It should be borne in mind that the funeral expenses to be reimbursed include only the necessary expenses directly related to the burial
B.T. is sued for the recovery of expenses for the payment of special parking services, due to the placement of his car on it during the pre-trial investigation against D.A., as well as the costs of burying his mother, holding a wake, installing a monument, air travel to medical institutions for a total amount of 3,393,938 tenge.
Another plaintiff, D.D., indicated that the health of her young daughter was damaged in the form of amputation of the lower limb (leg), the cost of prosthetics of the child's hip amounted to 1,500,000 tenge. According to paragraph 12 of the regulatory resolution "On certain issues of application by the courts of the Republic of Kazakhstan of legislation on compensation for harm caused to health" No. 9 dated July 9, 1999, courts should keep in mind that only necessary expenses directly related to burial (costs of making a coffin, purchase of clothes for the deceased, wreaths, grave digging, delivery of the deceased to the place of burial, etc.).
Expenses for the installation of monuments and fences are also subject to reimbursement, based on the actual cost of their manufacture, but not higher than the marginal cost of standard monuments and fences installed in a given area.
The court found that B.T. spent 490,000 tenge on organizing a memorial dinner on the day of his mother's funeral, and 560,000 tenge on holding Sadaka Zhetisi on December 7, 2021. Having collected 490,000 tenge from the defendant, the court lawfully denied the claim in terms of reimbursement of funds for the "Sadaka Zhetisi", since they do not belong to the list of necessary expenses related to the death of the victim.
Checking the costs of making the monument, the court recovered the amount spent on its construction in the amount of 207,000 tenge, while refusing to collect 27,000 tenge, having established that this additional monument was installed at the scene where B.G. died. B.T.'s claims for reimbursement of payment for special parking, air tickets in connection with treatment the daughters, due to their full documentary confirmation of the payment documents, are fully satisfied.
D.D.'s claim for recovery of funds for prosthetics of the child's hip was refused on the following grounds.
By virtue of paragraph 10 of the said regulatory decree, if the victim is injured or otherwise damaged, the lost earnings (income) that he would have or definitely could have, as well as expenses caused by damage to health (for treatment, purchase of medicines, additional nutrition, outside care, prosthetics, spa treatment) are subject to compensation treatment, etc.), if the conclusion of the medical and social expert commission recognizes that the victim needs these types of care and does not receive them for free.
The plaintiff provided a payment order in the amount of 1,500,000 tenge to confirm the costs of prosthetics, the sender of which was the public fund "Q", partially subsidized by the state.
Consequently, the plaintiff did not actually incur these costs. The issue of compensation for moral damage caused by the defendant's offense was considered in criminal proceedings.
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 – 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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