The subject of our article is legal liability and insurance in traffic accidents, and I think that we should first focus on the operator at the beginning of our study. If we make the definition of the operator, the operator: The person who is the owner of the vehicle or who is registered in the registry as the buyer in the sale with retention of title, or the person who has …
The subject of our article is legal liability and insurance in traffic accidents, and I think that we should first focus on the operator at the beginning of our study. If we define the operator, the operator is: The person who is the owner of the vehicle or the person who is registered in the registry as a buyer in the case of sale with retention of title or the person who is the lessee, lessee or pledgee in cases such as long-term lease, loan or pledge of the vehicle. However, if it is proved by the relevant person that another person operates the vehicle on his/her own account and at his/her own risk and has actual control over the vehicle, this person is deemed to be the operator (Article 3 of the TCC).
Article 85 of the TCC regulates the liability of the operator of a motor vehicle as a non-fault based hazard liability. This regulation has arisen from the idea of protecting the injured party, such as the great danger posed by the operation of motor vehicles on highways, their susceptibility to cause damage, and the generally weak economic situation of the driver.
If the operation of a motor vehicle causes bodily harm or damage to something, the operator shall be liable without fault. This liability of the operator is aggravated strict liability, in other words, hazard liability. If there is a damage, presumably this damage is a natural and normal consequence of the operation of a motor vehicle. Therefore, the operator of the motor vehicle is responsible for this result. According to Article 85/1 of the TCC, the operator’s liability is not a fault liability, nor is it a causation liability based on the violation of the objective duty of care stipulated in Article 55 of the B.K. In this respect, the operator is liable to compensate for the damage caused by the operation of the vehicle, even if he has no fault. Liability is not based on fault.
For the liability of the operator, no fault is required under Article 85/1 of the TCC, and in order to be relieved from liability, the circumstances stipulated under Article 86 of the same law must be in question. In other words, there must be reasons that break the causal link. These are
a-Damage is caused by force majeure,
b – Gross negligence of the injured party or a third party,
c- a technical defect or deficiency in the vehicle did not cause the accident.
The operator of the vehicle must prove its fault. Otherwise, the injured person does not have to prove that the vehicle operator is at fault.
In 1996, with the amendment made to the KTK, liability was also introduced for the owner of the undertaking. Accordingly, the owner of the undertaking (enterprise) is jointly and severally liable together with the operator for the damages incurred during the journeys made on buses, during the operation of the bus under the name of an enterprise or by the enterprise.
Traffic accident caused by a vehicle in operation
Conditions of liability due to;
a- There must be a damage. The damage is the damage to the motor vehicle or the passenger in the vehicle or the property of a person outside the vehicle. Bodily damages of persons are also within this scope.
b-Damage must be caused by the motor vehicle.
c-Damage must be caused by the operation of the motor vehicle. This situation is explained in Article 85 of the TCC, and the damage must be caused by the vehicle being put into traffic and during its use.
d-There must be a causal link between the occurrence of the damage and the operation of the vehicle.
After defining the operator, let us now look at the responsibility of the operator according to Article 85 of the TCC. First of all, we need to find an answer to the question of who is the operator.
Real operator
a-The person who owns the vehicle; the real operator is the person who appears as the owner in the traffic record of the vehicle. In practice, the operator and the owner of the vehicle are usually the same person. In order to determine the operator of the vehicle according to Article 85 of the TCC, we must first look at the traffic record of the vehicle. In general, the person who appears as the owner of the vehicle in the traffic registry is the operator. This is a legal presumption. However, even if the person who appears as the owner of the vehicle in the registration does not sell the vehicle at the notary, if the person who buys the vehicle through ordinary sale has taken the vehicle under his/her actual and economic control (if he/she pays the vehicle’s tax, insurance, decides whether the vehicle should be put on the road or not), this person is considered the operator of the vehicle even though he/she did not buy the vehicle through notary sale. For this reason, the injured person can prove by any evidence that the vehicle belongs to someone else, not to the person who appears in the registration record.
b-If the vehicle is sold with the condition of retaining ownership, the person who is registered as the buyer in the registry kept by the notary is also considered the operator.
c-The lessee or borrower of the motor vehicle
d- The person who operates the motor vehicle on his/her own behalf, at his/her own risk, and has actual possession of the vehicle,
Hypothetical Operator
a-Professionals engaged in professional activities related to motor vehicles,
b-Race organizers,
c-Stealing or hijacking a motor vehicle,
Area of Operation;
-Motor vehicle accident must be on the highway.
