BODILY HARM

A. THE CONCEPT OF BODILY HARM
Bodily harm is not clearly defined in the TCC. In legal terminology, bodily harm means "damage inflicted on the human body (body) as a result of a tortious act, … bodily harm." The concept of bodily harm encompasses both the violation of a person's physical integrity and their mental integrity, in other words, their mental health. Bodily harm resulting from a violation of physical integrity encompasses the violation of both a person's physical integrity and their mental integrity.
The first element for bodily harm to occur is the existence of the harm. Injury, disability, mental distress, or similar must occur as a result of an unlawful act. However, injury, mental distress, or similar conditions alone are not sufficient for the harm to occur. The aforementioned reasons must also include a decrease in property, or a decrease in property in the future. Both of these elements must be present simultaneously. In short, if there is no decrease or potential decrease in a person's assets in the event of injury, the concept of bodily injury does not arise.
B. TYPES OF BODILY INJURY
The types of bodily injury are regulated in Article 54 of the TCC. According to the TCC, bodily injury is divided into four categories: treatment expenses, loss of earnings, losses arising from the reduction or loss of earning capacity, and losses arising from the disruption of the economic future.
1-) Treatment Expenses
 The treatment expenses mentioned in Article 54 of the TCC include all expenses necessary for the injured person to regain their health, such as dressings, injections, doctors, hospitals, ambulances, travel fees to and from the hospital, spas, corsets, etc. Furthermore, the costs of lawyers, experts, and mediators that the injured person may seek to recover damages due to the violation of their bodily integrity are also included in the scope of treatment expenses.  The issue of how to determine the expenses incurred for transportation expenses, which fall under the scope of treatment expenses, is important. The injured party can claim from the injured party the expenses they incurred for travel to and from the hospital for dressings, examinations, etc. This amount can be determined by an expense slip if the injured party used a taxi, or by an invoice if they used an ambulance. However, if the injured party cannot obtain an invoice for the taxi fare they paid, they can claim from the injured party the amount calculated by determining the distance between their home and the hospital in kilometers from the metropolitan municipality traffic department and determining the taxi tariff from the drivers' office.
 When claiming treatment expenses from the injured party, the injured party can claim not only the expenses incurred up to the date of the lawsuit but also the expenses incurred in the future. The compensation calculation should take into account the expenses incurred by the injured party due to necessary surgeries and medications they may use. In short, it is not necessary for the injured party to have already spent on treatment expenses; the injured party may also claim future expenses from the injured party.

2-) Loss of Earnings
Loss of earnings refers to the potential losses that the injured party would have incurred if the tort had not occurred. Loss of earnings is the loss resulting from the injured party's inability to work until recovery. This loss is determined based on the current situation and is temporary. For example, the loss incurred by the injured party during the period they are unable to work during treatment is considered lost earnings. Furthermore, if a housewife is unable to perform household chores due to an accident, the cost of a cleaning lady called to the house can also be considered lost earnings, as it reduces the family budget. Loss of earnings is not limited to the period of hospitalization. Loss of earnings incurred during the period the injured party is unable to work after discharge also constitutes lost earnings.

