On judicial practice in disputes arising from insurance contracts
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8.
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Based on the results of the generalization and in order to ensure the uniformity of judicial practice in the application by courts of legislation regulating relations in the field of insurance, as well as taking into account issues arising from the courts when considering this category of cases, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
The legislation on these legal relations is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 126–II "On Insurance Activities", dated July 1, 2003 No. 446-II "On Compulsory Insurance of civil Liability of Vehicle Owners" (hereinafter – The Law on Liability Insurance of Vehicle Owners), dated December 31, 2003 No. 513 "On compulsory insurance of tourists", dated February 7, 2005 No. 30-III "On compulsory insurance of employees against accidents in the performance of their labor (official) duties" (hereinafter – the Law on Employee Insurance against Accidents), 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 – Rules for determining the amount of harm) and other regulatory legal acts.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication).
Cases of this category are considered according to the general rules of territorial jurisdiction - 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.
A claim for recovery of an insurance payment under an insurance contract may be filed at the plaintiff's place of residence or at the defendant's location. The concept of "place of residence" means that this provision refers to the plaintiff, an individual, therefore, plaintiffs, legal entities, file a claim in the general order – at the location of the defendant.
The rates of state duty for cases of this category are determined in accordance with Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)". Property-related claims include claims for the recovery of insurance payments, including by way of subrogation or by way of reverse claim, for the recovery of penalties, and others. Non-property claims include claims to appeal the insurer's refusal to make an insurance payment, to recognize the occurrence of an insured event, to invalidate an insurance contract, and others.
Exemption from payment of state duty in accordance with subparagraph 19) of Article 616 of the Tax Code is provided only for policyholders and insurers for claims arising from compulsory insurance contracts.
The expression "on claims" contained in this provision means that policyholders and insurers are exempt from paying state fees, regardless of whether they act as plaintiffs or defendants in the process.
However, beneficiaries do not benefit from this benefit. Therefore, if a beneficiary who is not an insured person files a claim against the insurer for recovery of an insurance payment under a 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 the state fee on the grounds provided for in Article 616 of the Tax Code.
In this case, the court costs between the parties are distributed according to the general rules prescribed in Article 109 of the CPC. If the decision on the beneficiary's claim against the insurer under the compulsory insurance contract was made in favor of the beneficiary, the court shall recover in his favor from the insurer compensation for all incurred court costs, including state fees.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).
The general limitation period of three years applies to claims arising from insurance contracts. This period is calculated from the moment when the beneficiary or the policyholder (insured) became aware of the violation of his rights – making a decision to refuse to make insurance payments or reduce its amount, and if no decision has been made – from the end of the period established by law or contract for insurance payments. In order to file a claim of the insurer against the policyholder in the order of the reverse claim, the three-year period is calculated from the moment of insurance payment.
A change of persons in a subrogation obligation in accordance with Article 181 of the Civil Code does not entail a change in the statute of limitations and the procedure for calculating it, therefore, the debtor may declare the omission of this period in the same way as if the old one had acted instead of the new creditor. The limitation period for the insurer, when suing the causer of harm by way of subrogation, is calculated from the moment the insured event occurs, and not from the moment the insurance payment is made. If there is a dispute related to the identification of the harm-causing entity, the limitation period is calculated from the date of entry into force of the judicial act that defines this entity.
A harm-doer is understood to be a person who has caused harm, or a person who, although not the direct cause of harm, is charged with the obligation to compensate for harm by legislative acts.
Upon the occurrence of an insured event, the beneficiary has the right to file a claim for the insurance payment provided for in the insurance contract directly to the insurer. Paragraph 8 of Article 816 of the Civil Code provides for such a right, but not the obligation of the victim, who can present his claims directly to the harm-doer (policyholder).
At the same time, when filing such a claim, the court should, on its own initiative, involve the insurer in the case as a third party who does not make independent claims on the subject of the dispute, since in the future the person responsible for the damage and who insured his liability will have the right to file a claim against the insurer.
When preparing a case for trial on a dispute arising from a voluntary property insurance contract, it is necessary to find out whether there is a causer of harm to the insured property and involve him in the case as a third party, since the court's decision to recover insurance payments under the property insurance contract entitles the insurer to sue the causer of harm by way of subrogation. (Article 840 of the Civil Code).
