Judicial practice on compensation of damages
The judicial board for Civil Cases of the Kostanay Regional Court of the Republic of Kazakhstan, consisting of the presiding judge V.P. Dolgikh, judges of the board G.B. Ismailova and G.V. Zinin, with the participation of plaintiff SHI.I., defendants B.B.S. and B.K.S., having considered in open court in the premises of the regional court in Kostanay, April 24 2019, a civil case on the claim of Sh.I.I. to B.B.S. and B.K.S. for damages received on the appeal of the defendant B.B.S. against the decision of the Zhitikarinsky District Court of Kostanay region dated January 21, 2019. The plaintiff filed a lawsuit against the defendants for damages in the amount of 764,000 tenge, arguing that for many years, by oral agreement, the defendants had been herding the horses of the villagers, including two horses belonging to him. They received 2,000 tenge per head per month for their work. On 24.10.2016, shepherd B.B.S. called and reported the horses missing. Due to the defendants' oversight, 38 heads of horses were missing, including his two heads. I contacted the police, but so far there have been no results in the criminal case. By a court decision, a statement of claim from Sh.I.I. to B.B.S. and B.K.S. on compensation for damages, satisfied. It was decided to collect, jointly and severally with B.B.S. and B.K.S., 764,000 tenge in damages, court costs for conducting an assessment in the amount of 30,000 tenge, payment of legal aid in the amount of 15,000 tenge, refund of state duty in the amount of 7640 tenge, commission fee 300 tenge, total 816,940 (eight hundred sixteen thousand nine hundred forty) tenge. Having disagreed with the court's decision, the defendant filed an appeal, in which he asks to cancel it with a new decision on the refusal to satisfy the plaintiff's claims. The author of the complaint indicates that the second defendant, B.K.S., is an improper defendant because he is not a shepherd. Occasionally, when he's sick, and he's a group 2 invalid, his brother takes over for him. There was no contract between the parties, he did not assume financial responsibility for the safety of the horses, but only grazed them. In addition, the value of the horses is determined by the price of 2018, whereas the horses disappeared in 2016, and the second head was a foal. In a written objection to the appeal, the plaintiff considers the decision to be lawful and justified. Requests that the complaint be dismissed and the court's decision remain unchanged. Having heard the defendants who supported the arguments of the appeal, the plaintiff who objected to the arguments of the defendant's complaint, having studied the materials of the civil case and discussed the arguments of the appeal, the judicial board considers that the appealed decision should be upheld, the appeal dismissed on the following grounds.
In accordance with clause 1, Article 683 of the Civil Code of the Republic of Kazakhstan, under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. The court found that the defendant was grazing horses of residents of the village of Chaikovskoye, Zhitikarinsky district, including two heads belonging to the plaintiff by right of ownership: a red-colored mare born in 2010 and a white-colored foal born in 2016. By oral agreement of the parties, the plaintiff paid for grazing cattle at 2000 tenge per head per month. On the night of 24.10.2016, 38 horses disappeared from the herd, including horses belonging to the plaintiff. The operational search measures carried out by the police did not yield results, the persons responsible for the cattle theft have not been identified, and the proceedings have been suspended. The defendants' arguments that they are not responsible for the safety of horses accepted for grazing were reasonably ignored by the court of first instance, since according to business practices, when accepting cattle for grazing, the shepherd assumes the obligation to preserve the livestock. Thus, the plaintiff suffered harm as a result of improper performance of the duty by the defendants to ensure the safety of horses adopted for grazing, which, according to the requirements of paragraph 1, art.917 of the Civil Code, is subject to compensation by the defendants. However, when determining the value of the missing horses of the plaintiff, the court of first instance did not take into account the age of the horses, which, according to the protocol of interrogation of Sh.I.I. as a victim, were aged at the time of the disappearance – a mare of 7 years, a foal of 10 months. They estimated the cost of the horses at 400,000 tenge. Taken by the court as a basis for determining the value of animals in the Market Value Assessment Report No. 0160 dated 11/13/2018, the value of animals was determined according to their age for 2018, whereas they disappeared in 2016. In addition, the report is based on the market value of animals according to advertisements for the sale of horses throughout the Republic of Kazakhstan. At the same time, the defendants submitted a certificate from the Department of Agriculture of Kostanay region on the average market price of horses in Kostanay region as of January 2016, which shows that the cost of a horse over 3 years old is 290,000 tenge, a foal under 1.5 years old is 95,000 tenge, which the board considers appropriate to the amount of damage caused to the plaintiff. The arguments of the complaint regarding the fact that BC.S. he is an improper defendant, which the board finds untenable, since in the absence of formalized contracts it is not possible to distinguish between the responsibility of the shepherd and the sub-shepherd.
In such circumstances of the case, the appeal is subject to satisfaction in terms of reducing the amount of compensation for damage, and the court's decision is subject to change. Based on the above and guided by paragraph 2, Articles 424, 425, 426, 431 of the CPC of the Republic of Kazakhstan, the Judicial Board for Civil Cases of the Kostanay Regional Court of the Republic of Kazakhstan: To amend the decision of the Zhitikarinsky District Court of the Kostanay region dated January 21, 2019. To partially satisfy the claims of S.I.I. to B.B.S. and B.K.S. for damages. To recover from B.B.S. and B.K.S., jointly and severally, in favor of S.I.I. compensation for damage in the amount of 385,000 tenge and refund of the state duty 3850 tenge, a total of 3880,850 (three hundred eighty-eight thousand eight hundred fifty) tenge. To dismiss the rest of the claim of S. I.I.. Partially satisfy the defendant's appeal. The decision of the judicial board comes into legal force from the moment of its announcement Judicial practice on compensation of damage
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