FORMATION OF THE RIGHT TO NON-PECUNIARY COMPENSATION DUE TO LOST LUGGAGE- SUPREME COURT DECISION

09 Apr FORMATION OF THE RIGHT TO NON-PECUNIARY COMPENSATION DUE TO LOST LUGGAGE- SUPREME COURT DECISION

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General Assembly of the Supreme Court of Cassation on the Law base: 2001/11-1161, Decision: 2001/1152, Date of Decision: 12.12.2001

ABSTRACT: It is also evident from the plaintiff’s open acceptance before the court that the defendant is responsible for the loss of the clothes that the plaintiffs plan to wear during the trip and the items that they plan to use. From the point of view of the elements of moral compensation, there should be no doubt how demoralizing the plaintiffs will be if they stay in a foreign country with their clothes on from the first day for the purpose of rest, sightseeing, cultural activities. Moreover, considering the activities they intended from the trip, considering that they require special clothes such as opera and ballet, it is appropriate for the usual flow of life that this depression gradually turns into pain and suffering. In this regard, the plaintiffs’ loss has ceased to be a loss related to their assets, and it has now manifested itself as a loss of business benefits.
It should be stated immediately that the fine decimation between the concepts of personal benefit being prejudicial and damage related to the asset should not be overlooked. The determination of this limit should be within the legal limits. The point that requires moral compensation here is the loss of moments of personal importance that will not be repeated again due to the fact that these items will not be used beyond the sadness caused by the loss of the items. This is the shaking that this will create in the human spirit world.

