Judicial practice of civil cases on insurance contract disputes

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Judicial practice of civil cases on insurance contract disputes

2 January 2024

Judicial practice of civil cases on insurance contract disputes

Insurance is carried out on the basis of an insurance contract.

Under the insurance contract, one party (the policyholder) undertakes to pay the insurance premium, and the other party (the insurer) undertakes, upon the occurrence of an insured event, to make an insurance payment to the policyholder or another person in whose favor the contract was concluded (the beneficiary), within the amount specified in the contract (the insured amount).

The forms of insurance are:

1) according to the degree of commitment - voluntary and compulsory;

2) according to the object of insurance - personal and property;

3) on the grounds of insurance payment - accumulative and non-accumulative.

The courts considered the following types of disputes:

- on the recovery of insurance payments;

- on appealing the insurer's refusal to make an insurance payment;

- recovery of insurance payment from the policyholder by way of recourse (reverse claim);

- recovery of the paid insurance sum from the harm-doer by way of subrogation;

- on the recognition of the insurance contract as invalid;

- on the collection of penalties for late payment of insurance, etc.

Jurisdiction of civil cases on insurance contract disputes

Cases of this category are considered according to the general rules of jurisdiction established by Chapter 3 of the CPC – at the location of the defendant. A claim against an insurance company may be filed at the location of the branch or representative office that concluded the insurance contract.

At the same time, it is necessary to take into account the provisions of Article 30 of the CPC, in accordance with part 11 of which a claim for recovery of insurance benefits under an insurance contract may be filed at the place of residence of the plaintiff or at the location of the defendant. The concept of "place of residence" means that this rule refers to the plaintiff, an individual, therefore, plaintiffs, legal entities, file lawsuits in a general manner – at the location of the defendant.

State duty on civil cases on insurance contract disputes

The rates of state duty in cases of this category are determined in accordance with Article 610 of the Tax Code.

In accordance with subparagraph 18) of Article 610 of the Tax Code, policyholders and insurers are exempt from paying state duty in courts for claims arising from compulsory insurance contracts. Thus, the article deals only with compulsory insurance contracts, and only policyholders and insurers are exempt from paying state duty, while beneficiaries do not enjoy such benefits.

Therefore, if the beneficiary files a claim against the insurer for recovery of insurance payments under the compulsory insurance contract, he is obliged to pay the state fee in the amount provided for in Article 610 of the Tax Code (unless he is exempt from paying it for other reasons). In this case, the distribution of court costs between the parties must be made according to the general rules provided for in Article 109 of the CPC.

That is, if the decision is made in favor of the beneficiary plaintiff, then the court costs, including the state fee paid by him, are to be recovered from the defendant, the insurance company.

In the case of P.'s claim against JSC IC London-Almaty for the recovery of insurance payments under a voluntary home ownership insurance contract in the amount of 2,142,262 tenge, the plaintiff did not pay the state fee when filing the claim, citing the fact that policyholders and insurers are exempt from paying the state fee in the courts. The Petropavlovsk City Court No. 2, accepting the statement of claim, did not take into account that the claim follows from a voluntary insurance contract. The error was corrected only during the consideration of the case in court.

Limitation period for insurance contract disputes

Claims for recovery of insurance payments are often referred to as claims for compensation for damage caused to life and health. And according to subparagraph 3) of Article 187 of the Civil Code, the limitation period does not apply to claims for compensation for damage caused to the life or health of a citizen.

At the same time, the legal relations of the parties (the beneficiary and the insurer) arise not from causing harm, but from the insurance contract.

The purpose of insurance is not to compensate for the damage caused, but to protect the property interests of the policyholder (insured, beneficiary), that is, insurance protection, acting on the insurance market in the form of goods (services).

Therefore, the insurance payment cannot act as compensation for damage, which is consistent with the provisions of article 2 of the Law "On Insurance Activities", by virtue of which insurance is a type of entrepreneurial activity.

Consequently, the general limitation period of three years applies to claims arising from insurance contracts.

Appeal against the insurer's refusal to make an insurance payment

In accordance with paragraph 8 of Article 839 of the Civil Code, the insurer's refusal to make an insurance payment may be appealed by the policyholder to the court.

From the literal interpretation of this rule, it follows that the right to appeal an insurer's refusal belongs only to the policyholder.

At the same time, according to Article 816 of the Civil Code, a beneficiary is a person who, in accordance with an insurance contract or legislative acts on compulsory insurance, is the recipient of an insurance benefit and, upon the occurrence of an insured event, the beneficiary has the right to file a claim directly to the insurer for payment of the insurance benefit provided for in the insurance contract.

Subject to the provisions of Article 9 of the Civil Code, which provide for the right to protect civil rights by recognizing the right and suppressing actions violating the right, the beneficiary under the insurance contract has the right to appeal the insurer's refusal to make insurance payments.

In practice, beneficiaries, as a rule, make two demands at the same time: to recognize the refusal of insurance payment as illegal and to collect the insurance payment.

Leaving unchanged the decision of the Almaly District Court No. 2 of Almaty dated February 11, 2016, the decision of the Judicial Board for Civil Cases of the Almaty City Court dated May 30, 2016, which satisfied Ye.'s claim against JSC IC Sentras Insurance to appeal the refusal to make insurance payments and the obligation to comply with the terms of the contract, the judicial the Board of Civil Cases of the Supreme Court, refuting the arguments of the defendant's petition that the beneficiary does not have the right to appeal the insurer's refusal to make an insurance payment, stated the following:

"Paragraph 8 of Article 839 of the Civil Code and subparagraph 4) Paragraph 1 of Article 12 of the Law "On Compulsory Insurance of Civil Liability of tour operators and travel Agents" provides for the policyholder's right to challenge the insurer's decision to refuse insurance payments.

At the same time, this circumstance does not deprive the beneficiary of the opportunity to defend his rights by any means not prohibited by law, including by appealing against the unlawful actions of the insurer."

In addition, in accordance with article 15 of the Law "On Compulsory Insurance of Civil Liability of the carrier to Passengers" and article 18 of the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners", the victim has the right to challenge, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, the decision of the insurer to refuse to make insurance payments or reduce its amount..

Consequences of failure to notify the insurer of the occurrence of an insured event

By virtue of paragraph 1 of Article 835 of the Civil Code, the policyholder, after becoming aware of the occurrence of an insured event, is obliged to immediately notify the insurer or his representative of its occurrence. If the contract or legislative act of the Republic of Kazakhstan on compulsory insurance provides for a period and/or method of notification, it must be made within the stipulated period and in the manner specified in the contract or legislative act of the Republic of Kazakhstan.

Immediate notification to the insurer of the occurrence of an insured event is necessary so that the insurer can promptly record the occurrence of an insured event and determine the amount of losses incurred by the policyholder. If a lot of time has passed since the date of the insured event, then it may be difficult to find out these circumstances.

In accordance with subparagraph 5) of paragraph 4 of Article 839 of the Civil Code, failure to notify the insurer of the occurrence of an insured event (Article 835 of this Code) may be the basis for the insurer's refusal to make insurance payments.

According to paragraph 3 of Article 835 of the Civil Code, failure to notify an insurer of the occurrence of an insured event gives him the right to refuse insurance payment unless it is proved that the insurer learned about the occurrence of the insured event in a timely manner or the insurer's lack of information about this could not affect his obligation to make insurance payments.

An analysis of both norms shows that failure to notify the insurer of the occurrence of an insured event is not an absolute ground for refusal of insurance payment. Therefore, in each specific case, it is necessary to evaluate the arguments of the parties, in particular, to determine whether the insurer's lack of information about the occurrence of an insured event affected its obligations to make insurance payments.

It matters who bears the burden of proof. It seems correct to impose the obligation to prove that the insurer's lack of information could not affect its obligation to pay compensation or that it received the necessary information in a timely manner on the person who submitted the claim for payment.

Subrogation of insurance contract disputes

In accordance with Article 840 of the Civil Code, unless otherwise provided by the property insurance contract, the insurer who made the insurance payment shall have the right of claim within the amount paid, which the policyholder (insured) has against the person responsible for losses compensated as a result of insurance.

The term "subrogation" first appeared in ancient Rome and comes from the Latin word subrogare/subrogatio, which means "to replace, to replenish."

Subrogation is the change of the creditor in an existing obligation from causing harm, this is the transfer to the insurer of the policyholder's rights to compensation for damage.

Subrogation differs from regression in that regression does not change the face of an existing obligation, but creates a new obligation and the recourse claim is carried out according to different rules than the claim for the original obligation. In case of regression, one obligation replaces another, and in case of subrogation, only the creditor in the obligation is replaced, and the obligation itself remains.

Practice shows that the concepts of "subrogation" and "regression" are confused.

In accordance with Article 933 of the Civil Code, a person who has compensated for damage caused by another person (an employee in the performance of his labor (official, official) duties, a person driving a vehicle, etc.) has the right to claim (recourse) against this person in the amount of the compensation paid, unless another amount is established by legislative acts.

This provision is a development of the provision of paragraph 1 of Article 917 of the Civil Code, according to which legislative acts may impose the obligation to compensate for harm on a person who is not the causer, for example, an employer.

In this case, the general rule applies on the right of recourse (reverse) claim of such a person to the causer.

Thus, according to Article 921 of the Civil Code, a legal entity or a citizen compensates for the damage caused by its employee in the performance of labor (official, official) duties. The employer can then make a claim against his employee.

In this case, in the first obligation, the creditor is the person who has been harmed, and the debtor is the legal entity, the employer. In a claim for recourse, the employer becomes the creditor, and the employee who directly caused the harm becomes the debtor.

The concept of "subrogation" applies only to obligations arising from insurance contracts.

The insurance company filed a lawsuit against S. to recover the amount paid by way of subrogation.

In support of his claims, the plaintiff indicated that the insurance company and Sh. had concluded a voluntary insurance contract for a secured motor vehicle.

Due to S.'s fault, collateral damage was caused as a result of the accident. By the decision of the Saryarkinsky District Court of Astana dated February 5, 2015, with reference to Article 840 of the Civil Code, the claim was satisfied.

The Court of Appeal of the Astana city Court overturned the court's decision, issued a new decision to dismiss the claim, citing Article 933 of the Civil Code on the right of recourse of the person who compensated the damage. In addition, the board indicated that, in support of its claims, the plaintiff had not provided evidence to the court that the recovery of insurance payments from the defendant by way of a reverse claim falls under paragraph 1 of Article 28 of the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners."

