The definition of an occupational accident is defined in the Law on Social Insurance and General Health Insurance. ARTICLE 13- “Work accident; a) At the time the insured person is at work, b) (Amended: 17/4/2008-5754/8 art.) If the insured works independently on his own behalf and on his own account due to the work being carried out by the employer, c) Due to the work he is carrying out, d) Due to the fact that the insured employee, depending on the employer, is sent to another place outside the workplace as an employee, without doing his main job, d) (Amended: 17/4/2008-5754/8 art.) The insured woman who is breastfeeding within the scope of paragraph (a) of the first paragraph of Article 4 of this Law, at the times allotted to give milk to her child in accordance with the labor legislation, e) The insured, it is an incident that occurs during the arrival and departure of an employer-provided vehicle to the place of work, which immediately or subsequently makes the insured person physically or mentally disabled.’’
In order for compensation to be awarded due to an accident at work, damage must occur as a result of an existing and unlawful act. At the same time, there must be a connection of Decency between the harm and the verb. The nature of the employer’s legal liability due to workplace accidents is based on the defect according to the opinion adopted by the Supreme Court in its previous decisions. In this case, if there is no appropriate Decency link between the employer’s defective action and the damage, the employer’s liability cannot be mentioned. If there is an appropriate provincial connection, this will give rise to the right to file a lawsuit for material and non-pecuniary damages due to an accident at work. 4 of the Occupational Health and Safety Law. According to the article, the employer is obliged to ensure the health and safety of employees related to work.
Article of the relevant law regulating non-pecuniary compensation: Article m of the Turkish Code of Obligations.56 ” The judge may decide that an appropriate amount of money should be paid to the victim as non-pecuniary compensation, taking into account the specifics of the incident in case of damage to the physical integrity of a person. In case of grievous bodily harm or death, he may also decide to pay an appropriate amount of money to the relatives of the injured or deceased as non-pecuniary compensation.’’
It is a matter of debate what should be understood from the relatives of the deceased here. Moral compensation for death is independent of inheritance, that is, in order to become a creditor of moral compensation for death, it is not necessary to be the heir of the deceased. However, even if the deceased is the heir, moral compensation is not ruled out if no spiritual pain was felt due to the death and no emotional shock was experienced. In short, it should be understood that a person who is really upset by the death of a person from the term “close”, that is, a person who is in an intimate relationship with him.
The mining accident that killed 301 people in Soma on May 13, 2014 is one of the biggest and most painful events in our country. About the two brothers who lost their lives in this mining accident, the Supreme Court interpreted each of them in two different ways three months apart in the ‘near future’. Dec. The court was filed in the local court separately for the two brothers and mother, father and sister together, along with their grandparents was conveyed to 20 thousand pounds compensation ruled davayargitay Ser. Supreme Court 21. The legal department has approved the decision of the first brother. As a justification by the Supreme Court, it was stated that deterrence is important in moral compensation, it was stated that moral compensation should be ruled at the rates that would cause deterrence, human rights and human life are the main ones.
However, the same circle decided otherwise for the second brother and overturned the decision, finding the compensation given to the grandmother and grandfather unfair. In his justification, he Decried the decision to reject the claims for moral compensation for the grandmother and grandfather, saying that there is no real connection between them and the deceased. Supreme Court 21. The legal department unanimously made both Deci-sions on the same dispute, which it made three months apart.
The Decision of the Supreme Court on the Issue
T.C. SUPREME COURT 21. DEPARTMENT OF LAW E. 2017/3077 K. 2017/5161 T. 12.6.2017
LAWSUIT: The plaintiffs requested that a decision be made on the payment of non-pecuniary damages arising from the death of Murisi as a result of an occupational accident.
Upon the decision of the Court of First Instance to partially accept the case, one of the defendants … A.Sh. and …the deputies have resorted to the path of the appellate law.
In the District Court, one of the defendants … A.Sh. and …it has been decided that the applications for appeal of his deputies will be rejected on the basis of.
The decision of the District Court of Justice was taken by one of the defendants … A.Sh. and …after it became clear that the appeal request was pending upon appeal by his deputies, the papers in the file were read with the report prepared, the need for the job was considered, and the following decision was determined.
DECISION: The case is related to the request of the insured to recover the moral damages of his relatives due to the death of the insured as a result of an occupational accident.
In court, the defendant ….it has been decided to dismiss the case due to hostility in terms of the case and to partially accept the case from the point of view of the other defendants.
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In all expert reports of defects received due to an occupational accident that occurred within the scope of the file, no defects were explained to the insured persons who died or were injured.
