Summary: Even if they are the heirs of the deceased, the right holders who have the status of “third parties” in terms of insurance policy coverage may request pecuniary damages from the insurance company. At this point, the fact that the deceased driver or the operator (işleten) was at fault does not change the result.
REPUBLIC OF TÜRKİYE
COURT OF CASSATION
17th Civil Chamber
Basis No: 2011/4489
Decision No: 2012/7609
Date: 11.06.2012
COURT: … Civil Court of First Instance
JUDGMENT: Upon the appeal by the plaintiffs’ counsel against the judgment rendered for the dismissal of the case regarding the compensation lawsuit between the parties; the file was examined and requirements were considered:
– D E C I S I O N –
The Claim: The plaintiffs’ counsel claimed that the plaintiffs’ son/daughter (murisi) R., who was a passenger in a vehicle insured by the defendant EGS Insurance under a Mandatory Financial Liability Insurance (ZMSS) policy, deceased in an accident. The counsel requested loss of support compensation (destekten yoksun kalma tazminatı) for the mother and father, totaling 36,618 TL following an amendment (ıslah).
Defense: The defendant insurance company requested the dismissal of the case, arguing that the deceased was the operator (işleten) of the vehicle and therefore compensation could not be claimed.
Local Court Decision: The court dismissed the case on the grounds that the deceased was the owner of the vehicle, could not be considered a “third party,” and the Mandatory Financial Liability Insurer is not liable for indirect (reflex) damages.
Reversal Reason: The lawsuit concerns a request for loss of support compensation arising from a traffic accident.
It must be accepted that the plaintiffs filed the lawsuit not merely as the heirs (mirasçı) of the deceased, but as third parties (üçüncü kişi) deprived of support. The fault in the occurrence of the loss of support—which is a direct damage arising upon the plaintiffs due to death—cannot be reflected upon the plaintiffs.
Therefore, even if the driver or the operator is fully at fault, this shall not affect the plaintiffs who are deprived of support. According to the Highway Traffic Law No. 2918 and the General Conditions of Mandatory Financial Liability Insurance, the insurer covers the damages caused by the operator to third parties. Since the plaintiffs deprived of support are in the position of injured third parties, the court must accept the liability of the insurance company. (The decisions of the General Assembly of Civil Chambers dated 15.06.2011, No. 2011/17-142 and 22.02.2012, No. 2011/17-782 are also in this direction).
Establishing a judgment for the dismissal of the case with written justifications instead of evaluating the evidence was not correct.
CONCLUSION: It was UNANIMOUSLY DECIDED on 11.06.2012 to REVERSE (BOZULMASINA) the judgment.