Compensation for material damage and moral damage received as a result of a traffic accident

The court considered in open court a civil case on the claim of: P.V.V. to T.B.B. For compensation of material damage, For compensation of moral damage. PLAINTIFF IN THE COUNTERCLAIM: T.B.B. DEFENDANT IN THE COUNTERCLAIM: P.V.V. PLAINTIFF'S CLAIMS IN THE COUNTERCLAIM: On compensation for material damage, Plaintiff P.V.V. is the owner of a Lada 21725 168-31 car, registration number ...01, 2014. On August 10, 2021, at about 01:44 a.m., a traffic accident occurred on the Turgenovka-Zhitikara highway (hereinafter referred to as the accident) involving this car driven by L.V.M. with horses belonging to the defendant T.B.B. After the accident, the driver L.V.M. left the scene. The plaintiff, P.V.V., was in this car as a passenger. As a result of a collision between a car and horses, the plaintiff received bodily injuries in the form of a closed fracture of the left collarbone with displacement. The car was also damaged. Having applied to the court, the plaintiff asks to recover from the defendant the amount of material damage in the amount of 1,180,792 tenge, moral damage in the amount of 300,000 tenge, and court costs.  On the counterclaim: By the decision of the Zhitikarinsky District Court of Kostanay region, dated December 06, 2021, L.V.M. was found guilty under part 2 of Article 611 of the Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code of the Republic of Kazakhstan) with the imposition of an administrative penalty in the form of a fine in the amount of 102,095 to the state income. It follows from the resolution that on August 10, 2021, L.V.M., driving a Lada 21725 168-31 vehicle, registration number 230KNA01, 2014, collided with two horses, and then left the scene of an accident in which he was a participant. In connection with the infliction of property damage to T.B.B. as a result of the death of animals, the plaintiff requests to recover from the defendant the cost of the dead horses, totaling 1,282,500 tenge. The plaintiff, P.V.V., and the plaintiff's representative, S.D. Nigmetov, supported the claim in full at the hearing, and explained to the court that on August 09, 2021, in the evening, relatives of L.V.N., L.N.N.'s wife, and two minor children came to visit the plaintiff in Turgenovka from Gitikar. Then they drank beer. At about 01 a.m., L. was offered to go to them in the town of Gitikara. At the same time, L.V.M. got behind the wheel of her car, as he did not drink. They all got into the car together, L.V.M. was driving, and her husband P.N.A. was sitting next to her in the front passenger seat, she, L.N.N. and three children were sitting in the back. However, she was not wearing a seat belt. Driving through the Michurinets garden society, she saw a herd of horses through the window, which ran out onto the road, and there was a collision with horses. When the car stopped, the women and children got out of the car and began to pull the men out. L.V.M. was in a state of shock, grabbing the children and running away. Then an ambulance arrived, which took her, her husband and child to the hospital, where she and her husband were hospitalized.

 

An assessment of the damage caused to transport was carried out on May 16, 2022. To assess the property, she mailed a notice to the defendant to appear to inspect the car, but he did not show up. To date, the car has not been repaired, and she will buy new spare parts. In this regard, they are asking to recover from the defendant the material damage caused in the amount of 1,180,792 tenge, excluding physical wear and tear of the car. As a result of the collision, the plaintiff suffered physical pain and suffering, discomfort, underwent surgery, and was restricted in movement for 7 months. Therefore, they also ask to recover the moral damage caused in the amount of 300,000 tenge. They ask to dismiss the counterclaim, since they believe that L.V.M. was not found guilty of committing an accident, therefore, as a result of the defendant allowing horses to walk freely, he must bear financial responsibility. The defendant T.B.B., the representatives of the defendant I.M.A., K.A.T. did not recognize the claim, they explained to the court that T.B.B. is the head of the farm "B.", engaged in the development of animal husbandry, in the village of Turgenovka there is a base and 27 heads of horses are kept. On August 9, 2021, he and his brother, T.K.B., drove the horses from the card into the field. Then my brother stayed to graze the horses, and he went home. In the morning, his brother called him and informed him about the loss of two horses. Later, he became aware of the incident. At the same time, it is believed that T.B.B. would be an improper defendant, since the claim should be brought against the driver L.V.M., who, violating the speed limit, fled the scene after the accident in order to avoid undergoing a medical examination for alcohol in his blood, since he himself was intoxicated. By a judicial act, L.V.M. was found guilty under part 2 of Article 611 of the Criminal Code of the Kyrgyz Republic for allowing a collision with two horses after leaving the scene of an accident. These circumstances, in accordance with parts 5,6 of Article 76 of the CPC, are not proved again when considering the case on the civil consequences of the crime. It is believed that P.V.V., being intoxicated, after drinking alcohol together, and showing gross negligence, handed over control of the vehicle to L.V.M., who, violating traffic rules, caused an accident that caused harm to P.V.V. herself. The state of alcoholic intoxication of P.V.V. herself is confirmed by her own testimony. The assessment of the vehicle was carried out without the participation of T.B.B., the protocol dated September 9, 2021 under Article 408 of part 2 of the KRK on AP was drawn up for T.K.B., who is not the owner of horses. They ask to dismiss the claim. In connection with the infliction of property damage to T.B.B. as a result of the death of animals, as well as the guilt of P.V.V., who showed gross negligence, they ask to recover from the defendant the cost of two dead horses in the amount of 1,282,500 tenge, having satisfied the counterclaim. Appraiser N.Yu.S. interviewed in court He explained that he had inspected the car on May 16, 2022, and prepared a report on the assessment of the market value of damage to the car.The notice of the evaluation date is given to the customer, the appraiser does not notify anyone. The absence of a second party does not prevent the inspection. The physical wear of the machine is 50.56%, which is assumed in accordance with the total percentage of wear on the entire vehicle. Witness Y.M.S. explained to the court that he was a district inspector of the Zhitikar and district Police Department. On August 10, 2021, at about 01 a.m., he saw patrol cars in the Michurinets CO area, as well as two horses lying on the side of the road. There were police officers at the scene. On September 9, 2021, on behalf of the management, he drew up a protocol on an administrative offense against T.K.B. under Article 408 of part 2 of the Criminal Code of the Russian Federation for allowing horses to walk freely without supervision near the village of Turgenovka. He did not check whether he was the owner of the horses, as K.B. himself explained that they were his horses and agreed with the offense, the case was considered in an abbreviated manner.

