Compensation for moral damage in case of road accidents
As noted, a significant part consists of cases of compensation for moral damage as a result of road accidents.
In accordance with paragraph 1 of Article 931 of the Civil Code, legal entities and citizens whose activities are associated with increased danger to others (transport organizations, industrial enterprises, construction sites, vehicle owners, etc.) 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.
According to paragraph 7 of the Regulatory Decree "On certain issues of the application by the courts of the Republic of legislation on compensation for damage caused to health", the owner of a source of increased danger should be understood as a legal entity or citizen operating a source of increased danger by virtue of their ownership rights, economic management rights, operational management rights, or other grounds (under a lease agreement, by proxy for driving a vehicle, by virtue of the order of the competent authority on the transfer of a source of increased danger, etc.).
The person who manages the source of increased danger by virtue of an employment relationship with the owner of this source (driver, driver, operator, etc.) is not recognized as the owner of the source of increased danger and is not responsible for harm to the victim. If motor transport companies transfer vehicles to their employees under a lease agreement, i.e. to persons who have an employment relationship with the enterprise, acting in the interests of the enterprise, and the vehicle does not actually leave the possession of this enterprise, then the enterprise, as the owner (owner) of the source of increased danger, must bear responsibility for the damage caused.
The infliction of moral harm when harming the life and health of a person (his close relative) is a fact that is always "implied" in this situation. Even if the court does not provide concrete evidence of harm to the human psyche, the very fact that he suffered physical suffering (which caused him to be unable to work for a certain time or even the loss of an organ, disability, loss of a close relative) is sufficient for the court to be convinced of the fact of moral harm.
By the decision of the Taraz City Court of June 4, 2015, left unchanged by the appellate judicial board, the claim of Ms S.R. against Sapar Trans 2012 LLP and T-aev E.R. for compensation for moral damage was partially satisfied and 100,000 tenge was collected in solidarity. The court found that T.E.R. violated the Rules of the road, he was moving with the passenger doors open, as a result of which the plaintiff fell out of the bus and received moderate harm to her health. E.R. T-aev was found guilty of committing an administrative offense under Articles 468-1 and 469 part 2 of the Administrative Code of the Republic of Kazakhstan. The court imposed liability on both the harm-doer, T-eva E.R., and S-trans 2012 LLP, which is the owner of a high-risk motor vehicle. The defendant's arguments that the Insurance Company should compensate for moral damage were not taken into account. The Law "On Insurance Activities" and other regulatory legal acts in the field of compulsory insurance of civil liability of the owner of a motor vehicle or carrier to passengers does not insure the liability of the policyholder for causing moral damage to the victim. Insurance companies may not be required to compensate third parties for moral damage caused by an insured event.
In case of harm to the life and health of a citizen, a complete refusal to compensate for the damage is not allowed.
Another example:
By the decision of the Kordai district Court of the Zhambyl region dated April 3, 2015, the claim of the Acting Director for compensation for moral damage in the amount of 500,000 tenge was partially satisfied, compensation for moral damage in the amount of 25,000 tenge each was collected from Yu.N., K-yan A.S. The court found that as a result of the beatings, the plaintiff suffered bodily injuries in the form of a chest contusion and a concussion.
By the decision of the Kordai District Court, which was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative cases of the Zhambyl Regional Court, Mr. N.H. was found guilty of committing an administrative offense under art. 79-3 Part 2 of the Administrative Code of the Republic of Kazakhstan.
By the decision of the Kordai District Court, which was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative cases of the Zhambyl Regional Court, the administrative case against K-yan A.Sh. was terminated under Articles 79-3, Part 2 of the Administrative Code of the Republic of Kazakhstan on the basis of part 1 of Article 69 of the Administrative Code of the Republic of Kazakhstan.
The court pointed out that, by virtue of the requirements of paragraphs 3-1 of Article 71 of the CPC, the guilt of a person in committing an administrative offense, established by a court decision that entered into force in an administrative offense case, is not proven again when considering the case on the civil consequences of an administrative offense committed by this person.
When determining the amount of compensation for moral damage, the court took into account the degree of guilt of the defendants, the nature of the moral suffering of the plaintiff (feelings, shame, humiliation, physical pain, beating in front of colleagues, children), and the court proceeded from the principles of justice and sufficiency.
By the decision of the Temirtau City Court of January 12, 2015, which was left unchanged by the decision of the appellate judicial board, the claims of A.E. Island against A.M.Zh. were partially satisfied. Material damage and partially moral damage in the amount of 900,000 tenge were recovered. The court found that the defendant was found guilty by the verdict of the court under art.296 part 1 of the Criminal Code. On 08.07.2013, he and his comrades went to visit friends in the village of Ulytau. A man named M.Zh. got behind the wheel of a Mercedes Benz car owned by B-ovoy M.K., who did not fit into a turn, drove to the side of the road, lost control, committed an accident, and there was a repeated rollover. The plaintiff flew out of the rear side window and was crushed under the car when he fell. As a result of the accident, the plaintiff suffered bodily injuries in the form of a closed combined spinal injury accompanied by a fracture of the first lumbar vertebra with contusion and compression of the spinal cord and impaired pelvic organ function, fractures of the pubic bone, and a burn wound of the left shin. The plaintiff was treated for a long time in various medical institutions, underwent more than one operation on the spine and other damaged areas of the body, including skin grafts. As a result of the accident, he almost lost everything, including his good job. As the plaintiff pointed out, he suffered significant moral and physical suffering, was deprived of the opportunity to realize his plans and hopes for a future life, became a disabled person of the second group, and asked for moral damages in the amount of 10,000,000 tenge. According to the conclusion of the forensic medical examination, the plaintiff suffered serious harm to his health on the grounds of danger to life. When determining the amount of compensation for moral damage, the court took into account the established circumstances of the case.
When considering disputes of this category, the courts also apply the norms stipulated by the Law "On Insurance Activities" and other regulatory legal acts in the field of compulsory insurance of civil liability of vehicle owners or carriers to passengers, according to which the liability of the policyholder for causing moral damage to the victim is not insured. Insurance companies may not be required to compensate third parties for moral damage caused by an insured event. The obligation to compensate for moral damage caused in the event of an insured event must be imposed on the owner of the vehicle or the carrier.
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