T.C.
Supreme
21. law office
Base No:2010/5301
Decision No:2011/12661
K. Date:8.12.2011
The plaintiff requested that a decision be made on the payment of material and moral damages arising from his disability as a result of an occupational accident.
The court has decided on the partial acceptance of the request, as indicated in its decision.
The judgment of the defendants V. Plastic San. Tic. A.Sh. after it was understood that the appeal request was in due course upon appeal by the deputy and the papers in the file were read with the report edited by the Audit Judge Sezai Ozturk, the need for the job was considered and the following decision was determined.
1- According to the articles in the file, the evidence on which the decision is based and the legal reasons for the refusal of the defendant’s appeals that fall outside the scope of the following paragraph,
2- The lawsuit is related to the claimant’s request for the elimination of material and moral damages, who is constantly incapacitated as a result of an occupational accident.
8.906.67 TL with partial acceptance of the claim for financial compensation by the court. 20.000.00-TL with partial acceptance of the request for material and non-pecuniary compensation. it has been decided that the non-pecuniary compensation will be paid to the plaintiff jointly and severally with the legal interest that will be processed from 20.09.2005 from the defendants.
In the event that the plaintiff was permanently incapacitated by 10.3% as a result of an occupational accident that occurred on 20.09.2005, 30% of the plaintiff was the defendant’s parent employer V. Plastic and Industrial Trade Inc.Sh.50% of , and the defendant is sub-employer A. Insh. Construction Materials. Greenhouse Plastic Service. Nak. Renown. and tic. Ltd. Şti.it is clear from the file content that it is 20% defective.
47 of the Code of Obligations. According to the provision of the article, the amount of money that the judge will decide to give to the insured person in the name of non-pecuniary damage, taking into account special circumstances, must comply with the custom. This money, which will be judged, has an original nature, which has a function similar to compensation, which will ensure the creation of spiritual peace in the event of damage. Just as there is no penalty, mamelek has not aimed to cover the damage related to the law. Then the limit of this compensation should be determined according to its purpose. The amount to be appreciated should be as much as is necessary to achieve the effect of the desired sense of satisfaction to be achieved in the current state. the special circumstances and conditions that will affect the amount of moral compensation to be assessed in the justification of the Supreme Court Case Law Unification Decision dated 22.06.1966 and numbered 7/7 have also been clearly shown. 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.
The judge discretion while using these, the economic conditions of the country, social and economic conditions of the parties, the purchasing power of money, the parties, the defect status of the event, the weight, the consideration of characteristics such as date of event, the event of the employer’s Occupational Health and safety measures in addition to not enough in the law stemmed from a sense of satisfaction, as appropriate, by considering also the approach also woke deterrence alongside developing at the rate for non-pecuniary damages, it is obvious that should be appreciated. (HGK 23.06.2004, 13/291-370)
20.000.00-TL, which is ruled for the benefit of the plaintiff when these principles are observed. moral compensation is excessive.
3- The amount of compensation in such cases consists of the sum of the earnings that the employee will receive in the active and passive period, based on the life of the balance at the time of the report. In other words, by determining the daily net income of the employee, the earnings for the known period will be calculated without discounting and increasing the available data, while the earnings for the unknown period will be increased by 10% annually until the age of 60 and discounted by 10%, and the earnings for the balance life (passive) after the age of 60 will be calculated separately for each year without resorting to the average method, according to the established opinions of the Supreme Court.
Undoubtedly, in the method of calculating the compensation described, the passive period should also be included in the loss account if the employee has a high probability of receiving an old-age pension or working in the future and being entitled to an old-age pension in accordance with the age of the employee and the loss rate of earning power in the profession that has been formed. It is true that the worker who is disabled as a result of an occupational accident will make more effort than other workers even if he continues to work in the same job. it is inconceivable that he did not suffer losses due to his disability, which will continue during the period when he receives his old age pension, as he will earn the income he will receive after the age of 60 by spending more effort than other workers.
In addition, the premiums received from the occupational disease and work accident branch in the old age pension linked to the insured person have no effect, and are not connected monthly as a result of premiums paid from the insurance branches in the long term. For these reasons, it is necessary to include it in the loss account during the passive period and to calculate it based on the minimum wage until the balance life after the age of 60 (in the passive period). The court’s acceptance of the inclusion of the plaintiff in the passive period in the loss account is in place. However, it was not accurate to determine the passive period loss in the expert account report based on the provision by taking the old age pension to be linked to the insured as of the date of the report by the Social Insurance Institution as the basis of the old age pension. As a result, it cannot be said that the account report is based on the decision.
4- The case is related to the request for the elimination of damages that are not covered by the Social Security Institution in nature. Therefore, in order to prevent repeated payments and unjustified enrichment, it is one of the settled opinions of the Supreme Court that compensation should be determined by deducting the entire advance capital value of the income paid to the right holders from the calculated loss, taking into account the coefficient in force as recently as the date of the judgment. Article 16 of the Law No. 4447 of the Court. October 38, Annexed to Law No. 506 with its Article. According to the Article, it is understood that the Institution has not been asked about the entire advance capital value calculated in accordance with the increases that were determined at the closest date to the date of provision and has not been deducted from the calculated loss.
16 of the Law No. 4447. October 38, Annexed to Law No. 506 with its Article. The date of the judgment in accordance with the date closest to the value calculated according to the institution ask upfront capital increase of the amount reported with the date closest to the date of the judgment is taken into account and the wage increases after the age of 60, until life balance (inactive period) the compensation which the plaintiff dated 16.11.2009 is calculated based on the minimum wage that does not appeal the decision by downloading it from also considering an appropriate amount of material to assess the damage and non-pecuniary damages to decide on.
The fact that the court has established the provision in writing without regard to these material and legal facts is contrary to the procedure and the law and is the reason for the violation.
In that case, the defendant’s appeals aimed at these aspects must be accepted, and the verdict must be overturned.
CONCLUSION: If the decision is overturned for the reasons described above, the defendant V. Plastic San. Tic. A.Sh. his extradition was decided unanimously on 08.12.2011
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