Recognition of illegal refusal to pay compensation, assignment of the obligation to recalculate and pay a lump sum compensation

On June 1, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the chairman - Judge N.K., judges E., A., with the participation of the plaintiff A.T., her representative – K.K., the representative of the defendant – A.S., having considered in open court using mobile videoconference the civil case on the claim A.T. to the Russian State Institution "Pension Provision Center" on the recognition of the unlawful refusal to pay compensation, the obligation to recalculate and pay a lump sum compensation, received at the request of A.T. on the revision of the decision of the district court dated July 30, 2021, the decision of the judicial board for civil cases dated October 13, 2021, A.T. filed a lawsuit with the RSU "Pension Provision Center" (hereinafter referred to as the Center) with the above requirements.

By the decision of the district court of July 30, 2021, which was left unchanged by the decision of the judicial board for civil cases of October 13, 2021, the claim was dismissed.

In the petition, A.T. asks the judicial acts to be annulled, to make a new decision on the satisfaction of the claim due to violations of substantive law.

In a response to the petition, the representative of the Center, A.S., asks that the contested judicial acts remain unchanged due to their legality and validity.

After hearing the explanations of the plaintiff and her representative in support of the petition, the objections of the defendant's representative, and examining the materials of the civil case, the judicial board of the Supreme Court (hereinafter referred to as the judicial board) comes to the following conclusion.

In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.

Such violations were committed during the consideration of the case.

The court found that A.T. was in a registered marriage with A.S.

By order of the Minister of Defense of the Republic of Kazakhstan dated July 9, 2018, A.S. was discharged from military service in the reserve under subparagraph 4) of paragraph 1 of Article 26 of the Law of the Republic of Kazakhstan "On Military Service and the status of military personnel" (hereinafter referred to as the Law) in connection with the conclusion of the military medical commission on the recognition of unfit for military service with the exclusion from military service accounting for health reasons. On August 12, 2018, A.S. was paid a one-time monetary compensation in connection with an illness sustained during military service and disability in the amount of 9,521,340 tenge.

According to the death certificate, A.S. died on June 10, 2020. The cause of death was a disease – a malignant neoplasm of the main bronchus. According to the certificate of inheritance under the law of December 14, 2020, the heir to A.S.'s property is A.T.'s spouse.

According to the statement of A.T. dated June 17, 2020, the defendant made a one-time payment to the plaintiff for burial in the amount of 1,487,994 tenge.

On December 15, 2020, A.T. applied to the head of the Center for a one-time monetary compensation in connection with the death of her spouse.

By a letter dated January 18, 2021, the defendant refused payment on the grounds that A.S. had previously been paid a one-time monetary compensation for disability, respectively, the illness received during the service, which subsequently led to death, was compensated.  In this regard, the payment of a one-time monetary compensation for death is not allowed under current legislation.

In dismissing the claim, the local courts proceeded from the fact that the defendant's refusal to pay a lump sum compensation to the plaintiff was based on the norms of the law and was legitimate.

The Judicial Board believes that it is impossible to agree with the conclusions of the judicial authorities, since they are based on the incorrect application of substantive law.

In accordance with article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.  

Article 51 of the Law contains provisions on compensation for military personnel in the event of death (death) or injury.

At the same time, paragraph 1 of Article 51 of the Law contains general rules stating that payment of lump-sum compensation in the event of death (death) of a serviceman during his military service, upon establishment of disability or in the event of injury related to the performance of military service duties, is carried out in accordance with the procedure determined by the Government of the Republic of Kazakhstan.

This procedure is defined by the Resolution of the Government of the Republic of Kazakhstan dated August 27, 2013 No. 868.

In accordance with paragraph 2 of Article 51 of the Law (as amended on January 18, 2021), in the event of the death (death) of a serviceman during military service or after discharge from service as a result of injury (injury, injury, contusion) or illness sustained during military service, the heirs of the serviceman are paid a lump sum compensation in the amount of five years of salary for the last position held on the day of death (death).

