Lawyer Lawyer in civil cases, the subject of compensation for moral damage may be any person who has suffered suffering and other violations of personal non-property rights and benefits.
C. She filed a lawsuit to recover 15,000,000 tenge from JSC National Company K for compensation of moral damage. The claims are motivated by the fact that the plaintiff's son, E., has been working as an electrician in EC-22 at Shu station since 2008. On June 22, 2013, an accident occurred during the work, as a result of which E. was fatally injured. The degree of guilt of the employer is 80%, the employee is 20%. By the decision of the Shuisky District Court of the Zhambyl region of December 5, 2013, Ts.'s claims were denied. By the decision of the appellate and cassation judicial boards of the Zhambyl Regional Court, the decision of the court of first instance remained unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court quashed the contested judicial acts and issued a new decision on partial satisfaction of Ts's claims. Recovered from JSC "National Company "K" - Shuya power supply distance EC-22 art. Compensation for moral damage in the amount of 1,500,000 tenge, court costs for the payment of the state fee in the amount of 866 tenge. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied on the following grounds. The plaintiff's son Ts. – E., born in 1986, worked as an electrician in the branch of JSC "National Company "K" - Shu power supply line EC-22 station Shu. According to the order of the director of the enterprise No. 325 dated June 21, 2013, the days off on June 22, 23, 2013 were declared working days due to the need for urgent work to repair damage to the KL-10 kv cable line. On June 22, 2013, a team of workers led by senior electrician Sh., including the plaintiff's son Ye., began work on restoring the damaged line.
During operation, at the moment of connecting the three-core cables, E. was fatally injured by the induced voltage. On June 24, 2013, the commission for the special investigation of the accident decided that it was related to production. It should be noted that in this case, three different conclusions were drawn up by specialists with the establishment of different degrees of guilt of the employer and the deceased employee, in particular: - according to the act of special investigation dated July 4, 2013, the employer's guilt was determined at 10%, the employee's – 90 %; - On November 21, 2013, according to the results of a repeated special investigation of the accident, the degree of fault of the employer was 80%, the employee – 20%; Bulletin of the Supreme Court of the Republic of Kazakhstan No. 8/2015 24 - according to the act of January 17, 2014, the degree of fault of the employer and the deceased was determined by 50%. By the decision of the Yessil District Court of Astana dated November 11, 2014, the last conclusion of the Chief State Labor Inspector dated December 25, 2013 was declared illegal and canceled.
When considering and resolving this dispute arising from an employment relationship, the court of first instance and the judicial boards of the regional court misinterpreted the norms of substantive law governing legal relations related to compensation for moral damage. As mentioned above, according to the results of the investigations conducted in connection with the death of the plaintiff's son, the fault of the employer was determined at 80%, the fault of the employee – 20%. The case materials established that the head of the work team, Sh. did not check the performance of work by a member of the E. team. According to the safety regulations for the operation of electrical installations of consumers, approved by the Decree of the Government of the Republic of Kazakhstan No. 1509 dated November 29, 2012, checking the reliability of the fastening was the responsibility of the head of the brigade Sh. If the mounting was unreliable, the latter had to fix the portable grounding in another convenient place that would not interfere with the work. The conclusion of the forensic medical examination of the corpse dated June 23, 2013 established that Ts.'s death was caused by electrical trauma. The claim of the deceased employee's mother for compensation for moral damage caused by the employer's failure to comply with labor legislation is legitimate. According to paragraph 1 of Article 12 of the Constitution of the Republic of Kazakhstan, human rights and freedoms are recognized and guaranteed in the Republic of Kazakhstan in accordance with the Constitution. In accordance with paragraph 1 of Article 951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering experienced by the victim as a result of an offense committed against him. It follows from the disposition of this article that the subject of compensation for moral damage can be any person who has suffered suffering and other violations of personal non-property rights and benefits. Paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of legislation on compensation for moral damage" No. 3 dated June 21, 2001 (with amendments and additions dated March 20, 2003 and December 30, 2011) clarifies that moral suffering as an emotional and volitional experience of a person should be understood as experiencing they experience feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, and discomfort. As a result of non–compliance with safety regulations and the requirements of labor legislation, the plaintiff's son, a member of her family, who lived with his parents, died. The death of her son is an irreparable loss for the mother, as a result of which she has experienced and continues to experience deep physical, moral and psychological suffering. The legal positions of the court of first instance and the judicial boards of the regional court that E. died as a result of the defendant's unlawful actions, and he was deprived of his personal non-property, Bulletin of the Supreme Court of the Republic of Kazakhstan No. 8/2015 25. – as life, and compensation for moral damage in monetary terms is subject to recovery in his favor as an individual whose personal non-property rights have been violated, and in relation to the plaintiff in this case, the mother of the deceased, the defendant has not committed any illegal actions, are erroneous and do not follow from the requirements of the legislative acts that were mentioned above..
When considering this case, the courts did not distinguish property damage from non-property damage and mistakenly explained the plaintiff's right to claim the lost share of the deceased's salary. Payments by the defendant of the costs of burying the employee, as well as the costs of conducting memorial events, do not prevent the appeal to the judicial authorities with claims for compensation for moral damage. The evidence gathered in the case indicates that, along with the negligence on the part of the deceased employee, the accident occurred as a result of unsatisfactory organization of work, non-compliance with safety regulations, lack of safe working conditions, violation of labor and industrial discipline, and failure to control the work of members of the electrician's team.
The parents of the deceased E., in their statements addressed to the defendant and law enforcement agencies, indicated that the signature in the order "On the performance of official duties on weekends" No. 325 dated June 21, 2013 did not belong to their son. In fact, the conclusion of the forensic handwriting examination No. 958 dated June 6, 2014 established that the signature in the specified document on behalf of E. was made not by E. himself, but by another person imitating the signature of the latter. Given that the circumstances of the dispute in the case have been fully established and there is no need to collect additional evidence, the supervisory board considers it possible to make a new decision on the case. When determining the amount of compensation for moral damage, it is necessary to take into account the degree of kinship between the plaintiff and the deceased, the nature of the damage, the circumstances in which the accident occurred, the repeated appeals of the deceased's parents to various authorities and law enforcement agencies for a long time, as well as the degree of the employer's guilt in not creating safe working conditions.
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