Compensation for damage from the culprit of the accident who does not have the right to drive a vehicle without civil liability insurance, being intoxicated
A.S. filed a lawsuit against the defendants M.D., LLP "M" for damages.
It follows from the materials of the case that M.D., who does not have the right to drive a vehicle, without GPO insurance, being intoxicated, driving a car of the Gaz 330252-244 brand, hit a Kia Shirato vehicle belonging to A.S. M.D. for committing an accident in accordance with Article 608 of the Code of Administrative Offenses, was brought to administrative responsibility.
The car Gaz 330252-244 belongs to M LLP, which transferred it for repair to the defendant M.D.
The court did not accept the recognition of the claim by the defendant M.D. and by the decision of the court of the city of Aktobe dated May 23, 2022, damage in the amount of 3,458,945 tenge was recovered from the owner of the IPO - M LLP.
The fact that the court has the right to accept the recognition of the claim made only by the owner of the IPO corresponds to Article 48 of the Civil Procedure Code, according to which the court does not accept the recognition of the claim by the defendant if these actions are contrary to the law or violate someone's rights, freedoms and legitimate interests.
Jurisdiction of cases
The jurisdiction of cases is determined in accordance with the general rules established by Article 29 of the Civil Procedure Code, that is, at the place of residence of the defendant is an individual or at the location of the defendant of a legal entity.
Along with this, claims for compensation for damage caused by mutilation or other damage to health, as well as caused by the death of the breadwinner, may be brought by the plaintiff at the place of his residence or at the place of damage (Part 5 of Article 30 of the Civil Procedure Code).
State duty
According to paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Obligatory Payments to the Budget" (Tax Code), the state duty is charged from claims filed with the court for the recovery of material damage in the following amounts: for individuals - 1 percent of the amount of the claim, but not more than 10,000 MCI, for legal entities - 3 percent of the amount of the claim, but not more than 20,000 MCI, for non-property claims - 0.5 MCI.
Plaintiffs in claims for compensation for harm caused by mutilation or other damage to health, as well as death of the breadwinner, are exempt from payment of state duty on the basis of subparagraph 5) of Article 616 of the Tax Code.
Pre-trial settlement is not provided for by law
The courts should bear in mind that the legislation does not provide for the plaintiff's compliance with the procedure for pre-trial settlement of disputes on compensation for damage caused by a source of increased danger (hereinafter referred to as IPO).
Example: On April 5, 2023, the Alatau District Court of Almaty dismissed the claim of N.D. against K.K. and Zh.E. for the recovery of material damage caused by IPO due to non-compliance with the procedure for pre-trial settlement of the dispute.
In accordance with subparagraph 1) of Article 279 of the Civil Procedure Code of the Republic of Kazakhstan, the court leaves the claim without consideration if the plaintiff has not complied with the procedure for pre-trial settlement of the dispute established by law for this category of cases or provided for by the contract and the possibility of applying this procedure has not been lost.
If the law establishes or the contract provides for a pre-trial dispute settlement procedure for a certain category of cases, recourse to the court may be made after compliance with this procedure (Part 6 of Article 8 of the Civil Procedure Code of the Republic of Kazakhstan).
Taking into account these norms, by the decision of the Judicial Chamber for Civil Cases of the Almaty City Court dated May 18, 2023, the ruling of the court of first instance was canceled, with the transfer of the case to the court of first instance for consideration on the merits.
The plaintiffs are citizens and legal entities
In accordance with Part 1 of Article 47 of the Civil Procedure Code of the Republic of Kazakhstan, plaintiffs are citizens and legal entities that have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests or in defense of which a claim has been filed by other persons in the manner provided for by this Code.
Determination of the defendant in a claim for compensation for damage
When determining the defendant in a claim for damages, it is necessary to check the legal grounds for the defendant's possession of the property that is IPO
M.E. filed a lawsuit against B.E., KA. on the recovery of material damage and monetary compensation for moral damage caused as a result of an accident.
By the decision of the Borodulikha District Court of the Abai Region dated January 12, 2023, the claim was partially satisfied, material damage in the amount of 852,459 tenge and monetary compensation for moral damage in the amount of 1,200,000 tenge were recovered from B.E. in favor of M.E.
The court found that the car "Lada 21713" belongs to the defendant K.A., the defendant B.E. drove the vehicle on the basis of an insurance policy.
By the verdict of the court No 2 of the city of Semey, East Kazakhstan region dated December 21, 2021, B.E. was found guilty of committing a criminal offense under part 2 of article 345 of the Criminal Code of the Republic of Kazakhstan, which established that B.E., driving a Lada 21713 vehicle, made a head-on collision with a Toyota Avensis vehicle.
As a result of the accident, M.E. suffered serious harm to health.
On the basis of paragraph 1 of Article 931 of the Civil Code of the Republic of Kazakhstan, B.E., who was driving the vehicle on a legal basis, was reasonably recognized as the owner of the Lada 21713 vehicle at the time of the accident.
The presence of an insurance policy indicates that the defendant as the owner of the vehicle has civil liability insurance.
Regulatory framework
Regulatory legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:
- Constitution of the Republic of Kazakhstan;
- 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 CPC);
- Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Code of Administrative Offenses);
- Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code),
- Law of the Republic of Kazakhstan "On Compulsory Insurance of Civil Liability of Vehicle Owners";
- Law of the Republic of Kazakhstan "On Compulsory Insurance of Civil Liability of the Carrier to Passengers";
- Law of the Republic of Kazakhstan "On Road Traffic" dated April 17, 2014;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No8 "On Judicial Practice in Disputes Arising from Insurance Contracts";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the Application by the Courts of the Legislation on Compensation for Moral Damage";
- Regulatory Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 "On Certain Issues of Application by the Courts of the Republic of Legislation on Compensation for Harm Caused to Health";
- Rules for determining the amount of damage caused to a vehicle, approved by the Resolution of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016 No14;
- Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No 534 "On Approval of the Traffic Rules, Basic Provisions for the Admission of Vehicles to Operation, the List of Operational and Special Services, the Transport of Which Is Subject to Equipping with Special Light and Sound Signals and Painting According to Special Color Schemes";
- Standard Rules for Keeping and Walking Pets, approved by Order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated May 20, 2022 No168; - Standard rules for grazing farm animals, approved by the order of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020 No145.
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