Decision Regarding The Determination Of The Institution’s Recourse Claim By Calculating The Actual Loss Amounts And Comparing The First Advance Capitalized Income Amount
T.C. JUDICIARY
10th Civil Chamber
Main: 2014/741
Decision: 2014/26102
Date of Decision: 09.12.2014
INDEMNITY LAWSUIT – IT IS NECESSARY TO DETERMINE THE RECOURSE RECEIVABLE OF THE INSTITUTION BY CALCULATING THE ACTUAL AMOUNT OF DAMAGES AND COMPARING THE AMOUNT OF INCOME WITH THE FIRST ADVANCE CAPITALIZED INCOME – REVERSAL OF THE JUDGMENT
SUMMARY: A decision should be made according to the result that will be obtained after determining the recourse claim of the Institution as a result of calculating the actual amount of damages and comparing the amount of income with the first advance capital value. The court’s judgment, which was rendered by ignoring these material and legal facts, is contrary to the procedure and the law and is a reason for reversal.
(5510 S. Code Art. 21, 76) (6100 S. Code Art. 297) (818 S. Code Art. 141, 142) (6098 S. Code Art. 162, 167)
Case and Decision: The lawsuit is related to the claim for compensation of the income and other payments connected to the insured who became permanently incapacitated as a result of an occupational accident, in accordance with Articles 21 and 76 of the Law No. 5510.
The court decided to accept the lawsuit.
Upon the appeal of the judgment by the attorneys of the parties, after it was understood that the request for appeal was in due time and after the report prepared by the Examining Judge Ebru Pakin Akın and the papers in the file were read, the matter was considered and the following decision was determined.
1- Article 297 of the Code of Civil Procedure stipulates that “in the conclusion of the judgment, without repeating any words belonging to the reasoning, the obligations imposed on the parties and the rights granted to the parties with the judgment given on each of the claims, if possible under the sequence number, clearly, in a way that does not arouse doubt and hesitation”. It is a matter of public order that the judgments are free from contradiction and suitable for execution.
Contrary to the aforementioned provision, although it is stated in the judgment that it is decided to accept 34.825,42 TL, the total of the accepted items does not reach this amount, because while it is intended to establish a judgment that the amount amended according to 80% fault is accepted, it is inappropriate to write the expenses and payments that constitute the damage of the Institution in detail and to write over the 10% rates requested by the lawsuit petition.
2- In joint and several liability, as a rule, each of the debtors is liable for the entire debt according to Articles 141 and 142 of the Code of Obligations (Art. 162 of the Code No. 6098), and pursuant to Article 146 of the same Code (Art. 167 of the Code No. 6098), the debtors have the right of recourse to each other according to the fault ratio in the internal relationship. In the concrete case, the defendants Meram Municipality and T.. Shoe Mak. Nak. San. and Tic. Ltd. Şti. are responsible for 75% in total for the occurrence of the damaging insurance event, it has not been determined what percentage of the said defendants are at fault in the occurrence of the event within this rate.
3- The legal basis of the lawsuit is the Social Insurance and General Health Insurance Law No. 5510, which was in force on the date of the work accident dated 07.02.2009 and entered into force on 01.10.2008.
Article 21 of the Law No. 5510 titled “Responsibility of the Employer and Third Parties for Occupational Accident and Occupational Disease and Illness” According to Article 21 of the Law No. 55; If the occupational accident and occupational disease occurred as a result of the employer’s intent or an act contrary to the legislation on the protection of the health of the insured and occupational safety, the sum of the payments made or to be made in the future by the Institution to the insured or his right holders in accordance with this Law and the first advance capital value of the income connected on the date of commencement, limited to the amounts that the insured or his right holders may claim from the employer, the Institution shall make the employer pay. With the aforementioned article, the liability of the indemnitees against the Institution is limited by a ceiling and this liability is “…limited to the amounts that the insured or his beneficiaries can claim from the employer…”. In the face of the clear provision of the article; in order to determine the part of the income with the first advance capital value that can be compensated for the benefit of the Institution, it is obligatory to calculate the actual loss ceiling.
A decision should be made according to the result that will be obtained after calculating the amount of actual damages and determining the recourse claim of the Institution as a result of the comparison of the amount of income with the first upfront capital value.
The establishment of a written judgment by the court by ignoring these material and legal facts is contrary to the procedure and the law and is a reason for reversal.
In that case, the objections of the attorneys of the parties in this respect should be accepted and the judgment should be reversed.
Conclusion For the reasons explained above, it was unanimously decided on 09.12.2014 to VACATE the judgment and to refund the appeal fee to the defendants upon request.