Filing a claim against the insurance company for the recovery of the insured amount
LLP "T" filed a lawsuit against J.A., JSC "C" (hereinafter referred to as the Insurance Company) for compensation for material damage caused by an accident. Having clarified the requirements, the plaintiff asked the court to recover from J.A.,
The insurance company suffered material damage in the amount of KZT 3,645,390, with J.A. loss of commodity value in the amount of KZT 606,000.
By the decision of the Semey city Court of the Abai region dated January 10, 2023, the claim of the LLP was partially satisfied. Material damage in the amount of 1,807,590 tenge, loss of commodity value in the amount of 606,000 tenge were recovered from J.A. in favor of LLP.
Material damage in the amount of 1,837,800 tenge was recovered from the Insurance Company in favor of the LLP. By the decision of the judicial board for civil cases of the Abai region Court dated April 11, 2023, the decision of the Semey City Court dated January 10, 2023 was changed.
The decision regarding the recovery of material damage from the Insurance Company in favor of LLP was canceled with the adoption of a new one on the refusal of the claim. The amount of material damage recovered from J.A. in favor of LLP has been increased from 1,807,590 tenge to 3,645,390 tenge.
It follows from the case file that J.A. was found guilty of committing an offense under Article 610 of Part 1 of the Administrative Code.
The resolution established that J.A., driving a Toyota brand vehicle, collided with a Hyundai Sonata brand vehicle owned by LLP.
The owner of the Toyota brand vehicle at the time of the accident was recognized as J.A., who drove it under an insurance policy.
The court of Appeal, rejecting the claim against the Insurance Company, proceeded from the fact that immediately after the accident, the plaintiff knew that Ms. Zh.A. was insured, but the plaintiff did not apply to
An insurance company with a statement on the need to determine the amount of damage, as provided for in subparagraph 4-2) of paragraph 2 of Article 25 of the Law "On Compulsory Insurance of Civil Liability of vehicle Owners."
The plaintiff did not keep the damaged vehicle in the condition it was in after the accident, and therefore it is not possible to calculate the amount of damage. The damaged vehicle was restored by the plaintiff at his own expense.
Based on the above, the claim of the LLP against the Insurance Company was left without satisfaction. As for the LLP's claim to J.A., the board indicated that the amount of property damage caused to the LLP was confirmed by the report on the assessment of movable property, according to which the cost of repair of a Hyundai Sonata brand vehicle, manufactured in 2022, taking into account depreciation, is 3,645,390 tenge.
Jurisdiction of cases
The jurisdiction of cases is determined in accordance with the general rules established by Article 29 of the CPC, that is, at the place of residence of the defendant of an individual or at the location of the defendant of a legal entity.
Along with this, claims for compensation for damage caused by injury or other damage to health, as well as caused by the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of harm (part 5 of Article 30 of the CPC).
State duty
According to paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other mandatory payments to the Budget" (Tax Code), the state fee is charged in the following amounts from claims filed in court for recovery of material damage: for individuals - 1 percent of the amount of the claim, but not more than 10,000 MCI, for legal entities - 3 a percentage of the amount of the claim, but not more than 20,000 MCI, from non-property claims - 0.5 MCI.
Plaintiffs in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner, are exempt from paying state duty on the basis of subparagraph 5) of Article 616 of the Tax Code.
The legislation does not provide for pre-trial settlement
Courts should keep in mind that the legislation does not provide for compliance by the plaintiff with the procedure for pre-trial settlement of disputes on compensation for damage caused by a source of increased danger (hereinafter – IPO).
Example: By the ruling of the Alatau District Court of Almaty dated April 5, 2023, the claim of N.D. to K.K. and J.E. for recovery of material damage caused by IPO in connection with non-compliance with the procedure for pre-trial settlement of the dispute was left without consideration.
In accordance with subparagraph 1) of Article 279 of the CPC of the Republic of Kazakhstan, the court leaves the claim without consideration if the plaintiff does not comply with the procedure established by law for this category of cases or the procedure provided for in the contract for pre-trial settlement of the dispute and the possibility of applying this procedure has not been lost.
If the law establishes or the contract provides for a pre-trial dispute settlement procedure for a certain category of cases, an appeal to the court may be after compliance with this procedure (part 6 of Article 8 of the CPC RK).
Taking into account these norms, by the ruling of the judicial board for civil cases of the Almaty City Court dated May 18, 2023, the ruling of the court of first instance was canceled, with the transfer of the case to the court of first instance for consideration on the merits.
The plaintiffs are citizens and legal entities
In accordance with part 1 of Article 47 of the CPC of the Republic of Kazakhstan, plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in defense of which a claim has been filed by other persons in accordance with the procedure provided for by this Code.
Determination of the defendant in a claim for damages
When determining the defendant in a claim for damages, it is necessary to check the legal grounds for the defendant's ownership of property that is IPO
M.E. appealed to the court with a claim against B.E., KA. for recovery of material damage and monetary compensation for moral damage caused as a result of an accident.
By the decision of the Borodulikhinsky district court of the Abai region dated January 12, 2023, the claim was partially satisfied, material damage in the amount of 852,459 tenge was recovered from B.E. in favor of M.E., monetary compensation for moral damage in the amount of 1,200,000 tenge.
The court found that the Lada 21713 car belongs to the defendant K.A., the defendant B.E. drove the vehicle on the basis of an insurance policy.
By the verdict of the court No. 2 of the Semey city of the East Kazakhstan region dated December 21, 2021, B.E. was found guilty of committing a criminal offense under part 2 of Article 345 of the Criminal Code of the Republic of Kazakhstan, which established that B.E., driving a Lada 21713 motor vehicle, made a head-on collision with a Toyota Avensis motor vehicle.
As a result of the accident, M.E. suffered serious harm to his health.
On the basis of paragraph 1 of Article 931 of the Civil Code of the Republic of Kazakhstan, the owner of the Lada 21713 vehicle at the time of the accident was reasonably recognized as B.E., who was driving the vehicle legally.
The presence of an insurance policy indicates the insurance of the defendant's GPO as the owner of the vehicle.
Regulatory framework
The normative legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan (hereinafter - the Civil Code);
- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC);
- The Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter - the Administrative Code);
- The Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code),
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of vehicle owners";
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of the carrier to passengers";
- The Law of the Republic of Kazakhstan "On Road Traffic" dated April 17, 2014;
- 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";
- Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage";
- Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 9 "On certain issues of application by the courts of the Republic of legislation on compensation for harm caused to health";
- Rules for determining the amount of damage caused to a vehicle, approved by Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016;
- Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No. 534 "On approval of Traffic Rules, Basic provisions for the admission of vehicles to operation, a list of operational and special services, the transport of which is subject to equipment with special light and sound signals and coloring according to special color schemes";
- Standard rules for keeping and walking pets, approved by Order No. 168 of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated May 20, 2022; - Standard Rules for grazing farm animals, approved by Order No. 145 of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020.
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