However, the board did not take into account that this provision regulates the relationship between the policyholder and the insurer under the contract of civil liability insurance of the vehicle owner. In this case, the plaintiff insurance company is not in a contractual relationship with the defendant causing harm.

She made an insurance payment under a property insurance contract, and she transferred the right of claim that the policyholder had against the person who caused the harm.

The decision of the appellate instance was overturned by the Judicial Collegium for Civil Cases of the Supreme Court, and the decision of the court of first instance was upheld.

In turn, the relationship between the original creditor (the injured policyholder) and the person responsible for causing harm is regulated by the norms of Chapter 47 of the Civil Code on compensation for damage. Therefore, the perpetrator has the right to raise objections to the insurer, which he could have raised with the victim (policyholder), including the amount of damage.

JSC IC Kazkommerts-Polis filed a lawsuit against T. for recovery of the amount by way of subrogation, indicating that a voluntary car insurance contract had been concluded between the plaintiff and S LLP. Due to the defendant's fault, the specified car was damaged.

Recognizing this incident as an insured event, the plaintiff made an insurance payment in the amount of 766,898 tenge in favor of the beneficiary of S LLP, according to the submitted documents from S LLP on the cost of restoration repairs.

At the time of the accident, T.'s civil liability was insured in JSC IC Standard, which, according to the assessment report, paid in favor of JSC IC Kazkommertspolis the market value of the repair of the affected car, taking into account wear and tear, in the amount of 187,095 tenge.

The plaintiff asked to recover the difference from T. in the amount of 579,803 tenge, referring to the terms of the voluntary insurance contract.

The claim was dismissed by the decision of the Bostandyk District Court of Almaty dated March 24, 2016, which was left unchanged by the decision of the appellate instance.

The court found that after receiving an amount of 187,095 tenge from the guilty party's insurance company, the plaintiff agreed to the amount of damage that did not exceed the limit of 600 MCI. Therefore, there were no grounds to recover the difference from the harm-doer.

The father of insurance law is considered to be the Englishman Mansfield, who argued that subrogation is a means that makes it impossible to enrich the policyholder through double payments: for the first time at the expense of the insurer, and after that - thanks to the person responsible for causing property damage.

However, in practice, there are cases when a person whose property has been harmed receives compensation from the person responsible for the damage or from the insurance company where that person's liability is insured. At the same time, he receives an insurance payment under a voluntary insurance contract, that is, he receives twice the amount in compensation for damage.

Since the person responsible for causing the damage has compensated for the damage, the insurer has no grounds to file a claim against him by way of subrogation. In this case, the insurer has the right to demand from the policyholder a refund of the overpaid amount.

The right of the victim (beneficiary) to file a claim against the direct causer of harm

In accordance with paragraph 8 of Article 816 of the Civil Code, upon the occurrence of an insured event, the beneficiary has the right to file a claim directly to the insurer for payment of the insurance benefit provided for in the insurance contract.

It follows from the content of this provision that the legislator gives the victim the right to contact the insurer directly, but does not oblige him to do so. At the same time, when filing a claim directly against the causer of harm (the policyholder), the court should explain to the plaintiff the right to file a claim against the insurer.

If the plaintiff refuses to replace the defendant or involves the insurer as a second defendant, the court must, on its own initiative, involve the insurer as a third party in the case, since in the future the person responsible for the damage and who insured his liability will have the right to sue the insurer.

When resolving this issue, it is necessary to take into account the features contained in the laws on compulsory insurance, which will be analyzed below.

In accordance with subparagraph 2) Paragraph 1 of Article 839 of the Civil Code (as amended by Law No. 227-V of July 3, 2014), the insurer has the right to refuse insurance payment to the policyholder in whole or in part if the insured event occurred as a result of actions of the policyholder, the insured and (or) the beneficiary, recognized in accordance with the procedure established by legislative acts of the Republic of Kazakhstan as intentional crimes or administrative offenses. offenses that are causally related to the insured event.

Insurance companies interpreted this rule as follows: the word "intentional" refers only to the word "crimes", therefore, if any administrative offense is committed, the insurer may refuse insurance payment.

This led to violations of policyholders' rights and disputes.

Compulsory insurance of civil liability of vehicle owners

The relations of the parties are regulated by the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners" dated July 01, 2003 No. 446 (hereinafter referred to as Law No. 446).

The object of compulsory insurance of civil liability of vehicle owners is the property interest of the insured person related to his obligation, established by the civil legislation of the Republic of Kazakhstan, to compensate for damage caused to life, health and (or) property of third parties as a result of the operation of the vehicle as a source of increased danger.

Article 28 of Law No. 446 specifies a list of grounds on which an insurer who has made an insurance payment has the right to claim back against the policyholder (insured) within the amount paid.

An analysis of this rule shows that the legislator provided for the possibility of recourse when the actions or omissions of the policyholder could contribute to the occurrence of an insured event (driving under the influence of alcohol, a technical malfunction of the vehicle, driving a vehicle by a person who does not have such a right, etc.). Thus, the policyholder (being himself the causer of harm) is punished for the unlawful conduct that led to the occurrence of the insured event.

According to subparagraph 1) of paragraph 1 of Article 28 of Law No. 446, the insurer has the right to claim back if the civil liability of the policyholder (insured) has occurred as a result of his deliberate actions aimed at causing an insured event or contributing to its occurrence, with the exception of actions committed in a state of necessary defense and extreme necessity.

It follows from the content of this provision that the policyholder must intentionally commit such actions that are aimed at causing an insured event, anticipate such consequences and desire their occurrence in order to receive insurance benefits.

The insurer must prove that the policyholder has such an intention. By virtue of paragraph 6 of Article 22 of Law No. 446, intentional creation of an insured event, as well as other fraudulent actions aimed at illegally obtaining insurance benefits, entail liability in accordance with the Criminal Code.

The Insurer has the right to reverse the claim if the person driving the vehicle at the time of the accident did not have the right to drive it.

By virtue of subparagraph 3) of paragraph 1 of Article 28 of Law No. 446, the insurer has the right to claim back if the person driving the vehicle at the time of the accident did not have the right to drive it.

A person who does not have the right to drive a vehicle should be recognized as a person who does not have a driver's license, that is, at the time of the traffic accident, he did not have the necessary knowledge and skills in the scope of standard training programs for drivers of vehicles of the appropriate category and he did not pass the exams in accordance with the established procedure; or does not have the appropriate category for driving this type of transport (for example, to drive a truck, bus); or was deprived of the right to drive.

By the decision of the District court No. 2 of Almaly district of Almaty dated May 21, 2015, which was left unchanged by the decision of the appellate instance, the claims of JSC IC Kommesk-Omir for recovery of insurance payments from K. by way of recourse were satisfied.

In satisfying the plaintiff's claims, the court also assumed that at the time of the accident, K. She did not have the right to drive a vehicle because she did not have a power of attorney registered with the traffic police from the owner of the vehicle. These conclusions cannot be considered justified.

In accordance with Article 188 of the Civil Code, the owner has the right to own, use and dispose of his property. By issuing a power of attorney for the right to drive a car, the owner transfers his right to own and use the property and the person holding such a power of attorney becomes the owner of the vehicle.

Thus, a power of attorney gives the right to own a vehicle, whereas the right to drive must be confirmed by a driver's license, that is, the concepts of "right to drive a vehicle" and "right to own a vehicle" are not identical.

It should be borne in mind that by Government Decree No. 472 dated June 23, 2015, the Rules of the Road in the section "2. General duties of drivers" the fifth paragraph of subparagraph 1) of paragraph 1 has been deleted as follows: a document confirming the right to own, use, or dispose of this vehicle, with mandatory registration of an individual driving a vehicle transferred to temporary possession and use with an authorized body - in the case of driving a vehicle in the absence of its owner.

Thus, the presence of a written power of attorney for driving a vehicle is currently not mandatory and the absence of a power of attorney cannot be regarded as the absence of the right to drive a vehicle.

The right of a counterclaim to the policyholder (insured)

By virtue of subparagraph 4) of paragraph 1 of Article 28 of Law No. 446, the insurer who has made the insurance payment has the right to claim back against the policyholder (insured) within the amount paid if, during the court proceedings, it was established that the insured event occurred as a result of technical malfunctions of the vehicle, which the policyholder (insured) knew or I should have known.

From the literal meaning of this rule, it follows that it is necessary to establish a causal relationship between the malfunction and the insured event, and, most importantly, the insurer must prove that the policyholder (insured) knew or should have known about the presence of such malfunctions.

By the decision of the district court No. 2 of the Saryagash district of the South Kazakhstan region dated November 2, 2016, the claim of IC Sentras Insurance JSC against D., A., S. for the recovery of the amount by way of recourse was satisfied. The court found that the accident, which resulted in harm to third parties, occurred due to a malfunction of the coupling device. This fact was established during the consideration of the administrative case.

Driver D. testified in court that he knew about the malfunction and repeatedly informed the owner about it, but the latter postponed the repair until a later date. The expression "should have known" in relation to the specified norm means that the malfunction was either obvious or one that the driver or the owner of the vehicle could identify when inspecting the vehicle before departure. By the decision of the Yenbekshinsky District Court of the Almaty region dated May 19, 2015, the claim of IC Sentras Insurance JSC against O. and A. for the recovery of insurance payments was reasonably denied.

In court, it was established that during the movement of the car driven by defendant O., the rear left wheel was disassembled, which collided with an oncoming car. In rejecting the insurer's claim, the court proceeded from the fact that, according to the diagnostic inspection card, the policyholder's vehicle met the requirements of road safety.

Therefore, the court concluded that the policyholder could not have foreseen the occurrence of the insured event.

Civil liability insurance is not subject to compulsory insurance

By virtue of paragraph 5 of Article 5 of Law No. 446, the civil liability of a person driving a vehicle is not subject to compulsory insurance due to the performance of his official or labor duties, including on the basis of an employment or other contract with the owner of the vehicle, or in the presence of the owner of the vehicle on the basis of his will without making a written transaction.

According to Article 11 of Law No. 446, under a standard contract, the civil liability of the policyholder (insured) is considered insured, which arose as a result of harm to third parties by the policyholder (insured) himself or in the case of: driving a vehicle by a person on the basis of an employment or other contract with the policyholder (insured), drawn up in writing.

However, insurers do not always comply with these legal requirements, which leads to disputes.

Thus, from the materials of the case on D.'s claim against JSC "IC Kompetenz" for the recovery of insurance benefits, it was established that the refusal of the insurance company was justified by the fact that the causer of the damage T. was not listed among the insured in the insurance contract.