3-) Damages Resulting from Diminished or Lost Work Capacity
Damages arising from the reduction or loss of work capacity due to a violation of physical integrity include the plaintiff's loss of earning capacity until the date of the award of compensation, as well as any future loss of earning capacity resulting from the full or partial loss of work capacity.
In temporary disability, the injured party's ability to work is temporarily lost. The loss of earnings during this period constitutes the loss of earning capacity. Even if the injured party recovers from the violation, they may still claim from the injured party the loss of earning capacity resulting from their inability to work until they recover. In addition to damages resulting from the loss of work capacity, the injured party may also claim from the injured party the medical expenses incurred by the injured party to recover. The injured party does not need to be employed to claim temporary disability compensation from the injured party. For example, housewives who are temporarily unable to perform household duties due to an accident may also claim temporary disability compensation. Temporary disability compensation can be claimed from the person who caused the injury, or from the person who caused the injury's compulsory liability insurer.
Permanent loss of work capacity is the condition in which a person who suffers a bodily injury as a result of an unlawful event or tort, is unable to recover and becomes permanently disabled. Permanent loss of work capacity is divided into two categories: permanent partial disability and permanent total disability.
Permanent partial disability refers to the loss of a limb or organ weakening, leading to a certain degree of physical strength loss. In the case of permanent partial disability, the injured party may still be able to continue working, but due to the disability, they are required to exert more effort and effort than their peers and those doing the same job, and therefore have the right to claim compensation commensurate with their disability, even if their earnings are not reduced.
4-) Damage Arising from a Disruption of the Economic Future
Another type of bodily injury regulated by Article 54 of the Turkish Code of Obligations is damage arising from a disruption of the economic future. A person does not need to have lost their ability to work for damages arising from a disruption of the economic future to occur. In traffic accidents involving death or injury, the extent of fault will primarily be determined through an accident report prepared by law enforcement officers. In accordance with the relevant regulation, the accident report will only list the drivers' violations; it will not determine the proportional distribution of fault. However, since the percentage of fault is factored into the calculation of compensation for bodily injuries, a proportional determination of fault will be mandatory in court or arbitration. In these cases, reports should be obtained from experts who specialize in determining the extent of fault. If the extent of fault and damages are proven, the calculation and compensation phase for bodily injuries will proceed.

C. REMEDY FOR BODILY INJURY
An injured party may request compensation from the injurer if the conditions are met (unlawful act, damage, fault, causal link). The injurer is also responsible for the injured party's damages and is obligated to compensate them. There are four ways to compensate the injured party's damages. The first is an agreement regarding liability, the second is discharge, the third is through litigation, and the last is an alternative remedy: applying to the Insurance Arbitration Commission.
Article 30 of the Turkish Commercial Code (SK) states that in order to apply to the Insurance Arbitration Commission, the injured party must have made the necessary application to the insurer, but their request must be partially or completely rejected, or the insurer must not have provided a written response within 15 business days of the application date.
This 15-day period is the time period specified for applications to the Insurance Arbitration Commission. Therefore, if the parties choose to pursue other legal avenues instead of arbitration, such a time requirement will not apply. D. APPLICATION TO THE INSURANCE COMPANY
According to Article 97 of the Turkish Commercial Code (KTK), the injured party must submit a "written" application to the relevant insurance company before filing a lawsuit or arbitration within the limits stipulated in compulsory liability insurance. Applying to the insurance company is a prerequisite for claiming financial compensation arising from traffic accidents. The insurance company in this case is the operator's "Financial Liability Insurer." In practice, it is often referred to as "Traffic Insurance."
Injured parties can submit a request for compensation to the at-fault driver's insurance company by submitting a written petition or submitting a written request through the company's official website. A written request can be submitted online via email or by physically sending the necessary documents via courier. However, for this, the injured party must know the name of the responsible insurance company, the insurance policy number of the vehicle that caused the accident, or the license plate number of the vehicle that caused the accident. This can be obtained from the other party's insurance company's accident report, or if the driver has fled or no accident report has been prepared, the accident date and license plate number can also be obtained from the Insurance Information and Monitoring Center, along with the license plate number, if available.

Statute of Limitations for Claiming an Insurance Company
The statute of limitations for claims arising from Traffic Insurance (ZMSS) and managed against insurance companies is set forth in Article 109/1 of Highway Traffic Law No. 2918: "Claims for compensation for material damages arising from motor vehicle accidents shall be two years, starting from the date the injured party learns of the damage and the person liable for compensation, and in any case, ten years, starting from the date of the accident."
The Highway Traffic Law provides an exception to the general statute of limitations, referring to the statute of limitations for criminal offenses regulated in the Turkish Penal Code. According to this reference, "if the lawsuit arises from an act requiring a penalty and the criminal law prescribes a longer statute of limitations for this act, this period shall also apply to claims for material compensation" (KTK Art. 109/2).
According to Article 66 of the cited TCK: Claims for bodily injury arising from traffic accidents will be subject to the statute of limitations of eight years if the damaging act also constitutes the crime of wounding by negligence (TCK Article 89), and fifteen years if the resulting death constitutes the crime of homicide by negligence (TCK Article 89). Claims for non-pecuniary damages are also subject to the statute of limitations for claims for pecuniary damages.
The statute of limitations for criminal damages must be longer than the two statutes of limitations stipulated for claims arising from torts as stipulated in Article 72 of the TCC. If this is shorter, the statute of limitations for criminal damages will not apply. If the statute of limitations for criminal damages is longer than two years but shorter than ten years, the statute of limitations for criminal damages will apply. However, the longer ten-year period will remain in effect. If the statute of limitations for criminal damages is equal to or longer than ten years, the statute of limitations for criminal damages will apply.
The insurer's liability for compensation begins on the date the damage is notified. If the insurance company does not respond to the application within fifteen days at the latest or if the response does not meet the applicant's demand, the injured parties may file a lawsuit or resort to arbitration.

