Compensation for damage caused by road accidents
Jurisdiction of cases on compensation for damage caused by a traffic accident
According to Article 24 of the CPC, courts in civil proceedings consider cases for the protection of violated or disputed rights, freedoms and legally protected interests, unless, in accordance with this Code and other laws, their protection is carried out in another judicial procedure.
By virtue of Part 6 of Article 24 of the CPC, courts also consider cases involving foreign citizens, stateless persons, foreign organizations, organizations with foreign participation, as well as international organizations. At the same time, courts of general jurisdiction consider and resolve cases, with the exception of economic disputes and other cases referred to the jurisdiction of specialized courts (art.30 of the CPC).
Thus, taking into account the nature of legal relations and their subject matter, cases on claims for compensation for damage caused by road accidents can be attributed to the jurisdiction of courts of general jurisdiction and specialized courts.
Accordingly, in the category of civil cases under consideration, the courts do not have the right to refuse to accept an application on the grounds that the application is not subject to consideration and resolution in civil proceedings, since the application is considered and resolved in a different judicial procedure (art. 153 of the CPC).
Jurisdiction of cases on compensation for damage caused by a traffic accident
When determining the territorial jurisdiction of disputes over compensation for damage caused by an accident, courts should be guided by the provisions of Articles 31 and 32 of the CPC (in cases of claims for compensation for injury to health).
In accordance with the general rule of jurisdiction established by art. 31 of the CPC, the claim is filed at the place of residence of the defendant, a citizen, or at the location of the defendant, a legal entity.
In this regard, for a correct decision on the jurisdiction of a claim brought against a citizen, it is necessary to establish the place of residence of the defendant-citizen, which is determined taking into account the provisions of Part 1 of Article 16 of the Civil Code, which establishes that the place of residence is the place where the citizen permanently or predominantly resides.
Pre-trial settlement of a dispute on compensation for damage caused by a traffic accident
In accordance with paragraph 1 of Part 1 of Article 154 of the CPC, the judge returns the statement of claim if the plaintiff has not complied with the procedure for preliminary dispute resolution established by law for this category of cases and the possibility of applying this procedure has not been lost.
In cases of compensation for damage caused by an accident, the courts should take into account that the current legislation does not establish a mandatory pre-trial dispute settlement procedure, which is provided for in Article 154 of the CPC. Consequently, the statement of claim cannot be returned to the plaintiff on this basis. However, this provision does not prevent the plaintiff from taking measures to resolve the dispute in a pre-trial manner, including by contacting the insurance company that insured the civil liability of the vehicle owner.
Refusal to accept the statement of claim, return of the statement of claim.
On October 12, 2015, by Court No. 2 of the city. Petropavlovsk, North Kazakhstan region, lawfully returned the statement of claim of the Victoria Insurance Company Joint Stock Company to Bulatov B. for damages, since the statement of claim was filed and signed by the director of the Victoria IC branch. A power of attorney confirming the authority of the branch director to sign the statement of claim on behalf of the legal entity Victoria Insurance Company JSC is not attached to the statement of claim.
According to the requirements of paragraph 4, Part 1, Article 154 of the CPC RK, the judge returns the statement of claim if the statement is signed by a person who does not have the authority to sign it. The photocopy of the power of attorney attached to the statement of claim also lacks the branch director's right to sign the statement of claim. On April 14, 2015, the Rudnensky Court of the Kostanay region returned the claim of Moldagali A. to the Insurance Company Nurpolis for the recovery of the insurance premium amount. One of the reasons for the refund was the fact that the plaintiff is not a party to the insurance contract, therefore, he is not a person who has the right to demand proper performance of the contract.
The plaintiff provided an insurance contract, which was concluded with Imashev R.M. There is no evidence that a claim assignment was made between Moldagali A. and Imashev R.
State duty for compensation of damage caused by a traffic accident
The amount of the state fee depends on the nature of the stated requirements:
1) property subject to valuation;
2) non-property.
For property claims to be assessed, the amount of the state fee is determined in proportion to the price of the claim.
In accordance with Article 610 of the Tax Code (hereinafter referred to as the Tax Code), property claims for individuals are charged 1 percent of the amount of the claim; for legal entities - 3 percent of the amount of the claim.
For non-property claims, which include claims for compensation for moral damage, the amount of the state fee is set in relation to the monthly calculation index.
In accordance with Article 610 of the Tax Code, 50 percent of claims for changing or terminating a tenancy agreement, extending the term for accepting an inheritance, releasing property from seizure, and other claims of a non-property nature or not subject to valuation.;
When filing statements of claim containing both property and non-property claims, the state duty established for property claims and the state duty established for non-property claims are simultaneously paid.
