Insurance disputes, the plaintiff has not missed the limitation period
JSC Insurance Company K (hereinafter referred to as the Insurance Company) filed a lawsuit against D. for recovery of the amount by way of subrogation. The claim was satisfied by the decision of the District court No. 2 of the Auezovsky district of Almaty dated February 26, 2018. 151,324 tenge was recovered from D. in favor of the Insurance Company. By a decision of the judicial board for Civil Cases of the Almaty City Court dated May 14, 2018, the court's decision was overturned with the issuance of a new decision to dismiss the claim in the case. The submission raises the issue of reviewing the decision of the appellate instance due to a violation of uniformity in the interpretation and application of legal norms. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. The court found that on June 25, 2014, a voluntary property insurance contract was concluded between the Insurance Company and T., the object of which was a Volkswagen vehicle. The terms of this agreement provide for insurance payments in case of damage to the insured vehicle as a result of a traffic accident, the culprit of which has not insured his civil liability as the owner of the vehicle in accordance with the procedure provided for by the Law "On Compulsory Insurance of Civil Liability of vehicle Owners." On July 24, 2014, driver D., driving a Toyota Camry, collided with a Volkswagen. As a result of a traffic accident, a Volkswagen vehicle sustained mechanical damage, and its owner, represented by the policyholder, suffered material damage in the amount of repairs. By a court decision dated August 29, 2014, D. was found guilty of committing an administrative offense under part 1 of Article 468 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code).
At the time of the traffic accident, the defendant did not have a valid civil liability insurance policy for the vehicle owner. The insurance company, recognizing the specified case as insured, made an insurance payment on February 12, 2015, and filed this lawsuit with the court on August 29, 2017. In satisfying the plaintiff's claims, the court of first instance was guided by Article 840 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) and assumed that the plaintiff had not missed the limitation period. By overturning the court's decision and rejecting the plaintiff's claim, the court of appeal reasoned its decision by saying that in this case there was no dispute related to the identification of the causer of harm, therefore the statute of limitations should have been calculated from July 24, 2014. The Judicial Board considers that it is impossible to agree with the conclusions of the court of appeal, since they were made when incorrectly determining the circumstances relevant to the case and are based on the incorrect application of substantive law. By virtue of Article 840 of the Civil Code, unless otherwise provided by the property insurance contract, the insurer who has made the insurance payment shall have the right of claim, within the amount paid, that the policyholder (insured) has against the person responsible for losses compensated as a result of insurance. The right of claim transferred to the insurer is exercised by it in compliance with the rules governing the relationship between the policyholder (insured) and the person responsible for losses.
Insurance disputes, the plaintiff has not missed the limitation period
The courts of the first and appellate instances correctly indicated that the change of persons in the obligation during subrogation in accordance with Article 181 of the Civil Code does not entail a change in the statute of limitations and the procedure for calculating it, therefore, the debtor can declare the omission of this period in the same way as if the old one had acted instead of the new creditor. The limitation period for the insurer, when suing the causer of harm by way of subrogation, is calculated from the moment the insured event occurs, and not from the moment the insurance payment is made. If there is a dispute related to the identification of the harm-causing entity, the limitation period is calculated from the date of entry into force of the judicial act that defines this entity. In accordance with paragraph 2 of Article 931 of the Civil Code, damage caused as a result of the interaction of sources of increased danger to their owners is compensated on a general basis. At the same time: 1) the damage caused by the fault of one party shall be compensated in full by that party; 2) the damage caused by the fault of both or several parties shall be compensated in proportion to the degree of guilt of each of them. If it is impossible to determine the degree of guilt of each of the parties, responsibility is distributed equally between them. If the parties are not guilty of causing harm, none of them has the right to demand compensation for harm. In this case, each party bears the risk of losses incurred by it. In this case, there was a collision of two sources of increased danger, therefore, in order to clarify the question of who will be responsible for the damage caused to cars, it is necessary to establish the guilt of the participants in the traffic accident. In turn, the guilt of committing a traffic accident is established by the authorized body or the court. D. motivated his arguments about disagreement with the court's decision by the fact that he had admitted his guilt at the time of drawing up the protocol on the traffic accident, therefore there was no need to identify the harm-causing entity.
The Judicial Board for Civil Cases of the Almaty City Court agreed with the defendant's arguments about the absence of a dispute. At the same time, in accordance with part 1 of Article 10 of the Administrative Code, a person against whom an administrative offense case has been initiated is considered innocent until his guilt is proven in accordance with the procedure provided for in this Code and established by an effective ruling of a judge, body (official) who reviewed the case within the limits of his authority. The guilt of D. It was established by the resolution of the specialized interdistrict Administrative Court of Almaty dated August 29, 2014. Consequently, the court of first instance came to the correct conclusion that the plaintiff had not missed the limitation period.
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