Meanwhile, it was established in court that T. was in an employment relationship with the policyholder, IP Z. as a bus driver, and according to the insurance policy, the liability of persons driving the car was insured on the basis of a power of attorney or a waybill. By the ruling of the Petropavlovsk City Court No. 2 dated August 11, 2016, the claim was dismissed, due to the insurance payment by the insurer, and the proceedings were terminated.

The insurer has the right to claim back against the owner of this vehicle.

In accordance with paragraph 2 of Article 28 of Law No. 446, if, in the cases listed in paragraph 1 of this Article, the person responsible for the damage caused is the person operating the vehicle by virtue of an employment relationship with its owner or in the presence of its owner without making a written transaction, the insurer has the right to reverse the claim against the owner of the vehicle.

The analysis showed that mistakes were made when applying this rule and the insurance amount was collected jointly from both the owner of the vehicle and the person driving the vehicle.

Thus, by the decision of the Alatau District Court of Almaty dated July 20, 2016, the claim of IC Tsesna Garant JSC against S. and M. for the recovery of the amount jointly and severally in the order of the reverse claim was satisfied. It was established in court that S., in the presence of the owner M., was driving a vehicle under the influence of alcohol, for which he was brought to administrative responsibility.

In satisfying the plaintiff's claims, the court referred to subparagraph 2) of paragraph 1 of Article 28 of Law No. 446 and paragraph 3 of Article 287 of the Civil Code, according to which, in case of joint obligations of debtors, the creditor has the right to demand performance from all debtors and from any of them individually, both in full and in part of the debt. However, the court did not take into account that, by virtue of paragraph 1 of Article 287 of the Civil Code, a joint obligation or a joint claim arises if it is provided for by a contract or established by legislative acts, in particular, if the subject of the obligation is indivisible.

Law No. 446 does not provide for joint liability of the vehicle owner and the person driving the vehicle.

The courts incorrectly collect the insured sum jointly from the policyholder and the insured (the decision of the district court No. 2 of the Auezovsky district of Almaty dated March 15, 2016 on the claim of IC London-Almaty against M. and R., the parties have not appealed; the decision of the Panfilovsky District Court dated July 14, 2016 on the claim of JSC IC Sentras Insurance against K. and S., left unchanged by the decision of the appellate instance of the Almaty Regional Court of September 8, 2016). There is no provision for joint liability of the owner of the vehicle and the person owning it on another legal basis (lease agreement, power of attorney), as well as joint liability of the insurer and the policyholder (decision of the Taraz City Court of September 7, 2015 on the claim). to JSC "IC Nomad Insurance" and A. on the recovery of jointly and severally material damage.

The error was corrected by the court of appeal). The Almaty City Court correctly drew attention to the error made by the city courts when, in satisfying the insurer's claim to the policyholder to recover the amount in the order of the reverse claim, the courts, except for paragraph 1 of Article 28 of Law No. 446, incorrectly simultaneously make reference to Article 840 of the Civil Code.

The opposite examples of simultaneous application of Article 28 of the Law during subrogation (Article 840 of the Civil Code) have already been analyzed above, which generally indicates ignorance or misunderstanding by judges of these provisions of the law.

For mandatory types of insurance, the beneficiary is determined by the legislative acts regulating this type of insurance.

In accordance with Article 816 of the Civil Code on mandatory types of insurance, the beneficiary is determined by legislative acts regulating this type of insurance.

They make a mistake when applying article 25 of Law No. 446.

According to paragraph 1 of Article 816 of the Civil Code, a beneficiary is a person who, in accordance with an insurance contract or legislative acts on compulsory insurance, is the recipient of an insurance benefit. In this case, there was compulsory insurance of civil liability of the vehicle owner, therefore, the beneficiary is determined by Law.

In accordance with paragraph 4 of Article 25 of Law No. 446, the beneficiary is the victim (in case of his death, the person who, according to the laws of the Republic of Kazakhstan, has the right to compensation for damage caused in connection with the death of the victim), as well as the policyholder (insured) or another person who reimbursed the victim (person entitled to compensation) for the damage caused within the scope of the insurer's liability established by this Law, and who has received the right to an insurance payment.

Thus, from the literal verbal expression of this norm, it follows that it refers to a person who, in accordance with current legislation, has the right to compensation for harm in connection with the death of the victim.

The list of persons entitled to compensation for damage caused by the death of a citizen is provided for in Article 940 of the Civil Code. These include disabled persons who were dependent on the deceased or who had the right to receive maintenance from him on the day of his death; a child of the deceased born after his death, as well as one of the parents, spouse, or other family member, regardless of their ability to work, who does not work and is engaged in caring for his dependent children., brothers and sisters under the age of fourteen.

The Judicial Board of the Supreme Court overturned the decision of the Kostanay City Court of March 12, 2015 and the decision of the cassation judicial board of the Kostanay Regional Court of May 13, 2015 in the case of A.'s claim against JSC IC Asco to recover the amount of insurance payment.

The court found that on June 29, 2014, A. ran over citizen A., as a result of which she died. A.'s civil liability was insured in JSC IC Asko. After paying the damage to the deceased's family, A. applied to the insurance company for an insurance payment, but was refused.

Satisfying the plaintiff's claims, the court of first instance motivated its decision by the fact that Article 940 of the Civil Code, to which the defendant refers, is not applicable to the disputed legal relationship.

Recognizing the court's decision as lawful, the cassation board of the regional court applied paragraph 6 of Article 816 of the Civil Code, according to which, in the event of the death of the beneficiary, his rights pass to the policyholder.

Canceling judicial acts and rejecting the plaintiff's claim, the cassation board proceeded from the fact that in this case there was compulsory insurance of civil liability of the owner of the vehicle, therefore, the beneficiary would be the person entitled to compensation for damage in connection with the death of the victim. The object of insurance under a compulsory civil liability insurance contract is not the life and health of the policyholder, unlike life insurance, but the responsibility of the owner of the source of increased danger.

The mere fact of death in this case is not enough to make an insurance payment, it is necessary to establish whether the culprit has an obligation to compensate for the damage caused by death. There is no evidence in the case file that the daughter and granddaughter of the deceased were dependent on her, so A., despite compensation for harm to the relatives of the deceased, did not acquire the status of beneficiary. Consequently, his claims for recovery of the insurance benefit were not subject to satisfaction.

On March 17, 2016, the Taraz City Court made the correct decision to dismiss T.'s claim against JSC IC Nurpolis for the recovery of insurance benefits on the grounds that the plaintiff was not dependent on N., who died in an accident. Persons who are not beneficiaries, but who carried out the burial of the victim, have, by virtue of paragraph 6 of Article 24 of Law No. 446, the right to compensation from the insurer for funeral expenses in the amount of one hundred monthly calculation indices.

Recovery of the difference between the amounts spent on property restoration and the insurance payment received

Practice shows that victims of an accident, having received an insurance payment from the insurer, after repairing the car, demand either the insurance company or the perpetrator to recover the difference between the amounts actually spent on restoring property and the insurance payment received.

In this case, the courts should proceed from the fact that the amount of damage is determined taking into account wear and tear. After receiving the insurance payment, the victim agreed with its amount and did not challenge the assessment conducted by the insurer in a timely manner. In support of their claims, the plaintiffs refer to Articles 9 and 924 of the Civil Code.

However, according to Article 924 of the Civil Code, a citizen who has insured his liability by way of voluntary or compulsory insurance, if the insured amount is insufficient to fully compensate for the damage caused, reimburses the difference between the insured amount and the actual amount of damage.

According to Article 819 of the Civil Code of the Republic of Kazakhstan, the insured sum is the amount of money for which the insured object is insured and which represents the maximum amount of liability of the insurer upon the occurrence of an insured event. In accordance with article 24 of Law No. 446, the maximum amount of liability of an insurer for one insured event (insured amount) is (in monthly terms): for damage caused to the victim's property – in the amount of the damage caused, but not more than 600.

It follows from these provisions of the law that Article 924 of the Civil Code applies if the amount of damage caused to property, in this case to a car, exceeds 600 MCI. A certain amount of damage, taking into account wear and tear, is the actual amount of damage.

The provision of the current legislation on the need to take into account the wear of parts fully complies with the requirements of Article 9 of the Civil Code, since it allows the victim to restore his violated right in full by restoring the property to its former state, and excludes the possibility of unjustified enrichment on his part.

Consequently, there are no grounds for recovery of the difference both in relation to the insurer and in relation to the guilty policyholder. The decision of the Aktobe City Court of February 24, 2016 was correctly rejected in the claim of E. to JSC IC Competence for the recovery of material damage.

At the same time, the court proceeded from the fact that the plaintiff, having received the insurance payment, did not dispute the assessment made by the insurer, taking into account depreciation.

Disputes about the assessment of the damage caused

It should be borne in mind that Law No. 422- V of November 24, 2015 amended Law No. 446, in particular, the new version set out Article 22 "Determination of the insured event and the amount of damage caused", according to which the insurer evaluates the amount of damage caused to property within ten working days. days on the basis of an application for determining the amount of damage in accordance with the form established by the regulatory legal act of the authorized body.

The amount of damage caused to the vehicle is determined by the insurer in accordance with the regulatory legal act of the authorized body. Such a regulatory legal act is the 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 (hereinafter referred to as the Rules).

Thus, if, according to the previously valid version of Article 22 of Law No. 446, the amount of damage was assessed by an independent expert, then in accordance with the current version, such an assessment is carried out by the insurer. And only if the insurer does not arrange the calculation of the amount of damage within the prescribed period, the victim (beneficiary) independently applies to the services of an assessment organization and begins restoration work (disposal) of the damaged vehicle.

The results of the assessment organization's determination of the amount of damage caused to the vehicle are accepted by the insurer for making insurance payments to the victim. According to paragraph 11 of the Rules, the victim (beneficiary) or their representative, within 3 (three) business days from the date of receipt of the report on the amount of damage, indicates in the received report a note of agreement or disagreement with the results of the calculation of the amount of damage. If the victim (beneficiary) does not agree with the result of the amount of damage determined by the insurer, the victim (beneficiary) has the right to challenge the amount of damage determined by the insurer in court.

The question arose in the courts in which order the victim should challenge the amount of damage: by filing a separate claim to challenge the amount of damage determined by the insurer or during the consideration of a claim for recovery of insurance benefit. Since this procedure is not legally defined, the victim can defend his rights in any way.

At the same time, the court should check the insurer's compliance with the requirements of the Rules, if necessary, involve a specialist or appoint an expert examination.

Limits of liability of the insurer

Article 24 of Law No. 446 was also amended, namely, the words "The amount of insurance payment for each day of inpatient treatment must be at least 10 monthly calculation indices" were deleted from the eighth paragraph of subparagraph 1) of paragraph 1 of Article 24.