-The vehicle causing the accident must be a motor vehicle.
-The provisions of KTK numbered 2918 are also applied in traffic accidents occurring at level crossings. In these cases, the DDY administration is also considered as the operator in accidents occurring at level crossings. The Court of Cassation refers to this in many of its decisions. Level crossings are places where the highway and the railroad intersect.
The operator may be released from liability or
conditions for reduction of liability;
Article 86 of the TCC regulates the release of the operator or the owner of the undertaking from liability. According to this regulation, it has become extremely difficult for the operator to be released from liability.
Accordingly, the operator shall first claim that the damage is caused by a force majeure event or the gross negligence of the injured party or a third party and that the causal link has been severed, and then prove that neither he nor the persons whose actions he is responsible for are at fault in the incident. However, Article 86 is not satisfied with this; it also requires that a defect in the vehicle is not a factor in the occurrence of the damage.
If the operator, who cannot escape liability, proves that the injured party was at fault for the accident, the amount of compensation shall be reduced according to the degree of fault.
Remembrance (Article 87);
If the injured or deceased person is being transported gratuitously for remembrance or if the motor vehicle is given gratuitously to the injured or deceased person for remembrance, the liability of the operator and the liability for damages to the vehicle in the relationship between the owner and the operator of the motor vehicle comply with the general provisions. In other words, in this case, general provisions are applied, not the provisions of the TCC; for example, the provisions of the B.K. are applied.
Therefore, it is not possible to benefit from Compulsory Traffic Insurance in the case of souvenir transportation.
Multiple damages (Article 88);
If more than one person is liable for compensation for damages suffered by a third party in an accident involving a vehicle, they are jointly and severally liable. In cases where more than one person is held liable, those who cause the damage bear the damage in proportion to their fault.
Those who are responsible for the same damage are jointly liable and each of the debtors is responsible for the entire debt in accordance with Article 141 of the B.K. In order for those who cause damage to be jointly liable, the claimant must make a claim in this regard.
Material and Moral Damages (Article 90)
The form and scope of pecuniary damages and non-pecuniary damages shall be governed by the provisions of the Law on Torts.
The matters set out in Articles 41-60 of the B.K. will be applied to the form and scope of the new material compensation and the sections on non-pecuniary damages for damages caused by traffic accidents. However, there is a difference in moral compensation claims. Contrary to the general provisions, according to Article 109/2 of the TCC, if the lawsuit arises from an act that requires a penalty and the penal code stipulates a longer statute of limitations for this act, this period shall also apply to claims for moral damages.
If a person has died in a traffic accident; Since the heirs are deprived of the support of the deceased; they may claim compensation for deprivation of support and funeral and burial expenses, and may also claim non-pecuniary damages due to the pain and sorrow they feel due to the death of the deceased.
In case of injuries; due to the loss of work and strength due to the loss of work and strength, during the day of deprivation of work and strength, since he cannot work and is deprived of earnings, he will be able to claim the loss he cannot work and is deprived of, and if he has received treatment, he will be able to claim treatment costs.
In case of disability; the person will be able to claim damages according to the loss of work and strength that will occur according to the rate of disability, request treatment costs and be entitled to moral compensation.
In case of material damages; the person may request compensation for damages to vehicles or goods.
I would especially like to point out that I think that the loss of value of the vehicles due to the accident can be requested in material damages. For example; Let’s imagine that a vehicle was seriously damaged in the accident, here we can request the damage to the vehicle and the damage required for the repair of the vehicle, as well as the loss of value due to the impact of the vehicle.
In material and moral compensation claims; the amount of compensation will be determined according to the fault rate of the parties in the incident.
INSURANCE
Compulsory Traffic Insurance (Article 91)
Compulsory financial liability insurance is a type of damage insurance that was created to protect both third parties and the insurer in order to cover the damage caused by the insured to third parties. Operators are obliged to carry out financial liability insurance in order to ensure that their responsibilities under Article 85 of the KTK are covered.