E. DOCUMENTS TO PROVIDE WHEN APPLYING TO AN INSURANCE COMPANY
The documents required to submit to an insurer in the event of material damage, which represents a monetary loss in a person's assets, are regulated in Article 6 of the General Conditions of Compulsory Traffic Insurance. Accordingly, the documents required for material damage are categorized under three headings: vehicle damage, loss of value, and other damage (for third-party property).
In the case of either material damage or bodily injury, if all or some of the required documents are missing, the insurance company is not obligated to make payment. For the insurer to be in default, the debt must first become due. In cases where the debt becomes due and payable depends on the creditor making certain preparations in advance, the debtor cannot be considered in default unless the creditor fulfills these requirements. Therefore, if those injured apply for compulsory traffic insurance with incomplete documentation, the insurer will not be held liable for not properly fulfilling their responsibilities.
Required Documents in Case of Bodily Injuries:
a) Medical board report prepared in accordance with the Regulation on Disability Assessment for Adults and the Regulation on Special Needs Assessment for Children,
b) Epicrisis Report,
c) General forensic examination report,
d) Reports of all tests and treatments,
e) Photocopy of the victim's identity document,
f) Accident report, expert report or survey report (if applicable), or court order,
g) Victim's latest income statement as of the date of the accident,
h) Bank account information of the beneficiary (Bank-Branch name, IBAN number),
i) Explicit consent from the victim regarding access, processing, and transfer of health data.

To claim compensation from insurance companies for physical disability, a report must be obtained in accordance with the Disability Regulation in the General Insurance Conditions. However, with the Constitutional Court's decision numbered 2019/40E. 2020/40K. 17.07.2020, the sections regarding the application of the general insurance conditions in Article 90 of the KTK were annulled. Therefore, Disability Health Board reports are no longer valid in court. The only valid regulation for physical injuries is the Regulation on the Determination of the Rate of Loss of Working Capacity and Professional Earning Capacity, which is recognized by the Supreme Court of Appeals and used by the Forensic Medicine Institute and Forensic Medicine Departments.
In case of death; a) Accident Report, Expert Report (if any), survey report, or court order,
b) Certificate of inheritance,
c) Death certificate and autopsy report,
d) A current copy of the civil registration record showing the mother and father,
e) The deceased's latest income statement as of the date of the accident.
f) The following documents are required for the beneficiary: bank account information (Bank-Branch Name, IBAN Number). For individuals, the following documents are also required: a copy of the identity card, signature declaration, and contact information. For legal entities, personal information verification documents are also required: a tax certificate, a trade registry gazette, a signature circular, and copies of the identity cards of the officials listed on the circular.

F. INSURANCE ARBITRATION COMMISSION
To apply to the Insurance Arbitration Commission, the dispute must not have been referred to a court, arbitration under the Civil Procedure Code, or the Consumer Problems Arbitration Board.
To apply to the Insurance Arbitration Commission, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure (KKK) require a written application to the insurer. If the insurance company fails to respond to the request within 15 days or rejects the request, the parties may apply to the commission for resolution of the dispute.
Applications for arbitration can be made to the commission's headquarters or to the office located where the applicant resides or where the risk occurred. Applications for disputes must include the "Application Form, Information and Documents Regarding the Dispute, and Proof of Payment of the Application Fee."
Applications to the commission against insurance company agents are not possible. The purpose of the arbitration commission is to resolve disputes that may arise between the parties to the insurance contract. Insurance agents, without the intention of bearing the risk, serve as a bridge between the parties and play a role in the establishment of the insurance contract and in this process.
The parties' applications can be sent to the commission in person or by mail. A case is filed with the arbitration commission for each application submitted to the arbitration commission, and the applicant is notified of the processing of their application and the case number via the email address provided in the arbitration application form.
A case is deemed to have been filed with the arbitration commission on the date the parties apply to the arbitration commission for the appointment of arbitrators, in accordance with Article 426/1 of the Civil Procedure Code.