Previously, the insurer had to pay the victim at least 10 MCI for each day of hospital stay, regardless of the actual costs incurred, then in accordance with the current version of Article 24 of the Law for injury, injury or other damage to health without disability – in the amount of the actual costs of outpatient and (or) inpatient treatment, but no more 300.

Thus, in order to receive an insurance payment, the victim must submit documents confirming the expenses incurred by him.

At the same time, by virtue of Article 4 of the Civil Code, acts of civil legislation are not retroactive and apply to legal relations that arose after their entry into force.

By a decision of the appellate instance of the East Kazakhstan Regional Court dated July 13, 2016, the decision of the Semey City Court dated May 3, 2016 in the case of T.'s claim against Kazakhinstrakh JSC for the recovery of insurance benefits was changed.

Satisfying the plaintiffs' claims, the board pointed out that since the provision of article 24 of the Law was in force on the day the plaintiff and his minor children had the right to receive insurance payments before the amendments were made on November 24, 2015, respectively, they are entitled to receive insurance payments for the period of inpatient treatment at the rate of 10 MCI for each day of stay. in a medical institution without submitting documents confirming the costs of inpatient treatment.

A similar decision was made by the Petropavlovsk City Court No. 2 on August 4, 2016 in the case of K. to Kazakhinstrakh JSC.

Courts should take into account that article 24 of Law No. 446 provides for the maximum amount of liability of an insurer for one insured event.

Thus, the maximum amount of liability for harm caused to the life and health of each victim, according to subparagraph 1) of paragraph 1 of Article 24 of Law No. 446, depends on the consequences that have occurred: death, disability or injury, injury or other damage to health without disability.

Consequently, the Law does not provide for the simultaneous collection of insurance payments for the onset of disability and for damage to health without establishing disability (the decision of the Judicial Board for Civil Cases of the Supreme Court of March 2, 2016 on the claim of K. to JSC "Oil Insurance Company" on compensation for damage caused to health as a result of a traffic accident).

Abandonment is possible only in the event of the death of the vehicle as a whole.

In insurance, there is such a thing as abandonment (from the French abandon - refusal) — the right of the policyholder to declare the waiver of his rights to the insured property in favor of the insurer and receive full insurance compensation.

According to paragraph 6 of the Rules, the amount of damage in the event of complete loss of a vehicle is determined based on its market value at the date of the insured event.

In the event of loss of a vehicle, the insurer shall make an insurance payment in the amount of the market value of the damaged vehicle prior to the occurrence of the insured event, while the victim (beneficiary) or their representative transfers the remains of the damaged vehicle to the ownership of the insurer or makes an insurance payment minus the cost of parts, assemblies, aggregates, and materials suitable for sale.

By virtue of paragraph 8 of Article 25 of Law No. 446, the insurer has the right to the property or its remnants in the event that it makes an insurance payment in the amount of the market value of this property on the day of the occurrence of the insured event.

It follows from the content of this norm that it refers only to the complete destruction of property. By the decision of the Rudn City Court of October 5, 2016, the claim of JSC IC ASKO against I. was dismissed on the grounds that the insurer does not have the right to demand replacement spare parts like abandonment.

By overturning the court's decision and satisfying the plaintiff's claims, the appellate board of the Kostanay Regional Court misinterpreted paragraph 8 of Article 25 of Law No. 446, in addition, incorrectly applied Article 953 of the Civil Code on unjustified enrichment.

The victim's right to file a claim against the harm-doer

By virtue of subparagraph 7) of paragraph 1 of Article 16 of Law No. 446, the policyholder is entitled to receive an insurance payment in the cases provided for by this Law.

According to paragraph 1 of Article 25 of Law No. 446, the claim for insurance payment to the insurer is made by the policyholder (insured) or another person who is the beneficiary.

By virtue of paragraph 4 of Article 25, the beneficiary is, inter alia, the policyholder (insured) or another person who has compensated the victim (the person entitled to compensation) for the damage caused within the scope of the insurer's liability established by this Law and has received the right to an insurance payment.

It follows from the content of these rules that the victim has the right to file a claim for damages directly to the policyholder, who, having compensated the damage, is entitled to an insurance payment.

Employee's insurance against accidents in the performance of work duties

The relations of the parties are regulated by the Law "On Compulsory Insurance of an employee against accidents in the performance of his labor (official) duties" dated February 7, 2005, No. 30 (hereinafter referred to as Law No. 30).

Since the adoption of Law No. 30, it has been repeatedly amended and supplemented. At the time of its adoption, the Law was called "On compulsory insurance of civil liability of an employer for harm to the life and health of an employee in the performance of his labor (official) duties."

The object of compulsory insurance of the employer's civil liability for harm to the life and health of an employee in the performance of his work duties was the employer's property interest related to his obligation to compensate for harm caused to the life and health of an employee in the performance of his work (official) duties. That is, the insurance on the object was related to property insurance.

Law No. 234-IV dated December 30, 2009 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on compulsory and Mutual Insurance, Taxation" (hereinafter referred to as Law No. 234-IV) amended Law No. 30.

The name of the Law has changed, and in accordance with article 5, the object of compulsory insurance of an employee against accidents in the performance of his labor (official) duties has become the property interest of an employee whose life and health were harmed as a result of an accident that led to the establishment of his degree of professional disability or death.

Thus, the insurance has become personal for the facility. The last significant changes were introduced by the Law of April 27, 2015 No. 311-V SAM "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Insurance and Islamic Finance" (hereinafter referred to as Law No. 311–V).

In connection with the aforementioned amendments made to Law No. 30, numerous questions have arisen and are arising in the practice of the courts regarding the correct application of the law, and there have been various practices in its application.

It is important for the correct application of insurance legislation to define the concept of an insured event and the date of its occurrence.

When an accident occurs with an employee, three dates are important: the date of the accident itself (injury, injury, detection of occupational disease), the date of drawing up the accident report at work, and the date when the employee was determined to have lost his professional ability (hereinafter referred to as the UPT).

In accordance with article 12 of Law No. 30, an employee's compulsory accident insurance contract is concluded for a period of twelve months. An employer can sign an insurance contract with different insurers every year.

The correct setting of the date of the accident is important, since it depends on which insurance company will make insurance payments, or the obligation to compensate for injury to health will be assigned to the employer.

In the first edition of Law No. 30, the following concept was given to an insured event – an event that caused harm to the life or health of an employee in the performance of his labor (official) duties, upon the occurrence of which the contract of compulsory insurance of civil liability of the employer for harm to the life and health of an employee in the performance of his labor (official) duties provides for the insurance payment.

The object of compulsory insurance of the employer's civil liability for causing harm to the life and health of an employee in the performance of his work duties was the employer's property interest related to his obligation to compensate for damage caused to the life and health of an employee in the performance of his work (official) duties. That is, the insurance on the object was related to property.

It is important for the correct application of insurance legislation to define the concept of an insured event and the date of its occurrence.

An explanation of the concept of "accident" was given separately. In accordance with paragraph 2 of article 13 of Law No. 30, as amended on February 7, 2005, termination of the employer's compulsory liability insurance contract does not release the insurer from the obligation to make insurance payments to the beneficiary for insured events that occurred during the period of validity of the employer's compulsory liability insurance contract.

In accordance with Law No. 234-IV, the concept of an insured event has changed. - an accident in the performance of labor (official) duties (an accident) that occurred to an employee (employees) in the performance of his (their) labor (official) duties as a result of exposure to a harmful and (or) dangerous industrial factor, as a result of which an occupational injury, sudden deterioration in health or poisoning of the employee occurred, leading to his identification the degree of loss of professional ability to work, occupational disease or death, under the circumstances provided for in Article 16-1 of this Law.

Article 13 was amended, paragraph 2 was supplemented with the second paragraph: if the injured employee is found to have lost his professional ability to work as a result of the discovery of an occupational disease, the insurance payment is made by the insurer who has concluded an employee's compulsory accident insurance contract, during which an occupational disease has been established.

Finally, Law No. 311-V clearly defined that in the event of death or the determination of the degree of professional disability to the injured employee, the insurance payment is made by the insurer who has concluded a compulsory accident insurance contract for the employee during which the accident occurred.

In this case, the date of the accident is: upon death or establishment of the degree of professional disability to the employee as a result of an occupational injury, the date of the accident specified in the accident report; upon establishment of the degree of professional disability to the employee as a result of the identification of an occupational disease, the date of the conclusion of the healthcare organization providing specialized medical, expert assistance in the field of occupational pathology (not to be confused with the date of establishment of UPT).

Analyzing the content of Article 19 of Law No. 30, the Karaganda Regional Court expressed the opinion that the right to receive insurance benefits arises from the moment of the establishment of the CBT, therefore, when deciding on the recovery of insurance payments, the courts should proceed from the date of the ITU's conclusion on determining the degree of CBT of the injured employee, and not from the date of the establishment of an occupational disease by the conclusion of an expert occupational pathology commissions.

In this regard, it should be clarified that, in general, the right to receive insurance payments, both annuity and lump sum, arises only if the degree of UPT is established.

However, as mentioned above (Article 13 of Law No. 30), the date of the accident is not the date of the establishment of the CBT, but the date of the establishment of occupational disease. Therefore, for the emergence of an employee's right to receive insurance payments, the very fact of establishing the degree of UPT is important, the period for which the degree of UPT and its amount are determined, and the date of the accident (insured event by virtue of subparagraph 8) of Article 1 of Law No. 30) is important for determining the insurer who will make insurance payments, or the obligation will be assigned to employer No.

LLP "B" filed a lawsuit against JSC "Halyk – Life, a subsidiary of the People's Bank of Kazakhstan for Life Insurance," to compel them to fulfill the contract.

The plaintiff motivated his claims by the fact that on April 16, 2015, an employee's compulsory accident insurance contract was concluded between the parties. On April 6, 2015, a former employee of LLP "B" U. was diagnosed with occupational disease, and on May 20, 2015, he was diagnosed with the degree of UPT.

The insurance company refused to make the insurance payment. By the decision of the specialized interdistrict economic Court of the Karaganda region dated October 6, 2016, which was left unchanged by the decision of the appellate instance dated December 7, 2016, the claims of LLP "B" were satisfied.

In satisfying the plaintiff's claim, the local courts, applying part 2 of Article 76 of the CPC, proceeded from the fact that the court decision that entered into force, in which the same persons participated, established that since the degree of UPT to the employee was established by the ITU conclusion on May 20, 2015, the insured event in respect of him is considered to have occurred during the validity of the compulsory insurance contract.

