Moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals experienced by the victim as a result of an offense committed against him

The plaintiffs filed a lawsuit against RSE "K" for compensation for moral damage caused to them as a result of the death of S.'s father, who died at work. The claims were motivated by the fact that on February 07, 2012, during snow removal work at a railway crossing in the village of Karaulkeldy, Bayganinsky district, a Mangystau–Aktobe train collided with a tractor, in the cab of which there was a worker from the Aktobe branch of the RSE "K" S., as a result of which he died. According to Act N-1 of the special investigation of a group accident dated February 09-22, 2012, the fault of the employer is 80%, and the employee is 20%. Due to the death of their father, they suffered moral suffering, and therefore they asked to recover compensation for moral damage from the defendant in the total amount of 15,000,000 tenge, 5,000,000 tenge each. The lawsuit was partially satisfied by the decision of the Aktobe City Court dated November 30, 2012. Recovered from the RSE "K" in favor of the plaintiffs for compensation of moral damage in the amount of 150,000 tenge each, reimbursement of expenses for the assistance of a representative in the amount of 45,000 tenge and state duty in the amount of 809 tenge in solidarity.,

Moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals experienced by the victim as a result of an offense committed against him

The rest of the claim was denied. By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Aktobe Regional Court dated January 22, 2013, the court's decision remained unchanged. By the decision of the Cassation judicial board of the Aktobe Regional Court dated February 27, 2013, the decision of the appeals board remained unchanged. In the petition, the representative of the RSE "K" O. Requests to cancel the judicial acts that took place in the case as illegal and unfounded, and to make a new decision to dismiss the claim of E-x, since he believes that the plaintiffs do not have the right to demand compensation for moral damage, since only the person against whom the offense was committed has such a right. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Aktobe City Court, the decisions of the appellate and cassation judicial boards of the Aktobe Regional Court in this case and decided: E-x's claim to the RSE "K" for compensation for moral damage and recovery of court costs was refused, stating the following. From the case file, as mentioned above, it follows that during the work of clearing a railway crossing from a snow drift, a train collided with a tractor, resulting in the death of S., 80% of the fault of the employer. The courts, based on the provisions of Article 951 of the Civil Code, the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated June 21, 2001 "On the application by courts of legislation on compensation for moral damage", concluded that the plaintiffs, who are the daughters of the deceased, have the right to demand compensation for moral damage from his employer, as from a person responsible for his death.  At the same time, according to paragraph 1 of Article 164 of the Labor Code of the Republic of Kazakhstan, if harm is caused to the life and (or) health of an employee in connection with the performance of his labor duties, the employer is obliged to compensate for the damage to the extent provided for by the civil legislation of the Republic of Kazakhstan. In accordance with Article 940 of the Civil Code, disabled persons who are dependent on the deceased or who have the right to receive maintenance from him on the day of his death are also entitled to this compensation. According to Article 941 of the Civil Code, these persons are compensated for harm in the proportion of the deceased's earnings (income), calculated according to the rules of Article 938 of the Civil Code, which they received or had the right to receive for their maintenance during his lifetime. In this regard, the panel found the defendant's arguments well-founded that, since the death of S. related to the performance of work duties, the plaintiffs, if there are grounds, may be subjects of property damage claims in the form of a lost share of the deceased's earnings, which they received or had the right to receive for their maintenance during his lifetime. 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 experienced by the victim as a result of an offense committed against him. It follows from the meaning of this rule that individuals who have personally suffered from an offense committed against them have the right to claim compensation for moral damage.

Paragraph 3 of the above-mentioned normative resolution of the Supreme Court clarifies that personal non-property rights and benefits, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits belonging to a citizen from birth or by virtue of law rights that are inextricably linked to his personality. In this case, S. died from an industrial accident, he was deprived of his life, which was his personal birthright. Under these circumstances, the board considered that the claims of the plaintiffs – the daughters of the deceased S. claims for compensation for moral damage are unfounded, not based on the norm of substantive law. In the aggregate, the judicial acts that took place in the case are subject to cancellation with the adoption of a new decision to dismiss the claim, since an error was made in the application and interpretation of substantive law. 

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