What is Depreciation?
Depreciation refers to the difference between the vehicle's value calculated as a result of post-accident repair of the vehicle and its undamaged value. As a matter of fact, in the decision of the 17th Civil Chamber of the Supreme Court; (1)
“Depreciation is related to the difference between the value of the vehicle after it was damaged and repaired as a result of a traffic accident and its value in the undamaged state. The difference between the vehicle and the determination of the second-hand sales value after the vehicle is repaired is taken into account.”
As a natural consequence of this, in order for the depreciation calculation to be made, the vehicle must first be involved in a two-sided accident. The loss of value is a compensation claim arising from the tortious act. The tort is regulated in article 49 of the TCO. According to this, "The person who causes harm to another by a faulty and unlawful act is obliged to compensate for this damage." Based on this provision, the party responsible for the loss of value is the party at fault in the accident. While the traffic insurer of the defective vehicle may be liable for the compensation for the loss of value within the policy limits and the defect rate, the faulty driver and the license holder are also jointly and severally liable with the insurance company at the rate of the fault due to the action taken due to the tortious act.
How is Depreciation Calculated?
There are two different methods in calculating the loss of value compensation. The first of these is the formula calculation and the second is the market analysis method, which is calculated as a result of the depreciation of the vehicle in market conditions before and after the accident. Formula calculation, one of these calculation methods, appears in the General Conditions, which entered into force on 01.04.2020.
Situation After the “General Conditions for Changes to the General Conditions of Hıghway Motor Vehicles Mandatory Liability Insurance” Entered Into Force on 01.04.2020
The formula calculation has been amended with the "General Conditions Regarding the Amendment to the General Conditions of Highways Motor Vehicles Mandatory Liability Insurance" published in the Official Gazette dated March 20, 2020, and numbered 31074. (2)
Accordingly, the calculation method and the calculation formula published in the Official Gazette numbered 31074 will be taken into account in the policies issued after 20.03.2020. Unlike Annex-1 of the General Conditions, which entered into force in 2015, calculations cannot be made without knowing the damage value of the vehicle in this calculation. In addition, the following temporary article has been added to the general conditions:
“PROVISIONAL ARTICLE 2 – A list of vehicle values is prepared by the Union of Chambers and Commodity Exchanges of Turkey Insurance Adjusters Executive Committee within one year following the entry into force of the General Conditions establishing this article and this list is announced on the official website.”
Until this list is published, the current value of the vehicle is determined by considering the prices in the Motor Insurance Value List.
In addition, under the same general conditions;
Article 3: “If the material damage to the vehicle is less than 2% of the current value of the vehicle, the compensation for loss of value cannot exceed the amount of material damage to the vehicle.” This means that if a higher value loss with VAT is calculated in the formula than the damage amount included in the damage invoice, this amount cannot be claimed, the value loss is actually equal to the invoice amount.
Calculation According to the Market Analysis Method
In the market analysis method, the problem arises with the problem of how much the market value of the vehicles damaged after the accident will decrease after the repair of the damage caused by the accident, within the framework of the market conditions of that day. It will not be possible to have the same sales figures in the market for two vehicles of the same brand, model and feature, one with a damage record and the other undamaged. Considering this situation, the market analysis method will also express the difference between the undamaged state of the vehicle and the damaged state.
According to this method, the model, brand, features, damage, repair procedures, mileage, age at the date of the incident, the claims of the plaintiff, the defense of the defendant, and the entire file scope are evaluated together, and the vehicle's undamaged second-hand market value before the accident and after the accident occurs and is repaired. The depreciation must be recalculated according to the difference between the next second-hand market value. (3)
SOURCE
(3) Yargıtay 17. Hukuk Dairesi E.2015/11245 – K. 2016/1045 – T.27.01.2016
AUTHORS
Attn. Mehmet Tuğberk DEKAK
Selenay KÖSE, Legal Trainee