Civil case on compensation for damage in connection with property damage

The court considered in open court a civil case on the claim of: .A.A.Zh, to the State Communal Enterprise "Zhitikarakommunenergo" of the state institution "Department of Housing and Communal Services, Passenger Transport, highways and Housing Inspection of the Akimat of the Zhitikarinsky district" THIRD PARTIES WHO DO NOT DECLARE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE ON THE SIDE THE DEFENDANT: State institution "Department " of Housing and Communal Services, passenger transport, highways and Housing Inspection of the Akimat of the Zhitikarinsky district" On compensation for damage, Plaintiff A/A.Zh. is the owner of a Chevrolet Cobalt car, state registration plate ...PHN10, built in 2020. On May 21, 2021, in the city of Zhitikara, in the courtyard of house No. ..., .. of the microdistrict, as a result of a burst pipe of heating networks belonging to the GKP "Zhitikarakommunenergo", his car was damaged, thereby causing material damage. The plaintiff, taking into account the clarification of the claims, requests to recover from the defendant the material damage caused in the amount of 415,755 tenge according to the damage report No. 00132/GTK, compiled by IP Nagashbayeva S.S. dated November 12, 2021. He also requests to recover the loss of the commodity value of the car in the amount of 278,333 tenge based on the report No. 00133/GTK of IP Nagashbayeva S.S. dated November 12, 2021 and court costs. During the court session, the plaintiff A.A.Zh., the plaintiff's representative Nigmetov S.D., having clarified and reduced the amount of the claims, supported them in full, the court was told that the plaintiff is the owner of a Chevrolet Cobalt car, state registration plate ....PHN10, built in 2020. On May 21, 2021, he parked his car in the courtyard of his house. As a result of a gust in the pipe of the heating networks of the GKP Zhitikarakommunenergo, a fountain of water began to flow from the ground, dragging with it particles of soil, earth and stones, which, hitting the car, damaged the paintwork, front and rear windshields, and the rear left ceiling. The heating networks of the 7th microdistrict of Gitikary are on the balance sheet of GKP Gitikarakommunenergo, which should be responsible for the damage caused and it did not arise due to force majeure, there is no evidence of this.

 

There are no road signs prohibiting parking in the parking area. The car is in the warranty period of operation, and it is obliged to undergo vehicle maintenance during the warranty period at Avtodom Kostanay LLP. They are asking to satisfy the claim. The representative of the defendant, L.A.A., did not admit the claim, explained to the court that on May 21, 2021, the GKP "Zhitikarakommunenergo" conducted a hydraulic test of heating networks for low-rise and multi-storey buildings. This procedure is carried out regularly after the end and before the start of the heating period in order to identify weak sections of the pipeline. Before starting work, an announcement is made on the radio for residents of the city and businesses. At about 11:00 a.m. on May 21, 2021, a burst heat pipe occurred in the 7th microdistrict and a fountain of water doused the plaintiff's car. This pipe is on the balance sheet of GKP "Zhitikarakommunenergo. After that, the company's employees, together with A.A.Zh., inspected the car, no damage was found, and there were no claims from the plaintiff. GKP "Zhitikarakommunenergo" had no intention of causing special damage to the car, it believes that there was an irresistible force, since it was impossible to predict exactly where the pipe burst would occur. There are also mining enterprises in the city of Zhitikara where massive explosions are carried out in the quarry, which leads to soil fluctuations. He believes that the car was parked in the wrong place, there are no road signs allowing parking. Requests to dismiss the claim. The representative of the third party of the State Institution "Department of Housing and Communal Services, Passenger Transport, highways and housing inspection of the Akimat of the Zhitikarinsky district" R.J.M. did not appear at the court session, in a written response she asked to consider the case without her participation, leaving the decision to the discretion of the court. Witness S.S.S. He explained to the court that he works as the head of the heating network section of GPC Zhitikarakommunenergo. On May 21, 2021, a hydraulic test of the heating networks of the 7th microdistrict was conducted in the city of Zhitikar, that is, the heating networks are filled with water under pressure to identify weak pipe sections, the water starts gradually and the pressure in the pipes rises to 8 atmospheres. At about 11 o'clock, a burst heat pipe with a diameter of 159 mm, located underground, occurred near house No. 5. As a result of a gust of water, the plaintiff's car was doused with a fountain at a distance of 15 meters. On examination, Abdrakhmanov A.Zh. He did not make any claims. It was later established that there was a gust on the pipe the size of a little finger, which was formed due to rust. In 2020, there was already a pipe rupture at this site, repairs were carried out, and no replacement was carried out due to lack of funding. Witness Zalevsky V.A. explained to the court that he works as a master of the heating network of GPC "Zhitikarakommunenergo". On May 21, 2021, the pipes of the housing stock of the 7th microdistrict were crimped. There was a burst pipe with a diameter of 159 mm. and a fountain of water was poured over the plaintiff's car from the driver's side at a distance of 15 meters. Since the pipe was underground, earth and sand poured onto the car along with water. The car was all dirty. At the time of the inspection, A.A.Zh. made no claims, they offered him to wash the car, but he refused. Upon inspection of the pipe, it was found that the cause of the gust was metal corrosion. Previously, there was a pipe burst in this section in 2020, and no replacement was carried out. Witness G.E.A. explained to the court that he was the plaintiff's housemate. On May 21, 2021, in the courtyard, he saw that a fountain of water had poured onto A.A.Zh.'s car as a result of a gust of heat pipe. At the same time, the water was coming out of the ground dirty, and dirt and rubble flew with it to the car. He informed A.A.Zh. The appraiser interviewed in court, N.Y.S., explained that the car was evaluated on the basis of data from an official dealer, and the cost per hour was applied in the amount of 3 MCI according to paragraph 54 and Appendix 10-1k of the Rules, namely as a warranty vehicle. The difference between the two reports in the cost of loss of presentation occurred due to an increase in the market value of the car since the previous assessment. The characteristic damage to the car was caused by multiple fragments all over the body of the car.

