The Worker Deserves Moral Compensation Even If The Permanent Incapacity Rate Is Zero As A Result Of Work Accident
21st Civil Chamber
Principal Number: 2018/920
Decision Number: 2019/886
“Case Law Text”
COURT Labor Court
ON BEHALF OF THE TURKISH NATION
The plaintiff requested a decision for the payment of pecuniary and non-pecuniary damages arising from his disability as a result of an occupational accident. The Court, complying with the reversal, decided to reject the request as stated in the judgment. Upon the appeal of the verdict by the plaintiff’s attorney, after it was understood that the appeal request was in due time, the report and the papers in the file were read, the matter was considered and the following decision was given.
DECISION
According to the writings in the file, the collected evidence, the grounds for the judgment and the scope and reasons of the appeal, the plaintiff’s other appellate objections outside the scope of the following paragraph are rejected, The case is related to the claim for compensation of material and moral damages of the insured who suffered permanent incapacity as a result of the damaging insurance event dated 11/01/2012. It is understood from the scope of the file that the plaintiff has 0% permanent incapacity as a result of the work accident and that the plaintiff insured is 20% at fault and the defendant employers are 80% at fault in the occurrence of the work accident. The court decided to reject the claim for pecuniary and non-pecuniary compensation due to the lack of disability of the plaintiff.
1-Compensation cases arising from work accidents are related to the claim for compensation for the damages not covered by the Social Security Institution.
From the scope of the file, it is understood that the court reached a conclusion by ignoring the fact that the plaintiff insured was unable to work for a period of time due to the work accident subject to the lawsuit, and that the plaintiff lost wages in terms of these periods when he was rested.
As long as the insured person is temporarily incapacitated due to work accident or occupational disease, the Institution pays temporary incapacity allowance in accordance with Article 18 of Law No. 5510. This allowance is paid from the date of the incident in case of occupational accidents and from the date of treatment in case of occupational diseases, as long as he/she remains out of work (reported). During the period of temporary incapacity for work, the income that the insured is deprived of during the period when he/she cannot work is also within the scope of material damage caused by the occupational accident. It is clear that the insured, who cannot work during the period of reportable incapacity, will incur a loss equal to the wage he/she was deprived of during this period and this loss should be accepted within the pecuniary damage. The financial loss of the insured during the periods when the treatment of the insured continues due to the damaging event and he/she cannot work should be made according to the assumption that he/she suffered a 100% loss of work capacity during this period. If there is a temporary incapacity allowance to be paid to the insured by the SSI after determining the material damage through the expert, the result to be obtained by deducting the part of it subject to recourse from the calculated material damage will reveal the unreimbursed loss of the insured during the rest period, also called the period of temporary incapacity. As such, the Court’s decision to reject the claim for pecuniary compensation on written grounds without calculating the loss of wages that the plaintiff, whose rate of permanent incapacity for work is “0%”, was deprived of in terms of the period during which he was rested (reported) was not correct in accordance with the procedure and the law. The work to be done consists of evaluating that the plaintiff was 100% disabled during the reported period, having the expert calculate the pecuniary damage according to the acceptance that there is a loss in the amount of the wage he was deprived of due to his inability to work during this period, and evaluating all the evidence together and deciding according to the result.
On the other hand, both the abrogated Article 47 of the abrogated B.K. and Article 56 of the current T.B.K. No. 6098 stipulates that in the event that a person’s physical integrity is damaged, the judge may decide to pay an appropriate amount of money to the injured person under the name of moral damage, taking into account the characteristics of the incident. The amount of money that the judge decides to award to the injured person under the name of non-pecuniary damage, taking into account the characteristics of the incident, must be in accordance with justice. This money to be awarded has a unique character, which has a function similar to compensation in order to create moral peace in the injured party. It is not a penalty, nor is it intended to compensate for damage related to property law. Therefore, the limit of this compensation should be determined according to its purpose. The amount to be assessed should be such amount as is necessary to achieve the effect of the feeling of satisfaction desired to be obtained in the present situation. In the reasoning of the 26.06.1966 dated and 7/7 numbered Supreme Court of Appeal Unification of Jurisprudence Decision, the special circumstances and conditions that will affect the amount of non-pecuniary damages to be assessed are also clearly shown. Since these may vary according to each case, the judge, while exercising his/her right of discretion in this regard, should also show the reasons affecting it in the decision in an accurate manner according to objective measures. While exercising this right of discretion, the judge should take into consideration the economic conditions of the country, the social and economic conditions of the parties, the purchasing power of money, the fault status of the parties, the severity of the incident, the rate of permanent incapacity of the plaintiff, the age of the worker, the date of the incident, and it is beyond question that the amount to be awarded should be at a rate that creates a sense of deterrence as well as moral satisfaction. In line with these explanations, in the concrete case, even if the plaintiff who suffered permanent incapacity at a rate of 0% would not become permanently incapacitated, he would feel sadness and pain, considering that the violation of the integrity of the soul and nervous disorder are also included in the concept of bodily harm, taking into account the period of treatment, an appropriate amount of moral compensation should be decided, while the court should have decided to reject the request for moral compensation, it was not correct. The court’s decision as written without taking these material and legal facts into consideration is contrary to the procedure and the law and is a reason for reversal. In that case, the plaintiff’s objections on appeal in this respect should be accepted and the judgment should be reversed.
CONCLUSION: It was unanimously decided on 12/02/2019 that the judgment be reversed for the reasons explained above.
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