Compensation for material damage | Recovery of damages | Compensation for moral damage

On January 27, 2021, the case was filed by the Zhitikarinsky District Court of the Kostanay region, consisting of: the presiding judge Aizhanova Zh.N., with the secretary of the court session Ismagulova G.Z., having considered in open court a civil case on the claim of the BBS to the KAB KAA by a THIRD PARTY WHO DOES NOT MAKE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE: Eurasia Insurance Company Joint Stock Company, On compensation for material damage caused as a result of a traffic accident. About the recovery of damages. On compensation for moral damage Plaintiff B.B.S. Plaintiff's representative T.T.I. Defendants K.A.B., K.A.A. Representative of the defendant Nigmetov S.D. Representative of a third party GA.B. The plaintiff owns a VAZ 21104 car, state number 147...10. On February 4, 2020 in the city of Kostanay, the defendant K.A.B., driving a RenaultDuster car, state number 837..10, in violation of the Traffic Rules of the Republic of Kazakhstan, collided with a VAZ 21104, state number 147..10, as a result of which mechanical damage was caused to the plaintiff's vehicle. By the resolution of the specialized administrative court of In Kostanay, on February 28, 2020, K.A.B. was found guilty of committing an offense under Article 610, part 3 of the Code of the Republic of Kazakhstan on Administrative Offenses. The RenaultDuster car, state number 837...10, was registered with the defendant K.A.A. On June 12, 2020, the Eurasia Insurance Company Joint Stock Company transferred an insurance payment in the amount of 435,370 tenge to the plaintiff. According to the report of the Independent Assessment Center "Auto Expert" LLP No. 200 dated August 4, 2020 on the assessment of material damage, the cost of repair of a VAZ 21104 motor vehicle, state number 147...10, is KZT 1,365,083.

Compensation for material damage | Recovery of damages | Compensation for moral damage

B.B.S. appealed to the court with a statement of claim for compensation for material damage and compensation for moral damage. The claims are motivated by the fact that the insurance payment received does not cover the costs of restoring the car. The report on the amount of damage compiled by Eurasia Insurance Company JSC is considered incomplete and unreliable. He asks you to use an independent appraiser's report as a basis. Asks to collect from K.A.B. the amount of the difference in the insurance payment in the amount of 929,713 tenge, moral damage in the amount of 500,000 tenge, expenses for a representative for participation in the courts of first and appellate instances in the case of an administrative offense, as well as expenses for conducting an independent assessment in the amount of 55,436 tenge, for paying for the services of a representative in the specified case in the amount of 98,000 tenge, for the payment of state duty in the amount of 9820 tenge and 1389 tenge. The moral damage is justified by the fact that, through the fault of the defendant, he lost his vehicle, which was the only source of income, and could not provide financial assistance to the child. During the preparation of the case for trial, the plaintiff filed a motion to involve the owner of the car, K.A.A., as a co-defendant, and asked to recover material damage and moral damage in solidarity with K.A.A., K.A.B. At the hearing, the plaintiff and his representative, T.T.I. They clarified the claims, explaining that in December 2020 they applied to the Eurasia insurance company with the report of an independent appraiser. According to the report dated December 7, 2020, the amount of damage amounted to 659 621.92 tenge, and therefore, on January 8, 2021, the plaintiff received an additional insurance payment in the amount of 224 252 tenge. Thus, they are asking to recover jointly and severally from the defendants the amount of material damage in the amount of 705,461 tenge, moral damage in the amount of 500,000 tenge, losses related to the costs of paying for the services of a representative in an administrative offense case in the amount of 120,000 tenge, as well as court costs for conducting an independent assessment in the amount of 55,416 tenge., for the participation of a representative in the specified case in the amount of 70546 tenge, payment of state fees in the amount of 9820 tenge and 1389 tenge. The defendants K.A.B., K.A.A., and their representative Nigmetov S.D. the claims of B.S.B. They did not admit it in full, they stated their objections in detail in the response to the statement of claim.

A representative of a third party who does not make independent claims on the subject of the dispute, G.A.B. considers the claims against the defendants to be unfounded, since the insurance company paid the plaintiff an insurance payment in the amount of 659,622 tenge according to reports dated August 4, 2020 and December 7, 2020. At the same time, the report of the Independent Assessment Center "Auto Expert" LLP is considered unreliable, since it does not comply with 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. As required by Article 931, Part 1 of Article 917 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) provides for the liability of persons who own a source of increased danger. In accordance with Article 924 of the Civil Code, a citizen who has insured his liability by way of voluntary or compulsory insurance, if the insured amount is insufficient to fully compensate for the damage caused, reimburses the difference between the insured amount and the actual amount of damage. By virtue of Article 819 of the Civil Code, the insured sum is the amount of money for which the insured object is insured, and which represents the maximum amount of liability of the insurer upon the occurrence of an insured event. By a resolution of the specialized administrative court of the city of Kostanay dated February 28, 2020, K.A.B. was found guilty of committing a traffic accident (hereinafter referred to as the accident) that took place on February 4, 2020. The resolution entered into force on March 19, 2020. According to part 5 of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), K.A.B.'s guilt in causing material damage to B.B.S. as a result of an accident was established by a court decision that entered into force and is not proven again when considering a civil case for compensation for material damage. On March 20, 2020, B.B.S. applied to Eurasia Insurance Company JSC with a statement on determining the amount of damage caused to property. On March 31, 2020, the insurance company calculated the amount of damage in the amount of 435,370 tenge, which were transferred to the plaintiff on June 12, 2020. In December 2020, during the preparation of the case for trial, the plaintiff applied to Eurasia Insurance Company JSC for payment of the difference between the insured amount and the actual amount of damage. On December 7, 2020, the insurance company assessed the amount of damage in the amount of 659,622 tenge. On December 8, 2020, the amount of 224,252 tenge was transferred to the plaintiff (659 622 - 435 370 ). In accordance with subparagraph 2) paragraph 1 of Article 24 of the Law of the Republic of Kazakhstan "On Compulsory insurance of civil liability of vehicle Owners", the maximum amount of liability of an insurer for one insured event (insured amount) is (in monthly calculation indices): for damage caused to the victim's property - in the amount of the damage caused, but not more than 600 mci.

