Accidents on the Road in Turkey, Car Crashes, Traffic Accidents
Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr
In case that traffic accident victims are not willing to file a case against vehicle driver who led road accident, they can claim against insurance company of mistaken driver’s car. In general, both driver and insurance company are set as defendants in one case due to the reasons mentioned below.
- Collection possibility from Insurance Company
Applicant victims prefer to assert a claim against Insurance company due to financial reasons. As can be understood, naturally financial capacity of insurance is better than ordinary driver. Only material compensation can be requested from the insurance. Moral compensation stemming from the accidents on the road can be only asserted towards driver.
- Insurance Company’s Confidentiality and Permanency
As compared to mistaken driven , insurance does not only give confidentality in financial situations.
In some cases , claimants hessitate to put the driver difficult situation and they only request moral compensation from them. In Turkey, it is very important to note that all vehicles in Turkey are obliged to have insurance for crashes. And if a vehicle damages a victim , as a claimant , he/or she can assert a claim to the car owner’s company. In the end, insurance company may recourse the compensation if the driver is fully mistanken.
Under Article 97 of Turkish Road and Traffic Act, “Victim can assert a direct claim against insurance company in the context of the act.”
Who can file a case as applicant in the court?
There are two issues in this point. If victim is alive under article 41, 45 and 47 articles of Code Obligation of Turkey, moral and material compensation can be filed against the company by victim. If victim is deceased stemming from accident, relatives of deceased (such as mother, father, spouse, children, sibling, fiancee and other people who are depending on deceased’s support. If deceased file a case before marriage , spouse can resume the case.
The claims of compensation because of a unlawful act cease after a certain period of time. Normally the term is 2 years running from the date on which the damaged person recieved knowledge of damage and of the person who had caused the damage. This may not be longer than ten years from the date when the act causing the damage occured. (New Code of Obligation of Turkey entered into force in 2011, article 72)
There is one important issue to consider in Turkish Law related to statute of limitations of tortious acts ( in other words acts stemming from Personal Injury). In case that wrongful act causing the damage also became an issue of a criminal offence , Statute of Limitations applying to Criminal Offence would be taken into account by civil court dealing with personal injury case.
For example, in case that a person died by a brick which is fell out from the building, this negligence will be an issue of both civil and criminal case. In these situations, we need to consider time period stated in criminal act and in contract law of Turkey. If criminal act’s time period is longer then we need to take into account to criminal act provision related to this issue. To make it more concrete, according to Turkish Criminal Law, statute of limitation applies to killing of a person by negligence is 15 years, thus case can be filed within 15 years due to characteristic of offence.
Turkish Criminal Act, Article 66 states statute of limitations as below:
(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;
- a) Thirty years in offenses requiring punishment of heavy life imprisonment,
- b) Twenty-five years in offenses requiring punishment of life imprisonment,
- c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
- d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
- e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years
(2) Public action is dismissed upon lapse of half of the a/m periods if the convict completed the age of ten but not yet attained the age of fifteen at the commission date of the offense; as for the convicts who completed the age of fifteen but not attained the age of eighteen, public action is dismissed upon lapse of one third of the a/m periods.
(3) In determination of statute of limitation, the qualified form of offense which requires imposition of heavy punishment is considered on the basis of the evidences presented to the file.
(4) The maximum limit of the punishment assessed in the law for the offense is taken into account during determination of the periods mentioned in afore subsection. In offenses, where imposition of alternative punishment is in question, the punishment of imprisonment is taken as basis with regard to statute of limitation
(7) Statute of limitation may not be applicable in case of commission of offenses in abroad, which require heavy imprisonment, or imprisonment or imprisonment more than ten years.
Accordingly, in case that personal injury stemming from criminal offence we also need to take into account the provision which is mentioned above. Civil court will also consider prescription periods concerned above.
How the amount and the scope of material and moral compensation is determined by the courts?
In case that traffic accident resulted in death, inheritors have right to claim for compensation due to being destitute of help and the expenses related to funeral. The compensation can be claimed also for compensating moral damages such as depression and sadness due to the death.
If the injury occurred, bare of the job, duration of unemployment, loss of wage due to injury and treatment costs can be requested. Additionally, moral compensation can also be requested.
If the person become disabled due to accident, he/she can request compensation depending upon severity of the disability and power loss. The proportion of disability is extremely important for determination of the compensation amount. Besides, damages related to vehicle and other property can be also requested.
The economic condition of the applicant is also very important for the determination of compensation amount. If the damage cannot be proved properly with evidences, the compensation amount will be lower or minimum wage amount will be considered as damage. Considering feature of moral compensation as a intangible concept, provability requires significant evidences related to