Vehicles that do not have compulsory financial liability insurance are prohibited from driving.
Compulsory traffic insurance was established to cover the responsibility of the operator according to the TCC. This type of insurance is organized to cover the damages caused by the operator to third parties. In other words, traffic insurance covers the damages caused by the operator to third parties. Damages to the operator itself are not covered by the insurance.
For example; Let’s assume that the insured vehicle has a one-sided material damage accident. Here, since the insured vehicle does not harm a third party, the material damage to this vehicle is not covered by the insurance. Let’s assume that the same vehicle hits and kills a pedestrian and the vehicle is at fault. In this case, since the pedestrian is a third person, this damage is covered by the insurance.
In Compulsory Traffic Insurance; the liability of the insurer (insurance company) is limited to the limit. It is not responsible for damages above the limit.
Conditions for benefiting from Compulsory Traffic Insurance;
1-There should be no damage to be incurred by the operator itself.
2-A motorized vehicle must be involved.
3-The accident covered by the insurance must be on the highway.
4-The motor vehicle must be in operation.
5-There must be no transportation of memories.
6-The property accompanying the injured person must be damaged. Here, the liability of the operator for the damages incurred by the goods carried in the vehicle other than the luggage and similar goods accompanying the injured person is subject to the general provisions. In other words, the insurer is liable in case of damage to the luggage and similar items of the injured party.
7-The operator and the persons responsible for their actions must not be at fault for the theft and hijacking of the vehicle. In other words, if there is no fault of the vehicle operator or the persons responsible for the actions of the operator in the theft or hijacking of the vehicle, the insurer has no responsibility since the vehicle operator is not responsible.
8-The insurance company is not responsible for the damage suffered by motorized bicycle drivers.
In case of damage to the vehicle driver
Liability of the insurer (Article 91);
According to Article 91 of the TCC, in compulsory traffic insurance, the insurer assumes the legal liability of the operator under Article 85/1 of the same law. According to the aforementioned article, if the operation of a motor vehicle causes death or injury to a person, the operator shall be liable for these damages. Since there is no provision in Article 92 of the KTK, which limits the liability of the insurer in this context, that the driver of the vehicle is excluded from the scope of insurance, compensation can be claimed from the insurance company in case of damage to the driver of the vehicle (for example, death). However, if the vehicle owner and the driver are the same person or if the driver is at fault, the insurance company cannot benefit from the insurance.
The insurance company’s right of recourse to the vehicle owner;
Even if the vehicle owner is 100% at fault in the accident, the insurance company cannot recourse to the owner and driver of the insured vehicle.
Matters excluded from Compulsory Traffic Insurance (Article 92);
1-Claims that the operator may direct against the persons for whose actions the operator is held responsible in accordance with this subject, as it is known, the operator is responsible for the fault of the driver or auxiliary persons as if it were his own fault. Accordingly, the insurer will not be applied for the compensation of damages arising from the fault of these persons. In other words, the insurer is not responsible for the damages that may be the subject of the recourse lawsuit to be filed by the operator against the driver. However, in case the driver dies, the insurer’s liability will continue.
2-Damages to the property of the operator, his/her spouse, his/her children and siblings living with him/her are not covered by the insurance. Only damages to property are mentioned here. In addition, in order for the insurer not to be liable for damages to the property of siblings, the sibling must have lived together.
3- Claims for damages to things for which the operator is not held liable under this law, for example, the insurer is not liable for damage to a thing in an event that is not covered by the KTK. Or, in the case of a souvenir carriage, the general provisions will be applied, not the provisions of the TCC. Therefore, since the provisions of the TCC will not apply, the insurer is not liable.
4- Claims arising from accidents in motor vehicle races or racing trials to be made under the coverage of compulsory financial liability insurance according to paragraph 3 of Article 105 of the TCC;
5-Damages to the goods carried in the motor vehicle.
6-Claims for moral compensation.
In the above-mentioned matters, the injured party will not be able to apply directly to the insurance company regardless of who he/she is. Except for the above, the insurance company will pay the third party’s damages within the limits specified in the policy.