 

Witness L.N.N. explained to the court that on August 9, 2021, she and her family went to Turgenovka to visit the Pashins' relatives, where they consumed beer. At night, they got ready to go home and invited the Pashins' family to visit them. Her husband, L.V.M., got behind the wheel, as he did not drink alcohol, P.N.N. was sitting next to him in the passenger seat, and she, the plaintiff, and the children were sitting in the passenger seat in the back. They were not wearing seat belts. On the way, she suddenly felt a sharp jolt on the car, the car rolled down, and she lost consciousness. When she woke up, she called the police and an ambulance. She also called her parents and informed them that they had been in an accident. L.V.M. was scared, was in a state of shock, grabbed the children and ran towards the city. After that, an ambulance crew arrived, P.N.N.'s parents and her father-in-law, who picked up L.V.M. and the children on the way. The ambulance took the Pashins' family. Witness L.V.M. explained to the court that at night, returning from the village of Turgenovka, he was driving the plaintiff's car, as he did not drink alcohol. P.N.N. was sitting next to him in the passenger seat, and his wife, the plaintiff, and the children were sitting in the passenger seat in the back. Along the way, a horse jumped onto the windshield from the left side of the road, which caused a strong blow to the car, the car rolled forward and drove for about 50 m more. He was wearing a seat belt, P.N.N. No, he does not know if the passengers were fastened in the back. He was in a state of shock, afraid for the children, so he grabbed them and ran towards the town of Gitikar, where his father picked him up on the way. Witness K.J.S. explained to the court that he was a veterinarian of the Bolshevik rural district. On August 12 or 13, 2021, he does not remember the exact date, information was received about the death of two horses belonging to the defendant as a result of an accident that occurred on the highway between Turgenovka and Gitikara. He was at the scene of the accident, saw the corpses of two horses on the side of the road, multiple fragments from the car. The main injuries in horses were fractures of the chest, ruptures of the lungs, which led to internal bleeding. Later, the horses were disposed of. He does not know why he indicated August 13, 2021 in the certificate, maybe it was a typo. Witness I.A.B. He explained to the court that in the summer of 2021, he did not remember exactly, he received information from the duty officer about an accident on the Zhitikara-Turgenovka highway. Arriving at the place, I saw a broken-down white car. There were two horses lying on the road, one on the left and the other on the right. None of the people were there. He drew up a traffic accident diagram, there is no "Cattle drive" road sign at the accident site. Witness S.S.Zh. explained to the court that he was the head of the State Enterprise "Veterinary Station".In August 2021, he was informed of an accident involving horses. Arriving at the scene in the morning, he saw two dead horses, as well as multiple fragments from the car. According to the database, the horses belonged to T.B.B. Upon autopsy, it was found that the horses suffered traumatic injuries incompatible with life. They were later disposed of. At the request of No. 1 of the main claim, In accordance with Article 931 of the Civil Code (hereinafter referred to as the Civil Code), legal entities and citizens whose activities are associated with increased danger to others 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. Paragraph 5 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 09, 1999 "On certain issues of the application by courts of legislation on compensation for damage caused to health" clarified that any activity that creates an increased risk of harm due to the inability of full human control over it, as well as the activities of the Government of the Republic of Kazakhstan, should be recognized as a source of increased danger. for the use, transportation, and storage of objects, substances, and other industrial, economic, and other facilities, having the same properties. Courts should also keep in mind that the harmfulness and uncontrolled actions of domestic (including service and guard dogs) and wild animals owned by legal entities and citizens can, under certain circumstances, be attributed to sources of increased danger. According to the materials of criminal case No. 213944031000435, the criminal proceedings against L.V.M. under Article 345 of Part 1 of the Criminal Code of the Republic of Kazakhstan were terminated on October 27, 2021 due to the absence of a complaint from the victim. It follows from the materials of the criminal case that on August 10, 2021, at about 01:44 a.m. on the Turgenovka-Zhitikara highway, L.V.M., driving a Lada 21725 car, registration number 230 KNA01, collided with two horses' heads, as a result of which the vehicle flew into a ditch. At the same time, passenger P.V.V. received injuries in the form of a "dislocated left clavicle fracture", and passenger P.N.A. also received injuries in the form of "SGEM, concussion of the brain". According to the traffic accident scheme and the accident scene inspection protocol, there is no "Cattle crossing" road sign on the section of road where the accident occurred. It follows from the accident diagram that the total width of the road is 7.1 m, the distance from the right edge of the carriageway to the collision site is 2.8 m, which confirms the fact that the horses were on the road at the time of the collision (l.d. 15-21). According to the response of the Veterinary Department of the Akimat of Kostanay region, cattle were registered for the defendant-26 heads and 21 horses. Since August 10, 2021, 2 heads of horses have been removed from the register due to death. Animals are not registered for T.K.B. It follows from the protocol of the interview of witness T.K.B. (L.D.89-92) that on August 9, 2021, he and his brother T.B.B. drove their horses out to graze. Then he stayed to graze the horses, and T.B.B. went home.

