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SUMMARY Conditions Remaining Outside The Scope Of Insurance Guarantee That a liability insurance provides protection against all liability possibilities or for a period of indefinite time is not possible in terms of insurance technic. Therefore, scope of protection (that is, liability of the insurer to undertake risk) in all liability insurances are limeted by various means. With regard to Mandatory Financial Liability Insurance, the situations remaining out outside insurance guarantee are listed in Article 3 of the general conditions. A. `Vehicles not operated` (General Conditions 3/a). The meaning of `not being operated` is defined earlier. It is, therefore, not dealt with here. B. `Claims to be assumed by the operator` (General conditions 3/b) Mandatory Financial Liability Insurance is a liability insurance. Hence, it is natural that claim of the operator himself remains outside the guarantee. C. `Claims that may be presented by spouse, ancestors and posterity, dependants ofthe operator by means of adoption as well as his brothers and sisters living together with him because of losses suffered by goods thereof. By means ofthis article, it is specified that only claims about losses caused to the goods ofthe family members ofthe poerators remain outside the scope of Mandatory Financial Liability Insurance. However, all losses that may be assigned to the persons for whose actions the operator is responsible are kept outside the guarantee of Mandatory Financial Liability Insurance as per Article 92/a of ROADS TRAFFIC LAW. D. `Claims against the operator for losses suffered by goods carried on the vehicle or trilers apart from the baggage and similar goods accompanied by the victims` (General Conditions 3/d). Here the losses suffered by goods not in accompaniement of the victims and carried on the vehicle are recovered according to the general provisions. The term general provisions are those of provisions of Turkish Trade Code with respect to the contract of transportation. 110E. `Moral Claims` (General Conditions 3/e) As er Article 92 of ROADS TRAFFIC LAW, moral claims are outside the scope of insurance guarantee. The provisions of Law of Obligations with respect to unfair actions apply to the moral claims. Decree dated 20.04.1978, No. 1978/2142 -2090 of Law Department of Supreme Court on moral claims reads: `According to the provision of Article 55/7 of ROADS TRAFFIC LAW No. 6085, modified by law No. 232, as the insurer effecting Mandatory Financial Liability Insurance cannot be kept liable for moral losses, the action about the insurance should be rejcted`. In fact, this Decree of Supreme Court was passed on the bases of the former RODAS TRAFFIC LAW. However, moral claims are kept outside the uarantee ofiMandatory Financial Liability Insurance as per Article 92 of ROADS TRAFFIC LAW 2919 in its new form, modified by Law No. 4199. F. `Claims that may be put forward by the operator agains persons for whose actions he is responsible according to Law of Road Traffic` (General Conditions 3/f). For example, claims that may be put forward by the operator against his own driver are outside the scope of the insurance guarantee. G. `Claims that may be put forward due to losses that may be suffered by the vehicle ofthe operator or trailer or semi-trailer or vehicle tugged by means of such vehicle` (General Conditions 3/g). H. `All kinds of claims related to loss that mey be caused by a vehicle left with enterprises dealing with professional activity related with motor vehicles for reasons of supervision, repairs,maintenance, purchase - sale, modification or similar reasons (General conditions 36i). Organizers arranging motor car races should obtain permission from the concerned authorities and should effect a special insurance to meet his related liabilities. Organizers of races are responsible, like operator of vehicle, for any losses that vehicles joining the race or other vehicles accompanying them as well as other vehicles used in such event (Article 1 of Roads Traffic Law Article 105/1). J. `Claims related with losses caused by the vehicles stolen and seized by violence as well as those losses for which the operator iş not responsible according to Roads Traffic Law and losses suffered by persons who ride on the vehicle knowing that it is stolen and seized by violence` (General Conditions Article 3/j) 111As per Article 107 of Roads Traffic Law, as the operator cannot be kept responsible for damages to third parties by a stolen or seized motor vehicle without fault of the operator or the persons of whose actions the operator is responsible, the insurer effection Mandatory Financial Liability Insurance will not be responsible for damages suffered by third parties as a result of road accident involving such motor vehicle. Damages suffered by third parties, without fault of the operator, arising from accidents involving stolen or seized vehicles are recovered from the guarantee fund (Article 108/2 of Roads Traffic Law). K. `Damages caused by use of motor cycles` (General Conditions Article 3/k). Drivers of motor cycles are not considered operator in technical sense. Therefore, legal liability of drivers of motor cycles is subject to general provisions as per Article 103 of Roads Traffic Law. Problems and Solution Proposals for Motor Vehicle Mandatory Financial Liability Insurance 1. In this study, the reasons of launching of Mandatory Financial Liability Insurance (MFLI) that is mandatory to effect as per Roads Traffic Law No. 2918 are explained. Definition of MFLI as well as legal arrangements in Turkey are defined. What is the guarantee scope of MFLI? After dealing with subjects, Guarantee Fund, having same contents with MFLI, will be defined in summary. Finally, it will be dealt to what extent MFLI responses to the requirements in Turkey as well as related problems are solution proposals concerning them. GUARANTEE SCOPE OF MANDATORY FINANCIAL LIABILITY INSURANCE The liability of insurer in MFLI is equal to that liability laid down under Article 85/1 of Roads Traffic Law. Exception brought to the operators under this article is moral claim liability. Theinsurer effecting MFLI will not recover claims moral claims faced by the operator as it is deemed outside the scope of insurance guarantee as per Article 3/e of General Conditions. The liability of the operator when it caused damage to things is to put it into its original situation. Therfore, the insurer effecting :mFLI is to recover actual loss caused by the insured; in other sense, it is consisted of maintenance, spare parts charges and workmanship expenses to put damaged thing (damaged goods, etc.) into its original state. 