Minimum insurance amounts (Article 93)
Compulsory Financial Liability Insurance; Coverage: According to the type of vehicle, the maximum amounts to be paid per person and per accident, death, injury compensation and compensation to be paid as material damage to the vehicle are determined by the relevant ministry every year and published in the Official Gazette.
a-Policy limits at the date of the accident are valid.
b-When the insurance premium will be paid; In order for the insurance company to start the responsibility arising from the insurance policy, the entire premium or the first installment must be paid. In practice, the entire premium of Compulsory Traffic Insurance is paid in advance.
Change of the insured vehicle (Article 94);
In the event of a change in the operator of the insured vehicle, the person in question must notify the insurer 15 days in advance. The insurer may terminate the insurance contract within 15 days from the date of notification. Even if the insurer terminates the contract, the insurance contract is valid until 15 days after the termination date.
What is important here is that the insurance contract is not automatically terminated with the change of vehicle owner. If the owner of the vehicle changes and this is notified to the insurer, the insurer has the right to terminate the contract within 15 days. The insurer may terminate the contract only for a just cause.
Reduction or abolition of the indemnity
Circumstances (Article 95);
Circumstances arising out of the insurance contract or the law and resulting in the abolition or reduction of the indemnity obligation cannot be asserted against the injured party.
The insurer making the payment may apply to the policyholder to the extent that it can remove or reduce the compensation according to the insurance contract or law.
Accordingly, these situations are listed in Article 4 of the General Terms and Conditions of the KTK Financial Problem Insurance.
A- According to the insurance contract; cases where the insurer can recourse to the insured.
1- If the event requiring compensation occurred as a result of the intent or gross negligence of the operator.
2- If the event requiring compensation occurred as a result of the vehicle being driven by persons who do not have a driver’s license according to the provisions of the KTK.
3- If the accident occurred due to the driver’s use of drugs or intoxicants, or due to the driver’s consumption of alcoholic beverages.
4- If the owner of the vehicle is at fault for the theft or hijacking of the vehicle
5- Carrying passengers by vehicles that do not have a passenger transport license
if the accident occurred due to excessive passenger transportation
In the above-mentioned cases, the insurance company will pay the damage of the third party, but will be able to apply to its own insured for the collection of the damage it has paid. In other words, the insurer cannot assert the defenses it has against the insured against the injured third parties. This regulation is intended to protect the victims of the accident.
DRUNK DRIVING ISSUE
If the driver of the vehicle is under the influence of alcohol and has lost the ability to drive safely, the accident must be a result of the driver’s intoxication. In other words, if the accident would have occurred whether the driver was intoxicated or not, this is not a sufficient reason for the insurer to have recourse against the insured.
The issue of the insurer’s recourse, whether compulsory or voluntary, according to the general terms of financial liability insurance, the insurer replaces the policyholder in the amount of compensation paid. Thus, the insurer will be able to file the compensation lawsuits that the operator (the insured) may file against the persons who caused the accident.
There is a similar provision in Article 1301 of the Commercial Code. Accordingly, after the insurer pays the insurance amount, it legally replaces the insured. If the policyholder has a right of action against third parties due to the damage, this right shall be transferred to the insurer in proportion to the amount compensated. It is stated above in Article 95 of the TCC that the insurance company may apply to the policyholder in cases of payment to third parties in violation of the insurance contract.
Similarly, Article 98 of the TCC stipulates that the injured party may apply to any of the insurers for treatment expenses. Again, in Article 99, the insured may request the insurer to allocate the payments other than treatment costs to other insurance companies in proportion to their liability. The issue of recourse arises here as well. In this case, the insurance company making the payment may apply to other insurance companies in proportion to their fault.
The statute of limitations for the subrogation lawsuit to be filed by the insurer (insurance company) in the capacity of successor; Pursuant to Article 109 of the TCC and Article 60 of the B,K, the lawsuit must be filed within 2 years and in any case within 10 years from the date of learning about the injured party and the indemnity obligor. In other words, the insurance company is bound by the statute of limitations of the injured party (the insured) in the subrogation case.
Multiplicity of Damages (Article 96);
If the sum of the damages of the injured persons exceeds the amount specified in the policy, the insurance policy shall specify the amounts of treatment expenses, compensation claims other than treatment expenses and compensation claims to be paid in case of death. However, what should be done if the loss incurred is more than the amount covered in the insurance policy? Article 96 provides the answer to this question. Accordingly, if the damage incurred is more than the amount of insurance coverage, the claim of each of the injured parties from the insurance company is subject to a discount according to the ratio of the insurance amount to the total amount of compensation claims.
