Arising Of The Right To Moral Damages Due To Lost Baggage
Supreme Court of Justice General Assembly of Civil Chambers Esas: 2001/11-1161, Decision: 2001/1152, Decision Date: 12.12.2001
SUMMARY: The defendant is responsible for the loss of the clothes and items that the plaintiffs planned to wear and use during the trip, as evidenced by its open admission before the court. In terms of the elements of moral damages, there should be no doubt that the plaintiffs’ staying in a foreign country for recreation, sightseeing and cultural activities with the clothes they were wearing on the first day of the trip would cause them to suffer a moral collapse. Moreover, considering that the activities that they intended to take part in during the trip, such as opera and ballet, require special clothes, it is in accordance with the ordinary course of life that this depression gradually turns into pain and anguish. In this respect, the damage of the plaintiffs has ceased to be damage to property and has now manifested itself as the loss of personal benefits.
It should be noted that the fine line between the concepts of damage to personal interests and damage to property should not be overlooked. The determination of this boundary should be within the legal limits. The point that requires moral compensation here is not only the sadness arising from the loss of the items, but also the loss of moments of personal importance that will not be repeated due to the non-use of these items. It is the shock that this will cause in the spiritual world of the human being.
(743 S. K. art. 24) (818 S. K. art. 49, 98) (HGK. 11.4.2001 T. 2001/15-331 E. 2001/340 K.) (HGK. 13.6.2001 T. 2001/15-498 E. 2001/508 K.)
Case: At the end of the trial held due to the “pecuniary and non-pecuniary damages” lawsuit between the parties; upon the request of the plaintiffs’ attorneys for the examination of the decision dated 29.12.1999 and numbered 1174-1394 rendered by the Istanbul 3rd Commercial Court of First Instance on the dismissal of the lawsuit, the decision of the 11th Civil Chamber of the Court of Cassation dated 1.5.2000 and numbered 2691-3732 was rendered as follows: (… The plaintiffs’ attorneys stated that their clients, whose living standards are very high, have a very high standard of living. P., a non-complaint company, for a four-day vacation in Prague; however, since their luggage was lost on this journey, they did not participate in activities requiring clothing and had an unhappy vacation, and claimed and sued the defendant for a total of 1.520 $ 1.520 pecuniary damages and 7.750.000.000.000 TL. non-pecuniary damages with interest.
The defendant’s attorney argued that there were no conditions for requesting non-pecuniary damages and requested the dismissal of the lawsuit.
According to the evidence collected by the court, it was decided that there was no need to decide on the claim for pecuniary compensation and the claim for non-pecuniary compensation was rejected on the grounds that the pecuniary compensation was paid during the trial and the conditions for non-pecuniary compensation were not met.
The decision was appealed by the counsel for the plaintiffs.
The plaintiffs claimed that they suffered from sorrow and distress in the country they visited due to the loss of their clothing, and the defendant paid the part of the claim for pecuniary damages at the trial stage and accepted the responsibility for the loss of the clothes that the plaintiffs planned to wear during the tour. In this case, taking into account that the conditions in Article 49 of the Code of Civil Procedure have been met, the court should award an appropriate amount of non-pecuniary damages for the benefit of the plaintiffs, but it was not deemed appropriate to make a judgment in the written manner, and for this reason, the decision should be reversed in favor of the plaintiffs…) and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
Appellant Plaintiffs’ Counsel
The decision of the General Assembly of Civil Chambers was examined and after it was understood that the appeal was filed in due time and after the papers in the file were read, the necessity was considered:
Decision: The lawsuit is related to the claim for pecuniary and non-pecuniary damages arising from the air transportation contract.
The plaintiffs’ attorney stated that his clients, who have a very high standard of living, love traveling and attach great importance to it, contracted with the non-suiting company P. Company for a cultural trip to Prague, but their suitcases containing their personal belongings and clothes, which they had taken with them for this 5-day trip, were lost and could not be found at the beginning of the trip and they could not participate in any of the cultural activities programmed, and the holiday they had planned and dreamed of months ago turned into a nightmare and turned into a nightmare with distress, sadness, pain and psychological disorder; 1. 520 USD pecuniary damages and 7.750.000.000 TL non-pecuniary damages from the defendant with interest, and that the summary judgment be published in three daily newspapers with high circulation.