At the same time, it should be borne in mind that the law defines the circle of persons who are exempt from paying state duty when filing lawsuits.
In resolving the case on the merits, it is necessary to be guided by Article 110 of the CPC, according to which, the party in whose favor the decision was made, the court awards, on the other hand, all court costs incurred in the case, even if this party was exempt from paying court costs.
The form and content of the statement of claim, the documents attached to the statement of claim.
A statement of claim for compensation for damage caused by an accident is subject to the general requirements provided for in art. 150 of the CPC.
151 of the CPC, the following are attached to the statement of claim: copies of the statement of claim according to the number of defendants and third parties; a document confirming payment of the state fee; a power of attorney or other document certifying the representative's authority; documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for the defendants and third parties, if they they do not have; the text of the normative legal act in case of its challenge; petitions of the plaintiff for postponement, installment plan, exemption from payment of court costs or reduction of their amount, for securing the claim, requesting evidence, and others, if they are not stated in the statement of claim.
In particular, the statement of claim must be accompanied by documents confirming the fact of an accident (for example, a certificate of an accident), evidence of harm and its size. Other necessary documents depend on the circumstances of a particular case.
Failure to comply with these requirements by virtue of Article 155 of the CPC is the basis for leaving the application without motion.
Preparation of cases for judicial proceedings for compensation of damage caused by a traffic accident
168 of the CPC, after accepting the application, the judge issues a ruling on the preparation of the case for trial and indicates the actions to be taken.
Based on the principle of adversarial civil proceedings, the preparation of a case for trial is carried out by a judge with the participation of the parties, other persons involved in the case, and their representatives. At the same time, the main role at this stage under the current civil procedure legislation is assigned to the parties and other persons involved in the case. The court, while maintaining independence, objectivity and impartiality, manages the process, explains to the persons involved in the case their rights and obligations, warns about the consequences of committing or not completing procedural actions, assists the persons involved in the case in exercising their rights, creates conditions for the comprehensive and correct application of legislation during consideration and resolution. civil cases. 170 of the CPC provides an approximate list of actions of a judge in preparing a case for trial.
Since preparation for trial is mandatory in every civil case, the general provisions of Chapter 16 of the CPC apply to cases of compensation for damage caused by an accident. At the same time, the analyzed category of civil cases has its own characteristics of the stage of preparation of cases for trial.
Evidence and evidence for compensation of damage caused by a traffic accident
166 of the CPC, one of the tasks of preparing a case for trial is to present the necessary evidence by the parties and other persons involved in the case.
Therefore, when preparing a case for trial, the judge hands over or sends copies of the statement of claim and the documents attached to it and obliges them to submit a response (objection) within the time limit set by himto the statement of claim.
In particular, in cases of compensation for damage caused by an accident, the subject of proof includes the following circumstances:
1) the fact of an accident;
2) the fact of causing damage to the property and health of the victim as a result of an accident;
3) the existence of a causal relationship between the unlawful behavior of the harm-doer and the harm caused to the victim;
4) the amount of damage caused by the damage to the victim's property.
If a claim for compensation for injury to health is made at the same time (independently), the subject of proof additionally includes such circumstances as:
1) the fact of injury to the victim's health as a result of an accident;
2) the degree and duration of disability of the victim;
3) the need for sanatorium-resort treatment, prosthetics, etc.;
4) the cost of medicines, medical services, additional meals, outside care, etc.;
5) other circumstances of the case.
If the victim requests compensation for moral damage, then the subject of proof is expanded, the plaintiff must prove the existence of physical and (or) moral suffering.
When considering and resolving claims against the insurance company that insured the civil liability of the vehicle owner, the fact of concluding a liability insurance contract for the vehicle owner and the validity of the insurance contract at the time of the accident are included in the evidence in a civil case. The subject of proof for claims of insurance companies by way of subrogation includes the fact that the insurer has paid insurance compensation to the victim.
The peculiarity of the distribution of the burden of proof in this category of cases is that the fault of the causer of harm is presumed, so the plaintiff is not obliged to prove the guilt of the defendant, the owner of the source of increased danger, but must prove only the presence of harm (property damage, harm to health) and the causal relationship between the manifestation of harmful properties of the vehicle and the resulting harm. Meanwhile, this presumption is refutable, since the defendant is released from liability for damages if he proves that the damage occurred due to force majeure or intent of the victim.
The defendant is also exempt from compensation for the damage caused if he proves that the source was removed from his possession as a result of illegal actions of other persons, but this is no longer a presumption. In the presence of such circumstances, the defendant is obliged to prove the disposal of the vehicle from his possession.