Civil case on compensation for damage in connection with property damage

On the basis of Article 9 of Part 4 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a person whose right has been violated may demand full compensation for damages caused to him, unless otherwise provided by legislative acts or a contract. Losses mean expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of turnover if his right had not been violated (lost profits). It follows from the case file that on May 21, 2021, the defendant conducted hydraulic tests of heating networks in low-rise and multi-storey buildings in the city of Zhitikar. According to the act approved by the chief engineer of GKP "Zhitikarakommunenergo" K.S.G. dated May 21, 2021, the test was carried out in two stages: stage 1- supply - 16 atmospheres, return pipeline-10 atmospheres; stage 2 – supply – 16 atmospheres, return pipeline-10. Gusts were detected, including in the 7th microdistrict, building No. 5, a pipe with a diameter of 159 mm- 1 gust. Thus, the court found that on May 21, 2021, during a hydraulic test of heating networks in the 7th microdistrict, house No. 5, a gust appeared on a pipe with a diameter of 159 mm, as a result of which a Chevrolet Cobalt car belonging to plaintiff A.A.Zh. According to the certificate of balance ownership of the heating network facility was poured. 7 of the residential district of Gitikary belongs to the defendant GKP "Gitikarakommunenergo". The above facts are not disputed by any of the persons involved in the case. In accordance with Article 931 of the Civil Code, legal entities and citizens whose activities are associated with increased danger to others (transport organizations, industrial enterprises, construction sites, vehicle owners, etc.) are required to compensate for the damage caused by a source of increased danger, unless they prove that the damage was caused by force majeure or intent of the victim. The obligation to compensate for damage is imposed on a legal entity or citizen who owns a source of increased danger by right of ownership, right of economic management or right of operational management, or on any other legal basis (a lease agreement, a power of attorney for the right to drive a vehicle, by virtue of an order from a competent authority to transfer the source, etc.)., is exempt from compensation for harm if he proves that the harm was caused through no fault of his own. The court classifies heating networks as a source of increased danger. Article 182 of the Civil Code interprets force majeure as an extraordinary and unavoidable event. By virtue of Article 359 of the Civil Code, a person who has not fulfilled or improperly fulfilled an obligation bears property liability unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, military actions, etc.). In accordance with article 1 of the Law of the Republic of Kazakhstan "On Civil Protection", an emergency is a situation in a certain territory that has developed as a result of an accident, fire, harmful effects of hazardous industrial factors, a dangerous natural phenomenon, disaster, natural disaster or other disaster that may or may not result in human casualties, harm to human health or the environment. environmental damage, significant material damage and disruption of people's living conditions. At the same time, objecting to the stated claims, the defendant did not prove that the harm to the plaintiff was caused through no fault of his own, and that it arose as a result of force majeure. Therefore, the defendant's actions are directly causally related to the unfavorable outcome received by the plaintiff. Consequently, he is obligated to compensate the plaintiff for material damage. The court considers the defendant's arguments that the plaintiff committed gross negligence by parking the car in the wrong place to be untenable, since there is no evidence of the presence of safety barriers. There are no road signs or