According to Article 91 of the Highway Traffic Law No. 2918, “Operators are obliged to obtain financial liability insurance in order to ensure that their responsibilities under paragraph 1 of Article 85 of their Charter are met.” Every vehicle owner has the obligation to take out a traffic insurance policy for his vehicle.
These policies are issued to compensate for damage caused to physical or vehicle damage caused by the vehicle to third parties while the vehicle is cruising. In this case, the insurer who caused the accident while using his vehicle is responsible for compensating the damages caused to third parties or the damage caused by the insurer to the other party using the vehicle at the rate of its defect.
It should be noted that the fault of the driver involved in the accident should be looked at.If the driver of the accident and the driver of the other vehicle involved in the accident have a joint defect, each driver will ask the insurance company that issued the other's traffic insurance policy to cover the damage. Each insurance company will cover the damage of the driver of the counterparty at the rate of the defect of its insured. For example, two vehicles with X and Y plates were involved in accidents. The driver of the X-plate vehicle was found to be 30% and the driver of the Y-plate vehicle was found to be 70% defective. Accordingly, the insurance company of the parties will pay the resulting losses. Another point to note here is that insurance companies are responsible for material losses and vehicle drivers are responsible for moral damage.
In the event that during a traffic accident the person driving the accident and the owner of the vehicle are not the same persons, the owner of the vehicle,”The principle of perfect responsibility.” He is legally responsible as required.
The fact that the vehicle was involved in an accident while it was under someone else's control does not eliminate the responsibility of the car owner.
The person using the vehicle during the accident will be liable in accordance with the general provisions and its liability shall be limited to the extent of the defect in accordance with the general provisions, in accordance with the provisions of Article 49 of the Turkish Debt Law. In other words, in an accident caused by defects, the driver will be jointly and severally liable together with the owner of the vehicle and the insurer, to the extent of his own fault. The provisions of the contract that reduce/remove the liability of the injured party are invalid here.
If the owner of the car who is not a driver has covered the compensation after the accident, he has the right to reimburse the insurance company and the driver at the rate of his defect.
In this regard, some relevant articles in our law are as follows;
· Legal Liability of the Owner of the Business to which the Operator and the Vehicle Operator are Dependent:
Highway Traffic Law — Article 85/5
The owner of the enterprise, the operator and the vehicle operator, is responsible for the fault of the driver of the vehicle or helpers participating in the operation of the vehicle, as is his own fault.
· Responsibilities of the Man Employer
Turkish Debts Law — Article 66
The employee is obliged to compensate for the damage caused by the employee to others during the performance of the work assigned to him.
If the employee proves that he took the necessary care to prevent the occurrence of damage when selecting his employee, giving instructions on his work, conducting supervision and supervision,.
The person who employs a man in an enterprise is obliged to compensate for the damage caused by the activities of that enterprise, unless he proves that the working order of the enterprise is conducive to preventing the occurrence of losses..
The man who employs him has the right to pay compensation to the employee who caused the damage, only to the extent that he is personally liable.
· Liability in Debt Relations arising from Unfair Acts
Turkish Debt Law — Article 49
The person who caused harm to another person in a defective and unlawful act is obliged to compensate for this damage.
Even if there is no rule of law prohibiting the injurious act, the person who deliberately harms another by an immoral act is also obliged to compensate for that damage.
· Personality of Criminal Liability
Turkish Criminal Code — Article 20
Criminal liability is personal. No one can be held responsible for someone else's act.
PRECEDENT DECISION
Decision of the 11th Turkish Supreme Court of the Republic of Turkey No. 2003/13798 E. 2004/8129 K. dated 13.09.2004
“The lessee who rents a motor vehicle with a long-term lease agreement is considered to be the operator. This provision is a regulation introduced taking into account the principle of de facto domination and economic exploitation of the vehicle. It was not correct for the Court to decide on the liability of the defendant by considering that the mere title of proprietor was sufficient.
