T.R.
Supreme Court
21st Civil Chamber
Docket No:2010/5301
Decision No:2011/12661
K. Date: 8.12.2011
The plaintiff requested a decision to pay the material and moral compensation arising from his disability as a result of a work accident.
The court decided to partially accept the request, as stated in its decision.
The verdict was given by the defendants V. Plastik San. Tic. Inc. After it was understood that the appeal request was in due time and after the report prepared by the Investigating Judge Sezai Öztürk and the papers in the file were read, the necessity of the matter was considered and the following decision was determined.
1- Rejection of the defendant’s appeal objections that are outside the scope of the following paragraph, based on the documents in the file, the evidence on which the decision is based and the legal reasons required,
2- The case is about the request for compensation for the material and moral damages of the plaintiff, who was permanently disabled as a result of a work accident.
The court partially accepted the request for financial compensation in the amount of 8,906.67 TL. 20,000.00-TL with partial acceptance of the request for material and moral compensation. It was decided to collect the moral compensation jointly and severally from the defendants and pay it to the plaintiff, together with the legal interest that will accrue as of 20.09.2005.
In the incident where the plaintiff suffered permanent disability at a rate of 10.3% as a result of a work accident that occurred on 20.09.2005, the plaintiff received 30%, 50% from the defendant upper employer V. Plastik ve Sanayi Ticaret A.Ş. and 50% from the defendant subemployer A. İnş. Building Materials Greenhouse Plastic Service. Nak. Singing. And Trade. Ltd. It is understood from the content of the file that Şti. is 20% at fault.
According to the provision of Article 47 of the Code of Obligations, an amount of money that the judge decides to give to the insured under the name of non-pecuniary damage, taking into account the special circumstances, must be fair. This money to be awarded has a unique feature that has a function similar to compensation that will provide spiritual peace to the person who suffered the damage. It is not a punishment, nor is it intended to compensate for damages related to property law. Therefore, the limit of this compensation should 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 feeling of satisfaction in the current situation. The special circumstances and conditions that will affect the amount of non-pecuniary compensation to be assessed are clearly shown in the justification of the Supreme Court of Appeals Jurisprudence Unification Decision No. 7/7 dated 22.06.1966. Since these may vary depending on each case, the judge, while exercising his discretion in this matter, must also accurately show the reasons that are effective in his decision, according to objective criteria.
While exercising this right of discretion, the judge should take into account characteristics such as the economic conditions of the country, the social and economic situations of the parties, the purchasing power of money, the fault of the parties, the severity of the incident, the date of the incident, and it is clear that moral compensation should be assessed at a rate that creates deterrence as well as satisfaction, in accordance with the approach in the developing law, considering that the incident was caused by the employer’s failure to take adequate worker health and safety measures. (HGK 23.06.2004, 13/291-370)
Considering these principles, 20,000.00 TL was awarded for the benefit of the plaintiff. Non-pecuniary damages are high.
3- In such cases, the amount of compensation consists of the sum of the earnings the worker will earn in the active and passive periods, based on his remaining life as of the report date. In other words, it is an established opinion of the Supreme Court that the worker’s daily net income will be determined and his earnings in the known period will be calculated without discounting or increasing by taking into account the current data, his earnings in the unknown period will be increased by 10% annually until the age of 60 and subject to a 10% discount, and after the age of 60, the earnings he will earn in the (passive) period as long as his remaining life will be calculated separately for each year without resorting to the average method.
Undoubtedly, in the method of calculating the announced compensation, if the worker has a high probability of receiving an old-age pension or working in the future and being entitled to an old-age pension based on the worker’s age and the rate of loss of earning capacity in the profession, the passive period should be included in the loss calculation. It is essential that a worker who becomes disabled as a result of a work accident will make more effort than other workers, even if he continues to work in the same job. Since he will earn the income after the age of 60 by making more effort than other workers, it cannot be assumed that he will not suffer losses due to his disability, which will continue during the period when he receives his old-age pension.
Moreover, the premiums received from the occupational disease and work accident branches have no effect on the old-age pension granted to the insured, and the pension is not granted entirely as a result of the premiums paid from the long-term insurance branches. For these reasons, it must be included in the loss calculation during the passive period and the calculation must be made on the basis of the minimum wage after the age of 60 until the balance life (in the passive period). The court’s acceptance that the plaintiff be included in the liability period in the damage calculation is However, it was incorrect to determine the passive period loss in the expert account report on which the decision was based, based on the old-age pension to be granted to the insured by the Social Insurance Institution as of the date of the report. In this case, it cannot be said that the account report is qualified to be used as a basis for the decision.
4- The case is about the request to compensate for the damage that is not covered by the Social Security Institution. For this reason, in order to prevent repeated payments and unjust enrichment, it is an established opinion of the Supreme Court that the compensation should be determined by deducting the income attributed to the right holders and the entire advance capital value from the calculated damage, taking into account the coefficient in force on the date closest to the date of judgment. It is understood that the court did not ask the Institution for the entire advance capital value calculated according to the increases determined on the date closest to the judgment date, in accordance with the Additional Article 38 added to the Law No. 506 with Article 16 of Law No. 4447, and it was not deducted from the calculated l
The work to be done; Pursuant to the Additional Article 38 added to Law No. 506 with Article 16 of Law No. 4447, asking the Institution for the entire advance capital value calculated according to the increases determined closest to the date of judgment, taking into account the wage increases determined at the date closest to the date of judgment, and deducting the declared amount from the compensation calculated on the basis of the minimum wage from the age of 60 until the remaining life (in the passive period), the plaintiff did not appeal the decision dated 16.11.2009. It consists of determining the material damage and deciding on an appropriate amount of non-pecuniary compensation, taking into account
The fact that the court made a written decision without considering these material and legal facts is against the procedure and the law and is a reason for rever
In that case, the defendant’s appeals aimed at these aspects should be accepted and the verdict should be overtur
CONCLUSION: The verdict is REVERSED for the reasons explained above, and the appeal fee can be paid to the defendant V. Plastik San. upon request. Tic. Inc. The extradition was decided unanimously on 08.12.2011.ned.sal. theoss.