Individuals who have suffered bodily harm, such as death or injury, or property damage as a result of a traffic accident can file a lawsuit for material and moral damages against those responsible for the accident.
However, with the changes made to the legislation and general insurance terms in 2016, the injured party is now required to submit a written application to the relevant insurance company and provide the documents specified in the general terms and conditions of compulsory financial liability insurance to one of the insurance company’s headquarters or branches before resorting to legal action, within the limits stipulated in the compulsory financial liability insurance.
If the insurance companies do not respond to the application in writing within 15 days of the application date, or if there is a dispute regarding whether the response meets the claim, the injured party can then file a lawsuit in court.
One of the important aspects in the litigation process is that when calculating the material damage suffered by a person who has become disabled/incapacitated as a result of a traffic accident, the percentage of disability suffered is not taken into account; rather, the percentage of incapacity/loss of earning capacity resulting from this disability is taken into account. The disability report must be prepared in accordance with the Regulation on the Determination of the Rate of Loss of Working Capacity and Earning Capacity in the Profession. In the precedents set forth by the Supreme Court, reports prepared in accordance with the Regulation on the Determination of the Rate of Loss of Working Capacity and Earning Capacity in the Profession are taken as the basis for calculating material damages.
An example Supreme Court decision on the subject:
(T.C. SUPREME COURT 17TH CIVIL CHAMBER E. 2014/5946K.) Case No. 2014/5222K.T. 7.4.2014
“Following the trial of the appeal against the annulment of the objection between the parties; upon the appeal filed by the defendant’s attorney within the time limit against the judgment partially accepting the case for the reasons stated in the decision, the file was examined and the following was considered:
-DECISION-
The plaintiff’s attorney stated that their client, D. H., who was in the vehicle owned by the defendant S. K., was injured and suffered a 48% disability as a result of a single-vehicle traffic accident, and that they made a payment for D. H., who was injured and disabled in the accident, due to the defendant’s vehicle not having traffic insurance at the time of the accident. They requested the annulment of the objection to the enforcement proceedings initiated for the recovery of this payment from the defendant, the continuation of the proceedings, and a decision for compensation for denial of enforcement.
Defendant S. K., despite the vehicle involved in the accident being registered in his name…” The defendant argued for the dismissal of the case, stating that he was neither the operator nor the possessor of the vehicle, that he had sold it through an external sales contract prior to the accident, that he had no involvement in the accident, that those injured in the vehicle were passengers, and that the vehicle was not for commercial use but should be considered as a gratuitous transport. The attorney for the notified party, D. H., argued for the dismissal of the case, stating that there was no legal basis for the notification.
Based on the evidence gathered by the court and the entire case file, the court partially accepted the case and decided to continue the enforcement proceedings, rejecting the objection to the debt in the Tirebolu Enforcement Directorate’s file number 2012/457; the judgment was appealed by the defendant’s attorney.
1- Based on the information and documents in the file, and considering that there is no procedural or legal irregularity in the discussion and evaluation of the evidence relied upon in the court’s decision, the defendant’s attorney’s other appeals, excluding those covered in the following paragraph, are rejected.
2- The case concerns compulsory financial liability insurance. This case concerns the request for the annulment of the objection to the enforcement proceedings initiated to recover the permanent disability compensation paid by the plaintiff G. H. to D. H., who was injured in a unilateral traffic accident while the vehicle registered in the defendant’s name, which did not have insurance, was being driven by the non-party driver A. A., and the request for the continuation of the enforcement proceedings.
According to established Supreme Court jurisprudence, in calculating the material damage suffered by the non-party victim D. H., who was injured and disabled in a traffic accident while working, the percentage of disability resulting from this injury, in other words, the percentage of loss in working and earning capacity, should be taken as the basis, not the percentage of disability itself.
The disability health board report obtained from Giresun Prof. Dr. Ö. State Hospital, which was used as the basis for the court’s judgment, stated that the non-party victim D. H.’s loss of bodily function was 73%, and that 48% of this was due to the traffic accident. The report included the “Procedures for Determining the Percentage of Loss of Working Capacity and Earning Capacity in the Profession”. It is not stated that the criteria stipulated in the regulation were taken as a basis. However, the report regarding permanent disability should be prepared in accordance with the Regulation on the Determination of the Rate of Loss of Working Capacity and Earning Capacity in the Profession, based on the accident date of November 21, 2011.
In this case, the court should have obtained a new report from the 3rd Specialization Department of the Forensic Medicine Institute regarding the disability of D.H., who is not a party to the lawsuit, to determine the rate of incapacity to be used as the basis for calculating the damages according to the criteria stipulated in the Regulation on the Determination of the Rate of Loss of Working Capacity and Earning Capacity in the Profession, and should have made a decision based on the result of this report. However, the decision was made based on a medical board report that was insufficient to establish a judgment, which is deemed incorrect.
CONCLUSION: For the reasons explained in paragraph (1) above, the other appeals of the defendant’s attorney are rejected; for the reasons explained in paragraph (2) above, the appeals of the defendant’s attorney are accepted and the judgment is REVERSED; the advance court fee shall be returned to the appealing defendant upon request. The decision was made unanimously on April 7, 2014.