The grounds on which the insurer has the right to refuse to make insurance payments in whole or in part are provided for in Article 839 of the Civil Code, as well as the norms of laws governing certain types of compulsory insurance. The parties to the voluntary insurance contract may provide other grounds for exempting the insurer from making insurance payments. At the same time, other grounds specified in the voluntary insurance contract for refusal to make insurance payments that are not provided for in Article 839 of the Civil Code and do not contradict paragraph 6 thereof cannot be regarded as conditions that worsen the situation of the policyholder (insured), since by virtue of paragraph 6 of Article 806 of the Civil Code, the insurance conditions at the conclusion of the contract are determined by agreement of the parties on the basis of their expressions of will.
The intentional actions indicated in subparagraph 1) of paragraph 1 of Article 839 of the Civil Code of the Russian Federation aimed at the occurrence of an insured event are those actions committed by the policyholder (insured, beneficiary) due to the intent to cause an insured event or to create conditions for its occurrence in order to receive insurance benefits. The policyholder must be proven to have such intent. By virtue of paragraph 6 of Article 22 of the Law on Liability Insurance of Vehicle Owners, intentional creation of conditions for the occurrence of an insured event, as well as other fraudulent actions aimed at illegally obtaining insurance benefits, entail liability in accordance with the Criminal Code of the Republic of Kazakhstan.
The ground for refusal to make insurance payments in accordance with subparagraph 2) of paragraph 1 of Article 839 of the Civil Code is the commission by the policyholder (insured, beneficiary) of not any criminal or administrative offenses, but only committed intentionally and causally related to the insured event.
If the insured event occurred due to the fault of the person whose liability is insured under the civil liability insurance contract, the insurer is not exempt from making insurance payments regardless of the form of fault. In this case, the insurer who has made the insurance payment has the right to claim back against the policyholder within the amount paid (subparagraph 1) of paragraph 1 of Article 28 of the Law on Liability Insurance of Vehicle Owners).
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication).
Failure to notify the insurer or untimely notification of the occurrence of an insured event gives him the right to refuse insurance payment with reference to paragraph 3 of Article 835, subparagraph 5) of paragraph 4 of Article 839 of the Civil Code, unless it is proved that the insurer learned about the occurrence of the insured event in a timely manner or the absence of information from the insurer about this could not affect his obligations to make an insurance payment.
In particular, the insurer's obligation to make an insurance payment may be affected by the lack of necessary information due to the policyholder's violation of the time limits for notifying the insurer of the occurrence of an insured event.
Timely notification to the insurer of the occurrence of an insured event provides him with the opportunity to participate in the investigation of the circumstances of the occurrence of an insured event, organize the prompt collection and recording of data necessary, in particular, to: establish the presence or absence of an insured event; determine the amount of losses incurred by the policyholder; take measures to reduce losses from the insured event; possible subsequent recourse to reinsurance companies.
The burden of proving that the absence of information about the occurrence of an insured event could not affect the insurer's obligation to pay compensation or that the insurer received the information necessary for the insurance payment in a timely manner lies with the person who submitted the claim for payment.
An event considered as an insured event must have all the features listed in paragraph 3 of Article 817 of the Civil Code.
When concluding an insurance contract, the policyholder is obliged to inform the insurer of circumstances known to the policyholder that are essential for determining the probability of an insured event and the amount of possible losses from its occurrence (about the health status of the insured during life and health insurance, about the technical condition of the property during insurance, etc.), if these circumstances are not known and should not be known to the insurer (paragraph 1 of Article 832 of the Civil Code).
The policyholder's communication to the insurer of deliberately false information about the object of insurance, the insured risk, the insured event and its consequences is one of the grounds for the insurer's refusal to make insurance payments (subparagraph 1) of paragraph 4 of Article 839 of the Civil Code).
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication).
The policyholder's waiver of his right of claim against the person responsible for the occurrence of the insured event, refusal to transfer to the insurer the documents necessary for the transfer of the right of claim to the insurer, as well as receipt by the policyholder of appropriate compensation for property insurance losses from the person responsible for causing the loss, are independent grounds for refusal to make insurance payments. If such a payment has been made, the insurer has the right to demand from the policyholder a refund of the overpaid amount (paragraph 4 of Article 840 of the Civil Code), namely, the refund of the insurance indemnity in whole or in part.