At the same time, it followed from the case file that the compulsory insurance contract was concluded on April 16, 2015, whereas the occupational illness of employee U. was established on April 6, 2015, that is, ten days before the conclusion of the contract.

According to paragraph 2 of Article 13 of Law No. 30, the date of the accident when determining the degree of disability for an employee as a result of the detection of an occupational disease is the date of the conclusion of the healthcare organization providing specialized medical and expert assistance in the field of occupational pathology.

By a decision of the Judicial Board for Civil Cases of the Supreme Court dated May 12, 2017, the judicial acts of the first and appellate instances were annulled, and a new decision was made to dismiss the claim.

When applying Part 2 of Article 76 of the CPC, courts need to keep in mind that the circumstances established by the court and the conclusions of the court regarding any circumstances are not identical concepts.

The fact of a labor-related accident is the basis for recognizing it as an insured event.

The establishment of the fact of an accident related to labor activity in accordance with Article 186 of the Labor Code is the basis for recognizing it as an insured event and entails for the insurer the obligation to pay the insured amount.

As mentioned above, an insured event is an accident that occurred to an employee under the circumstances provided for in Article 16-1 of Law No. 30, according to which these circumstances are provided for in Article 186 of the Labor Code (the Law still refers to Article 322 of the expired Labor Code). Thus, the establishment of the fact of an accident related to labor activity in accordance with Article 186 of the Labor Code is the basis for recognizing it as an insured event and entails for the insurer the obligation to pay the insured sum.

At the same time, the court should check the insurer's compliance with the requirements of the Rules, if necessary, involve a specialist or appoint an expert examination.

Limits of liability of the insurer

Thus, in order to receive an insurance payment, the victim must submit documents confirming the expenses incurred by him.

At the same time, by virtue of Article 4 of the Civil Code, acts of civil legislation are not retroactive and apply to legal relations that arose after their entry into force.

A similar decision was made by the Petropavlovsk City Court No. 2 on August 4, 2016 in the case of K. to Kazakhinstrakh JSC.

Courts should take into account that article 24 of Law No. 446 provides for the maximum amount of liability of an insurer for one insured event.

Abandonment is possible only in the event of the death of the vehicle as a whole.

According to paragraph 6 of the Rules, the amount of damage in the event of complete loss of a vehicle is determined based on its market value at the date of the insured event.

The victim's right to file a claim against the harm-doer

By virtue of subparagraph 7) of paragraph 1 of Article 16 of Law No. 446, the policyholder is entitled to receive an insurance payment in the cases provided for by this Law.

According to paragraph 1 of Article 25 of Law No. 446, the claim for insurance payment to the insurer is made by the policyholder (insured) or another person who is the beneficiary.

Employee's insurance against accidents in the performance of work duties

It is important for the correct application of insurance legislation to define the concept of an insured event and the date of its occurrence.

When an accident occurs with an employee, three dates are important: the date of the accident itself (injury, mutilation, detection of occupational disease), the date of drawing up the accident report at work, and the date when the employee was determined to have lost his professional ability (hereinafter referred to as the UPT).

It is important for the correct application of insurance legislation to define the concept of an insured event and the date of its occurrence.

In this regard, it should be clarified that, in general, the right to receive insurance payments, both annuity and lump sum, arises only if the degree of UPT is established.

LLP "B" filed a lawsuit against JSC "Halyk – Life, a subsidiary of the People's Bank of Kazakhstan for Life Insurance," to compel them to fulfill the contract.

The fact of a labor-related accident is the basis for recognizing it as an insured event.

However, practice shows that, despite the existence of an accident certificate at work, insurers refuse to make insurance payments. A. filed a lawsuit against BTA Life JSC to declare the decision to refuse insurance payments illegal, arguing that her husband died in the performance of his work duties, and minor children remained after his death. The defendant objected to the stated requirements, pointing out that the deceased carried out the work on his own initiative.

By the decision of the Almaly district Court No. 2 of Almaty dated October 29, 2015, the claim was dismissed on the grounds that A., not being the policyholder, does not have the right to appeal the insurer's refusal. The appeal board of the Almaty City Court overturned the court's decision and satisfied the claims. At the same time, the board proceeded from the fact that the employer had approved an act on an industrial accident, therefore, the accident was related to the performance of work duties. In addition, the board indicated that the beneficiary, by virtue of Article 9 of the Civil Code, has the right to appeal the insurer's refusal to make insurance payments.

Collection of penalties for late payment of insurance payments

In accordance with subparagraph 9) of paragraph 2 of Article 9 of Law No. 30, the insurer is obliged, in case of late payment of insurance payments provided for in paragraph 1 of Article 19 of this Law, to pay the beneficiary a penalty in the amount of 1.5 percent of the unpaid amount for each day of delay.

It should be noted that this provision deals with the obligation to pay penalties only for late payment of insurance payments specified in paragraph 1 of Article 19 of Law No. 30. Article 19 of Law No. 30 is called "The procedure for determining the amount of harm.

Insurance payments under the employee's compulsory accident insurance contract" The amount of damage associated with the loss of earnings (income) due to the death of an employee or the establishment of his degree of loss of professional ability to work is determined in accordance with the requirements of the Civil Code.

Article 937 of the Civil Code stipulates that the victim is paid for lost earnings and additional expenses caused by damage to health (treatment, prosthetics, additional nutrition).

Paragraph 1 of article 19 deals with payments of lost earnings. As for additional expenses, the procedure for their payment is defined in paragraph 2 of article 19. Consequently, in case of late payment of insurance against reimbursement of additional expenses caused by damage to the employee's health, if the degree of professional disability is established, subparagraph 9) of paragraph 2 of Article 9 of the Law cannot be applied.

By the decision of the appeal board of the Karaganda Regional Court dated June 30, 2015, the decision of the district court No. 2 of the Kazybekbiysky district of Karaganda dated April 22, 2015 was reasonably changed and the amount of the penalty collected from JSC IC Alliance Polis in favor of B. was reduced. By changing the court's decision, the board pointed out that, having correctly recognized the illegal actions of the insurer for the late payment of insurance in the amount of 1,500 MCI, the court made an unreasonable conclusion about the correctness of the calculation of the penalty for 304 days of delay in the amount of 11,026,080 tenge by the plaintiff, referring to subparagraph 9) of paragraph 2 of Article 9 of Law No. 30.

The Appeals board pointed out that the existence of violated obligations by the insurer is the basis for the recovery of a legal penalty under Article 353 of the Civil Code.

In accordance with paragraph 1 of Article 19 of Law No. 30, the insurance payment due as compensation for damage related to the loss of earnings (income) by an employee in connection with the establishment of the degree of professional disability for a period of one year or more is made in the form of annuity payments in favor of the employee for a period equal to the period of establishment or extension (re-examination) of the degree of professional disability of the employee in accordance with the annuity agreement concluded with the policyholder in accordance with Article 23 of this Law.

When considering claims for penalties for late payment of annuity payments, the question arose as to when the delay should be considered. An analysis of the cassation practice of the Supreme Court in 2016 showed that ambiguous practice on this issue has developed in the courts of the Karaganda region.

In satisfying the plaintiffs' claims for the recovery of penalties, the courts of first instance determined the date of the start of the delay as the date on which the employee submitted all necessary documents to the employer or the date on which the documents were submitted by the employer to the annuity company. The appellate instance of the Karaganda Regional Court expressed two opposing opinions on such decisions.

By the decision of the Judicial Board for Civil Cases of the Supreme Court dated May 17, 2016, the decision of the appellate instance of the Karaganda Regional Court dated October 29, 2015 in the case of the claim of A., Zh., D. to JSC IC BTA Life for the recovery of penalties was upheld.

The Board agreed with the conclusions of the court of appeal that, by virtue of paragraph 3 of Article 820 of the Civil Code, the procedure and timing of insurance payments are determined by the contract, and the defendant's obligation to make annuity payments arises only after the conclusion of the annuity agreement and within the time limits established by this agreement.

At the same time, in other similar cases, the appeal board of the Karaganda Regional Court agreed with the conclusions of the courts of first instance that the start of the delay should be counted from the date of transfer of documents to the insurance company, plus seven days for payment (the decision of the Satpayevsky District Court of September 28, 2015 and the decision of the appellate instance of November 18, 2015 on isku Sh. to JSC "IC Kazkmmerts-Life" on the recovery of penalties).

In canceling the judicial acts in this case, the board of the Supreme Court pointed out that the courts had incorrectly applied the norms of substantive law.

The courts did not take into account that the defendant's obligation to make annuity payments arises only after the conclusion of the annuity agreement. The third paragraph of paragraph 1 of Article 19 of the Law should be applied to disputed legal relations.

On the recovery of insurance payments to reimburse additional expenses caused by damage to the employee's health (one-time insurance payments)

In accordance with the wording of article 19 of Law No. 30, as of February 7, 2005, in order to receive insurance payments to reimburse additional expenses caused by damage to health, an employee had to submit documents confirming the costs incurred.

Law No. 234-IV amended this provision (entered into force on August 9, 2010), according to which the amount of insurance benefit began to depend on the degree of UPT (from 5 to 29% - 500 MCI, etc.).

Payment was made only upon the provision of a document confirming the establishment of the degree of CBT to the injured employee.

Since the introduction of this rule, employees have been contacting insurance companies to collect insurance payments without confirming the costs incurred.

In 2016, the Supreme Court established a uniform practice. In refusing to satisfy the claims of the plaintiffs whose insured event occurred during the period of validity of the contract concluded before the above changes were made, the board proceeded from the fact that the terms of the contracts stating the amount of additional costs caused by damage to the employee's health are determined by the insurer on the basis of documents confirming these costs submitted by the employee or a person who those who incurred these expenses corresponded to paragraph 2 of Article 19 of the Law as amended at the time of their conclusion.

It does not follow from Law No. 234-IV that it applies to relations arising from previously concluded contracts. Law No. 311-V again changed the procedure for making one-time insurance payments. Their reimbursement is carried out by the insurer on the basis of documents confirming these expenses. In addition, there is a limit to the insurance benefit depending on the degree of UPT.

Reversal of the execution of the court decision

After the change in judicial practice and, accordingly, the cancellation of local court decisions, insurance companies began to apply to the courts for a reversal of the execution of the court decision, asking them to recover, including from employees, the amounts of insurance payments they received.