Courts should also keep in mind that, by virtue of Article 931 of the Civil Code, damage caused as a result of the interaction of sources of increased danger to their owners is compensated on a general basis.
64 of the CPC, by virtue of which information about circumstances relevant to the case can be obtained from any means of proof: from explanations of the parties and third parties, testimony of witnesses, written and physical evidence, expert opinions.
It is necessary to draw the attention of the courts to the fact that the judge's actions to obtain evidence should include distributing the burden of proof between the parties; determining the amount of evidence on the subject of proof, taking into account the relevance and admissibility; obtaining evidence from the parties and other persons; assisting the parties in obtaining evidence (their claim at the request of the parties by the judge himself or handing over to the party a judicial request for the issuance of evidence to the party for submission to the court); in exceptional cases, the claim of evidence on their own initiative.
The collection of evidence on the initiative of a judge is an exception to the general rule of the administration of justice on the basis of competition and equality of the parties.
Cases in this category must be carefully prepared for trial. A special feature of the preparation is a thorough study of the submitted statement of claim in order to fully identify and involve all persons interested in the consideration of this dispute, as well as to clarify the ownership of vehicles, the authority of the persons driving the vehicle, to establish the location of the accident, to clarify the question of how many vehicles were involved in the accident, the location of the administrative material on the accident or materials on the refusal to initiate criminal proceedings, the results of consideration of such materials.
As practice shows, the objections of the defendants in the consideration of cases in this category are divided into two groups: objections to the fault of the harm-doer and objections to the amount of harm and the amounts calculated by the plaintiff. Therefore, a request for primary materials on an accident is necessary in almost all cases of this category: in the first case, to clarify questions about the guilt of the defendant or other persons in causing harm, in the second case, to compare the damage to cars described by the participants in the accident, representatives of insurance companies, and employees of the ODP with the expert opinion provided by the plaintiff, evidence of actual expenses incurred, and the purpose of establishing their validity and relevance to this accident.
It is also necessary to claim the title documents for the vehicle from the plaintiffs, since the owner has the right to receive compensation for damage to his property, and not the person who drove the car under a power of attorney issued by the owner. Accepting a claim from trusted persons on their behalf and adjudicating in their favor is not an uncommon miscarriage of justice.
When preparing for the trial of civil cases on claims against insurance companies for damages to the courts, it is necessary to find out the reasons for the insurer's refusal to pay insurance, for which it is necessary to claim the insurance case. If the reason for the refusal is the absence of the policyholder's fault and the indication of the fault of the plaintiff himself or his proxy, then it seems necessary to involve as a third party on the plaintiff's side also the insurer who insured the plaintiff's liability or his proxy for causing harm.
During the preparation of the case for trial, the courts should invite the plaintiff to submit documents confirming his ownership of the damaged property or the right to payment in case of damage to property owned by another person. Such documents may include a purchase and sale agreement, a vehicle passport, a vehicle registration certificate, and other evidence confirming that the property belongs to the plaintiff (victim).
Evidence of the fact of harm, i.e. the fact of an accident, may include certificates from the ODP, decisions on refusal to initiate criminal proceedings, decisions on termination of criminal proceedings, verdicts and court decisions, documents drawn up by representatives of insurance companies, receipts from the harm-doer acknowledging the fact of harm, if for some reason the employees of the ODP do not The incident diagrams drawn up by the participants in the accident and their explanations, vehicle inspection protocols, witness statements, film, photographic materials and other evidence were called.
The circumstances to be determined include determining the fault of the participants in the accident in the collision of vehicles.
The amount of compensation for damage caused by loss or damage to property may be confirmed by expert appraisers, evidence confirming the plaintiff's actual expenses (invoices, work orders, cash and commodity receipts.
Judicial proceedings for compensation of damage caused by a traffic accident
One of the grounds for the emergence of civil rights and obligations is "harming another person." Consequently, the infliction of harm as an independent ground generates a civil obligation in which the victim acts as a creditor (he has the right to demand), and the causer as a debtor (obligated person).
Obligations to compensate for damage caused by an accident are among tort obligations, otherwise referred to as non-contractual.
A source of increased danger is understood as material objects with harmful properties, the manifestation of which in the process of using these objects is not completely controlled by humans. Thus, the vehicle cannot be stopped instantly, which creates an increased danger to others.
In accordance with the Law "On Road Traffic", art.1, paragraph 24, a traffic accident is an event that occurred during the movement of a vehicle on the road and with its participation, resulting in injury to health, death of a person, damage to vehicles, structures, goods or other material damage.
A vehicle is a device designed to transport people, goods, or equipment installed on it along roads.
