In a traffic accident that occurred in 2010, the local court awarded 4,000 TL in non-pecuniary damages to a casualty whose heel was shattered. However, the Court of Cassation reversed the local court’s decision, ruling that the amount was insufficient considering the severity of the injury, the economic and social status of the parties, and the purchasing power of money at the time of the incident.
As a rule, the duty to determine the amount of non-pecuniary damages is left to the discretion of the judge. Although this duty is discretionary, the judge must award a proper amount of compensation in accordance with the law and justice (equity), observing the principle of equity set forth in Article 4 of the Civil Code. The reasons affecting the exercise of discretionary power must be explicitly shown in the judgment based on objective criteria, considering the special circumstances and conditions that may vary in each case.
REPUBLIC OF TÜRKİYE
COURT OF CASSATION
17th Civil Chamber
Basis No: 2016/4923
Decision No: 2016/4821
Date: 14.04.2016
COURT: … Civil Court of First Instance
JUDGMENT: At the end of the trial regarding the compensation lawsuit between the parties; upon the appeal by the plaintiff’s counsel and the counsel for defendant … against the judgment rendered for the partial acceptance and partial dismissal of the case for the reasons stated in the decision; the file was examined and requirements were considered:
– D E C I S I O N –
The Claim: The plaintiff’s counsel claimed that as a result of an accident between the motorcycle driven by the plaintiff and the vehicle owned, driven, and insured by the defendants, the plaintiff’s right heel was shattered. Following months of treatment, the plaintiff was unable to perform his military service and was discharged as unfit for duty. Reserving the rights regarding excess claims, the counsel requested a total of 20,000 TL in compensation (5,000 TL pecuniary and 15,000 TL non-pecuniary) to be collected jointly and severally from the defendants, with commercial interest running from the date of the accident (15/03/2010).
Local Court Decision: The court decided to partially accept the case, awarding 21,363.58 TL in pecuniary damages and 4,000 TL in non-pecuniary damages to be collected from the defendants.
Reversal Reason: Pursuant to the provision of Article 47 of the Code of Obligations No. 818 (Article 56 of the Turkish Code of Obligations No. 6098), the amount of money a judge decides to award as non-pecuniary loss, considering special circumstances, must be fair and just (adalete uygun). This amount is neither a compensation in the strict sense nor a penalty; rather, it aims to evoke a sense of peace in the injured party and soothe mental anguish.
In the concrete case, considering factors such as the severity of the plaintiff’s injury (shattered heel and being unfit for military service), the economic and social status of the parties, and the purchasing power of money as of the date of the incident, the amount of non-pecuniary damages awarded to the plaintiff is insufficient. A higher amount of non-pecuniary damages should have been awarded.
CONCLUSION: It was UNANIMOUSLY DECIDED on 14/04/2016 to REVERSE (BOZULMASINA) the judgment for the reason stated in point (2) above.