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The framework of the employer’s obligation to ensure health and safety related to employees is defined in Article 4 of the Occupational Health and Safety Law No. 6331. it is drawn in the article. In this context, a number of principles have been included that the employer will do and be obliged to comply with after it is stated that ”it is obliged to ensure the health and safety of employees related to work. 5 Like this. in the article, the principles that the employer will follow during the protection that he will perform with the mentioned obligations are determined. 10. in the article, while ensuring health and safety in the workplace, the issues that the employer is obliged to take into account in the risk assessment work that he will do are determined. (GCM .dated 09/10/2013, 2013/21-102 Basis, 2013/1456 Decision )
After these explanations made above, Article 332 of the Code of Obligations No. 818. 417 of the Turkish Code of Obligations No. 6098, which is regulated by a modern approach in accordance with its article. 2 of the article. in the paragraph; “the employer, to take all necessary measures to ensure occupational health and safety in the workplace, tools and materials possession of a property; workers ‘ health and safety obliged to comply to all measures” would be by stating that, 77/1 of the labour law repealed. as provided for in Article 3. in the paragraph; ”Compensation for damages arising from the death of an employee, damage to his body integrity or violation of personal rights due to violation of the law and the contract, including the above provisions of the employer, is subject to the provisions of liability arising from violation of the contract”, discussions on the legal nature of liability arising from the service contract have been terminated, the provisions of contractual liability will be applied to compensate for death caused by violation of the contract and damage to the integrity of the body or violation of the rights of the person.
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It is necessary to evaluate the provisions of Articles 4 and 5 of the Law No. 6331 and the occupational health and safety regulations issued in accordance with it as criteria that objectify the employer’s responsibility. For this reason, non-compliance with the technical labor rules contained in the legislation should be considered a defective behavior of the employer. However, the employer must cover the damage caused not only by the said written rules, but also by being deemed defective when it acts in violation of the unwritten and measures required by technology.
On the other hand, although the objectified defect brings the responsibility for the defect closer to the perfect responsibility, it cannot turn it into a perfect responsibility. Because, with some exceptions, the presence of the defect is essential for the employer’s responsibility. However, 417/2 of the Turkish Code of Obligations. the provisions of Articles, the Constitution and Law No. 6331 have greatly expanded the employer’s responsibility in accordance with the objectified principle of liability for defects.
The situation that will relieve the employer of responsibility for the damaging event is the Decoupling of the appropriate legal link between the action and the damage caused. As in the case of perfect liability, as well as in the case of liability for a defect, the connection of the principle may be terminated due to force majeure, a serious defect of the injured person and a third party. It is not possible to go to the responsibility of the employer if it is proved that the appropriate citizenship has been severed. (HGK, 20/03/2013 date, 2012/21-1121 Basis, 2013/386 Decision)
It is also useful to explain the concepts of the main employer and sub-employer in order to resolve the dispute subject to trial in a healthy way.
2 of the Law No. 4857. according to the article, the real person who works on the basis of an employment contract, the worker, the worker is running natural or legal person or unincorporated organisations and institutions-employer relationship is a business relationship established between the employee and the employer.
2/7 of Law No. 4857.with its article, it was requested to protect and guarantee the rights of employees arising from the Labor Code, the contract and the collective bargaining agreement. Otherwise, it would be possible for employers who want to get rid of their obligations arising from Law No. 4857 to avoid their obligations by voluntarily giving parts or add-ons of the work to other people.
The joint responsibility of the main employer and the sub-employer is “fiduciary responsibility”. The actual employer, although there is no direct service agreement, is subject to Article 2 of the Labor Code. Article 6. in accordance with the paragraph, the sub-employer is jointly and severally liable with the sub-employer for the material and moral damage that the employees of the sub-employer will suffer due to an occupational accident or occupational disease. For this reason, in the event of an employee or death of a subordinate employer who has suffered an occupational illness or an accident at work, his heirs may jointly file a compensation claim against the principal employer and the subordinate employer who are jointly liable, as well as only against the principal employer or the subordinate employer.
On the other hand, the agreement concluded between the main employer and the sub-employer and the Decisionment that the responsibility for material and non-pecuniary compensation due to an occupational accident or occupational disease belongs to the sub-employer does not bind employees or heirs who are not parties to this agreement.
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In addition, both Article 47 of the molga BK and Article 56 of the current TCC No. 6098. in its article, it is stipulated that the judge may decide that if the physical integrity of a person is damaged, an appropriate amount of money should be paid to the victim or the relatives of the deceased as moral compensation, taking into account the specifics of the incident. The amount of money that the judge will decide to give to the person who has been harmed or to the relatives of the deceased in the name of moral damage should be in accordance with justice. This money, which will be judged, has an original nature, which has a function similar to compensation, which will ensure the birth of spiritual peace in the person who has been harmed. Just as there is no punishment, 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.
In non-pecuniary compensation cases, in developed countries, the element of deterrence is also being emphasized by getting out of the old patterns. In the developing law, this approach reveals the need to appreciate moral compensation at rates that create a sense of satisfaction as well as deterrence in unfair actions directed against the body and soul of people or obsessive behavior; it emphasizes that the rights of a person come before everything.
Given these principles, the truth is human life, and it is impossible for any value to compensate for the deep suffering caused by the loss of this life. The aim here is just to give a little bit of relief; on the other hand, the damaging side is to be able to be a deterrent with a sanction that will affect attention and care.(HGK 23.6.2004, 13/291-370)
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CONCLUSION : in light of the above explanations, the decision is based on the posts with the evidence in the file gerektirici legal reasons, in the event of the deceased and especially a clear understanding as to whether there are any flaws in the formation of a defect and the defect distribution between those with occupational accidents that can be opened between the future of recourse in the case of a re-evaluation possible, finding the title of Appeals, an appeal according to the cause and scope of the defendants, their attorneys that are not seen in the place of all Appeals approved the rejection of the appeal in accordance with the law and procedures for the provision, it was decided unanimously on 12/06/2017.’’
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