The courts refused to satisfy the application for recovery of insurance payments received earlier from the employees. By a ruling of the Ridder City Court dated November 7, 2016, the application of JSC IC Kompetenz to reverse the execution of the court decision and recover from S. the payments received in the amount of 3,221,953 tenge was refused with reference to Article 960 of the Civil Code. The Judicial Board for Civil Cases of the Zhambyl Regional Court overturned the rulings of the Taraz City Court on the reversal of execution, which recovered the amounts of insurance payments previously paid to them by court decisions from employees.

Collection of annuity payments in a lump sum

By the decision of the Taraz City Court of September 24, 2014, B.'s claim against JSC Life Insurance Company State Annuity Company for a one-time recovery of payments was satisfied: insurance payments for 3 years in the amount of 805,248 tenge were collected from the defendant in favor of the plaintiff.

Applying to the court, the plaintiff indicated that due to partial disability and lack of a permanent job, he was experiencing financial difficulties in his family due to the need to repay a loan from a bank.

In satisfying the claim for the recovery of annuity payments in favor of the plaintiff, the court of first instance took into account the explanations given by the plaintiff and was guided by the provisions of paragraph 1 of Article 944 of the Civil Code.

By overturning the court's decision and denying the plaintiff satisfaction of his claims, the appellate instance of the Zhambyl Regional Court correctly proceeded from the fact that the claim for the award of the due damage compensation payments can be presented only to the harm-doer, but the insurer is not such.

When applying to the court for plaintiffs – relatives of workers who died in the performance of their work duties, the courts should determine whether they are beneficiaries.

Paragraph 4 of Article 20 of Law No. 30 stipulates that the beneficiary is the injured employee (in case of his death - a person who, according to the laws of the Republic of Kazakhstan, has the right to compensation for damage caused by the death of the employee), as well as the policyholder or another person who reimbursed the beneficiary for the damage caused within the scope of the insurer's liability established by this Law, and those who have received the right to an insurance payment.

Thus, in the event of the death of an employee, persons who are entitled to compensation for damage caused by the death of an employee have the right to receive insurance benefits. These include the persons listed in Article 940 of the Civil Code, in particular, disabled persons who were dependent on the deceased.

By the decision of the Petropavlovsk City Court No. 2 dated July 7, 2015, O.'s claim to JSC IC BTA Life to compel the conclusion of an annuity agreement and recovery of funeral expenses was reasonably satisfied.

The court proceeded from the fact that O., being a disabled person of the 2nd group, was dependent on the deceased spouse of O. The Kyzylorda City Court, satisfying M.'s claims to JSC "IC Kazkmmerts-Life" to recognize the illegal refusal of insurance payment, correctly proceeded from the fact that the court's decision that entered into force established the fact that M. was on dependents of the deceased son.

Disputes between policyholders, beneficiaries and insurers

In accordance with paragraph 2 of Article 383 of the Civil Code, if, after the conclusion of the contract, the legislation establishes rules binding on the parties other than those in force at the time of the conclusion of the contract, the terms of the concluded contract remain in force, except in cases where the legislation establishes that its effect extends to relations arising from previously concluded contracts.

Paragraph 5 of Article 2 of Law No. 311-V establishes that the provisions of this Law regarding compulsory insurance of an employee against accidents in the performance of his/her labor (official) duties apply to cases of establishing or extending (re-certifying) the degree of professional disability of an employee that arose after the enactment of this Law.

It follows from this that if an employee has been granted a degree of CBT for the first time or has passed a re-examination after May 10, 2015, then the new version of the Law will apply to the legal relations of the parties, regardless of the terms of the current insurance contract.

At the same time, the plaintiffs' arguments that the new version of Law No. 30 worsens their situation, therefore, in accordance with subparagraph 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, laws that establish or strengthen responsibility, impose new duties on citizens or worsen their situation are not retroactive, cannot be recognized as sound, because The Constitutional Council, in a resolution dated March 10, 1999, clarified that subparagraph 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan should be understood to mean that those laws are not retroactive., which regulate the legal responsibility of citizens for offenses and establish new types of responsibility or strengthen it by introducing new sanctions.

Liability for compensation for damage related to loss of earnings (income)

After the entry into force of Law No. 311-V, liability for compensation for damage related to the loss of earnings (income) by an employee in connection with the establishment of a degree of UPT from 5 to 29% inclusive is carried out by the policyholder in accordance with the labor legislation of the Republic of Kazakhstan.

The insurer is responsible for making insurance payments only when establishing the degree of UPT from 30 to 100%. By the decision of the Semeysky City Court of April 26, 2016, which was left unchanged by the decision of the appellate instance, B.'s claim to NOMAD LIFE for the recovery of a one-time insurance payment was denied.

At the same time, the court correctly justified its decision by saying that despite the fact that the accident occurred to the plaintiff on April 1, 2015 during the period of the insurance contract, the insurance company's refusal is justified, since the plaintiff's degree of UPT in the amount of 29% was established by the plaintiff on January 25, 2016, that is, after the enactment of Law No. 311-V.

By the decision of the Pavlodar City Council of April 26, 2016, which was left unchanged by the decision of the appellate instance dated July 4, 2016, the claim of B LLP to the insurance company for the obligation to conclude an annuity agreement was denied, since the degree of UPT to the employee in the amount of 25% was established on September 15, 2015.

Article 19 of Law No. 30 sets a limit for the amount of the average monthly earnings (income) taken into account for calculating the lost earnings (income) to be reimbursed

It should not exceed ten times the minimum wage established for the relevant financial year by the law on the republican budget, as of the date of conclusion of the employee's compulsory accident insurance contract.

The amount of the insurance payment is carried out minus the social security payment in case of disability from the State Social Insurance Fund.

In this regard, it is necessary to draw the attention of the courts to the fact that all restrictions are provided only for insurance organizations and do not apply to employers. K. filed a lawsuit against Kazakhmys Corporation LLP to recover insurance payments for reimbursement of expenses caused by damage to health and collection of arrears on monthly payments for compensation of harm to health, arguing their demands are due to the fact that the employer unreasonably reduced the amount of the average monthly earnings.

By the decision of the district court no.On August 2, Kazybekbiysky district of Karaganda city dated August 25, 2016, K.'s claim was partially satisfied, the amount of a one-time insurance payment was recovered from Kazakhmys Corporation LLP in his favor. The rest of K.'s claim was denied.

By the decision of the Judicial Board for Civil Cases of the Karaganda Regional Court dated November 10, 2016, the decision of the court of first instance remained unchanged.

During the consideration of the case in the court of Cassation of the Supreme Court, it was established that when calculating monthly payments, the employer proceeded from the average monthly salary, which would be provided if such payments were made by an insurance company (no more than ten times the minimum wage).

Thus, the calculation was made incorrectly, since in this case the payment is made by the employer and the norm contained in article 19 of Law No. 30 does not apply to him.

Judicial acts in this part were canceled, the case was sent for a new hearing.

The employer is obligated to reimburse the employee for the difference between the insured amount and the actual amount of damage.

Due to the fact that the limit of the average monthly earnings is set for the insurer, which is taken into account for calculating the lost earnings to be reimbursed, the employee does not receive full compensation for damage. For example, the average salary of an employee in 2016 was 430,000 tenge, the insurance company will take only 228,590 tenge for the calculation (the minimum wage for 2016 is 22,859 x10). The difference in accordance with Article 122 of the Labor Code (Article 164 of the previously valid Labor Code) must be reimbursed by the employer.

The employee of ArcelorMittal Temirtau JSC (hereinafter AMT JSC) P. received annuity payments, the amount of these payments since April 1, 2015 amounted to 207,858 tenge. On June 29, 2015, after another re-examination, the plaintiff's degree of UPT was confirmed.

On July 10, 2015, an annuity insurance contract was concluded between JSC "Nomad Life Insurance Company" and the defendant JSC "AMT", the monthly annuity payment was determined in the amount of 113,309 tenge, taking into account changes in insurance legislation introduced by Law No. 311-V. Thus, there was a decrease in the amount of monthly insurance payments.

The court of first instance, refusing to satisfy the plaintiff's claims, referring to the provisions of paragraph 3 of Article 37 of the Law "On Regulatory Legal Acts", concluded that the application of changes in legislation in the calculation of annuity payments led to a significant deterioration in the financial situation of P. and the latter should challenge the actions of the insurance company for the calculation of annuity payments (court decision No. 2 of Kazybekbi district of Karaganda city dated November 23, 2015).

The appeal board of the Karaganda Regional Court did not agree with such conclusions. The re-examination of the plaintiff took place after the introduction of changes in insurance legislation, therefore, these changes were correctly applied when calculating the amount of insurance payment to the plaintiff.

According to paragraph 1 of Article 164 of the Labor Code, which was in force during the period of the disputed legal relationship, if harm is caused to the life or health of an employee in connection with the performance of his labor duties, the employer is obliged to compensate the damage in full, provided for by the Civil Code.

If there are insurance payments, the employer is obliged to reimburse the employee for the difference between the insured amount and the actual amount of damage.

In such circumstances, the judicial board reasonably imposed on the employer the obligation to compensate the employee for the difference between the insured amount and the actual amount of damage.

The legislator has limited the time for annuity payments - no more than the time when an employee reaches retirement age.

In accordance with paragraph 1 of Article 19 of the new version of the Law, the legislator limited the time for annuity payments - no more than the time for an employee to reach retirement age, established by the legislation of the Republic of Kazakhstan on pension provision.

The same Law No. 311-V amended paragraph 1 of Article 944 of the Civil Code, it was established that compensation for damage in terms of lost earnings to victims in the performance of their labor (official) duties is carried out for the period of determining the degree of disability, but not more than reaching the retirement age established by the legislation of the Republic of Kazakhstan on pension provision.

But at the same time, the legislator extended the reverse effect of this law only to relations in terms of compulsory insurance of an employee against accidents in the performance of his labor (official) duties, therefore, the amendments introduced by Law No. 311-V to Article 944 of the Civil Code do not apply to relations that arose before its entry into force. D. filed a lawsuit with the court. to Kazphosphate LLP and Grandes CSG JSC on forcing them to conclude an annuity insurance contract and collect insurance payments.

In substantiation of his claims, the plaintiff indicated that as a result of an accident that occurred during the performance of his work duties at Kazphosphate LLP, he was diagnosed with a disability of the third group and a 50% degree of UPT, but the insurance company refused to conclude an annuity agreement, and the employer refused to make payments to compensate for the damage caused to his health., with reference to the amendments made to Law No. 30 on April 27, 2015.

By the decision of the Taraz City Court of April 7, 2016, D.'s claim was partially satisfied, Kazphosphate LLP and Grandes CSG JSC were required to conclude an annuity agreement in favor of D. valid from May 25, 2015 to May 25, 2016.

