The case is about the request for compensation for the material and moral damages of the mother, spouse, children and siblings of the insured who died as a result of a work accident dated 25/05/2005.
It is understood that the court decided to reject the claim for pecuniary damages since the support case could not be proved with the mention that the death income was not paid by the institution to the plaintiff mother.
In the decision of the Supreme Court of Appeals Jurisprudence Unification Grand General Assembly, dated 22/06/2018 and numbered 2016/5 E – 2018/6, in 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 tortious act and/or breach of contract, the support relationship It has been accepted that the condition of receiving income from SGK is not required to prove its existence, and that it is assumed that the children support the mother and/or father in cases of compensation for loss of support. Compensation for loss of support; It is regulated in the 3rd paragraph of the 53rd article of the Turkish Code of Obligations No. 6098, “In the event of death, the compensation of the losses incurred by the persons deprived of the support of the deceased is required”. According to this article, people who are not directly addressed by the tortious act, but who have been harmed by the death caused by this tortious act, or who are likely to be harmed in the future, are entitled to compensation. According to the rationale of the decision to unify the jurisprudence; “For the birth of compensation for loss of support, 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 action situation. In the existence of a support relationship, there is a continuous and regular meeting of the needs of the supported person. The state of continuity and regularity that is meant to be expressed here is not the provision of aid at specified times and in certain amounts, but the existence of an expectation that aid will continue if the support has not died. If the aid is not given with a continuous support motive, but at one-time, temporary, irregular or random times and does not create an expectation that the aid will continue in the future, then it will not be possible to talk about the continuous and regular support. As understood from the relevant provisions of the Turkish Code of Obligations; The subject of compensation for deprivation of support is assistance deprived due to loss of support. The purpose of this compensation is to think that the deceased would continue to help the people he helped if the death event had not occurred, and to compensate the damages suffered by the people who benefited from the support as a result of the death event interrupting this process, in advance and wholesale, and to restore these people to their pre-death situation. In other words, the purpose; It is the preservation of the social and economic status of those who are deprived of support in their lives before the death of support.
The point that should be emphasized here is that the support power of the insured, the support need of the mother and/or father and the expected support type and amount should be in accordance with life experiences.
On the other hand; In case of death of the insured due to work accident and occupational disease, the conditions in Article 34/d of Law No. 5510 must be fulfilled in order for the mother and/or father to receive death income. According to this article; “In case of any surplus share from the beneficiary spouse and children, provided that the income obtained from all kinds of earnings and revenues is less than the net amount of the minimum wage, and no income and/or pension has been allocated, excluding the income and pensions earned from other children, a total of % 25 percent; if the parents are over 65 years of age, 25% of the above conditions are paid, regardless of the increased share. In the event that income is tied by the Social Security Institution due to the death of the insured as a result of a work accident or occupational disease; According to Article 55 of the Turkish Code of Obligations, the recourseable portion of the payments made and the income received will be deducted from the loss of the determined support.
According to the provision of Article 50 of the Turkish Code of Obligations No. 6098; “The injured party is under the burden of proving the damage and the fault of the one who caused the damage. If the amount of damage suffered cannot be proven, the judge determines the amount of the damage fairly, taking into account the ordinary course of events and the measures taken by the injured person. According to Article 51 of the Turkish Code of Obligations; “The judge determines the scope of the compensation and the form of payment, taking into account the necessity of the situation and especially the gravity of the fault”.
Whether or not a death benefit is attributed to the mother and father should be taken into account in determining the compensation, although not in terms of the existence of a support relationship. Because it is one of the settled opinions of our Department that the mother and/or father, whose income is below the minimum wage and whose income is received by the Social Security Institution, needs support and that the deceased insured’s financial support should be accepted as a presumption. Accepting that a portion of the insured’s income will be allocated as a share without proving the insured’s actual support to the claimant mother and/or father, who is not paid by the Institution, results in the inability to cover the support losses of the spouse and children who actually benefit from the support of the deceased.
Maintenance power-care need; The important thing in this regard is not who is eligible to be a helper and who is a beneficiary; it is who is really helpful and who is helped in a way that extends to the future in terms of concrete events and certain people and is possible even in the future. The concept of helper (= support) means care power; Since the concept of assisted requires the need for care, if there is no care capacity, from support; If there is no need for care, it is not possible to talk about the person receiving help. Moreover, due to the close relationship between them, the existence of the other is unthinkable in the absence of one. In this respect, the defendant in the case of deprivation of support can argue that the power of care and the need for care do not exist in the case. The plaintiff, who has filed a lawsuit as a compensation creditor, has to prove his power of care and the need for care, unless the burden of proof has shifted due to his life experiences and the ordinary course of events (…, Labor Law Commentary-1978 Ankara, shf 846 et seq.). In this situation; In determining the loss of support, the extent of the support power according to the amount of income earned by the deceased insured, whether there is continuous and regular support, and whether the plaintiffs need support or not, how this need is met should be taken into account.
As mentioned in the Judgment Unification Decision, the concept of looking; “It can be a value that can be measured in money and money, or it can be in the form of a service or similar assistance. Therefore, the mere monetary nature of the assistance is not a condition for the existence of caring power”. However, unless proven otherwise, one of the hypothetical supports to be made by the insured in the future; If their parents’ care needs are realized in the future, they can meet their care needs, visit them sometimes, help them at home, do their shopping, cook, etc. such supports are not calculable.
As for the concrete event; It is clear that the plaintiff mother was not paid death income by the Social Security Institution. According to the provision of Article 50 of the Turkish Code of Obligations; It was claimed that the deceased insured had continuous support from his income, and the existence of a continuous and regular de facto support that could be calculated with material evidence according to Article 55 of the Turkish Code of Obligations has not been proven. In this situation; Considering the presumption of hypothetical support by the court, pursuant to Articles 50 and 51 of the Turkish Code of Obligations, considering the support that the claimant mother may receive from her other children, if any, according to the characteristics of the concrete case, it is wrong to make a written judgment while it is necessary to award a reasonable financial compensation in accordance with equity. Making a written decision by the court without considering these material and legal facts is against the procedure and the law and is the reason for annulment (Court of Appeals 21st Civil Chamber – Decision: 2019/5260).
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