If we formulate this;
Compensation to be paid per accident specified in the policy x claimant’s indemnity receivable
the sum of the damages of all those who suffered losses.
In order to make this type of calculation, it is necessary to know the amount of damages of all those who have suffered losses. Otherwise, such calculation is not possible.
In paragraph 2 of the Article, the consequences of the payment made by the insurance company without knowing that there are other injured parties are shown. Accordingly, if it is not possible for the insurer to know that there are other injured persons other than the injured person who has requested payment (for example, if the accident reports do not specify the names of all the injured persons) and the insurer has made payment accordingly, the insurer is considered to be in good faith. It is relieved from making payments to other persons. However, if the insurer is in a position to know the number of injured persons, it is not considered to be in good faith. And in this case, it must pay the damages of the applicants.
Right to claim and sue directly (Article 97)
The injured person may directly claim and sue against the insurer within the limits stipulated in the financial liability insurance.
Payment of Treatment Expenses (Article 98);
In an accident caused by motor vehicles, the person who has suffered bodily harm has the right to request first aid, examination and control or treatment expenses in outpatient, hospital and other places and other expenses required by his treatment from the compulsory liability insurance.
Treatment expenses; Hospital, health dormitory, doctor, examination, analysis, surgery, companion etc. fees and expenses of services, travel fees to and from examination and analysis places, ambulance, physical therapy, x-ray, orthopedic treatment, prosthesis costs, all kinds of medicines and additional food costs.
In accidents involving more than one vehicle, the injured person can apply to any of the insurance companies for compensation of treatment expenses. In this case, the insurance company making the payment may recourse to other responsible parties in proportion to their fault. The law stipulates that the payment must be made within 8 working days from the date of application, and in case of violation, you can file a complaint against the insurance company.
Payment of compensation and expenses (Article 99);
Procedure for payment of compensation and expenses; The insurance company is obliged to pay the remaining amount within the limits specified in the policy within 8 (eight) business days from the date the beneficiary submits the determination report or expert report regarding the accident and damage to one of the insurer’s centers or institutions.
The nature of the payment to be made by the insurance company; the payment to be made by the insurance company to the injured party is not a lump sum payment. The actual loss of the injured party will be paid by the insurance company. However, the payment to be made is limited to the limit specified in the insurance policy, and the insurance company will not make payments above the limit.
Optional Financial Liability Insurance (Article 100)
This type of insurance is a form of insurance contract that protects third parties who are directly damaged. The responsible person (motor vehicle operator) is indirectly protected by this insurance contract. The special feature of this insurance policy is that the insurance compensation is determined above the limits stipulated for compulsory financial liability insurance. The motor vehicle operator may take out voluntary financial liability insurance in any amount he/she wishes after taking out the compulsory insurance.
More precisely, with this insurance, the owner of the vehicle secures the diminution that may occur in his/her assets due to the compensation that he/she will have to pay to third parties.
This type of insurance can be taken out in addition to the compulsory liability insurance, or it can be taken out with a mirror policy or a separate policy with another insurance company. However, it is usually made as an additional coverage in the motor insurance policy.
In order to apply for voluntary financial liability insurance, the damage must be above the limits of compulsory financial liability insurance.
First of all, as in compulsory financial liability insurance, it is explained in Article 100 that the provisions of the contract that reduce or remove liability will not have any effect against third parties, and that the injured party can claim the loss from the insurance company by applying directly or by filing a lawsuit.
In order for the insurance company to be able to pay the damages covered by the voluntary financial liability insurance, the compulsory financial liability insurance must first have been applied for and the damages within the limits of the compulsory financial liability insurance must have been paid, and it must be proven that the amount of damage is above the limits specified in the compulsory financial liability insurance policy.
Although not included in the law, it would be useful to briefly mention Green Card Insurance, Compulsory Motor Insurance and Compulsory Seat Insurance.
Green Card Insurance
The compulsory financial liability insurance of foreign countries to be traveled to each other included in the compulsory financial liability insurance of motor vehicles and included in the European Convention is a uniform international insurance.
