in 2010, the local court ruled in favor of the casualty, whose heel was shattered in a traffic accident, 4.000-TL moral compensation, but the Supreme Court overturned the local court’s decision by ruling that the amount of moral compensation was small for reasons such as the degree of injury to the plaintiff, the economic and social situation of the parties, the purchasing power of money according to the date of the incident.
As a rule, the task of determining the amount of non-pecuniary damage is left to the discretion of the judge. Although the task of determining the amount of non-pecuniary compensation is left to the discretion of the judge, the judge; 4 of the Civil Code. considering the principle of equity contained in its article, it is necessary to appreciate the appropriate amount of compensation in accordance with law and justice (with rights and benefits). Considering that there will be special circumstances and conditions that may vary depending on each event in determining the amount, it is necessary to objectively show the reasons that will affect the right to discretion at the place of decision.
While the judge ruled on non-pecuniary compensation;
The nature of the action and event that constitutes an attack,
The economic and social status of the party whose personality rights have been violated, as well as the presence of defects and, if any, the degree of defect,
The degree of defect, economic and social status of the aggressor of personality rights,
The title of the parties, the office they occupy and other social and economic situations,
Economic conditions of the country,
The weight of the event, its history,
It is necessary to take into account the purchasing power of money.
In addition, the amount of Non-pecuniary compensation in addition to these;
It must be in accordance with justice,
There must be a Decency between the act infringing on the rights of the person and the amount of compensation,
It should not have consequences that will lead to enrichment of one side,
It must comply with the principle of proportionality, correspond to the purpose of non-pecuniary compensation,
It should be as much as necessary to achieve the effect of the desired feeling of satisfaction (satisfaction) to be achieved in the existing situation that will give birth to spiritual peace in the one who has been damaged,
It should be commensurate with the moral damage suffered, alleviating the sadness felt,
There should be enough to give birth to spiritual peace in the one who has been harmed,
It should be as much as necessary to achieve the effect of the desired feeling of satisfaction to be achieved in the current state.
In accordance with the evolving legal approach, there should be a sense of satisfaction as well as a degree of deterrence.
17.Legal Department 2016/4923 E. , 2016/4821 K.
“text of jurisprudence”
COURT :…….The Court Of First Instance
At the end of the trial of the lawsuit between the parties; the written reasons given for rejection of the case for decision partially agree partially within the period of the provision upon an appeal by the plaintiff’s attorney and the defendant’s attorney, reviewed the file has been duly noted:
– K A R A R –
Counsel for the plaintiff, the defendant, the maliki,the driver with the driver and vehicle traffic where the insurer is located in the plaintiff’s heel of the right foot as a result of a motorcycle accident shattered his client several months after treatment, he could not perform the task Service, and said that, while reserving the rights on the surplus had been invalided 5.000,00 TL material (temporary and permanent incapacity) and 15.000,00 TL spiritual total of 20.000,00 TL commercial interest to process from the date of the accident compensation 15/03/2010 (with the defendant ……. in order to be responsible for material compensation with the policy limit), it has requested joint and severally collection from the defendants.
The deputy plaintiff has increased his request to TL 36,363.58 with the reclamation petition dated 11/11/2013.
Defendant … …. the deputy defended the refusal of the case.
The defendant … his deputy has defended the dismissal of the case.
According to the collected evidence and expert by the court adopted the report of the case, partially agree Partially with a disclaimer 21.363 58 TL to process from the date of the financial compensation of the date 15/03/2010 tort legal interest, together with the collection of defendants jointly and severally the plaintiff …’e provision (policy limit and become frustrated with a suit for the defendant company to be valid from the date of interest is responsible for, 4.000,00 TL non-pecuniary damages for the tort of the defendant with legal interest from the date to process from the date of 15/03/2010 … and …’S the plaintiff jointly and severally with the collection …’provision e made a decision; judgment was appealed by the plaintiff’s attorney and the defendant’s attorney.
The case concerns a request for material and non-pecuniary compensation due to a traffic accident with a bilateral injury.
1) According to the information and documents contained in the file, there are no procedural and legislative aspects in discussing and evaluating the evidence based on the justification for the court decision, in particular, there are no irregularities in the determination of the defect rate specified in the expert expert report prepared in accordance with the occurrence, all appeals of the plaintiff’s deputy that fell outside the scope of the following paragraph, all appeals of the defendant’s … deputy were rejected.
2) Article 47 of the Code of Obligations No. 818.article (56 of the Turkish Code of Obligations No. 6098.article)according to its provision, the amount of money that the judge will decide to give to the rightholder in the name of moral damage, taking into account special circumstances, must be in accordance with justice. This amount of money is actually neither compensation nor punishment. Because Mamelek does not intend to cover the damage related to the law, and the defective one is not only in the evils caused by the violation of the law.On the contrary, it creates a sense of peace in the one who has been harmed.At the same time, it has a function similar to compensation, since it is aimed at relieving spiritual suffering. Then the limit of this compensation should be determined according to its purpose. the Case Law of the Supreme Court of Cassation dated 22.6.1966 and numbered 7/7 has been clearly shown in the special circumstances and conditions that will affect the amount of non-pecuniary compensation to be assessed in the justification of the Merger Decision.As these may vary according to each event, the judge should show the reasons that are effective to him in using his discretion in this regard in an accurate manner according to objective measures at the place of his decision.
In the concrete case, taking into account such reasons as the plaintiff’s degree of injury, the economic and social situation of the parties, the purchasing power of money according to the date of the incident, the amount of moral compensation awarded for the plaintiff is small, and while more moral compensation should be awarded, the provision in writing required overturning.
CONCLUSION: The rejection of other appeals of the plaintiff’s deputy and the defendant’s deputy for the reasons described in paragraph 1) above, the VIOLATION of the provision by accepting the appeals of the plaintiff’s deputy for the reasons described in paragraph 2), was unanimously decided on 14/04/2016.
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