G. LEGAL REMEDIES AVAILABLE AGAINST INSURANCE ARBITRATION DECISIONS
The Insurance Arbitration Commission's dispute arbitration decisions are subject to an appeal procedure, while the decisions of the dispute arbitration board are subject to an appeal procedure. Appeals are possible against decisions made by the dispute arbitrator, the first stage of the arbitration proceedings, that are worth 5,000 TL or more. Decisions made as a result of an objection that exceed 40,000 TL can be appealed.
The Insurance Arbitration Commission's review consists of two stages: dispute and appeal.
1-) APPEAL:
Decisions subject to appeal are those that are worth 5,000 TL or more. Decisions made by the Dispute Arbitration Board regarding disputes below the finality limit specified in the law are final. Decisions final in terms of amount cannot be appealed. The period for objecting to a Dispute Arbitration Board decision is 10 days from the date the decision is notified to the parties. Arbitration Commission decisions are not physically served on the parties; they are served at the KEP addresses specified by the parties in their application and response. If the decision is served electronically, the parties are granted an additional period. According to Article 9 of the Electronic Notification Regulation, titled "Preparation and Delivery of Electronic Notification to the Addressee," "Notification by electronic means is deemed to have been made at the end of the fifth day following the date on which it reaches the addressee's electronic notification address."280. If the decision is notified to the parties electronically, the period for objecting is extended by the period specified in Article 9 of the relevant regulation.
Objections to a Dispute Arbitration Board decision can be submitted physically to the Commission, or they can be submitted online through the Commission's website. When filing an objection, the objection fee, determined by the amount of the dispute, must be submitted to the commission along with the objection petition. Applications not submitted within the deadline or without the payment of the objection fee will not be reviewed by the commission, and the decision will be final.
An objection arbitration board will be established to review objections to the decisions made by the Dispute Arbitrators. A decision on the objection request will be made within two months, starting from the date the dispute is referred to the arbitrator. The two-month period may be extended for another two months with the express and written consent of the parties. If one of the parties does not consent to the extension, the parties may request an extension from the commercial court of first instance in accordance with Article 427/2 of the Civil Procedure Code. The court's decision on the extension is final.
2-) APPEAL
The Insurance Law stipulates that appeals may be filed against decisions rendered by the Appeal Arbitration Boards on objections regarding disputes exceeding 40,000 Turkish Lira (Article 30/12 of the Code of Civil Procedure).
The Supreme Court of Appeals General Assembly, in its decision dated June 19, 2020, numbered 2019/4 E. 2020/1 K., decided by majority vote that the decisions of the appeals arbitration panel of the insurance arbitration commission established under Article 30 of Insurance Law No. 5684 are subject to appeal.

The appeals appeal period is two weeks, as per Article 361 of the Civil Procedure Code (HMK), and this period begins upon notification of the decision to the parties.

H. ADVANTAGES AND DISADVANTAGES OF ARBITRATION PROCEEDINGS

The arbitration system, due to its specialized nature, results in a much quicker conclusion. The maximum period for arbitration is set at one year. However, Insurance Law No. 5684, which regulates arbitration in the insurance sector, stipulates that arbitration proceedings must be concluded within four months.

Another benefit of arbitration proceedings is the low application fees. Indeed, the application fee to the commission is lower than the litigation fees paid in ordinary courts.
Another benefit of arbitration is that the proceedings are conducted by arbitrators specialized in insurance law and insurance. As in the general structure of arbitration, arbitrators in insurance arbitration are selected from among experts in the subject matter.
The arbitration system has both advantages and disadvantages. Arbitrators lack the powers enjoyed by courts, such as compulsory production of witnesses or documents, rogatory proceedings from foreign courts, or requesting written documents from official authorities. In such cases, the arbitration tribunal may seek assistance from ordinary courts.
ATTORNEY AYŞEGÜL ÖTER
U&T Hukuk - U&T Law and Consulting