02 Mar THE DECISION THAT THE INSTITUTION’S RECOURSE SHOULD BE DETERMINED AS A RESULT OF COMPARING THE AMOUNT OF THE FIRST ADVANCE CAPITAL-VALUED INCOME BY CALCULATING THE ACTUAL AMOUNTS OF LOSSES
T.C. THE DECISION OF THE SUPREME COURT
10.law office
Base: 2014/741
Decision: 2014/26102
Date of Decision: 09.12.2014
COMPENSATION CASE – IT IS NECESSARY TO DETERMINE THAT THE INSTITUTION WILL RECEIVE A RECOURSE AS A RESULT OF COMPARING THE AMOUNT OF THE FIRST ADVANCE CAPITAL-VALUED INCOME BY CALCULATING THE AMOUNTS OF ACTUAL LOSSES – VIOLATION OF THE PROVISION
SUMMARY: The actual amounts of losses should be calculated and decided according to the result that will be obtained after determining that the Institution will receive a recourse as a result of comparing the amount of initial capital value income. The establishment of a judgment by the court, ignoring these material and legal facts, is contrary to the procedure and law and is the reason for deconstructing it.
(5510 P. K. m. 21, 76) (6100 P. K. m. 297) (818 P. K. m. 141, 142) (6098 P. K. m. 162, 167)
Case and Decision: The case is determined by Article 21 of the Law No. 5510 on income and other payments related to the insured person who is constantly in a state of incapacity for work as a result of an occupational accident. and 76. it is related to the request for compensation by articles.
The court has decided to accept the case.
After the decision was appealed by the parties’ deputies, it became clear that the appeal request was in due course and the papers in the file were read with the report prepared by the Audit Judge Ebru Pakin Akin, the need for the work was considered and the following decision was determined.
1- Article 297 of the Code of Civil Procedure. in its article, the provision ”in the conclusion of the provision, it is necessary to demonstrate the debts and recognized rights imposed on the parties by the provision made on each of the claims, if possible, clearly, under the ordinal number, so as not to arouse doubt and hesitation”, without repeating any mention of the justification, is provided for. The fact that the provisions are far from contradictory and conducive to execution is related to public order.
Contrary to the aforementioned provision, it is stated that it was decided to accept TL 34,825.42 in the provision section, but the total of accepted items should not reach this amount, because it is desirable to establish a provision that the amount corrected according to the 80% defect has been accepted, while trying to specify in detail the costs and payments that constitute the institution’s losses, it is incorrect to write off the 10% rates requested by the lawsuit petition.
2- In case of fiduciary responsibility, as a rule, each of the debtors is obliged to comply with Articles 141 and 142 of the Code of Obligations. according to the articles (BK Art. 6098. 162) according to Article 146 of the same Law, he is responsible for the entire debt. article (BK Art. 6098. 167), the responsible persons have the right of recourse to each other according to the defect rate in the internal relations. In the concrete case, Meram Municipality and T.. Shoe Mak. Nak. Renown. and tic. Ltd. Although the court’s acceptance that Sti is responsible for a total of 75% of the occurrence of a damaging insurance event is accurate, it has not been determined how many percent of the said defendants were found to be at fault in the occurrence of the incident within this ratio.
3- The legal basis of the case is the Social Insurance and General Health Insurance Law No. 5510, which was in force on the date of the work accident dated 07.02.2009 and entered into force on 01.10.2008.
21 of the Law No. 5510 entitled “Liability of the Employer and Third Parties in Respect of Occupational Accidents and Occupational Diseases and Diseases”. according to the article; Occupational accident and occupational disease, employer’s intent, or the insured as a result of any breach of the protection of Health and safety at work regulations has occurred, the insured or to the authority pursuant to this act or in the future payments to be made to the rightful owners that is connected with the capital sum insured or the value of the income after the first year of the beneficiaries may request from the employer on the amount being limited to, the authority is the employer odettirili. According to this article, the liability of the compensation officers to the Company is limited by a ceiling and this liability is “…limited to the amounts that the insured or the right holders can request from the employer …”. In the face of the explicit provision of the article; In order to determine the possible part of the first advance capital value income, compensation for the benefit of the Institution, there is an obligation to make a real loss ceiling account.
By calculating the actual amounts of losses, it should be decided according to the result that will be obtained after determining that the Institution will receive a request as a result of comparing the amount of income with the initial capital value in advance.
The establishment of a written judgment by the court, ignoring these material and legal facts, is contrary to the procedure and law and is the reason for deconstructing it.
In that case, the appeals of the party’s deputies aimed at these aspects must be accepted and the provision overturned.
Conclusion: It was unanimously decided on 09.12.2014 that the judgment should be OVERTURNED for the reasons described above, and the appeal fee should be returned to the defendants upon request.
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