A claim for coercion in carrying out a set of measures to enhance the soundproof properties of enclosing structures and compensation for moral damage

 

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To the Medeu District Court of Almaty

34 Nusupbekov Street, Almaty

8 (727) 333-13-01

727-4283@sud.kz

 

Plaintiff: S.R.S.

IIN .............

g........... mkr........ house .... sq. m.......

 

Representative by proxy:

Law and Law Law Firm

BIN 201240021767

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz

+ 7 727 978 5085; +7 700 978 5085.

Defendant: IP A.A.K.

IIN ……………

city of Almaty, ............ district, street ..........., The house ........., the apartment ..........

+7………………

 

The claim

on forcing the implementation of a set of measures to enhance the soundproof properties of enclosing structures and compensation for moral damage

S.R.S. (hereinafter referred to as the Plaintiff) resides at the address of Almaty mkr.......... house ...... apartment …

On the ground floor of the house there is a "Gastrobox market" store (hereinafter referred to as the store) owned by individual entrepreneur A.A.K. (hereinafter referred to as the defendant). Without the consent of the tenants of the house, the defendant organized a trading business. Refrigerating machines located in the store emit noise and hum around the clock.

According to the reports on measuring the noise level in the living room of an apartment in an apartment building located at the address Almaty, , house ..., sq ...,... floor dated April 03, 2022 and September 04, 2022:

As a result of the measurements, it was found that the noise levels in the apartment's living area exceed the permissible values for the night time.

The acoustic examination showed that it is necessary to carry out a set of measures to enhance the sound-proofing properties of the enclosing structures (to perform sound insulation with special sound-proofing materials, ceilings, floors in the locations of refrigerating units, walls in the areas adjacent to refrigerating units).

Due to the constant noise, the plaintiff and his family cannot have a normal rest in their apartment, this noise has a very unfavorable effect on the plaintiff's health.

We also pay attention to several other types of violations of silence from the store's activities from 09.00 to 22.00 hours.:

The "Gastrobox market" store's operating mode for up to 24 hours is set without the consent of the residents above the store, sometimes it works even longer, it also worked around the clock, as a result of which noisy companies of store visitors gather in front of the windows of the residents several times late in the evening after 22 hours and at night, sometimes early in the morning at 07:00, 08:00. They make noise, do not respond to comments, and argue, as a result of which silence is repeatedly violated by such actions, and the plaintiff's normal pastime at home is hindered.

In order to resolve the dispute in a pre-trial manner, we sent a pre-trial claim, but it was not possible to resolve the dispute.

According to Article 437 of the Code of Administrative Offences of the Republic of Kazakhstan, the violation of silence from 22 to 9 a.m., including carrying out work in and out of the home, accompanied by noise, not related to urgent need, impeding the normal rest and tranquility of individuals, as well as the violation of silence by entertainment facilities located in residential buildings and on residential areas, from 22 to 9 a.m. on weekdays, from 23 to 10 a.m. on weekends and holidays.

According to paragraph 4 of Article 8 of the Civil Code, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.

We believe that all your actions contradict the current legislation and interfere with our rest.

152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and preserved.

  The above actions of the Defendant are completely illegal, and the Plaintiff has suffered moral harm, expressed in the experience of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc.      

Paragraph 1 of Article 951 of the Civil Code of the Republic of Kazakhstan defines moral harm as a violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (endured experienced) by the victim as a result of an offense committed against him, and in the event of his death as a result of such an offense - by his close relatives.

According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.

On the basis of the above and in accordance with art. 148 of the CPC RK,

P R O W U COURT:

To recognize A.A.K.'s actions to violate the peace and quiet of S.R.S. as illegal;

To recover from A.A.K. in favor of S.R.S. the amount of moral damage in the amount of 5,000,000 (five million) tenge;

Collect from A.A.K. in favor of S.R.S. the amount of representative services in the amount of 500,000 (one hundred and twenty thousand) tenge;

To collect from A.A.K. in favor of S.R.S. the amount of the paid state duty in the amount of 51,725 (fifty–one thousand seven hundred and twenty-five) tenge.

With respect

Representative by proxy

                                                                                                                     Nurlanov N.N.

 

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

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