The lawsuit is related to the claim for compensation of pecuniary and non-pecuniary damages of the mother, spouse, children and siblings of the insured who died as a result of an occupational accident dated 25/05/2005.
It is understood that the court decided to reject the claim for pecuniary compensation since the fact of support could not be proved, since the plaintiff mother was not granted a death income by the institution.
In the decision dated 22/06/2018 and numbered 2016/5 E – 2018/6 of the Grand General Assembly of the Supreme Court of Appeals Unification of Jurisprudence, it has been accepted that in the cases of compensation for deprivation of support filed by the mother and/or father due to the death of their child as a result of tort and/or breach of contract, the condition of income from the SSI will not be sought for the proof of the existence of the support relationship, and that the children should be accepted as a presumption that they support the mother and/or father in the cases of compensation for deprivation of support. Compensation for deprivation of support is regulated in subparagraph 3 of Article 53 of the Turkish Code of Obligations No. 6098, which states that “In the event of death, the persons who are deprived of the support of the deceased should be compensated for the losses they have suffered for this reason”. According to this article, the right to compensation is granted to those who are not the direct addressees of the wrongful act, but who have been harmed by the death event arising from this wrongful act or who have a strong possibility of being harmed in the future. According to the justification of the Unification Decision; “In order for the compensation for deprivation of support to arise, there must be a support relationship between the support and the person claiming compensation. The support relationship mentioned here does not target a legal relationship, but an actual situation. The existence of the support relationship includes the continuous and regular fulfilment of the needs of the supported person. The continuity and regularity that is intended to be expressed here is not that the assistance is provided at certain times and in certain amounts, but that there is an expectation that the assistance would have continued if the support had not died. If the assistance is provided not with the motive of continuous support, but at one-time, temporary, irregular or random times and does not create an expectation that the assistance will continue in the future, then it will not be possible to talk about the support being continuous and regular”. As it is understood from the relevant provisions of the Turkish Code of Obligations; the subject of the compensation for deprivation of support is the assistance deprived due to the loss of the support. The purpose of this compensation is to compensate the damages incurred by the persons who benefit from the support in advance and in a lump sum as a result of the fact that it is thought that the deceased would have continued to provide assistance to the persons whom the deceased assisted if it had not been for the death event and that the death event interrupted this process, and to restore these persons to their status before the death event. In other words, the aim is to protect the social and economic status of those deprived of support in their lives before the death of the support.
It is important to emphasise here that the support capacity of the insured, the support needs of the mother and/or father, and the expected form and amount of support must be in accordance with life experiments.
On the other hand; in order for the death of the insured due to occupational accident and occupational disease, the conditions in Article 34/d of the Law No. 5510 must be fulfilled in order for the death income to be paid to the mother and/or father. According to this article; “In the event that there is an increasing share from the beneficiary spouse and children, a total of 25% of the total income and/or pension is granted to the mother and father, provided that the income obtained from all kinds of earnings and irrates is less than the net amount of the minimum wage and that no income and/or pension has been granted, except for the income and pensions earned from other children; If the mother and father are over the age of 65, a total of 25% of the total pension is granted under the above conditions, regardless of the increasing share”. In the event that the Social Security Institution provides an income due to the death of the insured as a result of an occupational accident or occupational disease; the payments made and the part of the income that can be recourse by the Institution according to Article 55 of the Turkish Code of Obligations will be deducted from the determined loss of deprivation of support.
According to Article 50 of the Turkish Code of Obligations No. 6098; “The injured party has the burden of proving the damage and the fault of the damaging party. If the amount of the damage suffered cannot be proved exactly, the judge shall determine the amount of the damage in accordance with equity, taking into account the ordinary course of events and the measures taken by the injured party”. According to Article 51 of the Turkish Code of Obligations; “The judge determines the scope of compensation and the manner of payment, taking into account the necessity of the situation and especially the gravity of the fault”.
Whether or not the parents receive a death income should be taken into consideration at the point of determining the compensation, although not in terms of the existence of the support relationship. Because it is one of the settled opinions of our Chamber that the mother and/or father, who have an income below the minimum wage and to whom income is granted by the Social Security Institution, are in need of support and it should be accepted as a presumption that the deceased insured provided material support. Accepting that a portion of the insured’s income will be allocated as a share without proving the actual support of the insured to the plaintiff mother and/or father, to whom no income is granted by the Institution, results in the inability to meet the support damages of the spouse and children who actually benefit from the support of the deceased.
The important issue in this respect is not who is capable of being a helper and who is capable of being a recipient of assistance, but who is actually a helper and who is a recipient of assistance in a way that extends into the future and may be possible even in the future in terms of concrete events and specific persons. Since the concept of helper (=support) requires the power of care and the concept of beneficiary requires the need for care, if there is no power of care, there can be no such thing as support; if there is no need for care, there can be no such thing as beneficiary. Furthermore, due to the close relationship between the two, in the absence of one, the existence of the other cannot be considered. In this respect, the defendant party in the case of deprivation of support may argue that the ability to care and the need for care do not exist in the case. The plaintiff, who has filed a lawsuit in the capacity of a compensation creditor, must prove the ability to care and the need for care, unless there is a shift of the burden of proof due to life experiences and the ordinary course of events (…, Labour Law Commentary-1978 Ankara, p. 846 et seq.). In this case, in determining the loss of support, it is necessary to consider what the scope of the support power is according to the amount of income obtained by the deceased insured, whether there is continuous and regular support, and whether the claimants need support, and if so, how this need is met.
As mentioned in the Case Law Unification Decision, the concept of support; “It may be in the form of money and a value that can be measured with money, or in the form of the performance of a service or similar assistance. Therefore, the mere monetary nature of the support is not a condition for the existence of the capacity to care”. However, unless proven otherwise, the hypothetical support that the insured will provide in the future, such as meeting the care needs of his/her parents if the need for care is realised in the future, sometimes visiting them, helping them at home, shopping for them, cooking for them, etc. are not calculable.
As for the concrete case; it is clear that the plaintiff mother was not granted a death income by the Social Security Institution. According to the provision of Article 50 of the Turkish Code of Obligations; it is claimed that the deceased insured has provided continuous support from his income, and the existence of a continuous and regular actual support that can be calculated with material evidence according to Article 55 of the Turkish Code of Obligations has not been proven. In this case, it is inappropriate to make a judgement as written, while the Court should award a reasonable pecuniary compensation in accordance with Articles 50 and 51 of the Turkish Code of Obligations, taking into account the support that the plaintiff mother can receive from her other children, if any, according to the characteristics of the concrete case, by accepting the presumed support as a presumption. The court’s decision as written without taking these material and legal facts into consideration is contrary to the procedure and the law and is a reason for reversal (21st Civil Chamber of the Court of Cassation – Decision : 2019/5260).
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