112The victim may put forward its claim dirctly against the insurer of the operator. In the event that a legal proceeding is started, the follow - up and administration ofthe legal action is for the responsibility of the insurer to the limits written in the insurance policy, and the insured should grant power of attorney to the lawyer to be designated by the insurer. The insurer is liable to pay legalactions charges and attorney fees. However, in the event that the claim judged after such legal action exceeds the insurance cost, then the insurer should pay such charges in accordance with the rate of insurance cost to the claim. (General Conditions Aritcle 12/6). With regardto the persons injured in the accidents caused by the operator of motor vehic, the first aidt, inspection, control or on - foot treatment costs in hospital, clinical and similar places and other charges related with such tratment are claimed from the insurance company effecting MFLI of the vehicle that casude the damage within limits of insurance guarantee. If such persons dies after such injury, the treatment costs incurred previously are also within the limits of MFLI. If a road accident caused by the operator of motor vehicle results in death, the inheritors of the dead person may claim funeral charges as well as compensation for being deprived of the support of the dead persons from teh insurer ofthe operator within the limits of MFLI. Compensation for being deprived of financial support ofthe dat person is calculated by experts specialized in this field. In such calculation, possibility of being in life of persons, training status, their marital status, whether they are married of single, professions as well as their physical and social positions are taken into consideration. When the insurance claim becomes payable and the claim is paid late, will the insurer be liable of any penal condition? In tins matter, there is no arrangement to this effect in Roads Traffic Law and Insurance Auditing Law. In such case, it should be referred to the provisions stated in the insurance book of Turkish Trade Code and, for matters omitted therein, to Law of Obligations. According to Law of Obligations, a person being party to a contract does not fulfill his contractual obligations may be forced to pay penal condition under a new contract to be executed. As provisions in favour of the insured can be included in insurance contracts, it is applicable for MFLI with regard to interest 113or penal conditions in case of such delay. In the event that there is no provision this effect in teh contract, the person in default of payment is liable to pay interest for such delay asper Law on Legal Interest and Default Interest (Law No. 3095, published in Official Gazette on the date of 19/12/1984). The interest rate isannual percentage legal interest. According to the provisions specified in Law of Obligations, after the insurance claim becomes payable, the claimant may claim an interest of thirty percent from the insurance company in case of default of payment. GUARANTEE FUND Guarantee Fund is established for recovering damages and losses in the event that damages suffered by victims in the accidents caused by motor vehicles and it is not possible to be recovered by the operator himself or his insurer (if the vehicle caused the accident run away from the scene of accident and could not be identified and if the vehicle is not covered by MFLI despite of legal conditions and if the vehicle caused the accident is stolen or seized by violence); in such cases, Guarantee Fund takes place of the insurer ofthe operator and recover damages of victims. Purpose ofthe Fund is to ensure that such victims are not deprived of such insurance guarantee in whatever manner the accident occurs. Guarantee Fund is still governed by Undersecretariat of Treasury as per law No: 4059. Income resources of Guarantee Fund are as follows: 1. 1 per cent of premium amoun earned by insurance companies through MFLI in a year; 2. Contribution share at a rate of 2 percent taken from the insured in addition to teh net premium; 3. 10 percent interest for delay arising from default of payment by the insurance company with respect to their deposits to the fund accound; 4. Claims compensations subject to time elapsing and evaluation of fund deposits. 114PROBLEMS RELATED WITH MANDATORY FINANCIAL LIABILITY INSURANCE AND SOLUTION PROPOSALS That all vehicles on the roads are covered under insurance shall ensure the operation of the related law and affects that premiums be in sufficient levels; it is essential that good drivers effect MFLI agains a favourable fee and to eliminate curving of uninsured vehicles on the roads. However, in our country a significant number of vehicles can be driven on roads without MFLI. Amount of MFLI insurances in turkey is very low when compered with those in European Community countries. For example, coverage for tereatment costs in our country is generally for big buses and it amounts to TL 33 billion. Treatment insurance per person it TL1 5 billion. In European Community countries, on the other hand, insurance coverage for treatment costs is TL 466 billion for 20 persons. 115 115 |