The rest of the claims were denied. By the decision of the judicial board for civil cases of the Zhambyl Regional Court dated June 22, 2016, the decision of the court of first instance remained unchanged. By the decision of the Judicial Board for Civil Cases of the Supreme Court dated March 7, 2017, the judicial acts were changed, in terms of imposing the obligation on the defendants to conclude an annuity agreement in favor of D. they were canceled, in this part D.'s claim was denied.

Judicial acts regarding the refusal to satisfy D.'s claims to Kazphosphate LLP for compensation for damage caused to health during the performance of work duties have been canceled, and a new decision has been issued in this part, which satisfied D.'s claims.

Recovered from Kazphosphate LLP in favor of D. due to compensation for damage caused to health during the performance of work duties, lost earnings for the period from May 25, 2015 to May 25, 2016 in the amount of 1,271,232 tenge.

When changing judicial acts, the cassation board proceeded from the following. d. the next re-examination took place on May 25, 2015, therefore, the legal relations of the parties are subject to Article 19 of the Law No. 30 in the new edition.

At the time of the re-examination on May 25, 2015, D. had already reached retirement age, so the insurance company reasonably refused to make insurance payments. 37 At the same time, Law No. 311-V also amended Article 944 of the Civil Code.

However, in accordance with paragraph 5 of article 2 of Law No. 311-V, retroactive effect was given only to Law No. 30. Consequently, the new version of paragraph 1 of Article 944 of the Civil Code applies only to legal relations that arose after May 10, 2015, that is, it applies only to persons who have an accident at work, confirmed by the relevant act, established starting from May 10, 2015. The injury to D.'s health took place in May 2013.

This means that the employee's right to compensation for harm, as well as the employer's obligation to compensate for such harm, arose before the amendments to paragraph 1 of Article 944 of the Civil Code. Consequently, the new version of this law does not apply to the legal relations between D. and Kazphosphate LLP on compensation for harm to health.

Prior to the introduction of amendments to the insurance legislation on April 27, 2015, Kazphosphate LLP's obligation to compensate for health damage caused by D. during his employment was carried out through the conclusion of compulsory insurance contracts by the employer, and the employee received lost earnings in the form of annuity payments.

After the insurer is relieved of the obligation to conclude an annuity agreement and make insurance payments in connection with the amendments made to the law, the obligation to compensate for harm to health is again assigned to the employer as responsible for causing harm on the basis of Article 164 of the Labor Code, which was in force at the time of D.'s re-examination on May 25, 2015. In such circumstances, D.'s claim to the employer for compensation for damage caused to health was subject to satisfaction.

Regarding the victim's right to file a claim against the harm-doer

In accordance with paragraph 4 of Article 20 of Law No. 30, the beneficiary is the injured employee (in case of his death, the person who, according to the laws of the Republic of Kazakhstan, has the right to compensation for damage caused by the death of the employee), as well as the policyholder or another person who reimbursed the beneficiary for the damage caused within the scope of the insurer's liability established by this Law, and those who have received the right to an insurance payment.

It follows from the content of this provision that there may be cases when the employer has compensated the employee for the damage and the right to an insurance payment is transferred to him.

At the same time, an analysis of the cases submitted for summary showed that to date there are no disputes on the issue of violation of the right of employees to make claims directly to the employer. As a rule, affected employees make demands on both the employer and the insurance company at the same time.

Subrogation under contracts of compulsory insurance of an employee against an accident in the performance of work duties does not apply.

In accordance with article 1 of the Constitution, the Republic of Kazakhstan asserts itself to be a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms. Human life and health have long been recognized by law as the highest values to be protected by legal means. Therefore, if harm is caused to human life or health, the victim should be able to receive maximum security and compensation for harm.

By virtue of Article 840 of the Civil Code, the transfer of the policyholder's rights to compensation for losses (subrogation) is possible only under property insurance contracts. After Law No. 30 was amended by Law No. 234-IV of December 30, 2009, the insurance became personal.

Article 21 "The right of retroactive claim against the person who caused the damage" was deleted from Law No. 30, which contained paragraph 2 as follows: "The insurer who has made the insurance payment shall have, within the amount paid by him, the right of retroactive claim that the policyholder has against the person responsible for losses compensated by the insurer as a result of insurance." (subrogation). At the same time, article 9 of Law No. 30 mistakenly omitted subparagraph 8) of paragraph 1, according to which the insurer has the right to claim back against the person who caused the harm.

JSC "NOMAD LIFE Insurance Company" filed a lawsuit against A. for recovery of the insured sum in the amount of 12,375,963 tenge, paid under the contract of compulsory insurance of an employee against accidents in the performance of his labor (official) duties.

By the decision of the Aktobe City Court of November 29, 2016, which was left unchanged by the decision of the Judicial Board for Civil Cases of the Aktobe Regional Court of February 7, 2017, the claims were denied.

It follows from the case file that on March 11, 2013, A. ran over a pedestrian, M., who was injured, and she had a degree of UPT of 70%. According to the accident report, the accident was recognized as production-related.

The insurance company made a one-time insurance payment in the amount of 2,596,500 tenge and 635,806 tenge of annuity payments, the remaining amount of 9,571,766 distributed for a lifetime period of payment.

The courts, rejecting the claims, came to the correct conclusion that it follows from the provisions of paragraph 1 of Article 840 of the Civil Code that the right of recourse passes to the insurer only under property insurance contracts, to which the contract of compulsory insurance of an employee against accidents in the performance of his work duties does not apply, since it is a personal insurance contract..

Before making appropriate amendments to Law No. 30 (regarding the deletion of subparagraph 8) of paragraph 1 of Article 9), it should be borne in mind that in accordance with paragraph 1 of Article 12 of the Law "On Legal Acts", if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.

Since subparagraph 8) of paragraph 1 of Article 9 of Law No. 30 contradicts Article 840 of the Civil Code, the norms of the Civil Code should be applied.

In addition, it should be borne in mind that, by virtue of subparagraph 3) of paragraph 4 of Article 839 of the Civil Code, the basis for the insurer's refusal to make insurance payments may be for the policyholder to receive appropriate compensation for losses from a person guilty of causing losses only on property insurance.

It follows that a person whose health has been harmed has the right both to receive compensation from the harm-doer and to receive insurance payments under a personal insurance contract.

In this case, receiving compensation from the harm-doer will not be a reason for refusing to receive insurance payments under a personal insurance contract.

Compulsory insurance of civil liability of the tour operator and travel agent

The relations of the parties are regulated by the Law "On Compulsory Insurance of Civil liability of tour operators and travel Agents" dated December 31, 2003 No. 513 (hereinafter referred to as Law No. 513).

A tour operator is an individual and (or) a legal entity engaged in entrepreneurial activity that has obtained, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, a license for the right to engage in activities related to the formation of a tourist product, its promotion and sale to travel agents and tourists, as well as the promotion and sale of a tourist product formed by a non-resident of the Republic of Kazakhstan.

A travel agent is an individual or legal entity engaged in entrepreneurial activities to promote and sell a tourist product created by a tour operator.

The object of compulsory insurance of civil liability of a tour operator (travel agent) is the property interest of the tour operator (travel agent) related to his obligation, established by the civil legislation of the Republic of Kazakhstan, to compensate for damage caused to the property and (or) other interests of a tourist when carrying out activities to form a tourist product (when carrying out activities to promote and sell a tourist product formed by by a tour operator).

The contract of compulsory liability insurance of a tour operator or travel agent is terminated in the following cases::

1) expiration of the contract;

2) early termination of the contract;

3) the insurer makes an insurance payment (insurance payments) in the amount of the insured amount specified in the contract of compulsory liability insurance of the tour operator or travel agent.

In accordance with paragraph 2 of Article 9 of Law No. 513, the contract of compulsory liability insurance of a tour operator or travel agent is concluded for a period of twelve months from the date of its entry into force.

The period of validity of the insurance coverage coincides with the term of the contract of compulsory liability insurance of the tour operator or travel agent. The decision of the appellate judicial board of the Almaty City Court of November 20, 2015 denied the claim of M. and others to JSC IC NOMAD Insurance for the recovery of insurance benefits on the grounds that the term of the contract of insurance of civil liability of the travel agent It ended on June 6, 2014, and the insured event occurred on June 18, 2014.

K. and others filed a lawsuit against JSC IC NOMAD Insurance for the recovery of insurance payments. In satisfying the tourists' claims, the Pavlodar City Court, without taking into account the defendant's arguments that the insurance contract had terminated because the insurer had fulfilled its obligations under the contract in full, and the insured amount had been exhausted, stated that according to paragraph 7 of Article 8 of Law No. 513, if the compulsory insurance contract the liability of the tour operator and the travel agent is concluded on terms that worsen the situation of the policyholder (insured) or the victim in comparison with those provided for by this Law., then, upon the occurrence of an insured event, the insurer is liable to the policyholder (insured) and the victim under the conditions established by Law (decision of July 17, 2015) The Court of appeal agreed with these conclusions.

Canceling judicial acts, the cassation board of the Supreme Court proceeded from the fact that due to the travel agent's failure to fulfill its obligations to the plaintiffs, the insurance company fully paid the insurance payment provided for in the insurance contract in his favor.

Thus, the legal relationship between the policyholder and the insurer was terminated due to the latter's full fulfillment of the essential terms of the insurance contract.

Consequently, by virtue of the provisions of Article 924 of the Civil Code, the obligation to compensate for the difference between the insured amount and the actual amount of damage if the insured amount is insufficient is imposed on the harm-doer, i.e. Gulnar Travel & K LLP.

It should be noted that Law No. 422- V of November 24, 2015, article 20 of Law No. 513, which provides grounds for refusal to make insurance payments, was supplemented by subparagraph 5) as follows: insurance payment by the insurer in the amount of the insured sum.

Determination of the moment of occurrence of the insured event and conditions of insurance payment

According to paragraph 1 of Article 17 of Law No. 513, an insured event is the occurrence of civil liability of a tour operator or travel agent for compensation for damage caused to the property interests of a tourist.

In accordance with paragraph 2 of Article 17 of Law No. 513, an insured event is considered to have occurred from the moment the policyholder recognizes the tourist's claims for damage compensation as justified and the insurer agrees with the recognition of the claims by the policyholder.

If the policyholder does not recognize the tourist's claims for damage compensation as justified, the insured event is considered to have occurred from the moment the court decision on compensation for damage caused by the policyholder enters into force.