(743 Pp. K. m. 24) (818 p.K. m. 49, 98) (HGK. 11.4.2001 T. 2001/15-331 E. 2001/340 K.) (GCM. 13.6.2001 T. 2001/15-498 E. 2001/508 K.)
Case: At the end of the trial for the case of “material and non-pecuniary compensation” between the parties; Istanbul Asliye 3. Dec. On the request of the deputy plaintiffs to examine the decision No. 1174-1394 of 29.12.1999 issued by the Commercial Court on the rejection of the case, the Court of Cassation 11. According to the Law Department’s decree of 1.5.2000 days and No. 2691-3732, (… The deputy plaintiffs, their clients with very high living standards are excluded from the case P. according to the agreement they have agreed with the company, they are moving to Prague with defendant Airlines for a four-day Prague vacation that they will make; however, because their suitcases were lost on this trip, they did not participate in activities that required clothes and had an unhappy holiday, suggesting that they had a total of $ 1,520 in material and $ 7,750,000,000. he demanded and sued the defendant for collection with interest on non-pecuniary damages.
The defendant’s deputy asked for a dismissal of the case, arguing that there were no conditions for seeking non-pecuniary damages.
According to the evidence collected by the court, it was decided that there is no room to make a decision on the request for material compensation, and the request for moral compensation was rejected on the grounds that material compensation was paid at the trial stage, and the conditions for non-pecuniary compensation were not established.
The decision was appealed by the acting plaintiffs.
The plaintiffs claimed that they had suffered sadness and distress especially in the country they were going to due to the loss of their clothing items, while the defendant party paid the portion of the request for financial damage at the trial stage and accepted responsibility for the loss of the clothes that the plaintiffs planned to wear during the tour. In this case, the court is required by BK.’s 49 by considering the conditions comply with the requirements of nonpecuniary damages occur to a proper amount should be for the benefit of the plaintiffs, while the provision has not been seen in written form in the facility for the benefit of the plaintiffs, therefore, had the decision corruption…) grounds is disrupted, and the file is translated back into place with a newly rebuilt in the trial court’s decision to stand by the previous one.
Appellant: Acting plaintiffs
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, it was considered necessary:
Verdict: The case concerns the claim for material and non-pecuniary damages arising from the air transport contract.
Deputy plaintiffs, the program of their clients, whose living standards are very high, who love travel very much and attach great importance, is out of the case for culturally weighted Prague travel, P. the company signing an agreement with the defendant in accordance with this Agreement and with the airlines move to Prague, but for this 5 day trip taking private belongings and clothes in the luggage is lost and cannot be found because of any programmed at the beginning of the trip attending a cultural event, planned months in advance, so your dream vacation become a nightmare, discomfort, distress, pain, and passed with psychological disorders; material 1.520 US dollars, total 7.750.000.000 TL. he asked that it be decided that the moral compensation should be taken from the defendant with interest and that the summary judgment should be published in three daily newspapers with a high circulation.
The defendant’s deputy, having accepted the claim for material compensation, made a payment, but there were no conditions for requesting moral compensation, argued for the rejection of the case.
Since the material compensation was paid by the court at the trial stage, there was no place for the establishment of a judgment due to the fact that the case related to this remained uncontested, the refusal of the moral compensation was decided because the legal conditions were not formed, the decision was overturned by the special department on the appeal of the plaintiffs’ attorney from the point of moral compensation, the court resisted the previous decision. The decision to resist was appealed by the plaintiffs’ deputies.
The dispute is at the point of non-pecuniary compensation. First of all, it is useful to determine and examine the facts on which the plaintiff’s claim for non-pecuniary damages is based when going to a settlement.
The basis of the claim for moral compensation in all petitions of the plaintiff in the cases and stages is expressed not only in the loss of the item, but also in the loss of lost and irreparable moments that cannot be repeated.
The basis of the relationship between the parties is the air dec contract. In addition to delivering the passenger to the destination within the scope of this contract, it is also included in the safe transportation of the accompanying items of the passenger. This issue has been determined by international rules and special arrangements have been made in terms of material compensation. As for moral compensation, the solution of the work depends on the relevant provisions of the code of Obligations, which is the National Law.
First of all, it should be noted that Article 98 of the Code of Obligations. article 2. in its paragraph, the provision ”provisions related to liability of trustees for torts are also applied to opposition movements in the contract in comparison” is included, and it is accepted that moral compensation may also be provided for acts contrary to the contract with this provision. This fact is in accordance with the law and the established jurisprudence of the Supreme Court, which can be applied, as well as the dominant views formed in this direction in the teaching.
However, the mere existence of a violation of the contract is not sufficient for the acceptance of a claim for moral compensation, and also due to the nature of the violation or due to special circumstances and circumstances, the plaintiff’s personal rights are subject to Article 24 of the Civil Code. article 41 of the Code of Obligations in terms of damage and therefore in one aspect. in the sense of its article, it must be an unfair action.
Today’s conditions reveal the need to consider the concept of an attack on the rights of a person and the undermining of these rights in a multifaceted way. Because developments in the field of communication, transportation, technology and priorities in everyday life have made personality rights even more important and, in a way, have narrowed the protection shield considerably. Accordingly, the protection of personality rights has become increasingly important. It is seen that legal approaches to further expand the boundaries of non-pecuniary compensation have also emerged as a result of this.
Considering the concrete event in the light of these explanations, it is also evident from the plaintiff’s open acceptance before the court that the defendant is responsible for the loss of the clothes that the plaintiffs plan to wear during the trip and the items that they plan to use. From the point of view of the elements of moral compensation, there should be no doubt how demoralizing the plaintiffs will be if they stay in a foreign country with their clothes on from the first day for the purpose of rest, sightseeing, cultural activities. Moreover, considering the activities they intended from the trip, considering that they require special clothes such as opera and ballet, it is appropriate for the usual flow of life that this depression gradually turns into pain and suffering. In this regard, the plaintiffs’ loss has ceased to be a loss related to their assets, and it has now manifested itself as a loss of business benefits.
It should be stated immediately that the fine decimation between the concepts of personal benefit being prejudicial and damage related to the asset should not be overlooked. The determination of this limit should be within the legal limits.
The point that requires moral compensation here is the loss of moments of personal importance that will not be repeated again due to the fact that these items will not be used beyond the sadness caused by the loss of the items. This is the shaking that this will create in the human spirit world.
This approach to moral compensation was also adopted in the resolutions of the General Assembly of the Law dated 11.4.2001 and numbered 2001/15-331 Basis, 340 Decision; dated 13.6.2001 day and numbered 2001/15-498 Basis, 2001/508 Basis, 11.4.2001 day.
It was not considered correct to resist the old decision on the grounds that the request was considered limited only to sadness caused by the loss of belongings, and this did not fall into the concept of prejudice to personal benefits, while the decision to disrupt a private apartment should be complied with on the grounds described. The decision must therefore be overturned.
Conclusion: It was decided unanimously on 12.12.2001 that the decision to resist would be OVERTURNED by the acceptance of the appeals appeals of the plaintiffs’ deputy in the special chamber decision to overturn and for the reasons shown above, and that the advance fee of the appeal would be refunded if requested.