The case is a casco insurance claim based on Article 1301 of the TTK. Candan, one of the defendants, argued that the car that caused damage to his client was rented by his client for 6 months with a written lease agreement to rent a car company out of litigation, filed a criminal complaint with the bet because he did not return the car against this company, submitted written documents related to this, and listened to the witnesses of these defendants They confirmed the defense. On the grounds that there is an internal relationship between this defendant and his tenant outside the proceedings, the court has determined the liability of this defendant, taking into account the property status of this defendant.
However, according to the definition of an operator in Article 3 of the Highway Traffic Law No. 2918, a tenant who hires a motor vehicle with a long-term lease agreement is considered to be the operator. This provision is a regulation introduced taking into account the principle of de facto domination and economic exploitation of the vehicle.
Therefore, the court considers that the specific appeal of this defendant's representative must be assessed in the light of these statements and decided on the basis of its conclusion, while the mere proprietorship of this defendant is considered sufficient, and the written judgment based on incomplete examination and erroneous grounds was not correct.”
Judgment of the Supreme Court - 17th HD., E. 2015/9347 K. 2018/4033 T. 11.4.2018
At the end of the trial of the claim for damages between the parties; within the period of the judgment on partial acceptance of the case for reasons written in the decision, the defendant... the defendant... Upon appeal by the representative of Insurance AŞ, the file was considered the need to be examined:
K A R A R
Plaintiffs acting; client-plaintiff... ' On 15/08/2006, while driving with his wife and children in a vehicle belonging to him at 10:10pm on 15/08/2006, the driver... crossed the middle high lane of the divided road and fell on top of the vehicle operated by the client claimant...,... and his wife and child... The decision to jointly and severally collect the material compensation from the claimant together with the statutory interest from the date of the accident, the decision to collect the material compensation from the claimant together with the statutory interest from the date of the accident, the plaintiff after the accident that caused the injury caused the injury to the reputation, provided that the rights in respect of the excess are reserved... 24.000,00 TL due to the pain suffered by living in a vegetative life for a long time, undergoing surgery and treatment, being injured for a long time from work and strength, for being a social person 24,000,00 TL, for other claimants... 4,000,00TL for..., 2,000,00 TL for... from the date of the event of the moral compensation
demanded that a decision be made to collect jointly and severally from the defendants, with the exception of moral compensation from the insurance company, together with the legal interest that will be processed from the side of the insurance company.
Defendant... proxy; plaintiff... ' requested that no loss of income occurred due to the fact that he was a civil servant, that there was no loss of income during the treatment period, that the claims for material compensation be refused because he did not incur material damage, that the action at issue was an imputed action, that the client defendant suffered the greatest loss, and that there were no legal requirements for the claim for moral compensation.
Defendant... The representative of Sigorta A.Ş.; that the vehicle mentioned in the lawsuit petition and the vehicle mentioned in the lawsuit petition is insured to the client company with the Traffic Mandatory Financial Liability Insurance, that the client company is not responsible if the defect cannot be proven, and that the plaintiff applies to the client company only for vehicle damage, this application He demanded that he was paid 5,750,00 TL, which was the limit of the policy, that the client company had no other liability due to the car damage, and that the decision to dismiss the case against them was decided.
The defendant... claimed that he did not accept the action brought, that the compensation claimed was exorbitant, that there was no loss of earnings since the plaintiff was still in office, and that the decision be dismissed.
According to the court's claim, defense, evidence gathered and expert report adopted, the plaintiff... With the acceptance of the case regarding the claim for material compensation of fame, the defendants received a material compensation of PLN 125,974,02... ' From the defendant to the joint and indirect collection of the part of the amount of TL 12,249.00 you will receive from the date of the case, together with the legal interest that will be processed from the date of the accident and the part of the amount of TL 12,249,00 you will receive from the date of the case and the legal interest that will be processed from the date of recovery, limited to the policy limit by the insurance company, the plaintiff, the refusal of the action brought by... against the defendant... and the decision on the basis of a claim for pecuniary damages, since the claim for pecuniary damages filed by the plaintiffs... and... has been abandoned Due to the lack of space, with the partial acceptance of the action in respect of the claim for spiritual compensation brought by the plaintiff... the defendant of compensation of 10,000,00 TL... ' From legal to operate from the date of the accident
with the receipt and payment to the plaintiff, with partial acceptance of the actions for moral damages brought by the claimants... and..., the defendant, 1,000,000,000,00 TL in pecuniary damages... ' From the date of the accident, a decision is made to be given to the plaintiff and taken together with the legal interest that will be processed from the date of the accident; the judgment is made, the defendant... and the defendant... Appealed by the representative of Insurance Inc.