The defendant’s attorney accepted the claim for pecuniary compensation and made a payment, but argued that there were no conditions for requesting non-pecuniary compensation and that the lawsuit should be dismissed.
The court decided that since the pecuniary compensation was paid at the trial stage, there was no room for a verdict since the case regarding this was not subject to the case, and the moral compensation was rejected since the legal conditions were not met, and upon the appeal of the plaintiffs’ attorney, the decision was reversed by the special chamber on the point of moral compensation, and the court resisted the previous decision. The resisting decision was appealed by the plaintiffs’ counsel.
The dispute is on the point of non-pecuniary damages. While going to the solution, it is useful to first determine and examine the facts on which the plaintiff’s claim for non-pecuniary damages is based.
In all the petitions of the plaintiff in the lawsuit and at all stages, the basis of the claim for non-pecuniary damages is expressed not only as the loss of property, but also as the loss of moments that are lost and cannot be compensated or repeated.
The relationship between the parties is basically an air transportation contract. Within the scope of this contract, in addition to the transportation of the passenger to his/her destination, the safe transportation of the goods accompanying the passenger is also included. This issue is determined by international rules and special regulations have been made in terms of pecuniary compensation. In terms of moral damages, the solution of the matter is left to the relevant provisions of the Code of Obligations, which is the National Law.
First of all, it should be noted that Article 98, paragraph 2 of the Code of Obligations stipulates that “the provisions regarding liability arising from torts shall be applied by analogy to acts contrary to the contract”, and with this provision, it is accepted that moral damages may be awarded for acts contrary to the contract. This fact is in accordance with the law and the established case law of the Court of Cassation and the dominant opinions in the doctrine in this direction.
However, the mere existence of a breach of contract is not sufficient for the acceptance of the claim for non-pecuniary damages; due to the nature of the breach or due to special circumstances and conditions, the personal rights of the plaintiff must also be damaged in the sense of Article 24 of the Civil Code and therefore, in a way, it must be an unfair act in the sense of Article 41 of the Code of Obligations.
Today’s conditions reveal the need to consider the concept of attacking and damaging personal rights in a multifaceted manner. This is because the developments in the fields of communication, transportation, technology and the priorities in daily life have made personal rights more important, and in a way, the protection shield has narrowed considerably. Accordingly, the protection of personal rights has become increasingly important. It is seen that the legal approaches to expand the limits of moral damages have emerged as a result of this.
When the concrete case is considered in the light of these explanations, it is clear that the defendant is responsible for the loss of the clothes that the plaintiffs planned to wear and the items they planned to use during the trip, as evidenced by their open admission before the court. In terms of the elements of moral damages, there should be no doubt that the plaintiffs’ staying in a foreign country for recreation, sightseeing and cultural activities with the clothes they were wearing on the first day of the trip would cause them to suffer a moral collapse. Moreover, considering that the activities that they intended to take part in during the trip, such as opera and ballet, require special clothes, it is in accordance with the ordinary course of life that this depression gradually turns into pain and anguish. In this respect, the damage of the plaintiffs has ceased to be damage to property and has now manifested itself as the loss of personal benefits.
It should be stated immediately that the fine line between the concepts of damage to personal interests and damage to property should not be overlooked. The determination of this boundary should be within the legal limits.
The point that requires moral compensation here is not only the sadness arising from the loss of the items, but also the loss of moments of personal importance that will not be repeated due to the non-use of these items. It is the shock that this will cause in the spiritual world of the human being.
This approach to moral compensation was also adopted in the decisions of the General Assembly of Civil Chambers dated 11.4.2001 and numbered 2001/15-331 Esas, 340 Karar and dated 13.6.2001 and numbered 2001/15-498 Esas, 2001/508.
For the reasons explained, while the special chamber’s reversal decision should be complied with, it was not deemed correct to consider the claim limited to the grief arising from the loss of property and to resist the previous decision on the grounds that this does not fall within the concept of damage to personal interests. The decision should therefore be reversed.
Conclusion It was unanimously decided on 12.12.2001 with the acceptance of the appeal objections of the plaintiffs’ counsel, that the decision of the Court of Appeal be reversed for the reasons stated above and in the decision of the Special Chamber, and that the pre-appeal fee be refunded upon request.