Carer Expenses Of The Disabled Person Should Also Be Paid By The Insurance Company
4th Civil Chamber 2021/14845 E., 2021/2469 K.
“Case Law Text”
COURT : Ankara Regional Court of Justice 26th Civil Chamber
COURT : Ankara 12th Commercial Court of First Instance
At the end of the trial of the damages lawsuit between the parties, the judgement given at the end of the trial was requested by the plaintiff’s attorney, and on Wednesday, 02.06.2021, which was appointed for the hearing, the plaintiff’s attorney, Attorney … came. No one came from the defendant. After it was understood that the petition for appeal was submitted within the time limit and the plaintiff’s attorney who was present was listened to, the examination and decision of the case was left to another day due to the shortness of time, and the file was examined and considered:
DECISION
The plaintiff’s attorney declared that the plaintiff was injured and disabled in a one-sided traffic accident on 03/06/2016 in which the vehicle in which the plaintiff was a passenger, insured by the defendant … company with the ZMMS policy, and requested a decision to collect the caretaker expense compensation from the defendant.
The defendant’s attorney declared that the entire disability coverage has been paid and that the carer’s expenses are also covered by the disability coverage in accordance with the General Terms and Conditions of the ZMMS and requested the dismissal of the lawsuit.
Court of first instance decided to dismiss the plaintiff’s lawsuit due to lack of grounds on the grounds that the disability coverage also covers permanent disability and carer expenses within the framework of A.5 of the General Conditions of Compulsory Financial Liability Insurance for Motor Vehicles on Highways, and in this case, the defendant paid the entire policy coverage limit within the scope of the permanent disability coverage within the policy limit.
The plaintiff’s attorney filed an appeal against the judgement.
Regional Court of Appeal decided to reject the plaintiff’s appeal on the merits, and the decision of the Regional Court of Appeal was appealed by the plaintiff’s attorney within the time limit.
The lawsuit is related to the claim for pecuniary compensation consisting of permanent carer expenses due to bodily harm caused by a traffic accident.
The plaintiff claimed that the continuous caregiver expenses should be covered from the treatment expense coverage and requested the balance compensation; the defendant insurer, on the other hand, defended that the damage related to the caregiver expenses was also covered by the disability coverage and the limit for the said coverage was exhausted. In this respect, the dispute between the parties centres on whether the plaintiff’s damages for permanent caregiver expenses are within the scope of the “disability coverage” or the “treatment expense coverage” in the ACMSS policy issued by the defendant and whether the defendant’s liability has ended with 310.000,00 TL paid before the lawsuit.
Court of first instance decided to dismiss the lawsuit on the grounds that the defendant’s liability did not end as the caregiver expenses were within the scope of the disability coverage and the limit for the disability coverage had been exhausted, in accordance with the General Terms and Conditions of the ICCS that entered into force on 01.06.2015, and the Regional Court of Appeal decided to reject the plaintiff’s attorney’s appeal on the merits.
Article A.5-c of the General Terms and Conditions of the ICCS stipulates that the insurer shall be liable for the permanent (lifelong) carer expenses due to the permanent disability of the injured person, which is determined after the completion of the treatment, within the scope of the permanent disability coverage and the limit related to this coverage. However, upon the applications made against the General Terms and Conditions of the ACPS, which entered into force on 01.06.2015, with the decision of the Constitutional Court dated 17.07.2020 and numbered 2019/40-2020/40; it was decided to cancel the phrase “in the general conditions prepared within the framework of this Law” in the section “subject to the procedures and principles stipulated in this Law and the general conditions prepared within the framework of this Law” in Article 90 of the TCC on the grounds that it is unconstitutional. Pursuant to this cancellation decision,
it is not possible to determine the damages that are covered and not covered by the insurance coverage, and to determine which coverage the damage falls under in the policy, even if the damage is covered by the insurance coverage, according to the General Terms and Conditions of the ICCS. It is clear that the aforementioned determinations should be made according to the provisions of the TCC and in cases where there is no provision in this law, the provisions of the Code of Obligations.
İn this respect, it is necessary to make a determination in accordance with the decision of the Constitutional Court, the provisions of the TCC, the Code of Obligations and the established practices of the Court of Cassation regarding the General Conditions of the ZMSS, some provisions of which have been cancelled due to being contrary to the Constitution.
In accordance with the cancellation decision of the Constitutional Court, it is not possible to accept the caregiver expenses within the scope of the permanent disability coverage according to Article A.5-c of the General Terms and Conditions of the ICCS; taking into account the cancellation decision of the Constitutional Court and the previous established practices of our Chamber, it is concluded that the assessment made by the Regional Court of Appeal is not correct.
In the face of the legal and material facts explained; while it should be decided by taking into account that the permanent carer expense damage subject to the lawsuit should be covered from the treatment expenses coverage in the policy, it was necessary to make a decision in the written form with an erroneous evaluation.
CONCLUSION:
For the reasons explained above, with the acceptance of the appeals of the plaintiff’s attorney, pursuant to Article 371/1-a of the CCP No. 6100, the decision of the Court of First Instance shall be revoked pursuant to Article 373/1 of the CCP and the decision of the Court of First Instance shall be reversed pursuant to Article 371 of the CCP. Pursuant to Article 373/1 of the same Code, the file shall be sent to the Court of First Instance and a copy of the decision shall be sent to the Regional Court of Justice, the attorney fee of 3.050,00 TL shall be taken from the defendant and given to the plaintiff who was represented by an attorney at the hearing and the prepaid fee shall be returned to the appellant upon request, it was unanimously decided on 07/06/2021.
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