T.C. SUPREME
10.Legal Department

Mainly: 2014/741
Decision: 2014/26102
Decision Date: 09.12.2014

CLAIM FOR DAMAGES – IT IS NECESSARY TO DETERMINE THAT THE INSTITUTION WILL RECEIVE RECOURSE AS A RESULT OF COMPARING THE AMOUNT OF INCOME VALUED IN THE FIRST ADVANCE CAPITAL BY CALCULATING THE ACTUAL AMOUNT OF LOSSES – VIOLATION OF THE PROVISION

Abstract: by calculating the actual amount of losses, the First Advance Capital should be decided according to the result that will be generated after determining that the institution will receive recourse as a result of comparing the amount of valuable income. By the court, ignoring these material and legal facts, the establishment of a provision is contrary to procedure and law and is the cause of violation.

(5510 P. K. m. 21, 76) (6100 P. K. m. 297) (818 S. K. m. 141, 142) (6098 P. K. m. 162, 167)

Case and decision: case, income and other payments related to the insured who enters a state of permanent incapacity as a result of an accident at work 21 of law 5510. and 76. it’s about asking for compensation.

The court has decided to accept the case.

After the decision was appealed by the representatives of the parties, it became clear that the appeal request was in duration and the report organized by the examination Judge Ebru Pakin Akin and the papers in the file were read, the work was considered necessary and the following decision was determined.

1-297 Of The Code Of Civil Procedure. “in the conclusion part of the provision, without repeating any words of justification, the debt and recognized rights imposed on the parties by the provision given on each of the claims must be shown, if possible, in a way that does not arouse clear, doubt and hesitation under the ordinal number”, the provision provides. The fact that the provisions are free from conflict and conducive to execution is related to public order.

Contrary to the said provision, it is stated that the acceptance of TL 34.825,42 was decided in the provision section, but the total of the accepted items does not reach this amount, since the provision that the amount reclaimed in accordance with the 80% defect is accepted is wanted to be established, while the costs and payments that constitute the loss of the institution are written in detail at the rates of 10% requested by the petition of the lawsuit is not accurate.

2-fiduciary liability, as a rule, each of the borrowers, 141 and 142 of the Code of Obligations. articles (6098 BC md. 162) is responsible for the entire debt, according to 146 of the same law. article (6098 BC md. 167), the responsible have the right to appeal to each other according to the rate of defect in the internal relationship. In a concrete case, the defendants are Meram Municipality and T.. Shoe Mak. Nak. Renown. ve tic. Co. Although the court’s admission that shti was responsible for a total of 75% for the occurrence of a damaging insurance event is accurate, it has not been determined how many percent of the defendants were defective in the occurrence of the event in this rate.

3-the legal basis of the case is the Social Insurance and General Health Insurance Law No. 5510, which was in force on 07.02.2009 and entered into force on 01.10.2008.

21 of the law No. 5510 entitled “The responsibility of the employer and third parties in terms of occupational accident and occupational disease and disease”. according to the article; Occupational accident and occupational disease, employer’s intent, or the protection of the health of the insured has occurred as a result of any breach of work safety regulations if the insured or the authority to the rightful owners or in the future payments to be made pursuant to this act that is connected with the value of the capital sum insured after the first of the year or the income of the beneficiaries being limited to the amount the employer can request from the authority, the employer is odettirili. In accordance with the said article, the liability of the responsible for compensation to the institution is limited by a ceiling, and this liability is “…limited to the amounts that the insured or rights holders can request from the employer…”. In the face of the clear provision of the article; in order to determine the possible part of the compensation of the first Advance Capital valuable income for the benefit of the institution, it is necessary to account for the actual loss ceiling.

By calculating the actual amount of losses, the first advance capital must be decided according to the result that will be generated after determining that the institution will receive recourse as a result of comparing the amount of valuable income.

By the court, ignoring these material and legal facts, the establishment of a written provision is contrary to the procedure and law and is the cause of violation.

In that case, the appeals of the deputies of the party aimed at these aspects must be accepted and the provision must be broken.

Conclusion: the decision was made unanimously on 09.12.2014, to overturn the provision for the reasons described above, to return the appeal fee to the defendants on request.