According to article 18 of Law No. 513, the claim for insurance payment to the insurer is submitted by the policyholder or the tourist in writing with the attachment of the documents necessary for the insurance payment.

The claim for insurance payment is accompanied, among other things, by the tourist's claim for damage compensation recognized by the policyholder or a copy of the court decision on compensation for damage caused by the policyholder in providing tourist services that has entered into force.

It follows from the content of these rules that in order for a tourist to apply to an insurance company, he must submit a claim for damages recognized by the policyholder, with the consent of the insurer. If the policyholder has not recognized his claim or this recognition has not been agreed with the insurer (which is most often the case), then the tourist must apply directly to the travel agent with a claim for damages.

In turn, the decision of the 42nd court on compensation for damage to the tourist, which has entered into force, will be the basis for the insured (travel agent) to claim the insured amount from the insurance company.

In practice, there are most often cases when the policyholder (travel agent) recognizes the claim of the tourist and, without the consent of the insurer, compensates the damage to the tourist by purchasing tickets, re-booking hotels, etc. Further, the policyholder applies to the insurer to collect insurance payments, the insurer refuses to pay the insured amount, referring to the fact that the insurance company agrees to recognize the claims of the tourist. the company did not provide it, which means that the insured event did not occur.

A decision is made to dismiss the claim, since article 17 of Law No. 513 clearly defines the moment of occurrence of the insured event.

Leaving unchanged the decision of the appellate instance of the Almaty City Court of July 8, 2015, which rejected the claim of Q LLP against IC Sentras Insurance JSC on the recognition of the unlawful refusal to make insurance payments and recovery of insurance payments, the cassation board of the Almaty City Court indicated that the court's decision on compensation for damage caused by the policyholder did not take it out, and the insurer, in turn, did not give its consent to the voluntary recognition of the claims of tourists by the policyholder.

In order to exclude a different interpretation of the norm of paragraph 2 of Article 17 of Law No. 513, the Almaty City Court proposes to formulate it as follows: "An insured event is considered to have occurred if the policyholder recognizes the tourist's claims for damage compensation as justified and the insurer agrees with the recognition of the claims by the policyholder.

If there is a dispute, from the moment the court decision on recognizing the event as an insured event enters into force." Such a proposal should be accepted, since practice shows that insurance companies often abuse their right and unreasonably refuse to give consent to the recognition of the tourist's claims.

A tourist who has received a refund from a travel agent no longer needs to go to court. As a result, the travel agent, having voluntarily reimbursed the damage caused to the tourist, has no grounds for making claims against the insurer (there is no court decision).

The insurer's arguments that the travel services were not provided because the clients did not fly to the host country were correctly recognized by the court as unfounded.

The insurers' objections to the claims and the content of their appeals show that the insurers point out that the tourists, having bought the tour, did not leave for the host country for various reasons, therefore, they did not enter the territory of the contract, they were not provided with a tourist product, they were not provided with tourist services.

In accordance with subparagraph 13) of Article 1 of the Law "On Tourist Activities", tourist services are services necessary to meet the needs of a tourist, provided during his trip and in connection with this trip (accommodation, transportation, meals, excursions, services of tourism instructors, guides (guides), and other services provided by the contract travel services provided depending on the purpose of the trip.

As a rule, it follows from the contracts for tourist services concluded between tourists and travel agents that the list of services provided to the consumer includes, among others, the purchase of air tickets, hotel accommodation, meals, airport–hotel-airport ground transportation, etc.

The consequence of not providing these services is the occurrence of damage to tourists.

Refuting the arguments of the insurer, they correctly indicate that by concluding a contract for tourist services, a person becomes a tourist, regardless of whether he entered the host country or not.

To the person who has made the insurance payment, the right of a reverse claim is transferred within the limits of the amount paid.

In accordance with paragraph 2 of Article 19 of Law No. 513, the insurer who has made the insurance payment is entitled, within the limits of the amount paid, to a counterclaim that the policyholder has against the person responsible for losses reimbursed by the insurer as a result of insurance (subrogation).

Consequently, the travel agent's insurer, who has made the insurance payment, has the right to file a claim against the tour operator, through whose fault the travel agent suffered losses, or against his insurer. But for this, the travel agent must provide his insurer with all the necessary documents, otherwise, by virtue of paragraph 4 of Article 840 of the Civil Code and subparagraph 5) of paragraph 1 of Article 19 of Law No. 513, the insurer will have the right to reverse the claim against the policyholder (travel agent).

Standard Insurance Company JSC filed a lawsuit against C LLP to recover an insurance payment in the amount of 408,854 tenge, stating that the defendant did not provide the plaintiff with the documents necessary to transfer the right of claim to the responsible person, namely: an agency agreement concluded with the tour operator and documents confirming the payment for the services of a tour operator.

By the decision of the Council of Economic and Social Council of Astana dated February 23, 2016, the claim was denied. Canceling the court's decision and satisfying the claims of the insurance company, the appellate instance proceeded from the fact that the defendant had not submitted its obligations to transfer to the plaintiff the documents necessary for the transfer of the claim.

Voluntary property insurance

In accordance with paragraph 6 of Article 806 of the Civil Code, voluntary insurance is insurance carried out by virtue of the will of the parties.

The types, conditions and procedure of voluntary insurance are determined by agreement of the parties.

The terms of the agreement are determined at the discretion of the parties. The insurer is obliged to familiarize the policyholder with the insurance rules and provide a copy of the rules if the insurance contract is concluded in the form of an affiliation agreement with the issuance of an insurance policy for voluntary types of insurance to the policyholder.

By the decision of the Yessil District Court of Astana dated May 24, 2016, M.'s claim against JSC IC Eurasia for recognizing the refusal as illegal and collecting insurance payments was satisfied.

By changing the court's decision and refusing to satisfy the plaintiff's claims, the appellate instance of the Astana City Court correctly motivated its decision by the fact that the plaintiff, having joined the voluntary insurance contract, accepted all its conditions, including the condition that it is not an insured event and insurance payment is not carried out if the car was driven by a person to whom the Policyholder entrusted the management without the consent of the Bank.

Canceling the decision of the Aktobe city Court of July 29, 2016 and satisfying the claim of JSC "B" to JSC "IC Eurasia", the appeals board of the Aktobe Regional Court reasonably assumed that the conditions excluding the occurrence of an insured event due to the transfer of car control to a person without the consent of the Bank were included in an Additional Agreement, with which the policyholder did not has been reviewed, whereas in accordance with Article 828 of the Civil Code, the insurer is required to familiarize the policyholder with the insurance rules and provide a copy of the rules., if the insurance contract is concluded in the form of an affiliation agreement with the issuance of an insurance policy for voluntary types of insurance to the policyholder.

For voluntary types of insurance, the beneficiary is appointed by the policyholder.

As a rule, a voluntary motor transport insurance contract is concluded between an insurance company, hereinafter referred to as the insurer, and a bank, hereinafter referred to as the policyholder.

The beneficiary is the bank, and the insured is the owner of the vehicle.

The object of insurance is the property interests of the policyholder as the mortgagee under the pledge agreement.

The owner of the vehicle purchased with borrowed funds, by submitting an application, joins (as an insured person) to the insurance contract, including indicating that he agrees that the beneficiary of the insurance contract is the Bank. In other cases, the borrower and the owner of the vehicle act as the policyholder and the insured (the person authorized to drive the vehicle), but the beneficiary is specified in the contract by the bank.

In practice, there are situations when an insured event occurs, the car is damaged, but for various reasons the bank does not contact the insurer with a claim for insurance payment.

In this case, the question arises whether the owner can make such a claim to the insurer. There are different approaches to resolving this issue depending on the claims made by the plaintiffs. Sh. appealed to the court with a claim against the bank and the insurer and asked to recover the insurance payment from the defendant – insurer in favor of the defendant – bank.

By the decision of the Ekibastuz City Court of July 16, 2015, Sh.'s claim in this part was satisfied.

By changing the court's decision and rejecting the plaintiff's claim for recovery of insurance payments in favor of the bank, the appeal board of the Pavlodar Regional Court motivated the refusal by the fact that the law does not give the plaintiff the right to file a lawsuit in defense of the rights of another person, the bank.

Rejecting the plaintiff K. In the claim for recovery of insurance payments in her favor from the insurance company, the Aktau city Court No. 2 motivated the decision by the fact that only the beneficiary, the bank, can file such a claim (the decision of March 18, 2015, was left unchanged by the decision of the appellate instance).

This position seems to be correct, since the beneficiary is the recipient of the insurance benefit.

By virtue of paragraph 2 of Article 2 of the Civil Code, citizens and legal entities acquire and exercise their civil rights, and also renounce, unless otherwise established by legislative acts, their rights voluntarily and in their own interest.

Therefore, the court has no right in any way to oblige the bank, against its will, to exercise its right of beneficiary.

In accordance with paragraph 2 of Article 816 of the Civil Code, if the policyholder is not insured, then the beneficiary must be the insured, or he is appointed with the written consent of the insured.

In this case, the policyholder, the bank, is not insured, therefore, the beneficiary could be the insured (borrower, property owner), however, by joining the voluntary insurance contract as an insured, the borrower agrees that the beneficiary under the insurance contract is the Bank.

In this case, the borrower has only the right to file a claim against the harm-doer (if any) for compensation for damage caused to the property.

Regulatory framework

The main regulatory legal acts to be applied in the consideration of cases of the generalized category are:

The Constitution of the Republic of Kazakhstan,

The Civil Code (hereinafter referred to as the Civil Code);

The Civil Procedure Code (hereinafter referred to as the CPC);

The Labor Code (hereinafter referred to as the Labor Code);

Laws of the Republic of Kazakhstan: "On Insurance activities" dated December 18, 2000 No. 126,

"On compulsory social insurance" dated April 25, 2003 No. 405,

"On compulsory insurance of civil liability of private notaries" dated June 11, 2003 No. 435,

"On compulsory insurance of civil liability of audit organizations" dated June 13, 2003 No. 440,

"On compulsory insurance of civil liability of the carrier to passengers" dated July 1, 2003 No. 444,

"On compulsory insurance of civil liability of vehicle owners" dated July 1, 2003 No. 446,

"On compulsory insurance of civil liability of a tour operator and travel agent" dated December 31, 2003 No. 513, "On compulsory insurance in crop production" dated March 10, 2004 No. 533,

"On compulsory insurance of civil liability of owners of facilities whose activities are associated with the risk of harm to third parties" dated July 7, 2004 No. 580,

"On compulsory insurance of an employee against accidents in the performance of his labor (official) duties" dated February 7, 2005 No. 30,

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

and other regulatory legal acts.

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.

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