With the approval of provisional article 3/2 of HMK No. 1- 6100, the limit of certainty stipulated in Article 427 of HMK No. 1086 has been increased to TL 2,080,00 as of January 1, 2015.
The court has awarded damages of TL 1,000.00 for the plaintiffs Ahmet and... separately. Since the provisions concerning the appellants Ahmet and... were issued after the entry into force of the said law, they are conclusive in the case of the defendant. Just as a court decision may be made on the appeals of final decisions, the Supreme Court may decide to dismiss the appeal in accordance with the Decision on the Consolidation of Cases No. 3/4 of 1 June 1990.
2-There is no irregularity in determining the information and documents contained in the file, in the discussion and evaluation of the evidence based on the grounds of the court decision and, in particular, in the assessment of the defect rate specified in the expert expert report issued in accordance with the occurrence, and taking into account the special cases in Article 47 of the B.K. in the judgment of the claimant... According to the established rules of law, the defendant... with his deputy... It is necessary to decide on the rejection of any other appeal of the representative of Insurance Inc.
3- The case concerns the demand for compensation for material and moral damage suffered as a result of a traffic accident.
Article 59 of Law No. 6111 of 13.02.2011, which entered into force and published in the Official Gazette of 25.02.2011 at the time of the trial, and Article 98 of the Highway Traffic Law No. 2918 have been amended, according to which “the costs of health care offered by hospitals and other official and private health institutions connected to universities due to traffic accidents are the social security of the deceased Regardless of whether it will be covered by the Social Security Agency”, with the provisional article 1 of the Law also “Traffic accidents that occur before the date of the promulgation of this Law Social Security due to the health care costs offered
It is stipulated that the obligations of the insurance companies and the Assurance Account will cease for the period referred to by the Agency by transferring separately for a period of three years the amount to be determined by not more than 20% of the amount determined in accordance with article 59 of this Law for the health care costs in question for the health care costs in question”.
Article 91 of the Highway Traffic Law No. 2918 and Article A-1 of the General Conditions of Compulsory Liability Insurance, the insurer has caused the death or injury of a person during the operation of the vehicle specified in the policy No. 2918 Law that falls on the operator in accordance with the Highway Traffic Law No. 2918 liability is regulated, which will ensure up to the limits of compulsory insurance. According to the Highway Traffic Law, it is mandatory to obtain compulsory financial liability insurance.
The insurance company necessarily covers expenses paid for the treatment of those who were injured by the accident caused by the operation of the motor vehicle. This obligation of the insurance company, the operator and the driver, arising from the law and the contract, is terminated by the regulation introduced by law No. 6111. There is no doubt that the responsibility for the treatment expenses specified in Article 98 of Law No. 2918 passes to the Social Security Institution out of litigation. On the other hand, the liability of the insurance company, the operator and the driver for the expenses of treatment without documentation remains.
According to the legal regulations described above, the legal adversary in the case at hand must be the “Social Security Institution”, since the responsibility for the treatment expenses specified in Article 98 of Law No. 2918 passes to the “Social Security Institution”.
According to the legal regulations described above, with the amendment of the law that came into force after the case in hand on 02.01.2008, the responsibility for the treatment expenses specified in Article 98 of the Highway Traffic Law No. 2918 passes to the Social Security Agency, since the legal adversary in the present case must be the Social Security Institution.
