Compensation for moral damage caused by the death of a spouse
The plaintiff, C-ova N.E., appealed to the court No. 2 of the city of Uralsk, West Kazakhstan region, with a claim for compensation for moral damage. The claims are motivated by the fact that on July 13, 2014, at about 17.00 hours, near S.Podstepnoye, Terektinsky district, near the junction of the Uralsk-Aksai and Uralsk-Dzhambeyta highways, during construction work, an accident occurred with her husband, S. Zholaman Berikkalievich, an electric shock, from which he died. At the time of her death, her husband was in an employment relationship with Vodokanal Stroy Service LLP. I agree with the accident report, the degree of fault of the employer of Vodokanal Stroy Service LLP is determined at 50%, JSC Zap.-Kaz.REC" - 30%, the degree of guilt of his spouse-20%. They have a son from their marriage, Becket, born on 04/02/2014. As a result of the accident, she was left without a spouse, and the child was left without a father. The mental state of depression, despair, inferiority and discomfort experienced from this accident is estimated at 5,000,000 tenge. On the basis of art.951 of the Civil Code, he requested that the defendant, as the owner of the source of increased danger, be charged this amount for moral damage.
In the case, it was established that on July 13, 2014, in the area of P.Podstepnoe uch.No. 3 during the replacement of wooden supports with reinforced concrete ones, the electrician from Vodokanal Stroyservice LLP, the electrician from Zholaman Berikkalievich, was born on 03/27/1981 and suffered an electrical injury and died from his injuries. According to the act of special investigation of the accident, the fault of Vodokanal Stroyservice LLP is 50%, JSC Zap.-Kaz.REC is 30%, and the fault of the employee is 20%.
The plaintiff, bringing this claim against JSC "Zap.-Kaz.REC" asked to recover 5,000,000 tenge in the form of compensation for moral damage, since the death of her husband caused her moral suffering in the form of despair, discomfort and hopelessness, she became a widow at a young age, and their common son Beket, born on 04/02/2014, was left without a father.
The court of First Instance determined that, based on the literal interpretation of paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of legislation on compensation for moral harm," personal non-property rights and benefits, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits belonging to a citizen from birth or by virtue of law, which are inextricably linked to his personality.
The benefits belonging to a person from birth should include life, health, honor, freedom, and personal integrity, and the rights of a citizen should include such rights as the right to family secrets, telephone, telegraphic messages, and correspondence; the right to use a name; the right to an image; the right of authorship, and other personal non-property rights provided for by legislation on copyright and related rights; the right to freedom of movement and choice of residence; the right to receive reliable information, as well as other rights provided for by legislative acts of the Republic. That is, such rights and benefits are not alienable or otherwise transferable.
Therefore, the legislator defined moral harm as "violation, diminution or deprivation of personal non-property benefits and rights of individuals and legal entities, including moral or physical suffering (humiliation, irritation, depression, anger, despair, physical pain, inferiority, discomfort, etc.) experienced (endured, experienced) by the victim as a result of the offense committed against him." Consequently, claims for compensation for moral damage are inextricably linked to the personality of a citizen.
By virtue of paragraph 2 of Article 13 of the Civil Code, a citizen's legal capacity arises at the time of his birth and ends with death. It can be seen from the case materials that as a result of the defendant's unlawful actions, damage was caused to S. Zholaman Berikkalievich, from which, according to death certificate No. 0992513 dated 07/16/2014, he died on 07/13/2014.
Since the defendant had not committed any illegal actions against the plaintiff, there were no grounds for satisfying the claim for compensation for moral damage, and therefore the court refused to satisfy the claim.
It is difficult to agree with such conclusions of the court of first instance about the absence of legal grounds for claiming compensation for moral damage in connection with the death of a spouse, since individuals who have personally suffered from the harm caused have such a right.
If a person has lost such a benefit as life, which belongs to him from birth, then he really cannot personally exercise his right to compensation for moral damage, but his close relatives have such a right.
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