Turkey: Compensation For Loss Of Support For Parents Who Lost Their Child With Regard To Insurance Companies

THE DEFINITION OF COMPENSATION FOR LOSS OF SUPPORT AS PART OF TURKISH CODE OF OBLIGATIONS AND JUDICIAL PRECEDENTS

Compensation for loss of support is defined under 53^rd article of Turkish Code of Obligations numbered 6098. It is defined as "the losses which people who suffer due to the decedent's support". The subject of the compensation is the losses which are suffered due to the loss of support. Support can be both real support if there had been a constant and regular influx of financial support or hypothetical support if the support had not been present but expected to be in the future.

A person who lost the support due to a tort can demand the compensation of his/her losses under Article 53.  Yet, some conditions must be met in order to rule the payment of the compensation. Firstly, there must be a constant and regular financial help between the decedent and the claimant.

The notion of support stated under the article is not about a legal relationship such as kindred or alimony but about an actual financial relationship. The only thing important is there had to decedent must had been financially helping the claimant and that help must have continue if the decedent were not to die. In other words, the support must had been constant and continuant if the supporter lived.

Moreover, the claimant must be in real and constant need for financial support. This need is determined in terms of how well the claimant is living in comparison to the average social level. If the death results with the dropping of the claimant's living standards under that certain level, the condition for having a real need is met. The important thing here is the expenses which can be counted as normal with regards to the claimant's and his/her family's financial status.¹

The reasoning of a decision of unification of conflicting judgments dated 06.03.1978 states that: "The compensation for loss of support is not a punishment but a sui generis compensation which aims to keep the claimant's living standards on the same level and prevent him/her from becoming a person in need."

The loss which claimants show as a ground for the compensation claim occurs because of the death of the supporter. However, the compensation which a claimant demand is not rooted in his/her rights on the legacy. This claim has nothing to do with the decedent's rights. In other words, the right to get compensation is not related to being an inheritor from the decedent but occurs directly on behalf of the claimant in the form of a principal and independent right. It has no relation with the decedent, and it creates an independent right of claim. As a result, a legal or contractual treatment obligation is not needed.

THE EXAMINATION OF COMPENSATION FOR LOSS OF SUPPORT WITH REGARD TO INSURANCE COMPANIES

There are two different opinions on the status of the claim which is made to insurance companies as a result of loss of support. The first one is widely accepted both by Yargitay and the doctrine. This opinion holds that the claimant can demand compensation from the insurance company even if he is not the insured driver of a car. The other opinion is that Compulsory Automobile Liability Insurance is legislated to protect third persons who may suffer from the accidents that the insured car is involved in, but both the operator and his relatives and friends who receive financial support from him cannot make demands on Compulsory Automobile Liability Insurance.

According to the first opinion, the loss occurs directly on the persons who lost their financial support. It means that the right arising out of the incident does not belong to the decedent. Hence, if the decedent had a fault in the incident, this would not bar his relatives from claiming compensation.

The death of the supporter, whether faulty or not, is sufficient to entitle his relatives to compensation. The claimants can still demand compensation from the insurance company.

'Yargitay Genel Kurulu' had ruled that the lawsuit concerning the compensation should not be filed as an inheritor of a decedent but as a third person who lost his financial support, a fault which the decedent had would not prevent his family/friends from demanding compensation even if the decedent is 100% faulty.   'Yargitay' added that the Code of Compulsory Automobile Liability Insurance numbered 2918 states that the loss which the operator had caused is under guaranteed to be paid by the insurance company if the operator or driver is faulty, and the payment must be made even if the people who suffer the loss are the family/friends of the operator or driver.

In section A5 of the General Conditions of Compulsory Automobile Liability Insurance, it is stated that "Persons who suffer a loss due to the death of a third person who was supporting them, can demand compensation according to the merits stated under hereby conditions. The decedent is regarded for the calculation of the amount of compensation." As a result, general conditions clearly let them claim compensation.

The legislator only excluded the losses which happen on the goods of the decedent's wife, lineal kinship, and his foster children or siblings which he lives together. As it is, losses apart from the ones listed above all remained inside the scope of coverings including the material losses concerning injuries. In the circumstances; if a death or injury occurs on the above-listed relatives of the operator, the loss is inside the scope of the compulsory insurance.

THE EFFECT OF THE FAULT OF THE SUPPORTER ON THE COMPENSATION

There is not a precise regulation on how the fault of the supporter would affect the liability of the insurance company. The results of a fault should be assessed by examining different legislations. The dominant opinion in the doctrine and which is shared by Yargitay, fault cannot be taken as a reason for cutting the amount of compensation.

In that sense, the sufferer is not the decedent but for the persons who were deprived of their financial support. Since the purpose of the compensation is to eliminate the losses which occur on the assets of the supported persons, they are the ones who benefit from the support. The loss which arises as a result of the operation of the motored vehicle is not related to a right that the supporter had, and arises on behalf of the supported persons independently. Because of that, the compensation for loss of support is not related to heritage, alimony, or kinship. The persons who the supporter was aiding or were probably going to aid are counted as the supported persons. Because of that, the fault of the supporter should not be considered.

In liability insurances, the insurer takes on the liability which may arise from the actions of the insurer. The insurance company is liable for the losses as long as the loss does not exceed the limits decided and stated under the policy. The supported persons who benefit from the compensation are third persons hence the fault would not affect the amount of the compensation.

CONCLUSION

The loss of losing support is a decrease in the assets of the supported as a result of the death of the supporter in consequence of an unlawful act. The important issue here is spotting who the sufferer is. The sufferer is not the decedent, are the persons which the decedent was actively supporting.

Demanding compensation for loss of support is an independent and primary right that is born on behalf of the supported ones. It refers to the people who were actively benefiting from the financial aids. The actual circumstances are important only and issues about heritage and alimony are not regarded.

The liability of the insurance company is rooted in the contract which has been drafted. The contract which is made to cover losses arising out of the operation of a vehicle is named compulsory automobile liability insurance contract. The relevant legislation states that the insurance company must cover the losses which the operator inflicts on third persons. Since the supported persons are third persons in such circumstances, they can demand compensation for loss of support even if the supporter is faulty.

Footnote 

1. 21.04.1982, 1979/4-1528-E.,

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