The court ordered a treatment cost of 4,057,10 TL, with and without documents. It cannot be decided by incomplete examination. In this case, the court is presented with all treatment documents belonging to the plaintiff, in accordance with article 98 of the Highway Traffic Law No. 2918 of the Highway Traffic Law No. 2918 on the treatment expenses claimed by the plaintiff by obtaining a detailed, reasoned and auditable report from the expert doctor expert.
It was not considered correct to determine the remaining and those that are the basis for the responsibility of the Social Security Agency, if necessary, to involve the Social Security Agency in the case and to continue to prosecute, and that the respondent's insurance company and the defendant Drivermurat should be held responsible for treatment expenses that are outside the scope of the law.
4- Today, in practice, it is recognized that compensation will be necessary for the loss of physical strength caused by the person's permanent disabilities, even if there is no decrease in the person's income and therefore in his property, and this is called “compensation for the loss of strength” (effort). Proceeding from the fact that the person who suffers the loss of physical strength does the same work before the injury and with greater effort than other people, it is considered that the harm is in some sense constituted by this extra expended power.The person who suffers an accident does not have a permanent disability, receives treatment for a while, cannot work until he is cured, and therefore works and earns Loss of work is called temporary incapacity for work. The compulsory financial liability insurer, driver and operator are also responsible for the loss of income incurred during the period of the person's work and power due to material damage suffered as a result of a traffic accident.
In the concrete case, the plaintiff filed a claim for material compensation due to a traffic accident that caused his injury. As can be seen from the available documents in the file, the plaintiff... He works as the Deputy Director at Anadolu Technical and Industrial High School... According to the letter of the National Education Directorate of Kaymakamları District dated 02.06.2010, the plaintiff continued his position as deputy director and continued to receive his salary during the treatment period. A temporary disability compensation of TL 7,435.80 was also determined in the calculation made in the expert report based on the court ruling, which was not based on the additional tuition fee. It is understood from the information and documents in the file that the plaintiff continues to receive his salary during the recovery period. It is possible that the plaintiff, who is the deputy principal, is deprived of additional income during this period, such as additional tuition and course fees. Therefore, the court should determine this amount by identifying additional income that can be proved to be deprived during the period of temporary incapacity for work. It should be borne in mind that the damage on the part of the plaintiff consists of side payments, such as additional tuition and course fees if he is unable to work during the period when he is unable to work. In this case, the court is deprived of the institution in which the plaintiff worked on the date of the accident during the period when the plaintiff was unable to work
It was not considered correct not to observe that it should be decided on the basis of the result by asking whether there is a profit left.
5-According to the agreement; the policy limit of the defendant insurance company is 57.500,00 TL and the court has awarded a total of 125,974,02 TL in material compensation and it has been decided that the liability of the insurance company is limited to the amount of the policy, in accordance with clause B.2.b of the General Conditions of Compulsory Financial Liability Insurance, the defendant has imposed it on the insurance company while the cost of the trial must be determined in proportion to the amount to which the fee and the attorney's fee are liable, the insurance company is jointly and severally liable for the entire cost of the trial, fee and attorney's fee The eclipse was not seen correctly.
CONCLUSION: For the reasons described in subsection (1) above, the defendant... has to reject the appeal petition of the deputy... due to the fact that the provisions concerning the plaintiffs Ahmet and... are individually precise, and the defendant... and the defendant... with his deputy for the reasons described in subsection (2)... The defendant, for the reasons described in subparagraphs (3) and (4), is denied by the representative of Insurance A.Ş., the representative and the defendant... For the reasons described in paragraph (5) of the representative of Insurance Co., the defendant... With the acceptance of the appellate objections of the representative of Sigorta A.Ş. the judgment... and the defendant... Defendants who appeal against the DEGRADATION in favor of Insurance A.Ş. on request of the fee received... and... Insurance Inc. ' It was decided unanimously on 11.04.2018 to return it to the EU.
CONCLUSION
Such legal disputes are issues that need to be overcome with the help of an expert and are important to take the necessary steps within the knowledge and guidance of expert lawyers.