Subrogation is the transfer to the insurer who made the insurance payment of the right of claim that the policyholder (beneficiary) has against the person responsible for losses compensated as a result of insurance. Subrogation is possible only under property insurance contracts (Article 840 of the Civil Code).
Subrogation is not a type of recourse claim. In case of regression, a new obligation arises, whereas in case of subrogation there is a change of person (creditor) in the existing obligation.
In accordance with Article 933 of the Civil Code, a person who has compensated for damage caused by another person has the right to claim (recourse) against this person in the amount of the compensation paid, unless another amount is established by legislative acts. For example, an employer, taking into account the provisions of Article 921 of the Civil Code, compensates for the damage caused by his employee in the performance of his work duties, after which the employer can file a claim to the contrary against his employee, and their relationship will already be regulated by labor law. 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.
By making an insurance payment, the insurer does not compensate for the damage caused by the harm, the law does not impose such an obligation on him, he fulfills his obligations under the insurance contract, after which the rights of the creditor in the existing obligation between the policyholder (beneficiary) and the person who caused the harm pass to him.
The right of retrogression (recourse) in insurance may arise only between the insurer and the policyholder. This right is exercised by the insurer in accordance with the procedure and on the terms stipulated by the legislative acts regulating the relevant class of compulsory insurance, or by a voluntary insurance contract. For example, article 28 of the Law on Liability Insurance of Vehicle Owners contains a list of cases when the insurer who has made the insurance payment has the right to claim back against the policyholder (insured).
The right of claim transferred by way of subrogation is carried out in compliance with the same rules as the right of claim of the original creditor in this obligation. Accordingly, the insurer, when submitting a claim transferred to it by way of subrogation to the person who caused the losses, is obliged to be guided by those regulatory acts that regulate the relations existing between the policyholder (beneficiary) and the causer of the losses. 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.
The civil liability of a person driving a vehicle by virtue of an employment relationship with the owner of the vehicle or in his presence is not subject to compulsory insurance, therefore, in the event of an insured event, an insurance contract concluded between the owner of the vehicle and the insurer is valid.
If, in this case, the insurer has the right to claim back against the policyholder, provided for in paragraph 1 of Article 28 of the Law on Liability Insurance of Vehicle Owners, the insurer shall make such a claim against the owner of the vehicle, and not against the person driving it.
In order to determine the person responsible for causing damage as a result of the impact of the vehicle, it should be established who was the owner of this vehicle at the time of the traffic accident (hereinafter referred to as the accident), and whether his liability was insured.
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.
Joint liability of owners of sources of increased danger is provided by law only in case of harm to third parties as a result of the interaction of these sources (paragraph 2 of Article 931 of the Civil Code).
If management of a source of increased danger is transferred to another person without registration of such a transfer, for example, another person drives a car in the presence and with the consent of its owner, the owner, from whose possession the source of increased danger has not left, bears direct responsibility to the victim.
The joint liability of the owner of the vehicle and the person owning the vehicle does not occur without the presence of the owner on another legal basis provided for in Article 931 of the Civil Code (lease agreement, power of attorney). This person will be independently responsible to the victim for the damage caused by the vehicle.
A person who does not have the right to drive a vehicle specified in subparagraph 3) of paragraph 1 of Article 28 of the Law on Liability Insurance of Vehicle Owners should be recognized as a person who does not have a driver's license or the appropriate category, that is, a person who, at the time of the accident, lacks the necessary knowledge and skills in the scope of standard driver training programs. vehicles of the appropriate category, they have not passed the exams in accordance with the established procedure, they are deprived of the right to drive a vehicle by a court decision that has entered into legal force., or the driver's license expired before the date of the accident.
Evidence that the insured event occurred as a result of technical malfunctions of the vehicle, which the policyholder (insured) knew or should have known about, is provided to the court by the insurer. The expression "should have known" means that the malfunction was obvious, such that the driver or the owner of the vehicle could identify during a visual inspection of the vehicle before departure.