other signs in the parking area of the plaintiff's car prohibiting the vehicle from stopping or parking. In these circumstances, the plaintiff's claim for compensation for material damage is subject to satisfaction. Resolving the issue of the amount of damage caused, the court comes to the following conclusion. It can be seen from the case file that the plaintiff purchased the vehicle on October 14, 2020 and is undergoing warranty service at Avtodom Kostanay LLP. In this regard, the plaintiff carried out a re-evaluation, since the initial one did not take into account the fact that the car was under warranty. According to the damage report No. 00132/GTK, compiled by IP Nagashbayeva S.S. dated November 12, 2021, the cost of repairing a Chevrolet Cobalt car, state registration plate 659PHN10, manufactured in 2020, taking into account natural physical wear, amounted to 415,755 tenge. The Court accepts the submitted report on the amount of damage to the vehicle as relevant and admissible evidence, since it was compiled in accordance with the Rules for Determining the Amount of Damage Caused to the Vehicle, approved by Resolution of the Board of the National Bank of the Republic of Kazakhstan No. 14 dated January 28, 2016 (hereinafter referred to as the Rules). It follows from the submitted report that the assessment of the car was made on the basis of data from an authorized dealer, the cost of the norm-hour for maintenance and repair of the vehicle in the amount of 3 MCI was applied in accordance with paragraph 54 and Appendix 10-1k of the Rules, namely as a warranty vehicle. The report contains written information and a photo table on the direct inspection of the evaluation object by an appraiser, documented by the amount of damage caused, contains relevant references and justifications, while the appraiser has the qualifications necessary to conduct the study. In addition to property damage related to the restoration of the car, the plaintiff suffered property damage in the form of loss of the vehicle's presentation and amounts to 278,333 tenge, which is confirmed by report No. 00133/GTK of IP Nagashbayeva S.S. dated November 12, 2021, which is also subject to recovery from the defendant by virtue of the above-mentioned legislation. The defendant denied the specified amount of damage, did not provide evidence to the court confirming a different amount of damage, and did not file a request for a forensic automotive examination, so the court was guided by the documents available in the case when making the decision. Based on the above, the claims are subject to satisfaction. In accordance with Articles 109,113 of the CPC, court costs are subject to recovery from the defendant in favor of the plaintiff: payment for damage assessment 125,000 tenge, representative services 69,409 (10% of 694,088 tenge), refund of the state duty 6,941 tenge.

 

Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of A.A.Zh. to the State Communal Enterprise "Zhitikarakommunenergo" of the state institution "Department" of Housing and Communal Services, Passenger Transport, highways and housing inspection of the akimat of the Zhitikarinsky district for damage compensation. To recover from the State Communal Enterprise "Zhitikarakommunenergo" of the state institution "Department" of housing and Communal services, passenger transport, highways and housing inspection of the Akimat of the Zhitikarinsky district in favor of A.A.Zh. monetary amount for compensation of material damage 694,088 (six hundred ninety-four thousand eighty-eight) tenge, payment for damage assessment 125,000 (one hundred twenty-five thousand) tenge, representative services 69,409 (sixty-nine thousand four hundred nine) tenge, refund of state duty 6,941 (six thousand nine hundred forty-one) tenge, total 895,438 (eight hundred and ninety-five thousand four hundred and thirty-eight) tenge. 

 

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