Paragraph 3 of Article 51 of the Law contains norms on the amount of one-time compensation for the establishment of disability to a contract serviceman during his military service or as a result of injury (injury, injury, contusion), illness resulting from the performance of military service duties, before the expiration of one year from the date of discharge from military service.

Paragraph 6 of article 51 of the Law provides for lump-sum payments for burial and lump-sum benefits to family members of the deceased recipient of pension payments for military service.

At the same time, it does not follow from the literal content of article 51 of the Law that the payment of one-time compensation to the serviceman himself during his lifetime, as well as one-time payments provided for in paragraph 6 of this norm, excludes the possibility of paying compensation to heirs in the event of the death of a serviceman as a result of an illness received during military service.

Therefore, the conclusions of the court of first instance that lump-sum compensation is paid only in one of the cases listed in article 51 of the Law cannot be considered justified.

The defendant's arguments stated in the response to the claim that by paying A.S. a one-time compensation, the illness received during the service, which subsequently led to death, was compensated, are untenable.

Lump-sum payments provided for in paragraphs 2 and 3 of Article 51 of the Law have different purposes. If the payment received by the serviceman himself does, to one degree or another, compensate for the illness he received during his service, then the payment intended for the heirs compensates for the loss of the breadwinner.

In the circumstances described, the judicial board concludes that the plaintiff's claims are justified.

 The Judicial Board also took into account that the Law of the Republic of Kazakhstan dated April 15, 2022 No. 114-VII SAM "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on military service and housing relations of employees of special state bodies and military personnel" introduced amendments and additions to a number of legislative acts.

In particular, paragraph 2 of article 51 of the Law was worded as follows:

"In the event of the death (death) of a serviceman during military service or after discharge from military service due to injury (injury, injury, contusion), illness received during military service, the heirs of the serviceman are paid a one-time monetary compensation in the amount of five years of salary for the last military position held, and the heirs of the serviceman are conscripted military service, cadets and cadets, conscripted, called up for military training – in the amount of 500 monthly calculation indices.

A one-time monetary compensation for the death (death) of a serviceman is paid before the expiration of three years from the date of the event and is carried out independently of the previously paid one-time monetary compensation for disability."

Thus, without substantially changing this provision, the legislator clarified that compensation to the heirs of a serviceman is paid regardless of the previously paid one-time monetary compensation to the serviceman himself on the occasion of disability.  

Since the circumstances of the case were fully and correctly established by the courts of the first and appellate instances, but an error was made in the application of substantive law, the judicial board considers it possible, without transferring the case for a new hearing, canceling the judicial acts that took place in the case, to make a new decision on the satisfaction of the claim.

According to Part 3 of Article 109 of the CPC, if the courts of appeal or cassation instances change what has taken place or make a new decision without referring the case for a new hearing, they accordingly change the distribution of court costs when the party submits evidence of the costs incurred in the relevant courts.

In accordance with paragraph 4 of Article 108 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", the refund of the amount of the state duty to the taxpayer in whose favor the court decision to collect the state duty from the state institution that is a party to the case is made by the tax authority on the basis of the tax application submitted by the taxpayer and the the court's decision entered into force.

Since the defendant is a state institution, the refund to the plaintiff of the state fee paid in the courts of first and cassation instances in the total amount of 2,991 tenge is subject to the rules of the specified norm of the Tax Code.

Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED: The decision of the district court of July 30, 2021, the decision of the judicial board for civil cases of October 13, 2021 in this case to cancel, to make a new decision to satisfy the claim of A.T.

To recognize as illegal the refusal of the Russian State Institution "Pension Provision Center" to pay A.T. a lump sum compensation for the death of a serviceman.

To oblige the Russian State Institution "Pension Provision Center" to calculate and pay A.T. a one-time compensation in the amount of five years of salary for the last military position held by A.S.  

Grant A.T.'s petition.

To make an A.T. refund of the state duty in the amount of 2,991 (two thousand nine hundred and ninety-one) tenge according to the rules of Article 108 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget (Tax Code)".

 

 

 

 

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