21st Law Office
Base Number: 2018/920
Decision Number: 2019/886
“Justice Text”
COURT: Labor Court
ON BEHALF OF THE TURKISH NATION
The plaintiff requested the payment of material and moral compensation arising from his disability as a result of a work accident. The court decided to reject the request, as stated in its decision, by reversing it. After the decision was appealed by the plaintiff’s attorney, after it was understood that the appeal request was in time, the papers in the file were read, the necessity of the job was considered and the following decision was made.
DECISION
According to the articles in the file, the evidence collected, the compelling reasons on which the judgment is based, and the scope and reasons of the appeal, the plaintiff’s other appeal objections that are outside the scope of the following paragraph are rejected. is related. 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 claimant insured is at fault in the rate of 20% and the defendant employers in the rate of 80% in the occurrence of the work accident. The court decided to reject the claim for pecuniary and non-pecuniary damages due to the lack of disability of the plaintiff.
1- Compensation lawsuits arising from work accidents are related to the request for the compensation of the damage not covered by the Social Security Institution.
From the scope of the file, it is understood that the court concluded by ignoring the fact that the claimant insured could not work for a while due to the work accident, which is the subject of the lawsuit, and the loss of wages occurred in terms of these periods during which the plaintiff was rested.
As long as the insured person is temporarily incapacitated due to work accident or occupational disease, temporary incapacity allowance is paid by the Institution pursuant to Article 18 of Law No. 5510. This allowance is paid as long as he is incapacitated (reported) as of the beginning of the treatment in case of occupational accidents and occupational diseases. Income deprived of the insured during the period of temporary incapacity for work is also included in the scope of material damage resulting from a work accident. It is clear that the insured who cannot work during the reporting period will suffer a loss equal to the wage he was deprived of during this period, and this loss should be considered as material damage. The financial loss of the insured during the periods when his treatment continues and he cannot work due to the detrimental event must be made according to the assumption that he has suffered 100% loss of workforce during this period. If there is a temporary incapacity allowance that has to be paid to the insured by the SGK, whose pecuniary damage is determined through the expert, the result to be obtained by deducting the recourse part of it from the calculated pecuniary damage will reveal the unmet loss of the casualty during the resting period, also called the temporary incapacity period. As such, the Court decided to reject the claim for pecuniary damages with a written justification without calculating the loss of wages deprived in terms of the period of rest (reported) of the plaintiff, whose rate of permanent incapacity is “0%”. Work to do ; Evaluating that the plaintiff was 100% disabled during the period he was on his sick leave, it consists of having the expert calculate the material damage according to the acceptance that he has a loss equal to the wage he was deprived of due to his inability to work during this period, and evaluating all the evidence together and making a decision according to the result.
2- On the other hand, in the case of injury to a person’s bodily integrity, both in the 47th article of the abolished B.K. and in the 56th article of the TCO numbered 6098, the judge is obliged to pay an appropriate amount of money in the name of non-pecuniary damage, taking into account the characteristics of the event. given that it can decide. Considering the characteristics of the event, the amount of money that the judge will decide to be given to the injured in the name of non-pecuniary damage should be in accordance with justice. This money to be awarded has a unique quality with a function similar to compensation that will bring about the moral peace of the injured person. It was not a penalty, nor did it aim to compensate for the damage related to the property law. The limit of this compensation must therefore be determined according to its purpose. The amount to be appreciated should be as much as is necessary to achieve the effect of the desired satisfaction in the present state. Special circumstances and conditions that will affect the amount of moral compensation to be appreciated are also clearly shown in the reasoning of the Supreme Court Judgment Unification Decision dated 26.06.1966 and numbered 7/7. Since these may change according to each event, the judge should use his discretion in this matter and show the effective reasons according to the objective criteria in the decision place. While the judge uses this discretion, 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 event, the plaintiff’s permanent incapacity rate, the age of the worker, the date of the event, the amount to be awarded is a deterrent as well as the feeling of moral satisfaction.It is undeniable that it should be at a rate that evokes bitterness. In line with these explanations, in the concrete case, considering that the plaintiff, who was permanently disabled at the rate of 0%, would feel sadness and anguish even if he did not become permanently incapacitated, the violation of his mental integrity, and the nervous breakdown are included in the concept of bodily harm, taking into account the period of treatment, an appropriate amount of non-pecuniary compensation. While a decision should have been made, it was not correct for the court to reject the request for non-pecuniary damage. Making a written decision by the court without taking these material and legal facts into consideration is against the procedure and the law, and is the reason for annulment. The plaintiff’s appeals aimed at these aspects should therefore be accepted and the judgment reversed.