If a Turkish vehicle has an accident in a foreign country or a vehicle with foreign license plates has an accident in Turkey, the insurance amount is paid if it is understood that the countries of the accident are covered by the policy.
In case of damage to a vehicle with foreign license plates in Turkey, an application must be made to the Turkish motor vehicle bureau by attaching the relevant documents.
If a motor vehicle carrying a Green Card policy to be issued by an insurance company that is a member of the bureau in one of the countries signing the agreement causes an accident while traveling on the highway of a foreign country included in this agreement, and if there are third parties who are damaged in this accident and they claim compensation against the insured, the Green Card insurance will be accepted as compulsory financial liability insurance issued in that country and will cover this damage of the damaged person within the limit determined in its own country. Limits are determined according to the Decree of the Council of Ministers.
Compulsory Comprehensive Insurance;
It is a type of insurance that covers only the damages to the insured vehicle. In this type of insurance, damages caused by the insured vehicle to third parties are not covered.
In this type of insurance, the insurance covers the damage suffered by the vehicle as a result of the accident, and it does not matter whether the driver of the vehicle is the insured person or not, or whether the driver is 100% at fault or not. However, if the damage occurs as a result of a deliberate act of the insured, the insurance company is not responsible for the damage.
Likewise, the insurance company is not liable if the driver who caused the accident is unlicensed or if the driver is intoxicated and the accident occurred under the influence of alcohol.
Bus Compulsory Seat Insurance
It is a type of insurance in which passengers, drivers and driver assistants of buses carrying international or intercity passengers are insured against all kinds of accidents they may be exposed to during the travel period (including breaks and stops) from the start to the end of the transportation service.
This type of insurance is a compulsory insurance type in accordance with the provisions of the regulation on intercity passenger transportation, and buses that carry passengers are not allowed to carry passengers if they do not have this insurance.
Under this type of insurance, in the event of death, injury or disability of the driver, his/her assistants and passengers, compensation payments are made by the insurance and treatment expenses are covered.
Another feature of this type of insurance is that it is a lump sum insurance. Especially in case of death, the entire limit specified in the insurance policy is paid without any deduction. In other words, there is no calculation of deprivation of support.
Motor Vehicle Trailers (Article 102)
Nature of liability;
If the accident is caused by a trailer, the liability is subject to the provisions of Articles 85 and 86 of the TCC. However, if the accident is caused not by the trailer but by the towed vehicle, then the liability is subject to the general provisions of B. K. If the accident is caused by the towed vehicle, the insurance company is not liable. Because in this case, the towed vehicle is not in operation. In such a case, one of the consequences of the liability being subject to general provisions is that the provisions of Articles 85, 86 of the TCC regarding hazard liability will not be applied. Liability will be determined according to Article 41 of the B.K., that is, according to the principle of fault. Regarding the statute of limitations, Article 60 of the B.K. will be applied and Article 109 of the TCC will not be applied.
It is clearly emphasized in the article that an additional liability insurance will be required for trailers (caravans) used for the transportation of people.
I find it useful to mention the issue of the transportation of people in trailers for the transportation of cargo. In rural areas, it is seen that workers are often transported in tractor trailers. In the general terms and conditions of liability insurance, it is stated that if the event requiring compensation is caused by the transportation of passengers in vehicles that are not licensed to carry passengers, then the insurer may recourse to the insurer.
In the event that the persons transported in the tractor trailer are damaged in accidents caused by the transportation of people in the tractor trailer, mutual fault may be attributed to the fact that these persons riding on the trailer were riding on a trailer that is forbidden to ride. If the trailer was boarded as a result of a certain necessity, it may be unfair to accept the rider as at fault. However, if it is not a result of necessity, fault may be imputed.
Non-motorized vehicles and motorized bicycles (Article 103)
The article states that both non-motorized vehicles and motorized bicycles are not among the vehicles falling under Article 85 of the TCC. As a consequence, there will be no liability insurance for these vehicles. Liability for accidents caused by such vehicles is subject to general provisions.
Those engaged in professional activities related to motor vehicles (Article 104)
Persons in custody of a motor vehicle (parking lot operators)
Those who keep a motor vehicle for repair (repair and maintenance shops)
Those engaged in professional activities related to vehicle maintenance (services, car washes, etc.)
