Pre-trial claim in a labor dispute
IN the "ISS" LLP
BIN 130440013993
Almaty, 24/1 Terme street, 3rd floor.
info@mks-logistic.kz
+7 777 555 03 35; +7 701 777 73 63.
from the employee: Dr. Bekaevna
IIN 740429402376
Almaty region, Enbekshikazakh district, K...2 street.
+7 705 .....
Representative by proxy:
Kenesbek Islam Mukhameduly
Member of the Chamber of Legal
consultants "Justus"
IIN 970103300774
79 Abylai Khan Ave., office 304, Almaty.
islam.ala.1@mail.ru
+7 (702) 3.....
PRE-TRIAL CLAIM
On September 1, 2021, an employment contract 123-21 was signed between you and employee Dr. Bekaevna.
On April 10, 2024, an accident occurred with an employee of Dr. Bekaevna at the workplace, namely, on the territory of the employer of MKS LLP in a finished goods warehouse, the driver of an electric loader (kara) From ...to B., while performing his duties, driving in reverse, hit the warehouse manager of D-E.B., who suffered bodily injuries (the degree of harm to her health, established as a result of a forensic medical examination, was classified as moderate damage).
On May 22, 2024, after the formation of the Accident Investigation Commission, the employer of MKS LLP issued Act No. 1 on labor-related accidents. According to the act of special investigation dated 05/21/2024, the commission appointed by Order No. 37 dated 04/22/2024 the head of the KSU "Department of Labor Inspection of Almaty", the cause of the accident was:
- unsatisfactory organization of work by the head of the MKS LLP warehouse, V.E. Novolodskoy, expressed in the failure to provide safe working conditions for warehouse workers, namely, not applying road markings to ensure the movement of pedestrians and technological vehicles in safe conditions. Violated the requirements of clause 4 of Article 184 of the Labor Contract of the Republic of Kazakhstan and clause 2.21. clause 2.2 of the Job Description of the warehouse manager, approved by the Director of MKS LLP dated 04.01.2023.
The driver of the forklift, Seitkenov B., violated the requirements of clause 3.8, Safety Instructions No. 1 for the loader driver, approved by the head of MKS LLP dated 07.07.2023. exactly:
- during operation, the loader driver is obliged to carefully monitor the actions and locations of the workers in the loader area, give an audible signal and make sure that the workers heard it and reacted, If pedestrians do not leave the road, stop the loader.
Failure to conduct training, instruction, and knowledge testing on occupational safety and health issues with Dr. E.B. Ayazbaev A.A., a biotech engineer, which is a violation of clause 2, clause 2, Article 182 of the Labor Code of the Republic of Kazakhstan, which stipulates that the employer is required to conduct training, instruction, and knowledge testing of employees on occupational safety and health issues, as well as provide documents on the safe conduct of the production process and work at their own expense.
Conclusions of the commission on the connection of the accident with the proceedings on persons who committed violations of labor legislation.: the commission, having examined the scene of the accident, having carefully studied the regulatory documents, having studied the explanatory notes of the representatives of the ISS, this accident with Dr. E.B. is considered to be related to work, with the registration of an accident certificate and registration with the ISS. The degree of the employer's guilt is 100%, the degree of the employee's guilt is 0%.
On May 20, 2024, you issued an order for compensation for damage to the health of the injured Dr. E.B., on the basis of which you paid Dr. E.B. an amount of 500,000 tenge.
According to paragraph 1, Article 937 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), expenses caused by damage to health (for treatment, additional nutrition, purchase of medicines, prosthetics, outside care, sanatorium treatment, purchase of special vehicles, preparation for another profession, and others) are reimbursed by the employer who caused harm to the employee's health., within the limits established by the Labor Code of the Republic of Kazakhstan.
917 of the Civil Code, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
However, taking into account the expenses incurred by Dr. E.B.'s employee for treatment and rehabilitation, this amount is insufficient to cover all costs.
The employee has incurred significant expenses for treatment, rehabilitation and restoration of health. The total amount of expenses amounted to 676,552 tenge, which means a payment of 500,000 tenge. The employee also incurred additional expenses for medicines, sanatorium treatment and rehabilitation, which was also not taken into account when paying compensation.
According to the act of medical and social expertise No. 1240363-2100, the employee was diagnosed with a disability of the third group, with a percentage of loss of general working capacity (GIT) of 50% and a percentage of loss of professional working capacity (UPT) of 55%. These data confirm a significant deterioration in the employee's health, which directly affects her ability to work and requires prolonged treatment and rehabilitation.
In addition, due to the injury, the employee cannot find a job, which is a direct result of his deteriorating health. This not only led to financial losses, but also caused significant moral suffering. The employee continues to receive treatment, which has an impact on her mental and emotional state.
Taking into account the above, on the basis of Article 937 of the Civil Code of the Republic of Kazakhstan, we require the employer of MKS LLP to reimburse the full amount of expenses incurred by the employee. The employee demands payment of additional compensation in the amount of 2,000,000 tenge for disability, moral damage and additional medical expenses.
If proper compensation is not provided within 10 (ten) business days of receiving this claim, we will be forced to file a claim with the court for full damages and compensation for all costs and legal expenses incurred by the employee.
In accordance with Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.
152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and preserved.
Application:
· Power of attorney from Dr. E.B.;
· Transfer of trust to Kenesbek I.M.;
· udv Kenesbek I.M.;
· Payment receipts for 47 art .;
· Medical and social Expertise Act No. 1240363-2100;
·
With respect,
Representative by proxy: Kenesbek I.M.
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