At about 11:40 p.m., the pressure light on his car came on, and he left the car in the field and went home to get his horse. At about 01:00 a.m., he took a horse, followed the herd and drove towards the village of Turgenovka, leaving them to graze, and returned home and followed the car into the field. In the morning, at about 06:00 hours, having gone after the herd, I did not count two heads, which I later found dead on the Turgenovka-Zhitikara highway. These circumstances were also confirmed in court by T.B.B.. According to the "Rules for grazing farm animals in Kostanay region", approved by the decision of the Maslikhat of Kostanay region dated September 29, 2020 No. 539 (hereinafter referred to as the Rules), grazing of farm animals is carried out on fenced or unfenced pastures by owners of farm animals or persons authorized by them. The transportation of farm animals to the place of grazing and back, and at night and at night to the places of detention, is carried out under the supervision of the owners of farm animals or persons authorized by them. It is not allowed: grazing of farm animals on public lands, in the right-of-way of railways and highways, borders of water protection strips and sanitary protection zones; driving (driving) to the place of grazing and back, grazing, as well as moving farm animals unaccompanied by the owners of farm animals or persons authorized by them, driving (driving) agricultural animals animals across railway tracks and roads outside specially designated areas, as well as at night and in conditions of insufficient visibility (except for slaughterhouses at different levels); driving of farm animals along roads with asphalt and cement-concrete pavement, if there are other ways. Considering that the accident occurred at night and on the highway, the defendant actually violated the Rules, which led to an accident with consequences for the plaintiff. Thus, the court considers that the owner of the horses was irresponsible, as the defendant and his brother, T.K.B., left the animals unattended at night, which led to a lack of control by the owner and the presence of animals on the roadway. At the same time, the defendant, as the owner of the horses, supervised the entire grazing process, made decisions and bears primary responsibility, including in relation to the actions of his brother T.K.B., whom he allowed to graze horses.

 

The court considers the arguments of the defendant's representative that L.V.M. is responsible for the accident to be untenable, since the car collision occurred due to the presence of horses on the roadway. The guilt of L.V.M. for the violation of traffic rules by the driver of the vehicle, which led to an accident, has not been established by the judicial act. The defendant's arguments about finding L.V.M. intoxicated have not been proven. Based on the above, the material damage is subject to recovery from the defendant T.B.B.. Resolving the issue of the amount of damage caused, the court comes to the following conclusion. According to the damage report No.00057/GTC dated May 16, 2022, compiled by IP Business Consult, the cost of repair of a Lada 21725 car, state number 230 KNA01, taking into account natural physical wear, amounted to 761,925 tenge. Excluding depreciation, the amount of damage is 1,180,792 tenge, which the plaintiff requests to recover, which the court considers unreasonable on the following grounds. In accordance with paragraph 6 of the Rules for Determining the Amount of Damage Caused to a 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), the amount of damage caused to a vehicle is determined based on the calculation of the cost of repairing a damaged vehicle minus depreciation (depreciation) of the vehicle on the date of occurrence of the insured event. the case. The cost of repairing a damaged vehicle is calculated based on market prices effective on the day of the insured event. It follows from the assessment report that the actual wear is set at 50.56 for the car. %