Compensation for material damage | Recovery of damages | Compensation for moral damage

These expenses are reimbursed by the insurer directly to the person who incurred them. It follows from the above-mentioned provisions of the law that Article 924 of the Civil Code applies if the amount of damage caused to property, in this case to a car, exceeds 600 monthly calculation indices. 5 According to the report of the Independent Assessment Center "Auto Expert" LLP No. 200 dated August 4, 2020 on the assessment of material damage, the real damage (excluding the drop in the cost of replaced spare parts due to wear) of a VAZ 21104 motor vehicle, state number 147MDA10, is KZT 1,365,083, while the cost of restoration repairs with taking into account depreciation on the replaced parts is 809,639 tenge, which in this case does not exceed the maximum amount of liability of the insurer (600 x 2778 (1 MCI for 2020) = 1,666,800 tenge). The reports on the calculation of the amount of damage made by Eurasia Insurance Company JSC have not been disputed by the plaintiff, and the insurance payment has been received. The court agrees with the defendants' arguments and considers them justified. Thus, the court considers that the claims against the defendants for compensation of material damage are untenable and are subject to denial. On demand 2. In accordance with Article 9 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). The plaintiff requests that 120,000 tenge be collected from the defendants jointly and severally for the participation of a representative of T.T.I. in the consideration of an administrative offense case against K.A.B. on the fact of an accident. The court finds this requirement justified, since the administrative procedural legislation does not provide for reimbursement of expenses for the assistance of a representative, at the same time, the participation of a representative of T.T.I. in administrative proceedings is documented. These expenses can be recognized as losses by B.B.S.

Considering the issue of joint and several liability of the defendants, the court comes to the following conclusion. It follows from the case file that the car driven by defendant K.A.B. at the time of the accident was owned by defendant K.A.A. Defendant K.A.B.'s liability is insured. Insurance policy No. 2899M390476K for the period from September 23, 2019 to September 22, 2020. In the present case, the defendant K.A.A., handing over the car to K.A.B., took appropriate measures to ensure the lawful possession of the latter's car and the obligation to compensate in the event of an accident. By virtue of paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8 "On judicial practice in disputes arising from insurance contracts", joint liability of owners of sources of increased danger is provided by law only if harm is caused to third parties as a result of the interaction of these sources (paragraph 2 of Article 931 of the Civil Code). The joint liability of the owner of the vehicle and the person owning the vehicle does not occur without the presence of the owner on another legal basis provided for in Article 931 of the Civil Code (lease agreement, power of attorney). Under the circumstances described, taking into account the insured civil liability of the defendant K.A.B., there are no other legal grounds for collecting damages jointly from the causer and the owner in this case, and therefore, claims in this part against K.A.A. should be denied. On demand 3. In accordance with Part 1 of Article 951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (suffered, experienced) by the victim as a result of an offense committed against him, and in the event of his death as a result of such an offense - by his close relatives, spouse. In accordance with Part 2 of Article 951 of the Civil Code, moral damage is compensated by the causer in the presence of the causer's fault, with the exception of the cases provided for in paragraph 3 of this Article. By virtue of subparagraph 1) of part 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 life and health of a citizen by a source of increased danger. The plaintiff did not provide the court with evidence to substantiate the stated claims of moral harm to him. In addition, according to Part 4 of Article 951 of the Civil Code, moral damage caused by actions (inaction) that violate a citizen's property rights is not subject to compensation, except in cases provided for by legislative acts.

Compensation for material damage | Recovery of damages | Compensation for moral damage

In this regard, the satisfaction of the plaintiff's stated claims for compensation for moral damage should be refused. According to article 109 of the Civil Procedure Code of the Republic of Kazakhstan, the court awards all expenses incurred in the case to the party in whose favor the decision was made. If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims denied to the plaintiff. Thus, with the defendant K.A.B. In favor of the plaintiff, the court costs of paying the state fee in the amount of 1,200 tenge should be collected, as well as the overpaid state fee in the amount of 1,566 tenge should be returned to the plaintiff. (11210 - 9644 (7055+1200+1389)=1566). According to Article 113 of the CPC, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. The defendant is K.A.B. A petition has been filed to recover from the plaintiff the costs of paying for the assistance of a representative in the amount of 70,000 tenge in accordance with the legal assistance agreement and payment receipts. The court, taking into account good faith, reasonableness and fairness, as well as partial satisfaction of the claims, considers it sufficient to recover from the plaintiff in favor of the defendant the court costs in part in the amount of 45,000 tenge. Guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court issued the following statement of claim: B.B.S. K.A.B., K.A.A. to partially satisfy claims for compensation of material damage caused as a result of a traffic accident, recovery of losses and compensation for moral damage. To recover from K.A.B. in favor of B.B.S. damages in the amount of 120,000 tenge, court costs for the payment of the state fee in the amount of 1,200 tenge, in total in the amount of 121,200 (one hundred twenty one thousand two hundred) tenge. To refuse to satisfy the claims against K.A.A.. To dismiss the rest of the claim against K.A.B.. To recover from B.B.S. in favor of K.A.B. court costs for the representative's assistance in the amount of 45,000 (forty-five thousand) tenge. To return to B.B.S. the overpaid state duty in the amount of 1,566 (one thousand five hundred and sixty-six) tenge.

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