Determination of the amount of compensation for moral damage, depending on and regardless of the conditions stipulated in the collective agreement

 

The plaintiff, S.Z., appealed to the district court no.2 Kazybekbiysky district of the city of Karaganda to the defendant Kazakhmys Corporation LLP with a claim for moral damages, justifying his claims by the fact that he had worked at the enterprises of Kazakhmys Corporation since 1998 as an underground mining foreman.

On May 09, 2014, the National Center for Occupational Health S.Z. established for the first time an occupational disease in the form of: "Grade 1 silicosis, chronic obstructive bronchitis, remission phase. Emphysema of the lungs, respiratory failure of the second stage. Chronic pulmonary heart, compensated. The disease is occupational, primary." On February 10, 2014, the employer drew up an Act on an industrial accident, and on August 27, 2014, S-ovu S.Z. for the first time, a medical examination established the 3rd disability group with a loss of professional working capacity of 59 percent.

The plaintiff asked to recover moral damage caused by injury to health, estimating it in the amount of 3,000,000 tenge. By court decision no.2 Kazybekbi district of Karaganda city on March 18, 2015, it was decided to recover 100,000 tenge from Kazakhmys Corporation LLP in favor of Seiful-Malik Zeidinovich as compensation for moral damage.

By the resolution of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated June 08, 2015, it was decided: court decision no.2 of the Kazybekbiysky district of the city of Karaganda dated March 18, 2015 in this case to amend. To increase the amount recovered from Kazakhmys Corporation LLP in favor of Comrade Seifulmalik Zeidinovich in compensation for moral damage from 100,000 tenge to 300,000 tenge. In the cassation appeal, the defendant requested that the decision of the court of appeal be changed in respect of the decision made against S., while upholding the decision of the court of first instance in this part.

The amount of compensation for moral damage to S. in the amount of 300,000 tenge established by the court of appeal is unjustified. The terms of the Collective Agreement concluded for 2014-2016 determined compensation for moral damage to the disabled of the 3rd group, who have continuous work experience of 10 years or more, starting in 1997, in the amount of up to 100,000 tenge. These conditions have not been challenged or invalidated, and therefore are subject to application. The Cassation Judicial Board of the Karaganda Regional Court agreed with the conclusions of the court of Appeal on increasing the amount of compensation for moral damage to S. to 300,000 tenge and indicated that the employer had raised the issue of applying the terms of the collective agreement when determining the amount of compensation for moral damage, indicating that the terms of the collective agreement had not been challenged by the parties, and therefore were legally binding the power.

However, these provisions of the Collective Agreement may not be applicable in this case. The collective agreement provides for voluntary additional lump-sum payments for the purposes of social and material support, including compensation for moral damage to employees who have lost their ability to work as a result of an industrial accident and an occupational disease that led to disability. The right to these payments, in particular, to compensation for moral damage, arises under certain conditions (continuous work experience in Kazakhmys Corporation LLP, starting in 1997, for ten years or more; the establishment of a disability group on the date of signing the contract, provided that the employee is not guilty of an accident).

The right to compensation for moral damage caused by injury to health is provided for in the provisions of Article 951 of the Civil Code of the Republic of Kazakhstan, the amount of compensation for moral damage is determined according to the rules of Article 952 of the Civil Code of the Republic of Kazakhstan and cannot be made dependent on the conditions and circumstances provided for in the collective agreement.

The plaintiff, J.M.S., appealed to the Zhezkazgan City Court of the Karaganda region to the defendant, Kazakhmys Corporation Liability LLP, with a claim for compensation for moral damage in the amount of 1,000,000 tenge.

The claims are motivated by the fact that he has been working for the defendant since August 23, 2001 and continues to work, and currently he has been transferred as an auxiliary worker. Act No. 75 on occupational disease, approved on October 03, 2014, determined the degree of the employer's 100% guilt in the incident with the Young M.S., which led to an occupational disease. As a result, 29% of the loss of professional disability was established for the plaintiff.

By the decision of the Zhezkazgan City Court of the Karaganda region dated September 15, 2015, it was decided to partially satisfy the claim of J. Mahat Sartaevich to Kazakhmys Corporation LLP for compensation for moral damage caused by an occupational disease at work. To collect 100,000 tenge from Kazakhmys Corporation LLP in favor of J. Mahat Sartaevich for compensation of moral damage and 991 tenge for the refund of state duty, a total of 100,991 tenge. To dismiss the rest of the claim.

The plaintiff, disagreeing with the decision, asked the decision of the court of first instance to be changed, increasing the amount recovered by the court to 900,000 tenge, since the court of first instance did not take into account and did not take into account a number of specific material circumstances, did not take into account the degree of guilt of the employer, did not take into account the plaintiff's constant concern about the fate of the family, including that he has a dependent minor son born in 2000.

The Court of Appeal found that the amount of compensation for moral damage could not be increased and pointed out that during the consideration of the case, the court established all the circumstances, examined the evidence provided by the parties and gave them a proper legal assessment. The court found that the plaintiff, J.M.S., had been working at the enterprises of Kazakhmys Corporation LLP since 2001.

According to the medical documents available in the case file, namely Act No. 75 on occupational disease, approved on October 03, 2014, the employer's degree of guilt was 100% in the incident with J. M.S., which led to an occupational disease. As a result, the plaintiff was found to have 29% loss of professional working capacity without disability.

In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated July 09, 1999, in addition to recovery of damage caused to health by a source of increased danger, moral damage is also subject to compensation. Since the disease that led the plaintiff to 29% loss of professional disability was obtained while working at the production of Kazakhmys Corporation LLP, the court of first instance reasonably concluded to recover moral damage from the defendant in accordance with paragraph 1 of Article 951 of the Civil Code of the Republic of Kazakhstan.

The Appeals Board found the court's conclusions on the reduction of monetary compensation for moral damage from 1,000,000 tenge to 100,000 tenge justified, based on the principle of fairness and sufficiency, taking into account both the subjective assessment of the plaintiff (moral suffering caused by injury to health) and objective data (the vital importance of personal non-property rights and benefits etc.) in accordance with art. 952 of the Civil Code of the Republic of Kazakhstan. The Board indicated that the plaintiff receives monthly amounts to compensate for lost earnings, and the employer compensates him for additional expenses related to medical treatment, travel, accommodation and sanatorium treatment.

The arguments indicated by the defendant in the appeal were the subject of discussion in the court of first instance, and the court gave a correct assessment of the circumstances of the case. These arguments do not affect the correctness of the court's decision and cannot serve as a basis for its cancellation or amendment. The defendant did not indicate any new arguments in the appeal.

In such circumstances, the court of appeal concluded that since there were no grounds in the case provided for in Articles 364-367 of the CPC of the Republic of Kazakhstan for amending or canceling the court decision, the decision of the court of first instance should be upheld and the complaint dismissed.

Thus, according to one opinion, the amount of compensation for moral damage is determined according to the rules of Article 952 of the Civil Code of the Republic of Kazakhstan and cannot be made dependent on the conditions and circumstances provided for in the collective agreement, but according to another opinion, the amount of compensation for moral damage depends on the amount received to compensate for lost earnings, as well as on compensation for additional expenses related to with medical treatment, travel, accommodation, and spa treatment provided for in the collective agreement.

 

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