TRAFFIC INSURANCE AND LEGAL SOLUTIONS

TRAFFICINSURANCE AND LEGAL SOLUTIONS

Today, the advancement of technology and the resulting emergence of various types of damages have made it necessary to arrange various types of insurance. Insurance is a contract that provides for the compensation of the consequences of an event that causes a decrease in a person's assets, through the premium paid. In liability insurance, the consequences of the realized risk are shared between the insured and the insurance company. Traffic insurance, a type of liability insurance, is of great importance in protecting the economically vulnerable and reducing the losses of the injured party.

RESPONSIBILITY OF THE MOTOR VEHICLE OPERATOR AND THE OWNER OF THE ENTERPRISE TO WHICH HE/SHE IS AFFILIATED

Liability arises under certain conditions. These are divided into general and specific conditions. The conditions for torts in Article 49 of the Turkish Code of Obligations are also relevant in the general conditions of the insurance company's liability. These are:

1. Damage must have occurred.
Only damages to persons or objects give rise to liability under the provisions of the Turkish Road Traffic Law.

2. The cause of the damage must be a traffic accident.
According to Article 3 of the Traffic Law, a traffic accident is defined as an event involving one or more vehicles in motion on a highway that results in damage. According to some authors, a traffic accident involves elements of suddenness, undesirability, and external factors.

3. The accident and damage must have occurred due to a motor vehicle.
Article 3 of the Turkish Road Traffic Law defines motor vehicles as vehicles powered by machinery on a road, used for transporting people, animals, and goods. In other words, vehicles that move on land using their own propulsion are called motor vehicles.
The motor vehicle pulling the trailer is liable for the damage caused by the trailer according to strict liability.

4. There must be an appropriate causal link between the damage and the motor vehicle.
Indirect causality is also considered sufficient without requiring direct causation. For example, in damages caused by fear and shock from the lights or noise of a motor vehicle, fear and shock are considered sufficient reasons for the establishment of a causal link.
The liability of the motor vehicle operator is a type of strict liability, namely liability for dangerous activities. Since it is strict liability, the condition of fault is not required for liability to arise.

The specific conditions of liability are regulated in Article 85 of the Traffic Law:

1. Damage resulting from a traffic accident must stem from the operation of the vehicle, from the fault of the operator or those for whom the operator is responsible in the case of a vehicle not in operation, from a defect in the vehicle, or from an act of assistance performed after the accident.

The actual operator is the vehicle owner, the buyer with retention of title, the long-term lessee, the borrower or pledgee, the persons whose names are listed on the vehicle registration certificate and insurance policy, and those who operate and dispose of another person's vehicle at their own risk and in their own name and on their own behalf.
The hypothetical operator is the person engaged in a profession related to motor vehicles, race organizers, and those who steal or hijack motor vehicles.
The persons for whom the operator and the owner of the enterprise are responsible are the driver of the vehicle or the auxiliary persons involved in the operation of the vehicle, as stated in Article 85/5 of the Traffic Law.

2. The operator must have been unable to provide proof of exoneration.

According to Article 86 of the Turkish Road Traffic Law, liability does not arise only if the damage resulted from force majeure, the fault of a third party, or the fault of the injured party, and it is proven that the defect in the vehicle did not play a role in causing the damage. To prove that the defect in the vehicle did not cause the damage, it is sufficient to prove that the part that caused the accident was intact, not all parts. In this case, there is a hypothetical fault on the part of the motor vehicle operator or owner. The operator or owner must prove their own faultlessness, which is the exception.

The operator's liability is reduced in the following cases, and in such cases, general provisions will apply, not the provisions of the Traffic Law:

• Liability arising from accidents resulting in death or injury due to gratuitous transportation or the gratuitous use of a vehicle
• Liability for damages to the vehicle in the relationship between the owner and the operator
• Liability arising from damage caused by a motor vehicle if the conditions in Articles 85/1 and 85/2 of the Traffic Law are not met
• Liability arising from damage to items carried by the injured party other than luggage
• Claims for moral damages arising from traffic accidents
• Liability of the race organizer for damages caused by participants to each other
• Liability for damages suffered by a person who knowingly drove a stolen motor vehicle
• Liability arising from damage to vehicles towed on the road
• Legal liability of a motorbike rider

MANDATORY FINANCIAL LIABILITY INSURANCE:

As stated in Article 91 of the Highway Traffic Law No. 2918, operators are required to obtain liability insurance to cover damages for which they are liable under Article 85 of the same law. According to this mandatory article of the law, drivers without compulsory liability insurance with applicable coverage amounts will be prohibited from driving. The insurer's liability arises when the motor vehicle defined in the insurance policy is involved in an accident and this accident results in death, injury, or damage to third parties. If the conditions are met, the insurer will jointly assume the legal responsibility of the operator under Article 85 of the relevant law. Liability insurance will only cover damages caused by the operator to third parties and will not apply to damages caused to the operator themselves. Damages to the driver and assistants are within the scope of the insurer's liability, as Article 92 of the law does not regulate situations outside the scope of the insurer's liability. However, the insurance company will not be held liable in cases where the operator and the driver are the same person, or where the driver or assistants are at fault. Because the operator will be held liable for the faults of those for whom they are responsible as if it were their own fault. The insurer is only liable up to the limit of the liability insurance policy. The insurance company cannot be held liable for damages exceeding this limit. Damages suffered by motorbike riders are also outside the scope of the insurance company's liability.

Article 92 of the Turkish Road Traffic Law regulates the situations excluded from mandatory financial liability insurance, and these can be listed as follows:

• Claims that the operator may pursue against the driver and assistants
• Claims for damages to the property of the operator's spouse, ascendants and descendants, siblings living with them, and those with whom they have an adoptive relationship
• Claims for damages to things for which the operator is exempt from liability under the relevant law, and which are subject to general provisions rather than the provisions of the Road Traffic Law
• Claims for indirect damages (loss of income, lost profit, loss of rent)

According to Article 97 of the relevant law, the injured party has the right to claim compensation directly from the insurance company and can obtain compensation within the limits stipulated in the liability insurance policy. For the right to claim and sue to arise, there must be a prior mandatory liability insurance policy between the operator causing the damage and the insurer, and the insured party's liability must have arisen.

The injured party's right to claim compensation is not an independent right, but a subsidiary right attached to the primary right. Therefore, the operator is actually the primary responsible party. If the damage exceeds the limit stipulated in the insurance policy, the injured party has the right to claim the remaining amount from the operator or business owner. Furthermore, the insurance company reserves the right to recourse against the party responsible for the amount paid to the injured party. If the operator also has optional liability insurance, the injured party may also obtain compensation for damages exceeding the limit stipulated in the financial liability insurance policy.

If there are multiple injured parties, and the compensation claims exceed the limits stipulated by the liability insurance, each claim will be subject to a reduction proportional to the ratio of the insured amount to the total claim.
If a bona fide insurance company, unaware of the existence of other injured parties, has made a payment to one or more injured parties exceeding its own losses, its liability to the others will be waived.

If the motor vehicle causing the damage does not have mandatory liability insurance, cannot be identified, or has been stolen, the damages caused to the individual will be covered through the Guarantee Fund.

Claims for monetary compensation are subject to a statute of limitations of 2 years from the date the injured party learns of the damage and the responsible party, and in any case, 10 years from the date of the accident. If the penal code prescribes a longer statute of limitations for the relevant situation, that longer period shall apply.

Intern Law Faculty Student

Buse Güleser SEZENLİK