A statement of claim for recovery of the amount by way of recourse gives the power of attorney the right to own a vehicle, and the right to drive must be confirmed by a driver's license.
JSC Insurance Company K (hereinafter referred to as JSC K) filed a claim with the court for recovery of KZT 926,944 from K. by way of recourse. By the decision of the Medeu District Court of Almaty dated March 9, 2017, the claims of JSC "K" were satisfied in full. By the decision of the Appellate Judicial Board for Civil Cases of the Almaty City Court dated June 5, 2017, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, and in the case adopted a new decision to dismiss the claims of JSC Insurance Company K for recovery of the amount of insurance payment. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan was satisfied on the following grounds. It follows from the case file that on March 5, 2014, at about 6:05 p.m. in Almaty, driver K., driving a Hyundai car, collided with a Mitsubishi car driven by driver M., as a result of which the latter's car received mechanical damage. By the decision of the administrative court dated March 19, 2014, the defendant was found guilty of committing an administrative offense under part 1 of Article 468 of the Code of the Republic of Kazakhstan on Administrative Offenses. According to the report on the valuation of movable property dated March 18, 2014, the cost of repairing a Mitsubishi car amounted to 911,944 tenge, and the cost of paying for valuation services was 15,000 tenge. In connection with the occurrence of the insured event, the plaintiff made an insurance payment in the order of direct settlement in the amount of 926,944 tenge.
The plaintiff's claims to recover insurance payments from the defendant by way of recourse are motivated by the fact that the defendant did not have documents confirming the right to own, use or dispose of the vehicle at the time of the traffic accident (hereinafter referred to as the accident). The court of first instance reasoned the conclusions on the satisfaction of the claim by the fact that the defendant at the time of the accident had a power of attorney for the right to drive a car, but had not registered the power of attorney in accordance with the established procedure, therefore he was not entitled to drive a vehicle. The appellate judicial board found the decision of the court of first instance to be in accordance with the factual circumstances established in the case and not contrary to the norms of legislation, and therefore it was left unchanged. The Board believes that the court's conclusions contradict the norms of the law, since, applying the law to the legal relations that have arisen, the court misinterpreted it. According to subparagraph 3) of paragraph 1 of Article 28 of the Law of the Republic of Kazakhstan "On Civil Liability of vehicle Owners", the insurer who has made the insurance payment has the right to claim back against the policyholder (insured) within the amount paid in cases where the person driving the vehicle at the time of the accident was not entitled to to them. It follows from this rule that a person who does not have the right to drive a vehicle should be recognized as a person who does not have a driver's license, that is, at the time of the traffic accident, he did not have the necessary knowledge and skills in the scope of standard training programs for drivers of vehicles of the appropriate category and he did not pass the exams in accordance with the established procedure, or has the appropriate category for driving this type of transport, or has been deprived of the right to drive. Therefore, the court's conclusions that at the time of the accident, the defendant did not have the right to drive a vehicle, since he did not have a power of attorney registered with the traffic police from the owner of the vehicle, are illegal. In accordance with Article 188 of the Civil Code, the owner has the right to own, use and dispose of his property. By issuing a power of attorney for the right to drive a car, the owner transfers his right to own and use the property and the person holding such a power of attorney becomes the owner of the vehicle. Thus, a power of attorney gives the right to own a vehicle, whereas the right to drive must be confirmed by a driver's license. At the time of the accident, defendant K. had a driver's license and also had a notarized power of attorney for the right to drive vehicles dated November 24, 2012, valid for three years. The courts, when making the decision, did not take into account that Government Decree No. 472 of June 23, 2015 in the Rules of the Road in section 2 "General duties of drivers" deleted the fifth paragraph of subparagraph 1) of paragraph 1 as follows: a document confirming the right to own, use, or dispose of this vehicle, with mandatory registration of an individual, the manager of a vehicle transferred to temporary possession and use at an authorized body – in the case of driving a vehicle in the absence of its owner. Thus, the presence of a written power of attorney for driving a vehicle is currently not mandatory and the absence of a power of attorney cannot be regarded as the absence of the right to drive a vehicle.
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