Disabled persons who were dependent on the deceased breadwinner and are entitled to compensation in connection with his death
For disabled persons who were dependent on the deceased breadwinner and are entitled to compensation in connection with his death, the amount of damage is determined in the amount of the average monthly earnings of the deceased less the share attributable to himself and able-bodied persons who were dependent on him but are not entitled to compensation.
Plaintiffs M-aev B., M-taeva K., Sh-nova Zh. appealed to the Aktogay District Court No. 2 of the Karaganda region to the defendant, Firm Balkhashbalyk LLP, with demands for recovery of funeral expenses, benefits due to the death of the breadwinner and compensation for moral damage. The claims are motivated by the fact that M-taev A.B., being the son of the plaintiffs M-aev and the spouse of the plaintiff Sh.Zh., has been working as a gamekeeper for Balkhashbalyk Firm LLP since 2012. On January 09, 2013, at about 09 a.m., the hunting service of Firm Balkhashbalyk LLP, consisting of four people: B-etov K.Sh., Baydavletov A.K., M-aeva A.B., and lawyer K-eva A.K., organized a visit to the fishing areas of Firm Balkhashbalyk LLP in the Tuzkol area, Lake Balkhash in a UAZ company car. In the evening of the same day, the jaeger service and the firm's lawyer did not return at the appointed time. A search group was organized; The search continued for several days, and on January 12, 2013, employees of the company discovered a burned UAZ car belonging to the hunting service with the remains of the bodies of the dead.
On this fact, a criminal case was initiated by the Department of Internal Affairs of the Karaganda region, which was terminated by a decree dated 05/29/13, due to the establishment that the death of employees of Firm Balkhashbalyk LLP resulted from the murder of K-Y.L., who died as a result of suicide. According to this fact, the defendant, Balkhashbalyk Firm LLP, drew up an accident report, in which he established the employer's guilt in relation to the employee M-aeva A.B. - 100%, the employee's guilt-0%. In the court of first instance, the plaintiff's representative, Mr. Sh-ovoy Zh., and Mr. K-va's lawyer, Mr. A.Zh. Clarifying the plaintiff's claims, she indicated that by the day of Mr. A.B.'s death, his daughter, B-ken A la Askhatkyzy, born on 06/08/2012, and her mother, Sh-nova Zh., were dependent on him, as she was caring for the child. Therefore, in accordance with Articles 940,941 of the Civil Code of the Republic of Kazakhstan, in connection with the death of a spouse, she and her child are entitled to compensation in the amount of 2/3 of the deceased's earnings, which they received for their maintenance during his lifetime. The spouse's salary during his lifetime was 30,000 tenge. Therefore, 2/3 of the earnings amount to 20,000 tenge. For the period from 12.01.2013 to the date of the decision, he is entitled to a one-time payment of a salary allowance in the amount of 30,000 tenge per month. She requested to collect the specified amount from the defendant in a lump sum in her favor and in favor of her daughter. She also asked the defendant to collect on a monthly basis in her favor, in the interests of her minor daughter, 1/3 of her spouse's earnings before the child reaches adulthood and 1/3 of the earnings in her favor before the child reaches the age of 14. In addition, due to the loss of a person close to her, she feels despair and pain, so she asked for moral damages in the amount of 10,000,000 tenge in favor of her daughter.
The plaintiff, M-taev B., clarified the claims and motivated them by the fact that the funeral, including the wake, 40 days and the anniversary of his son's death have costs amounting to 2,155,229 tenge (there are receipts, certificates); in addition, the work for the construction of his son's grave was paid by four workers in the amount of 120,000 tenge. Thus, he asked to collect the total material costs in the amount of 2,275,229 tenge. In addition, due to the loss of his son, he feels despair and pain, so he asked for moral damages in the amount of 10,000,000 tenge. Plaintiff M-Eva K. She supported her claims, asked to satisfy the claim and also asked to recover moral damage in the amount of 10,000,000 tenge.
By the ruling of the District Court No. 2 of the Aktogay district dated 07/03/2015, the civil case against the claim of I-voya A-ana Asyllanovna of minor B-en A-en Askhatuly, born on 10/11/2008, against Firm Balkhashbalyk LLP for recovery of funeral expenses, payment of benefits in connection with the death of the breadwinner and compensation for moral damage was left without consideration. consideration, according to paragraph 7 of art. 249 of the CPC of the Republic of Kazakhstan.