In particular, it is important for the driver to drive (or be allowed to do so by another owner) a vehicle that is obviously technically defective, for example, a vehicle with an inactive service brake system or steering, other malfunctions, and under conditions where the Rules of the Road and the Basic Provisions for the Admission of Vehicles to Operation (approved by a decree of the Government of the Republic of Kazakhstan dated November 13, 2014 No. 1196) the operation of vehicles is prohibited., and which the driver or the owner of the vehicle is able to identify before driving without contacting specialists.
Under a personal life insurance contract, the object of insurance is the life and health of the insured, therefore, the death of the insured as an insured event is covered by the insurance contract.
Under the compulsory civil liability insurance contract, the object of insurance is not the life and health of the insured, but 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 the life, health and property of third parties.
Accordingly, to make an insurance payment (in the amount provided for in article 24 of the Law on Liability Insurance of Vehicle Owners), the mere fact of death as a result of exposure to a source of increased danger is not enough; it is necessary to establish whether there are circumstances on the basis of which the culprit is obliged to compensate for the damage caused by the death of the victim.
The beneficiary under the contract of compulsory insurance of civil liability of vehicle owners 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 in connection with the death of the victim.
The list of persons entitled to compensation for damage in connection with the death of the beneficiary, and therefore to the insurance payment provided for in the insurance contract, is provided for in Article 940 of the Civil Code. No insurance payment is made to family members or heirs of the insured who do not belong to the specified list.
At the same time, persons who, although not beneficiaries, carried out the burial of the victim, by virtue of paragraph 6 of Article 24 of the Law on Liability Insurance of Vehicle Owners, are entitled to compensation from the insurer for burial costs in the amount of one hundred monthly calculation indices (hereinafter – MCI). At the same time, there is no need to provide the insurer with documents confirming the costs of the victim's burial.
The amount of damage caused to a vehicle is determined by the insurer in accordance with the Rules for Determining the Amount of Damage within ten working days on the basis of an application for determining the amount of damage caused to property.
The victim (beneficiary), whose vehicle has been damaged, from the date on which he or the policyholder (insured) submits an application for determining the amount of damage caused to the property, retains the damaged property in the condition in which it came as a result of a traffic accident, and provides an opportunity for the insurer to inspect the damaged property.
And only if the insurer does not calculate the amount of damage within the prescribed period, the victim (beneficiary) has the right to independently apply to the services of an assessment organization and begin restoration work (disposal) of the damaged vehicle. In this case, the results of the assessment organization's determination of the amount of damage caused to the vehicle are accepted by the insurer for insurance payments.
According to paragraph 11 of the Rules for determining the amount of Harm, the victim (beneficiary) or their representative, within three working days from the date of receipt of the report on the amount of harm, makes a note in it of agreement or disagreement with the results of the calculation of the amount of harm.
In case of disagreement with the result of the amount of damage determined by the insurer, the victim (beneficiary) has the right to challenge it in court by filing a separate claim for invalidation of the results of the damage assessment, or during consideration of claims for recovery of insurance benefits. In the event of such a dispute, in order to exclude the unjustified appointment of a judicial examination, the court verifies the insurer's compliance with the requirements contained in the Rules for Determining the Amount of Damage, and, if necessary, engages a specialist in the case.
Insurance amount 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.
The obligation of a person who has insured his liability to compensate the difference between the insured amount and the actual amount of damage in accordance with Article 924 of the Civil Code arises only if the insured amount is insufficient to fully compensate for the damage caused.
In accordance with article 24 of the Law on Liability Insurance of Vehicle Owners, the maximum amount of liability of an insurer for one insured event for damage caused to the victim's property is determined within the amount of damage caused, but not more than six hundred MCI. In this regard, Article 924 of the Civil Code applies if the amount of damage caused to property exceeds six hundred MCI. At the same time, determining the actual amount of damage, taking into account the wear and tear of the car, meets the requirements of Article 9 of the Civil Code and allows the victim to restore his violated right in full by restoring the property to its former state, and at the same time excludes the possibility of unjustified enrichment on his part.
The insurer's right to the insured property (or its remnants) in the event that it makes an insurance payment in the amount of its market value on the day of the insured event occurs only with the complete loss of this property, when its restoration is technically impossible or economically impractical.
Insured event under an employee's compulsory accident insurance contract – this is an accident that occurred to an employee in the performance of his 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 the establishment of the degree of professional disability, occupational disease or death, under the circumstances provided for in Article 16-1 of the Law on Employee Accident Insurance.