By virtue of paragraph 18 of the Rules for Determining Damage to Vehicle Parts and Additional Equipment, as well as windows, headlights, lanterns, belts and airbags, when determining the cost of vehicle repair, operational wear is assumed in accordance with the total percentage of wear on the entire vehicle. In connection with the above, when determining the amount of damage caused, the court takes as a basis the amount of 761,925 tenge, taking into account the wear and tear of the car. The specified report on the assessment of movable property by the defendant has not been disputed, the amount of damage caused has not been refuted, no petitions for the appointment of a forensic automotive examination have been filed, and the appraiser has the qualifications necessary to conduct the study. At the same time, the act of inspection of damaged property dated May 16, 2022, performed by the appraiser, is consistent with the name of the damaged car parts according to the protocol of inspection of the accident site dated August 10, 2021 and the photo table to it (l.d. 22-31). Thus, the court takes into account the assessment report provided by the plaintiff, since no violations have been identified that raise doubts about the correctness of the study. The court considers the defendant's arguments about the use of alcoholic beverages by the plaintiff, P.V.V., and as a result of gross negligence on her part to be untenable, since L.V.M. was driving the car. At the request of No. 2 of the main claim, According to subparagraph 1 of paragraph 3 of Article 951 of the Civil Code, moral damage is compensated, regardless of the fault of the causer, in cases where harm is caused to the health of a citizen by a source of increased danger. When determining the amount of moral damage to be compensated, the court, by virtue of Article 952 of the Civil Code, takes into account the victim's subjective assessment of the physical and moral suffering caused to her, objective evidence of this, the infliction of bodily injuries that led to surgery and long-term treatment and rehabilitation. But at the same time, the court takes into account that P.V.V., in violation of paragraph 2.1.2 of the Traffic Rules, was not wearing a seat belt, which she herself confirmed at the hearing and witness L.N.N., thereby showing gross negligence. The court also considers the plaintiff's gross negligence to be traveling at night outside the village with three minor children in the absence of an emergency. By virtue of paragraph 3 of Article 935 of the Civil Code, in case of gross negligence of the victim and the absence of guilt of the causer in cases where his liability occurs regardless of guilt, the amount of compensation should be reduced. In such circumstances, the court considers it reasonable, fair, proportionate and sufficient to reduce the amount of moral damages collected from the defendant to 100,000 tenge. In a counterclaim, In accordance with the requirements of paragraph 1 of Article 917 of the Civil Code, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full. By virtue of Article 72 of the CPC, each party must prove the circumstances to which it refers both on the basis of its claims and objections. Analyzing the circumstances of the case, taking into account the above circumstances, the court considers that the plaintiff did not provide evidence of harm caused to him by the unlawful culpable actions of the defendant P.V.V., which excludes the possibility of satisfying a counterclaim for damages. In this case, the defendant, P.V.V., did not violate any of the plaintiff's rights.

 

Thus, the plaintiff has not proved the existence of the totality of the conditions specified in Article 917 of the Civil Code for damages, the plaintiff's counterclaims are unfounded, and therefore they should be refused. In accordance with Articles 109,113 of the CPC, court costs are to be recovered from T.B.B. in favor of P.V.V.: payment for damage assessment 70,000 tenge, representative services 76 192 tenge, refund of state duty 9 151 tenge (1% of 761 925tenge+ 1 532 tenge for a claim for moral damages), total 155 343 tenge. Guided by Articles 223-226 of the CPC, the court DECIDED: P.V.V.'s claim against T.B.B. to partially satisfy the claim for compensation of material damage and moral damage. To collect from T.B.B. in favor of P.V.V. a sum of money in compensation for material damage 761,925 (seven hundred sixty-one thousand nine hundred twenty-five) tenge, payment for damage assessment 70,000 (seventy thousand) tenge, representative services 76 192 (seventy six thousand one hundred ninety two) tenge, refund of state duty 9 151 (nine thousand one hundred and fifty-one) tenge, moral damage in the amount of 100,000 (one hundred thousand) tenge, a total of 1,017,268 (one million seventeen thousand two hundred and sixty-eight) tenge. To refuse to satisfy the rest of the claims. To refuse to satisfy T.B.B.'s claim to P.V.V. for compensation of material damage.

 

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