By the decision of the Aktogay District Court No. 2 of the Karaganda region dated July 09, 2015, the claims of M-va Bulken, M-aeva Kulmayrash, Sh-ovoy Zhyldyz against Balkhashbalyk Firm LLP for recovery of funeral expenses, payment of death benefits
the breadwinner and compensation for moral damage are partially satisfied. The claims of M-eva Bulken, M-eva Kulmayrash to the Balkhashbalyk Firm LLP for the recovery of funeral expenses were denied. Moral damage in the amount of 500,000 (five hundred thousand) tenge was recovered from Balkhashbalyk LLP in favor of M-taeva Bulken, M-eva Kulmayras. Recovered from Balkhashbalyk Firm LLP in favor of Sh-ovoy Zhyldyz 2/3 of the share of earnings of M-aev A.B. for the period from 12.01.2013 to 09.07.2015 in a lump sum of 526,458 (five hundred twenty-six thousand four hundred fifty-eight) tenge. It was recovered from Balkhashbalyk Firm LLP in favor of Ms. Zhyldyz 1/3 of the share of Ms. A.B.'s monthly earnings in the amount of 8,535 tenge, starting from 07/09/2015 and until the minor child reached the age of 14, born on 06/08/2012, i.e. until 06/08/2026. Recovered from Balkhashbalyk Firm LLP in favor of Sh-novaya Zhyldyz in the interests of a minor B-ken Adel Askhatkyzy, born on 06/08/2012, 1/3 of the share of earnings of M-taev A.B. monthly in the amount of 8,535 tenge, starting from 07/09/2015 and until the child reaches the age of majority. Moral damage in the amount of 500,000 (five hundred thousand) tenge was recovered from the Balkhashbalyk Firm LLP in favor of the Zhyldyz Company.
In their appeals, plaintiffs M-taev B. and M-aeva K. asked the court to change the decision of July 09, 2015, and satisfy their claims in full. The complaint contains arguments that were not taken into account in the decision of the court of first instance, namely, the recognition of 100% guilt of the defendant in the death of his son should entail satisfaction of their claims for moral damages, as well as material costs associated with the funeral of his son, the amount of which is considered proven. The head of LLP "Firm Balkhashbalyk" K-aev A.K. In the appeal, he asked to cancel the court's decision of July 09, 2015 and to make a new decision on the refusal to fully satisfy the stated claims. The complaint contains arguments about disagreement with the decision regarding the recovery of moral damage. He believes that the court of first instance went beyond the scope of the claims made by plaintiff Sh.Zh., and also believes that the court incorrectly determined and clarified the range of circumstances of the case, and therefore incorrectly determined the number of dependents and the amount of shares for their maintenance. Petitions have been filed to demand evidence that, in the opinion of the parties, can confirm or refute the circumstances to be clarified.
The Appellate judicial Board changed the decision of the court of first instance on the following grounds. The court of first instance, when determining the range of circumstances relevant to the proper resolution of the case, established that, on the basis of Order No. 23k dated 06/11/2012, M-aev A.B., with a probation period of 2 months, from 06/01/2012, he was hired as a gamekeeper for Firm Balkhashbalyk LLP. On January 12, 2013, the company's employees discovered a burned UAZ car with the remains of the bodies of the dead of the Balkhashbalyk Company hunting service consisting of four people: Baidavletov K.Sh., Baidavletov A.K., M-aev A.B., and lawyer K-voy A.K. On this fact, a criminal case was initiated by the Department of Internal Affairs of the Karaganda region, which was terminated by a decree dated 05/29/13, due to the establishment that the death of employees of Firm Balkhashbalyk LLP was caused by the murder of Krylov Y.L., who died as a result of suicide. In connection with the death in the line of duty of M-aev A.B., Balkhashbalyk LLP drew up an accident report and established the fault of the employer - 100%, the fault of the employee-0%. According to the marriage certificate for record entry No. 50-313-12-0000088 dated 03/02/2012, the plaintiff, Ms. Zh.A., is in a registered marriage with Mr. Askhat Buich. According to the birth certificate for registration No. 10-313-12-0000740 dated 07/10/2012, the minor B-ken A la Askhatkyzy, born on 06/08/2012, is the daughter of the deceased M-aev Askhat Bulkenovich and the plaintiff Sh-ovoy Zhyldyz Asankulovna. In addition, the deceased husband, A.B., has a son from his first marriage, B-en Arken Askhatuly, born on 11.10.2008, who also has the right to receive maintenance due to the death of the breadwinner.
The court of first instance found that on a voluntary basis, Balkhashbalyk Firm LLP paid financial assistance for burial in the amount of 1,000,000 tenge, as the plaintiffs confirmed in court. In view of these circumstances, the court concluded that Mr. A.B. died in the performance of his work duties. As a result, the plaintiff is Mr. B. the costs of burial and the holding of a memorial dinner were incurred, which were partially confirmed in court by evidence, receipts for the receipt of a cash order, a procurement act, (certificates) invoices and fiscal receipts, for a total amount not exceeding the amount voluntarily paid by the defendant; therefore, in terms of the amount of claims for recovery of funeral expenses stated in the claim, The board cannot agree and considers the conclusion of the court of first instance in this part to be correct about the refusal to satisfy the plaintiffs' claims for recovery of funeral expenses.