The insurance payment is made by the insurer who has concluded a contract of compulsory insurance of the employee against accidents, during which the accident occurred.
The moment of occurrence of an accident is determined: upon death or establishment of the degree of professional disability to an employee as a result of an occupational injury, by the date of the accident specified in the accident report; upon establishment of the degree of professional disability to an employee as a result of the identification of an occupational disease, by the date of the conclusion of a healthcare organization providing specialized medical and expert assistance in the field of occupational pathology.
The establishment of the fact of an accident related to work 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 make insurance payments in the absence of grounds provided for by law or contract to release him from fulfilling such an obligation.
The amount of damage related to the loss of earnings (income) due to the establishment of the degree of professional disability or death of an employee, according to Article 19 of the Law on Employee Accident Insurance, is determined by the insurer in accordance with the requirements of the Civil Code. The insurance payment implies compensation for lost earnings and reimbursement of additional expenses caused by damage to health.
The penalty provided for in subparagraph 9) of paragraph 2 of Article 9 of the Law on Employee Accident Insurance in the amount of 1.5 percent of the unpaid amount for each day of delay is collected only for late payment of monthly insurance payments due to the employee as compensation for damage related to the loss of earnings (income) by the employee (paragraph 1 of Article 19 of the above-mentioned Law).
Since the first 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 less than one year is carried out by the insurer within seven working days from the date of submission of the documents provided for in paragraph 2 of Article 20 of the Law on Employee Accident Insurance, the number of The days of delay are calculated after the expiration of the specified seven-day period.
Regarding the insurance payment due as compensation for damage related to the loss of earnings (income) by an employee due to the establishment of the degree of professional disability for one year or more, one should proceed from the terms of the annuity agreement, including the date of the first insurance payment determined by the parties.
The insurer is liable in accordance with Article 353 of the Civil Code for the late payment of insurance payments to reimburse additional expenses caused by damage to health provided for in paragraph 2 of Article 19 of the Law on Employee Accident Insurance. In this case, when determining the number of days overdue, it should also be assumed that the insurance payment must be made by the insurer within seven working days from the date of submission by the employee or the person who incurred these expenses, documents confirming these expenses.
In accordance with the amendments made to the Law on Employee Accident Insurance by the Law of the Republic of Kazakhstan dated April 27, 2015 No. 311-V "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Insurance and Islamic Finance", entered into force on May 10, 2015 (hereinafter - Law No. 311-V of April 27, 2015), compensation for damage related to the loss of earnings (income) by an employee due to the establishment of a degree of professional disability from five to twenty-nine percent inclusive, is entrusted to the employer.
In compensation for the specified damage in case of loss of professional working capacity from thirty to one hundred percent inclusive, the insurance payment due to the employee is carried out by the insurer.
Article 938 of the Civil Code defines that the average monthly earnings (income) are calculated by dividing by twelve the total amount of earnings (income) for the twelve months of work preceding the damage to health or the onset of disability.
A limit has been set for the insurer on the amount of the average monthly earnings (income) taken into account for calculating the lost earnings (income) to be reimbursed. This maximum amount, in accordance with article 19 of the Law on Employee Accident Insurance, 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. Therefore, if the actual amount of damage caused to an employee exceeds the insurance payment determined by the insurer, the difference in accordance with article 122 of the Labor Code is reimbursed by the employer.
In accordance with paragraph 1 of Article 19 of the Law on Employee Accident Insurance, the period of annuity payments is limited to the moment when the employee reaches retirement age, established by the legislation of the Republic of Kazakhstan on pension provision.
Reimbursement of additional expenses caused by damage to an employee's health in the event that the degree of professional disability is established in accordance with paragraph 2 of Article 19 of the Law on Employee Accident Insurance is carried out by the insurer on the basis of documents confirming these expenses submitted by the employee or the person who incurred these expenses. At the same time, expenses that are included in the guaranteed amount of free medical care in accordance with the legislation of the Republic of Kazakhstan in the field of healthcare are not reimbursed by the insurer.
