Calculation principles of compensation for lack of support

Compensation for lack of support is a type of compensation that can be demanded due to death which is regulated in Article 53 of the Turkish Code of Obligations. In essence, compensation for lack of support is essentially a calculation of an assumption. For this reason, the assumptions used in the calculation have been frequently discussed. After the death of the support, it is accepted as a presumption that the spouse, children and the support's parents will be deprived of support. There is no unity in practice regarding how the support shares of the beneficiaries will be distributed. The Court of Appeals should provide a unity in practice by making guiding decisions in this direction. The earning basis for compensation is determined according to the job of the support. If the support has its own company, the support's own physical and intellectual contribution to this company is taken into account when determining earning of the support. If the support is a worker or a civil servant, earnings are based on the fee and the continuous payments it receives. If working overtime is also continuous, overtime wages are also included in the earnings. In our opinion, it is also possible to prove the continuous overwork by witness statements. Possible remaining lifetime of the support and beneficiaries are determined according to the TRH 2010 table after the Court of Appeal's case law changes. There are two compensation calculation methods that have recently found application in our law. The method adopted by the judiciary for many years is the progressive annuity method. Another method is the actuarial method. In the actuarial calculation method, 1.8% technical interest has been used in accordance with Traffic İnsurance General Conditions. This method is used only in traffic accidents, in calculations made against insurance companies. After the cancellation of the General Conditions, the progressive annuity method was readopted. In our study, how the calculation is made with the methods used in recent years is explained and the calculation results are compared. After the last case law changes of the Court of Appeals and the cancellation decision of the Constitution Court, the calculation will be made with the TRH life table and the progressive annuity method. It has been found that this method gives a higher result than the other methods. While calculating the compensation for lack of support, the data known at the date of the calculation is taken as basis. Therefore, the compensation amount is recalculated according to the changing minimum wages. Although the compensation is calculated and updated in this way, interest is charged starting from the date of the event. In our opinion, this method causes the damage to be updated repeatedly and leads to unjust enrichment by right holders. One of these two methods should be applied. In the first method, the compensation should be calculated as of the date of the event and interest should be charged from this date. In the second method, the compensation should be calculated as of the date of the calculation and interest should be charged from the date of the judgment. In this regard, the rights to choose between these methods should be given to those who are harmed. Payments that do not meet the full amount of the compensation made before the litigation is called inadequate payments. According to the Court of Appeals, such payments should be deducted with the legal interest that will accrue from the date of payment. However, the compensation is updated every year according to the changing minimum wages, and the legal interest is well below that. For this reason, the payment made becomes worthless every year. In our opinion, the payment made should be evaluated according to the payment date and it should be accepted that the compensation has been paid at that rate.