Car buying and selling places
Places that make changes to the vehicle (places that make sliding safes, etc.)
In such places, the owners of the places where motor vehicles are left are held responsible for the damages caused by the motor vehicle, just like the operator. For liability, it is a condition that these persons are engaged in the aforementioned activities and that the control over the vehicle has been realized.
In the cases described above, if a damage has occurred, the operator of the vehicle and the insurance company that insures the liability of the vehicle are not liable.
Races (Article 105)
Damages incurred in a race organized without authorization from the competent authorities shall be covered by the liability insurance of the motor vehicle causing the damage. In such a case, the insurer may recourse to the operator who knew or, if due diligence was exercised, could have known that special insurance had not been taken out for the race.
The race organizers shall be liable for the damages caused by the vehicles of the participants in the race or those accompanying them and other vehicles used in the show, and for the damages caused by third parties not participating in the show, in accordance with the provisions on the liability of the motor operator.
On the other hand, the liability for the damages incurred by the racers or those accompanying them and the damages incurred by the vehicles used in the show is subject to the general provisions.
It is obligatory for the race organizer, race participants and helpers to take out a liability insurance to cover the damages caused to third parties during the race. The person who is damaged due to this special type of insurance will be able to apply to the insurer and demand compensation for the damage.
If the race was held without authorization and as a result, no special insurance was taken out, the insurer of the vehicle participating in the race will pay the third parties who were damaged, and in this case, it will be able to recourse to the operator who knew or could have known that he did not take out special insurance for the race.
Vehicles belonging to the state and public legal entities (Article 106)
The public legal entities specified in the provision of the law are also held liable for damages in the sense of Article 85 of the TCC with the qualification of the operator and according to the principle of danger. These vehicles are obliged to have financial liability insurance.
Liability of DDY; Trains are not subject to the TCC since they are vehicles traveling on the track and not on the highway. However, since trains are motorized vehicles, the DDY administration is liable as the operator for accidents occurring at level crossings in accordance with the provisions of the TCC.
Liability for Stolen or Hijacked Vehicles (Article 107)
A person who steals or hijacks a vehicle and makes unauthorized use of it is liable for the damage caused by the vehicle to third parties, just like the operator, in accordance with the provisions of the TCC.
The driver who knows that the vehicle has been stolen or hijacked, and who could have known if he/she exercised due care, is also jointly and severally liable with him/her.
The law recognizes that the operator of the vehicle is liable for the damage caused to third parties as a result of the hijacking or theft. However, this liability is fault liability. If the operator proves that he or the persons for whose actions he is responsible had no fault in the theft or hijacking of the vehicle, he will be released from liability.
If the responsibility of the operator is in question, the responsibility of the insurance company that insures the financial liability insurance of the vehicle will also continue. However, if there is no responsibility of the operator, there is no responsibility of the insurance company. If the stolen or hijacked motor vehicle has caused an incident and the operator is not responsible, the damages to the person shall be covered by the Road Traffic Guarantee Insurance Account (guarantee fund) in accordance with Article 108.
Road Traffic Guarantee Insurance Account (Guarantee Fund) Article 108
In cases where the injured party cannot find an interlocutor, it is not lawful for the injured party to bear the loss. For this reason, Article 108 stipulates that third parties may apply to the guarantee fund.
In the event of damages caused by a vehicle that should have been subject to compulsory financial liability insurance but was not insured or whose license plate could not be identified, or in the event that the licenses of the insurance company that issued the insurance are permanently revoked in all branches due to financial weakness or in the event of bankruptcy, the damages to the person or property of the persons whose damages are not paid are covered by the guarantee fund within the compulsory insurance compensation limits according to the rules of the operator’s liability. The fund is affiliated to the Association of Insurance and Reinsurance Companies of Turkey.