When determining compensation for harm, the deceased's income includes, along with earnings, the pension he received during his lifetime, lifetime maintenance and other similar payments. The court of first instance found that the plaintiff was Sh-ova Zh. During his lifetime, his wife did not work, because she took care of the minor daughter of B-en Adel Askhatkyzy, born on 06/08/2012, who was 6 months old at the time of his death. The court considered that the plaintiff's spouse, Sh-ova Zh. and the minor child, B-ken AA, were dependent on the deceased, M-eva AB, therefore, in accordance with the law, they are entitled to compensation in the form of 2/3 of the deceased's earnings, that is, 1/3 of the share each.
The appellate judicial board did not agree with such a distribution of the shares of the deceased's earnings, since the disabled persons who were dependent on the deceased breadwinner and who are entitled to compensation for harm in connection with his death, the damage is determined in the amount of the average monthly earnings of the deceased minus the share attributable to himself, as well as able-bodied persons who were dependent on him, but not eligible for damages. The Board found that during his lifetime, Mrs. A.B. His salary was distributed to himself, to his unemployed spouse, Sh-nova Zh., who took care of their child, and to two minor children.
That is, the court of first instance incorrectly determined the share of each dependent, which, by virtue of the provisions of art. 941 of the Civil Code, should be one quarter of the earnings of the deceased M-aev A.B. In this regard, if there is a certificate of income in the file of M-aev A.B., who worked less than a year before his death, indicating the amount monthly earnings in the amount of 30,000 tenge, it is necessary to determine the share of each dependent from the amount of this monthly salary as follows: 30,000 : 4 parts = 7,500 tenge per month.
Thus, they were subject to recovery from the defendant in favor of Ms. Zh. half of the share of earnings of M-eva A.B. for the period from 12.01.2013 to 09.07.2015 at a time at the rate of 30 months x 7,500 = 450,000 (four hundred and fifty thousand) tenge, and starting from 09.07.2015, 7,500 tenge each month in favor of Sh-ovoy Zh. until the minor child reaches the age of majority, B-en Adeli Askhatkyzy, born on 06/08/2012. At the same time, the board takes into account that according to the certificate issued at the request of the board, Sh-ovoy Zh. payment for the loss of the breadwinner in the amount of KZT 12,712 has been scheduled from 05/28/2013 to 03/11/2021.
The board also disagreed with the conclusions of the court of first instance that it was as a result of illegal actions, through the fault of the defendant, the plaintiffs M-taev B., Murzatayeva K., Sh-ova Zh. lost a loved one, which caused them moral suffering. The Board found that the death of Mr. A.B. was caused by the criminal acts of the direct causer of harm, Krylov Yu.L., and the referral of his employee by the defendant to perform his work duties was not directly causally related to the death of the employee.; therefore, the court of first instance incorrectly applied the norms of art.921 of the Civil Code, also because Krylov Yu.L. was not an employee of the defendant; therefore, the board issued a new decision on the stated claims for compensation for moral damage to dismiss the claim in this part, since by virtue of paragraph 2 of art.951 of the Civil Code, moral damage is compensated by the causer if there is guilt. the causer. The actions of the defendant, in which there is no guilt in relation to the consequences that have occurred in the form of the death of M-taev A.B., do not fall under the disposition of paragraph 3 of this article.
In connection with the above, the appellate judicial board changed the decision of the Aktogay District Court No. 2 of the Karaganda region dated July 09, 2015 in this case. Overturned the decision regarding the determination of the amount of benefits due to the death of the breadwinner and in this part recovered from Balkhashbalyk LLP in favor of Sh-ovoy Zhyldyz 1/2 of the share of earnings of M-aev A.B. for the period from 12.01.2013 to 09.07.2015, a lump sum of 450,000 tenge was collected from Balkhashbalyk LLP in favor of Sh-ovoy Zhyldyz in the interests of a minor B-en Adel Askhatkyzy, born on 08.06.2012, 1/4 of the share of earnings of M-aev A.B. monthly in the amount of 7,500 tenge, starting from 09.07.2015 and until the child reaches the age of majority.
In addition, the board regarding the recovery from Balkhashbalyk Firm LLP in favor of Mr. B.A., Ms. K. of the amount of compensation for moral damage in the amount of 500,000 tenge, as well as regarding the recovery from Balkhashbalyk Firm LLP in favor of Ms. Zh. compensation for moral damage in the amount of 500,000 tenge overturned the court's decision and refused to satisfy the claims in this part. The rest of the court's decision remains unchanged.
As mentioned above, it is difficult to agree with such conclusions of the court of first instance that there are no legal grounds for satisfying claims for compensation for moral damage in connection with the death of his son, since only individuals who have personally suffered from the damage have such a right. The question of whether the victim's close relatives are entitled to compensation for moral damage in connection with the death remains controversial.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
