An Evaluatıon on Whether Temporary Incapacity Damages are Covered by Compulsory Traffic Insurance

Abstract

Motorway Motor Vehicles Compulsory Financial Liability Insurance (Traffic Insurance) is the most common compulsory insurance and the most common liability insurance in Turkey. In recent years, both the legislation and the general insurance terms, which are essential parts of the insurance contract, have been radically amended. These amendments affected the scope of the liability of the insurer against the injured party. Lastly, the Motorway Traffic Act (Act Number: 2918, Acceptance Date: 13.10.1983, OG 18.10.1983/18195) has been amended by Act Nr 6704 (Act Number: 6704, Acceptance Date: 14.4.2016, OG 26.4.2016/29695). Concordantly in 2016, the General Terms of Motorway Motor Vehicles Compulsory Financial Liability Insurance have also been amended. After these amendments, it becomes unclear whether the insurer is liable to indemnify the damages due to temporary incapacity. In fact, insurance companies are able to claim that temporary incapacity damages are not covered by the compulsory traffic insurance contract. Our study has discussed this issue. First of all, the concept of temporary incapacity damage has been examined in light of the Supreme Court decisions. Afterwards, the provision of the General Terms, which leads to uncertainty, is addressed. The subject has been discussed with reference to a recent decision of the Arbitral Committee of Appeal assessing this issue. In the case of compulsory insurance regulated under a special statute, only the circumstances may be excluded from the scope of the insurance coverage, which are stated as such as per the law provided that they are explicitly excluded in the General Terms. Furthermore, exemption clauses must be definite, clear, and certain. In addition, in terms of legal policy, it is indefensible that these damages could be excluded from the scope of the insurance coverage. Therefore, it has to be considered that the damages due to temporary incapacity will fall within the scope of the insurance coverage.