17 Sep ALTHOUGH THE RATE OF PERMANENT ICAPACITY AS A RESULT OF AN OCCUPATIONAL ACCIDENT IS ZERO, THE EMPLOYEE DESERVES MORAL COMPENSATION
21. Civil Department
Base Number: 2018/920
Decision Number: 2019/886
“text of jurisprudence”
COURT: Labour Court
ON BEHALF OF THE TURKISH NATION
The plaintiff requested that it be decided to pay material and moral compensation arising from his disability as a result of an occupational accident. The Court complied with the violation and decided to reject the request as stated in the declaration. Upon appeal of the decision by the plaintiff’s deputy, the papers in the file were read with the report organized after it became clear that the appeal request was in time, the work was considered necessary, and the following decision was made.
DECISION
The file is in the writings, collected evidence, and the reasons on which it is based gerektirici scope of the objection that according to the cause, the plaintiff appeals following the denial that fall outside the scope of the clause is the poet of appeal, the case was dated 11/01/2012 zararlandirici permanent job as a result of the insured event the insured who goremezlig material and moral damages is related to the prompt. It is understood from the scope of the file that the plaintiff is permanently incapacitated by 0% as a result of an occupational accident, and that the plaintiff insured person was defective by 20% and the defendant employers were defective by 80% at the time of the occupational accident. The court decided to reject the claimant’s request for financial and moral compensation due to the lack of disability.
1-Compensation cases arising from work accidents are qualitatively related to the request for the elimination of damage not covered by the Social Security Institution.
From the scope of the file, it becomes clear that the court reached a conclusion by ignoring the fact that the plaintiff insured person could not work for a while due to the work accident subject to the lawsuit, and that a loss of wages arose in terms of these periods dec the plaintiff remained at rest.
18 Of the Law No. 5510 by the Institution, as long as the insured person is temporarily incapacitated due to an occupational accident or occupational illness. in accordance with the article, temporary incapacity benefit is paid. This allowance is paid in case of occupational accidents, occupational diseases, as long as the treatment remains inoperative (reported) from the date of commencement. Income that the insured person lacks during the period when he is unable to work in the temporary incapacity for work circuit is also covered by material damage caused as a result of an occupational accident. It is clear that the insured person who cannot work during the reported period will have a loss as well as the salary that he lacks during this period, and this loss should also be considered as a material loss. The material damage of the insured person during the periods when his treatment continues due to the damaging event and he cannot work should be made in accordance with the acceptance that he has suffered a 100% loss of labor force during this period. Expert temporary incapacity allowance to be paid to the insured as detected through and SSI financial loss if you have to be obtained by deducting the calculated result of this section, subject to recourse financial loss period called the period of temporary incapacity of the damage will reveal unmet istirahatli dig in. As it happens, the decision of the Court to reject the request for financial compensation with written justification without calculating the loss of wages that the plaintiff, whose permanent incapacity rate is”0%”, was deprived of during his rest (reported) period was not correct according to the procedure and the law. The work to be done consists of making the plaintiff 100% disabled during the reporting period and having the financial loss calculated to the expert and evaluating all the evidence together and making a deci-sion based on the recognition that he has a loss as well as his salary that he has been deprived of due to his inability to work during this period.
2-On the other hand, there is no need for mulga B.K. 47 and T. 6098, both applicable.B.K’s 56th. in its article, it is stipulated that the judge may decide that if the bodily integrity of a person is damaged, taking into account the characteristics of the incident, a suitable amount of money should be paid to the injured person in the name of moral damage. The amount of money that the judge will decide to give to the injured person in the name of moral damage, taking into account the specifics of the incident, should be appropriate for justice. This money to be ruled has an original quality with a function similar to compensation that will bring about spiritual peace in the person who has suffered damage. As there is no penalty, Mamelek has not intended to cover the damage related to the law. In that case, the limit of this compensation should be determined according to its purpose. The amount to be appreciated should be as much as necessary to achieve the effect of the desired sense of satisfaction, which is achieved in the current state. the special circumstances and conditions that will affect the amount of moral compensation to be appreciated in the justification of the Decision of the Court of Cassation No. 7/7 of 26.06.1966 and the Case Law No. 7 are also clearly shown. Since these may vary depending on each case, the judge should show the reasons that affect him when using his discretion in this matter in a precise manner according to objective measures at the decision site. When using this discretion of the judge, the economic conditions of the country, the social and economic conditions of the parties, the purchasing power of money, the state of defect of the parties, the weight of the incident, the plaintiff’s constant incapacity for work, the age of the employee, the date of the incident, the amount to be decided should be at a rate that causes a sense of moral satisfaction as well as a deterrent. In accordance with these explanations, in a concrete case, even if the plaintiff, who is constantly incapacitated by 0%, is not permanently incapacitated, will feel sadness and anguish, violation of mental integrity, nervous disorder is also included in the concept of bodily harm, while receiving treatment, an appropriate amount of moral compensation should be decided, while it was not correct for the court to reject the request for moral compensation. The decision of the court in writing, without taking into account these material and legal facts, is contrary to procedure and law and is the reason for the violation. In that case, the plaintiff’s appeals aimed at these aspects should be accepted and the judgment should be overturned.
CONCLUSION: The VIOLATION of the provision for the reasons described above was unanimously decided on 12/02/2019.
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