Damages and conditions covered by the Road Traffic Guarantee Insurance Account (Guarantee Fund);
a-In the event that the vehicle involved in the accident cannot be identified; bodily damages to the person, support damages in case of death, treatment expenses in case of injury
b-If the motor vehicle is not insured; bodily damages to the person, support damages in case of death, treatment expenses in case of injury
c- In the event that the insurance company that issued the insurance has its license revoked in all branches permanently due to financial weakness or bankruptcy; in this case, damages related to both property and bodily harm are paid.
d- In the event that the stolen or hijacked vehicle causes an accident, in the cases stipulated in Article 107 of the TCC (damages to the person), in order for the guarantee fund to cover the damage, it is required that the vehicle owner has no fault in the theft or hijacking of the vehicle. If the vehicle owner is at fault, the guarantee fund is not liable. The insurance company that carries the compulsory financial liability insurance of the vehicle is responsible.
If the operator of the vehicle that caused the accident is subsequently found, the Road Traffic Guarantee Insurance Account may recourse to the operator and its insurer; in other cases, the Road Traffic Guarantee Insurance Account reserves the right to apply to those responsible and to participate in the insurer’s bankruptcy estate.
Statute of Limitations (Article 109)
1 – Statute of limitations under the TCC;
a-For damages; two years from the date the injured person learns about the damage and the indemnity obligor, and in any case 10 years from the date of the accident,
b-In damages to the person;
Material damages; two years from the date the injured person learns about the damage and the compensation obligor and in any case 10 years from the date of the accident,
If the case arises out of an act that requires a penalty and the penal code stipulates a longer statute of limitations for this act, the statute of limitations stipulated for the penalty in the penal code shall apply. No distinction is made here between the driver or the operator. The driver is not required to be convicted for the application of the extended statute of limitations.
c- Statute of limitations for moral damages; Article 90 of the TCC stipulates that the provisions of the Code of Civil Procedure regarding torts shall be applied for moral damages, and accordingly, although a 1-year statute of limitations is stipulated in Article 60 of the Code of Civil Procedure, in a decision of the Court of Cassation, “if the case arises from an act that requires punishment and the penal code stipulates a longer statute of limitations for this act, this period is also applied for moral damages”
2- Statute of limitations for torts not covered by the TCC;
According to Article 60 of the B.K., the statute of limitations is 1 year from the date the injured party learns of the damage and the perpetrator, and in any case 10 years. However, if the act is a crime and a longer period is stipulated in the criminal law, the statute of limitations is the statute of limitations specified for the act in the criminal law.
Statute of Limitations against the insurer (insurance company);
a-In case the injured party applies to the insurance company; there is no special explanation about the statute of limitations for lawsuits to be filed against the insurer. In this case, the statute of limitations of 2 and 10 years shall also apply here. If there is an act that requires punishment, the statute of limitations in the penal code is applied.
b-In case the insured applies to the insurer (insurance company); According to Article 1268 of the TCC, the statute of limitations for claims arising from the contract between the insured and the insurer is 2 years.
c-Insurer’s recourse case; the statute of limitations applicable to the claims of the injured party against the damaging party shall apply here. Here, it is important when the statute of limitations starts for the insurer. The statute of limitations for the insurance company’s subrogation action starts from the date the successor (the injured party) learns about the perpetrator.
Competent court (Article 110)
In lawsuits related to legal liability arising from traffic accidents; It can be filed in the court of the place where the insurer’s headquarters or branch or the agency that concluded the insurance contract is located and the place where the accident occurred.
If the same lawsuit is not filed against the insurance company but against the operator, according to the general provisions, the court of the defendant’s residence or the place where the accident occurred is authorized.
Court of jurisdiction;
Depending on the amount of the case, it is filed in the Civil Courts of Peace or First Instance. For claims of 5.000 YTL and below, it is filed in the Civil Court of Peace, and for claims over 5.000 YTL, it is filed in the Civil Court of First Instance.
If the parties to the lawsuit are merchants and the tort concerns a commercial enterprise, the lawsuit is filed in the commercial court.
Lawsuits to be filed by passengers in vehicles such as buses, minibuses and taxis shall be filed in the commercial court.
If the motor vehicle accident is also a work accident, the lawsuit should be filed in the labor court.
In cases between the insured and the insurance company, the commercial court has jurisdiction since the business is commercial.
Attorney Mustafa YILDIZ
All rights of the article titled “Legal Liability and Insurance in Traffic Accidents” belongs to its author Mustafa Yıldız and the article was published by its author in the library of Turkish Law Site (http://www.turkhukuksitesi.com).
