt and will be felt in the future. In accordance with Article 4 of the Turkish Civil Code, the judge should determine the amount of non-pecuniary damage by using his discretion according to the right and distance. (HGK. 14.11.2012 day and 2012/4-510 Basis- 2012/786 K.)
According to Article 47 of the Code of Obligations; The amount of money that the judge will decide to be given to the right holder in the name of moral damage, taking into account the special circumstances, should be in accordance with the justice. This money to be awarded has a unique quality with a function similar to compensation that will bring about the moral peace of the injured person. It was not a penalty, nor did it aim to compensate for a loss related to property law. The limit of this compensation must therefore be determined according to its purpose. The amount to be appreciated should be as much as is necessary to achieve the effect of the desired satisfaction in the present state. In the reasoning of the Supreme Court Judgment No. 7/7 dated 22.06.1966, the special circumstances and conditions that will affect the amount of non-pecuniary compensation to be appreciated are also clearly shown. Since these may change according to each case, the judge should use his discretion in this matter and show the effective reasons according to the objective criteria in the decision place.
“….45/III of the Code of Obligations. According to the article, compensation for deprivation of support does not belong to those left behind as heirs of support, but to those who are deprived of support. There is no dispute that there may be persons other than heirs who may claim compensation for loss of support. If the deceased has a liability arising from the traffic accident and the conditions are met, the heirs are responsible for this, but the persons who are deprived of support due to the same event, but who are not heirs, are not responsible for this. Paragraph 2 of Article 86 of the Highway Traffic Law No. 2918 stipulates that the judge may reduce the amount of compensation if the person injured in the traffic accident is at fault, and leaves this to the judge’s discretion. It is not possible to argue that the legislator, who does not require the cause of reduction in case of the fault of the injured party, leaves it to the discretion of the judge and does not include any regulation regarding the fact that the aforementioned issue can also be brought forward against others, that the legislator has a forgetfulness here. The reason for not including a provision in this direction lies in the acceptance of the responsibility of the operator as the liability of danger.
The aim pursued here is to protect the members of the society regardless of the danger posed by the vehicles. Even in the event that the driver of the vehicle who caused the accident by acting faulty (provided that it is not seriously faulty) incurs bodily damage, it leaves the discount to the discretion of the judge according to the fault, and covers the physical damages of the relatives of the operator, who is responsible for the danger, in the scope of compulsory insurance. The legislator has made these regulations in order to protect those who are deprived of the support of the vehicle driver who is responsible for the fault and has protected the members of the society from the danger of the industrial revolution and mechanization in this way.
Returning to the concrete event after these general explanations; In the traffic accident resulting in the death of the support, the support is defective at a rate of 6/8 and there is no serious fault. The driver of the other vehicle involved in the accident is at fault in the incident at a rate of 2/8. As a result, it has been accepted by the General Assembly of the Law that the plaintiff party, who filed the lawsuit as a third party, may request support compensation from the compulsory financial liability insurer of the vehicle whose support was partially defective in the traffic accident that occurred.
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