Taking into account the procedure defined by paragraph 5 of Article 2 of the Law of April 27, 2015 No. 311-V for the application of its norms over time and in the event that the degree of professional disability was first established for the employee or he underwent a re-examination after May 10, 2015, the Law on Employee Accident Insurance as amended will apply to the legal relations of the parties. effective on May 10, 2015, regardless of the terms of the current insurance contract (paragraph 2 of Article 383 of the Civil Code).
The rule contained in subparagraph 5) of paragraph 3 of Article 77 of the Constitution does not apply to this case, since, according to the explanations contained in the Resolution of the Constitutional Council of the Republic of Kazakhstan dated March 10, 1999 No. 2/2 "On the official interpretation of paragraphs 1 and 2 of Article 14, paragraph 2 of Article 24, subparagraph 5) paragraph 3 of Article 77 of the Constitution of the Republic Kazakhstan", in accordance with the specified constitutional norm, 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.
If a dispute arises over the issue of taking into account the employee's guilt when determining the amount of damage related to the loss of earnings (income) due to the determination of the degree of loss of professional ability by the employee, it is necessary to follow paragraph 2 of Article 935 of the Civil Code, which prescribes a reduction in the amount of compensation depending on the degree of guilt of the victim and the causer of harm. In this case, only the gross negligence of the employee is taken into account, the presence of which should be reflected in the accident report.
When reimbursing additional expenses, compensation for damage to persons who suffered damage as a result of the death of a citizen, as well as when reimbursing funeral expenses, the guilt of the victim is not taken into account.
With the entry into force on February 20, 2010 of the relevant provisions of the Law dated December 30, 2009 No. 234-IV "On amendments and additions to certain legislative acts of the Republic of Kazakhstan on compulsory and mutual insurance, taxation", the object of insurance under the Law on Insurance of an employee against accidents is the property interest of an employee whose life and health damage was caused as a result of an accident, that is, insurance for the facility began to relate to personal insurance, for which subrogation does not apply.
Therefore, taking into account the exclusion of article 21 from the Law on Employee Accident Insurance, which provided for subrogation, and by virtue of the hierarchy of regulatory legal acts established by Articles 10, 12 of the Law of the Republic of Kazakhstan dated April 6, 2016 No. 480-V "On Legal Acts", insurers' statements about their right to the contrary should be considered unlawful. requirements with reference to subparagraph 8) of paragraph 1 of Article 9 of the Law on Employee Accident Insurance, as contrary to Article 840 of the Civil Code.
Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication).31. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication). 32. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication). 33. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 09/29/2022 No. 8 (effective from the date of the first official publication).
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.
If the voluntary insurance contract is concluded in the form of an affiliation agreement with the issuance of an insurance policy to the policyholder, the insurer is obliged to familiarize the policyholder with the insurance rules and provide a copy of the rules (subparagraph 1-1) of paragraph 1 of Article 828 of the Civil Code).
If the insurer has not provided proof that the policyholder was familiar with the insurance rules, all disagreements should be interpreted in favor of the policyholder.
When interpreting the terms of a voluntary insurance contract, the requirements of Article 392 of the Civil Code should be followed.
For voluntary types of insurance, the beneficiary is appointed by the policyholder. If the policyholder is not insured, then the beneficiary must be the insured, or he is appointed with the written consent of the insured.
If, under the contract of voluntary insurance of collateral, the bank is appointed as the beneficiary, and the borrower, being the insured, has expressed written consent to this condition, he is not entitled, upon the occurrence of an insured event, to make a claim for insurance payment in his favor or in favor of the beneficiary – the bank. This right belongs only to the bank, as the beneficiary. If the bank, as the beneficiary, does not declare such claims, the borrower remains entitled to file a claim for compensation for damage caused to property against the harm-doer, if any. In addition, the insured is not deprived of the right to appeal the insurer's refusal to make insurance payments.
If the bank, as the beneficiary, cedes its right to claim insurance payments to the insured, the insured must provide written confirmation of this.
A person who, in accordance with a voluntary insurance contract, is allowed to drive a vehicle is subject to the insurance rules as an insured person, therefore, the insurer who has made the insurance payment is not entitled, by way of subrogation (Article 840 of the Civil Code), to demand recovery of the paid insurance amount from this person.
The spouses' ownership of property subject to voluntary insurance does not mean that the spouse of the insured person is also recognized as insured, unless this is specified in the insurance contract.
According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
K. Mamie
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
K. Shaukharov
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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