The criterion for classifying means of transport as sources of increased danger cannot be a sign of their registration with the ODP authorities, since mechanical agricultural and other equipment in rural areas (tractors, bulldozers, combines, etc.) is not registered there, which should be classified as sources of increased danger.
Property liability for damage caused by the action of vehicles should occur both with their purposeful use and with the spontaneous manifestation of their harmful properties (for example, in the case of damage caused by spontaneous movement of the car). In this case, liability for harm occurs only if the harm occurred as a result of the action of a source of increased danger (for example, when driving a car), which implies the establishment of a causal relationship between the occurrence of harm and the manifestation of the characteristic (specific) harmfulness of the relevant object (vehicle) during its operation. Therefore, the rules do not apply to a stationary vehicle.
Within the meaning of the provisions of the law, the subject of liability for damage caused by an accident is the owner of the vehicle.
These should include an organization or citizen operating a source of increased danger, by virtue of their ownership rights, economic management rights, operational management, or for other reasons (under a lease agreement, by power of attorney to drive a vehicle, by virtue of an order from competent authorities to transfer a source of increased danger to the organization for temporary use, etc.).
The owners of the vehicle can be both individuals and legal entities.
Settlement of disputes on compensation for damage caused by a traffic accident
Questions often arose when determining the amount of damage caused as a result of damaged property.
For example, when victims of road accidents (hereinafter referred to as accidents) actually incur the cost of restoring the vehicle significantly more than they are reimbursed by the insurance company or the guilty driver, since the wear and tear of the car is taken into account. Meanwhile, to fix a damaged car, it is necessary to purchase new spare parts that do not have depreciation. The current practice of collecting insurance amounts in such cases, according to some regional courts, does not fully comply with the provisions of paragraph 1 of Article 917 of the Civil Code on the obligation of the causer of harm to compensate him in full and Article 934 of the Civil Code on full compensation for damages (to provide a thing of the same kind and quality or to fix a damaged thing), since it provides priority protecting the interests of the perpetrator over protecting the interests of the accident victim.
In resolving such cases, the courts are lawfully guided by the requirements of paragraph 3 of Article 22 of the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners" and determine the amount of damage based on the calculation of the cost of restoring damaged property minus the accrued depreciation (depreciation) of property that occurred before the occurrence of the insured event.
The actual amount of damage under the Law "On Compulsory Insurance of Civil liability of vehicle owners" is determined taking into account the depreciation of the vehicle that occurred before the insured event, therefore, the insured person must compensate for the damage based on the actual amount of damage determined in accordance with the provisions of the said Law.
However, the terms of the voluntary insurance contract may provide for a different procedure for determining the amount of damage, which, in particular, may be determined on the basis of invoices, certificates of completed work, etc., without taking into account depreciation.
According to Article 924 of the Civil Code, if the insured amount is insufficient to fully compensate for the damage caused, the difference between the insured amount and the actual amount of damage is compensated by the legal entity or citizen who insured their liability.
Compensation for damage in a retrogressive manner in accordance with Article 28 of the Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of vehicle owners", the right to the contrary claim
The insurer who has made the insurance payment has the right to make a reverse claim against the policyholder (insured) within the limits of the amount paid in cases where:
1) the civil liability of the policyholder (insured) has occurred as a result of his deliberate actions aimed at causing an insured event or contributing to its occurrence, with the exception of actions committed in a state of necessary defense and extreme necessity;
2) the civil liability of the policyholder (insured) has occurred as a result of driving a vehicle under the influence of alcohol, drugs or substance abuse;
3) the person driving the vehicle at the time of the accident did not have the right to drive it.;
4) during the court proceedings, it was established that the insured event occurred as a result of technical malfunctions of the vehicle, which the policyholder (insured) knew or should have known about.;
5) the vehicle is used for purposes not peculiar to its technical purpose;
6) the policyholder (insured) intentionally failed to take measures to reduce losses from the insured event;
7) the person driving the vehicle has fled the scene of the traffic accident;
8) a person driving a vehicle and sent for an examination to establish the fact of using a psychoactive substance and intoxication has not passed such an examination without valid reasons.
Compensation for damage caused by loss of a commercial type of vehicle
The insurance amount does not cover compensation for moral damage, compensation for lost profits, including loss of the marketable value of property, specified in Part 2 of art. 10 of the Law of the Republic of Kazakhstan dated July 01, 2003 "On compulsory insurance of civil liability of vehicle owners", where the contract of compulsory liability insurance of vehicle owners provides for insurance payments for obligations arising as a result of harm to the life, health and (or) property of the victim, with the exception of compensation for moral damage and lost profits of the victim, including loss of the marketable value of the property, as well as compensation for penalties in connection with the violation of the victim's deadlines for the delivery of goods or the production of works (services), and his other obligations under contracts (contracts).
