This is the English version of an article originally published in Turkish: Trafik Kazası Tazminat Davası Nedir?.
A person injured in a road traffic accident in Turkey, or the family of a person killed in one, can claim compensation for both financial loss and pain and suffering. In legal terms a traffic accident compensation claim (trafik kazası tazminat davası) is a tort claim. Article 49 of the Turkish Code of Obligations (No. 6098) sets out the basic rule: “A person who causes damage to another by a culpable and unlawful act is obliged to compensate that damage.” The Highway Traffic Law (No. 2918) adds specific rules on the liability of vehicle keepers and on compulsory insurance.
Pecuniary loss in bodily injury cases
Bodily injury is the main head of pecuniary damages. Under Article 54 of the Code of Obligations, losses arising from bodily injury include in particular:
- treatment costs;
- loss of earnings;
- losses resulting from reduced or lost capacity to work; and
- losses resulting from damage to the person’s economic future.
The victim’s income has a direct effect on the amount awarded, so loss of earnings should be supported by documents.
Temporary and permanent incapacity
A victim who cannot work during treatment suffers a loss of income, which is covered by compensation for temporary incapacity (geçici iş göremezlik). The calculation is based on the person’s daily earnings for each day of certified sick leave.
Permanent disability gives rise to compensation for permanent incapacity (sürekli iş göremezlik). The court calculates the loss of income over the rest of the victim’s life, using the PMF or TRH 2010 life tables, and future earnings are paid now as a lump sum. Age and salary are the key factors. The degree of disability (maluliyet oranı) is set by a medical board report from a fully equipped state hospital, and reports of the Council of Forensic Medicine (Adli Tıp Kurumu) are regarded as the most reliable. Actuarial calculations are technical and an incorrectly framed claim can be rejected.
Treatment costs
As a rule, hospital treatment costs are paid by the Social Security Institution (SGK). For undocumented treatment costs, the court can ask an expert to make a calculation. Private hospital surcharges can sometimes be claimed, as can the cost of a carer and travel expenses during treatment.
Non-pecuniary damages
Pain and suffering caused by the accident are compensated through non-pecuniary damages (manevi tazminat). Article 56 of the Code of Obligations provides that where a person’s bodily integrity is harmed, the judge may, taking into account the particular circumstances, order payment of an appropriate sum to the injured person as non-pecuniary damages. Where the injury is serious, close relatives may also claim.
In fixing the amount the judge looks at the social and economic position of the parties, which is usually investigated through the police, and at how the accident happened. The award is not a punishment and must not enrich the claimant: its purpose is to ease the victim’s suffering.
Fatal accidents and loss of support
Under Article 53 of the Code of Obligations, losses in the event of death include in particular funeral costs, treatment costs and loss of working capacity if death did not occur immediately, and the losses of those deprived of the deceased’s support.
Persons who depended on the deceased can claim compensation for loss of support (destekten yoksun kalma tazminatı). These are typically the spouse and children, and in some cases the parents. The claimant must prove that a relationship of support existed. Loss of support is separate from funeral and hospital costs.
This claim does not form part of the estate. It belongs personally to each dependant. A dependant who has disclaimed an over-indebted inheritance can therefore still claim loss of support.
Who is liable?
The vehicle keeper (işleten) and the driver are jointly and severally liable. Under the Highway Traffic Law, the keeper is subject to strict liability for the risk created by operating the vehicle. The keeper is liable even if not driving at the time, and the driver’s full fault does not release the keeper. The keeper can escape liability only in limited cases, such as force majeure. Insurance companies are also parties to the process.
In multi-vehicle collisions, the fault of each driver is assessed separately. The victim can sue all drivers at fault and, under the rule of joint and several liability, may claim the whole loss from any one of the insurers.
Fault and how it is determined
The accident report drawn up by the traffic police (kaza tespit tutanağı) is the first piece of evidence, but the court is not bound by it. The file is sent to a traffic expert, and an on-site inspection may also be carried out. The judge settles the final allocation of fault on the basis of the expert report. Camera footage is often decisive.
The victim’s own fault reduces the award. Pedestrians must also obey traffic rules: a pedestrian who does not use a crossing may be held partly at fault, and in some cases fully at fault. A party who is entirely at fault cannot claim compensation from the other side on the basis of his or her own fault.
Passengers are usually considered free of fault and may sue both the driver of their own vehicle and the other side. If the passenger was being carried as a favour (hatır taşıması), the award may be reduced.
Drink driving is treated as a primary fault. The insurer that pays the victim can recover the amount from its own insured, and the driver faces both criminal and civil consequences.
Vehicle damage
A vehicle that has been in an accident loses market value even after repair. The party not at fault, or less at fault, can claim this loss of value (değer kaybı). There should be no previous damage to the same part of the vehicle. Mileage limits are no longer applied as strictly as before. Damage limited to plastic parts does not usually cause loss of value, while chassis or bodywork damage does.
The owner may also claim loss of use (mahrumiyet bedeli), for example the cost of hiring a replacement car during repairs. This item is not covered by compulsory traffic insurance and must be claimed from those responsible for the vehicle directly.
Prior application to the insurer
Before filing a claim against the insurer, the victim must apply to the insurance company. Under the Highway Traffic Law this application is a precondition for a lawsuit. The insurer must respond within fifteen days. If the response is negative, the victim may go to court. A complete application file speeds up the process.
As an alternative to court, the claim can be taken to the Insurance Arbitration Commission (Sigorta Tahkim Komisyonu). It is considerably faster than the courts, with decisions usually issued within four to six months, and costs are lower. Its decisions are enforceable in the same way as court judgments.
Competent court
Traffic compensation claims are generally heard by the civil court of first instance (asliye hukuk mahkemesi), while claims against an insurance company go to the commercial court of first instance (asliye ticaret mahkemesi). The court at the place of the accident has jurisdiction, and the court of the defendant’s domicile is an alternative.
Interest
Statutory interest applies to compensation claims. In tort, interest runs from the date of the accident. For insurers, the date of default is determined separately. Where commercial vehicles are involved, the commercial advance rate (avans faizi) may be claimed. The interest claim must be stated expressly in the statement of claim.
Limitation periods
The period starts on the date the victim learned of the damage and the person liable. As a rule the short limitation period is two years, with a long period of ten years. If the criminal limitation period for the act is longer, that longer period applies.
Relationship with the criminal case
Negligent injury or negligent homicide leads to a criminal prosecution. An acquittal by the criminal court does not bind the civil judge. In practice the civil court often waits for the criminal judgment to become final.
Accidents involving foreign-registered vehicles
Accidents involving foreign-plated vehicles are covered by Green Card insurance. In these cases the Motor Insurers’ Bureau of Turkey (Türkiye Motorlu Taşıt Bürosu) is the respondent, and international agreements protect the victim’s rights. The procedure differs slightly from claims involving locally registered vehicles.
Child victims
Where a child is injured, the parents holding custody conduct the case. Calculations are based on the child’s expected future working capacity, and courts always take the best interests of the child into account.
Frequently asked questions
What is the limitation period? As a rule two years for accidents causing injury or property damage. It may be longer where the criminal limitation period applies.
Can only financial loss be claimed? No. Non-pecuniary damages may also be claimed for the distress caused by the accident.
Can I sue without first applying to the insurer? No. Under the Highway Traffic Law a written application to the insurer is mandatory before suing it.
How long does a case take? An average compensation case takes one to two years at first instance. Appeal stages are not included in this estimate.
More information for foreign clients: English-speaking lawyer in Ankara.
This article provides general information on Turkish law and is not legal advice. Outcomes depend on the facts of each case.
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