La nozione di vivenza a carico e la rendita superstiti vittime del lavoro A cura dell'Avv. Mauro Dalla Chiesa

10 gennaio 2020 -È molto difficile per i familiari ottenere la rendita superstiti per un figlio tragicamente scomparso sul lavoro. Ecco i precedenti rilevanti: Cass. civ. Sez. lavoro, Sent., (ud. 24-09-2014) 18-11-2014, n. 24517; Cass. civ. Sez. VI – Lavoro, Ord., (ud. 06-05-2014) 26-06-2014, n. 14498.
Le norme del T.U. in questione sono le seguenti.

art. 85 T.U.

Se l’infortunio ha per conseguenza la morte, spetta a favore dei superstiti sottoindicati una rendita nella misura di cui ai numeri seguenti, ragguagliata al 100% della retribuzione calcolata secondo le disposizioni degli articoli da 116 a 120. Qualora una o più rendite abbiano in seguito a cessare, le rimanenti sono proporzionalmente reintegrate sino alla concorrenza di detto limite. Nella reintegrazione delle singole rendite non può peraltro superarsi la quota spettante a ciascuno degli aventi diritto ai sensi del comma precedente.
Oltre alle rendite di cui sopra è corrisposto una volta tanto un assegno di lire un milione al coniuge superstite (1), o, in mancanza, ai figli (2), o, in mancanza di questi, agli ascendenti (3), o, in mancanza di questi, ultimi, ai fratelli e sorelle (4), aventi rispettivamente i requisiti di cui ai precedenti numeri 2), 3) e 4).
Qualora non esistano i superstiti predetti, l’assegno è corrisposto a chiunque dimostri di aver sostenuto spese in occasione della morte del lavoratore nella misura corrispondente alla spesa sostenuta, entro il limite massimo dell’importo previsto per i superstiti aventi diritto a rendita.Per gli addetti alla navigazione marittima ed alla pesca marittima l’assegno di cui al precedente comma non può essere comunque inferiore ad una mensilità di retribuzione.
Agli effetti del presente articolo sono equiparati ai figli gli altri discendenti viventi a carico del defunto che siano orfani di ambedue i genitori o figli di genitori inabili al lavoro, gli affiliati e gli esposti regolarmente affidati, e sono equiparati agli ascendenti gli affilianti e le persone a cui gli esposti sono regolarmente affidati .

Art. 106 T.U.

Agli effetti dell’art. 85, la vivenza a carico è provata quando risulti che gli ascendenti si trovino senza mezzi di sussistenza autonomi sufficienti e al mantenimento di essi concorreva in modo efficiente il defunto.
Agli effetti dell’art. 85, secondo comma del n. 1, l’attitudine al lavoro si considera in ogni caso ridotta permanentemente a meno di un terzo quando il vedovo abbia raggiunto i sessantacinque anni di età al momento della morte della moglie per infortunio. Per l’accertamento della vivenza a carico l’Istituto assicuratore può assumere le notizie del caso presso gli uffici comunali, presso gli uffici delle imposte e presso altri uffici pubblici e può chiedere per le indagini del caso l’intervento dell’Arma dei carabinieri. Gli uffici comunali debbono fornire agli Istituti assicuratori le notizie che siano da essi richieste in ordine alla vivenza a carico di cui all’art. 85 e debbono, altresì, rilasciare gratuitamente i certificati di esistenza in vita, gli stati di famiglia e gli atti di nascita ad essi richiesti dagli Istituti assicuratori medesimi o dai titolari di rendite, ai fini del pagamento delle rate di rendita.
La Suprema Corte di Cassazione ha chiarito nel caso concreto portato in giudizio: a) i redditi prodotti dalla St. e dalla madre convivente; b) la percezione da parte della St. di una rendita INAIL, commisurata all’85% di invalidità, “d’importante consistenza”; c) l’apporto mensile del de cuius, pari a L. 200.000 o L. 300.000 mensili, doveva desumersi che l’incidenza del contributo economico dato dal lavoratore deceduto, pari all’incirca al 10-15% del reddito familiare, era minima ed inidonea ad integrare il requisito della “vivenza a carico”. Ha aggiunto che i ricorrenti non avevano allegato, nè tanto meno provato, le uscite economiche familiari che potessero comprovare una minore consistenza del loro reddito.
La Suprema Corte ha rigettato il ricorso argomentando che: “Il D.P.R. 30 giugno 1965, n. 1124, art. 106 (T.U.) definisce la vivenza a carico nei seguenti termini: “Agli effetti dell’art. 85, la vivenza a carico è provata quando risulti che gli ascendenti si trovino senza mezzi di sussistenza autonomi sufficienti e al mantenimento di essi concorreva in modo efficiente il defunto”. Sono dunque necessari due presupposti: a) il pregresso ed efficiente concorso del lavoratore deceduto al mantenimento degli ascendenti mediante aiuti economici che, per la loro costanza e regolarità, costituivano un mezzo normale, anche se parziale, di sostentamento; b) la mancanza, per gli ascendenti, di autonomi e sufficienti mezzi di sussistenza (Cass., 4 febbraio 2008, n. 2630; Cass., 25 agosto 2006 n. 18520; Cass., ord., 26 giugno 2014, n. 14498). Il concetto di “sufficienza” dei mezzi di sussistenza non è legislativamente determinato, così come non sono specificamente individuati i cespiti e i debiti rilevanti per la sua definizione: la giurisprudenza di questa Corte, nell’esercizio della sua funzione nomofilattica, ha tuttavia ritenuto che, così come formulata, la norma riecheggi l’espressione “mezzi necessari per vivere” di cui all’art. 38 Cost., comma 1, piuttosto che “mezzi adeguati di vita del lavoratore”, di cui al comma 2 del cit. articolo (Cass., n. 2630/2008 cit.; Cass., 28 dicembre 2011, n. 29238). Il che porta ad includere la norma in esame, nell’ambito del più generale sistema di sicurezza sociale, nel modello fondato sulla solidarietà collettiva che garantisce ai “cittadini”, ove ad alcuni eventi si accompagnino situazioni di bisogno, “i mezzi necessari per vivere”, e non invece nel diverso modello, normalmente realizzato mediante gli strumenti mutualistico-assicurativi, che prevede il riconoscimento ai “lavoratori” della diversa e più elevata garanzia del diritto a “mezzi adeguati alle loro esigenze di vita”, prescindendo da uno stato di bisogno (Corte Cost, 19 gennaio 1995, n. 17). Il requisito in esame, dunque, è da intendersi nel senso di un rapporto diretto di dipendenza economica dei congiunti con il lavoratore infortunato con la conseguenza che, ai fini della sussistenza del diritto alla rendita, non è sufficiente la dimostrazione della sola circostanza della loro convivenza con l’assicurato o che da questi ottenevano un parziale mantenimento (Cass., 4 marzo 2002, n. 3069; Cass., 24 maggio 1996, n. 4805; Cass., 11 febbraio 1985 n. 1135).
Detta in altre parole, in molti casi, i familiari dei giovani lavoratori, che ancora vivono con la famiglia, non potranno ottenere alcun indennizzo per la tragica morte del congiunto, ma dovranno rivolgersi alla magistratura per chiedere il risarcimento del danno morale se ed in quanto sia ravvisabile una responsabilità del datore di lavoro o di terzi, con cause dalla durata media di dieci anni e con costi elevati per spese legali”.

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