The court legitimately satisfied the claims of Figol E. to Akhanov A. for recovery of material damage caused as a result of a traffic accident, where the plaintiff requested to recover from the defendant the amount of material damage caused by the loss of the marketable value of his vehicle in the amount of 114,597 tenge, reimburse the costs incurred by him to pay for appraiser services in the amount of 7,000 tenge, the state duties in the amount of 1,146 tenge.
According to the real estate valuation report No. 452 dated 18.09.2014, the loss of the marketable value of his vehicle amounted to 114,597 tenge. The defendant's guilt in causing material harm to the plaintiff was determined by a court order.
The amount of material damage caused as a result of the accident, justified by the cost of restoration repairs in the amount of 479,348 tenge, was paid to the plaintiff by the insurance company that insured the liability of the perpetrator. The insurance company refused to reimburse the amount of damage caused by a decrease in the market value of the car. The plaintiff indicates that he spent significant funds on the purchase of a Lada 21703-139-23 car, since he signed a bank loan agreement and then borrowed money, the car is the only source of income for him and his family.
The director of Autotrest LLP, appraiser Kirsanov A.A., who, in accordance with the procedure provided for by law, has the right to assess the amount of damage caused to the victim's property as a result of the operation of the vehicle, explained in court that the conducted valuation studies established the loss of the marketable value of the Lada 21703-139-23 car with the state number 913 ARA09, manufactured in 2013, owned by E.V. Figol. for 114,597 tenge. The loss of the marketable value of motor vehicles is subject to assessment based on the consequences of established technical damage and subsequent repair, due to the legally provided possibility of compensation for such damage in respect of vehicles with a period of less than three years from the date of issue, taking into account less than 40 percent depreciation, less than 40,000 kilometers.
Based on the Avtotrest LLP assessment report submitted to the court for No. 452 dated 18.09.2014, the material damage caused to the plaintiff, justified by the loss of the marketable value of his vehicle, amounts to 114,597 tenge. Thus, when considering claims for damages in connection with the loss of the marketable value of a vehicle, courts should take into account that the loss of the marketable type of a vehicle after a traffic accident is determined for vehicles manufactured for up to three years, or for which depreciation at the time of the accident does not exceed 40%.
The loss of a commercial vehicle is determined immediately after a traffic accident, before it is restored.
Getting a car into an accident even after its full recovery significantly affects its market value, since a car after an accident on the market will cost less than a car that was not damaged in an accident.
Under the contract of compulsory civil liability insurance, the liability of the vehicle owner is insured both for material damage caused by damage to property and for damage to health, including for the same insured event, while the policyholder bears subsidiary (additional) liability for damage caused to the victim, in an amount exceeding the maximum amount of each type. insurance payments.
According to Article 24 of the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners", the maximum amount of liability of an insurer for one insured event (insurance amount) is (in monthly calculation indices), including for injury, injury or other damage to health without disability - in the amount of the actual costs of outpatient and (or) inpatient treatment, but not more than 300 MCI. At the same time, the amount of insurance payment for each day of inpatient treatment should be at least 10 monthly calculation indices.
Thus, within the meaning of the law, the liability of the vehicle owner is insured under a compulsory civil liability insurance contract both for material damage caused by damage to property and for damage to health, including for the same insured event, while the policyholder bears subsidiary (additional) liability for damage caused to the victim, in particular the amount exceeding the maximum amount of each type of insurance payment.
In some cases, the courts misinterpreted the above-mentioned provisions of subparagraph 1 of paragraph 1 of Article 24 of the Law, from which it follows that the costs of outpatient and (or) inpatient treatment of the victim, but not exceeding 300 MCI, are subject to compensation only if they provide evidence confirming the actual expenses incurred, and in the absence of such evidence, compensation to the victim An insurance amount of at least 10 MCI for each day of inpatient treatment is subject to insurance.
Legal regulation of relations for compensation of damage caused by a traffic accident.
Relations on compensation for damage caused by an accident are primarily regulated by the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code). – CPC), the Law of the Republic of Kazakhstan "On Compulsory Social Insurance", the Law "On Valuation Activities", "On Road Traffic", as well as the Memorandum on a unified methodology for calculating the cost of a standard hour for vehicle maintenance and the cost of spare parts in the framework of compulsory insurance of civil liability of vehicle owners. The procedural procedure for the consideration and resolution of civil cases of this category is fixed by the Civil Procedure Code of the Republic of Kazakhstan.
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