Recovery of a one-time insurance payment, expenses for paying for the assistance of a representative, recovery of compensation for moral damage in connection with an industrial injury
An untimely notification by the employer to the Insurance Company about the occurrence of an accident shall entail the employer's liability to the beneficiary on the same terms as the insurance payment should have been made. d. he filed a lawsuit against LLP "R", JSC "Life Insurance Company "N" (hereinafter referred to as the insurance company) for the recovery of a one–time insurance payment in the amount of 2,778,000 tenge, the costs of paying for the assistance of a representative, and the recovery of compensation for moral damage from LLP "R", indicating that he, while working as a driver of "R" LLP, as a result of a traffic accident, he suffered an occupational injury with the loss of 70% of his professional ability to work. By the decision of the Bayzak district Court of the Zhambyl region, D.'s claim was denied. By a decision of the appellate judicial board for civil and administrative cases of the Zhambyl Regional Court, the decision of the court of first instance was changed in terms of rejecting the claim for recovery from the insurance company in favor of D. insurance payments, and a new decision on partial satisfaction of the claim was made in this part. A one-time insurance payment and expenses for the assistance of a representative were collected from the insurance company in favor of D. The rest of the decision of the court of first instance remains unchanged. By the decision of the cassation judicial board of the Zhambyl Regional Court, the decision of the appellate judicial board was changed. In terms of satisfaction of the claim, D. was canceled, in the rest of the decision of the appellate judicial board was left unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the decision of the cassation judicial board of the Zhambyl Regional Court regarding the denial of D.'s claim. to LLP "R", JSC "Life Insurance Company "N" on the recovery of the sum of the lump sum insurance payment and made a new decision in this part by virtue of the following.
The court found that on November 13, 2012, the insurance company and LLP "R" concluded a contract of compulsory insurance of the employee against accidents in the performance of his labor (official) duties. Bulletin of the Supreme Court of the Republic of Kazakhstan No. 6/2015 20 On January 14, 2013, D., working as a driver at R LLP, driving a MAN car, drove into oncoming traffic and collided with a Mazda-626 car. By the decision of the Kordai district Court of the Zhambyl region D. He was found guilty of committing an offence under part 1 of Article 468 of the Code of Administrative Offences. As a result of a traffic accident, D. received a consolidating fracture of the bones of his left shin. According to this fact, the employer has drawn up an act on an industrial accident, where the employer's fault is causing harm to D.'s health. set to 100%. In accordance with subparagraph 4) Paragraph 2 of Article 8 of the Law of the Republic of Kazakhstan "On compulsory insurance of an employee against accidents in the performance of his labor (official) duties" (hereinafter referred to as the Law), the policyholder is obliged to notify the insurer immediately, but no later than three working days, as soon as he becomes aware of the occurrence of an accident. Meanwhile, it is clear from the case file that it is not "R" LLP, but D. I applied to the insurance company with an application for recovery of a lump sum insurance payment as a result of the occurrence of an insured event in the performance of my work (official) duties. The insurance company D. was refused to make insurance payments due to late notification of the occurrence of an accident. The court of First instance, dismissing D.'s claim, concluded that LLP "R" had failed to notify the insurance company in time of the occurrence of the insured event, and therefore the insurance company had reasonably refused to make insurance payments to D.. The appellate judicial board changed the decision of the court of first instance, deciding that the insurance company, on formal grounds, refused to pay the plaintiff insurance and collected from the insurance company in favor of D. a one-time insurance payment and the costs of paying for the assistance of a representative.
The cassation judicial board disagreed with these conclusions of the appellate judicial board and made a new decision to dismiss the claim in the case. The Supervisory Judicial Board pointed out that the conclusions of the lower instances contradict the established circumstances of the case and the norms of substantive law. According to paragraph 1 of Article 835 of the Civil Code, the policyholder, after becoming aware of the occurrence of an insured event, is obliged to immediately notify the insurer or his representative of its occurrence. If the contract or legislative act of the Republic of Kazakhstan on compulsory insurance provides for a period and (or) a method of notification, it must be made within the stipulated period and in the manner specified in the contract or legislative act of the Republic of Kazakhstan. Based on subparagraph 4) of paragraph 5.2 of Article 5 of the Contract and subparagraph 4) of paragraph 2 of Article 8 of the Law, it is stipulated that the policyholder (R LLP) is obliged to notify the insurer immediately, but no later than three working days, as soon as he becomes aware of the occurrence of an accident. By virtue of the requirements of Article 272 of the Civil Code, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law. In accordance with paragraph 2 of Article 284 of the Civil Code, non-fulfillment or improper fulfillment of an obligation by one of the parties releases the other party from fulfilling its obligations when fulfilling mutual obligations and meeting counterclaims. Subparagraph 5) of paragraph 2 of Article 323 of the Labor Code stipulates that the employer immediately informs the insurance company with which the contract for the insurance of an employee against accidents in the performance of his labor (official) duties about an industrial accident, in accordance with the form established by the authorized state body for labor. It is established that "R" LLP has not fulfilled its obligations stipulated by the Agreement. Consequently, the Insurance Company is relieved of its mutual obligations to make insurance payments. At the same time, in accordance with paragraph 3 of Article 835 of the Civil Code, failure to notify the insurer of the occurrence of an insured event grants the Insurance Company the right to refuse to make insurance payments.
According to paragraph 1 of Article 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. By legislative acts, the obligation to compensate for harm may be imposed on a person who is not the causer, and a higher amount of compensation may also be established. In accordance with paragraphs 1, 2 of Article 164 of the Labor Code, if harm is caused to the life 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 Code. The damage is reimbursed by the employer in full if the employee does not have insurance payments. According to subparagraph 3) of paragraph 2 of Article 19 of the Law, the amount of insurance payment for reimbursement of expenses caused by damage to an employee's health in the event of a degree of loss of professional ability is established, with loss of professional ability, from 60 to 89 percent inclusive and amounts to 1,500 monthly calculation indices (hereinafter referred to as MCI). The degree of professional disability by 70% for D. was established in 2013, therefore, the MCI is subject to calculation for 2013, which amounted to 1,731 tenge. In view of the above, the supervisory judicial board partially satisfied D.'s claim against LLP "R", JSC "Life Insurance Company "N" for the recovery of a lump sum insurance payment. Collected from LLP "R" in favor of D. a one-time insurance payment in the amount of 2,596,500 tenge, the cost of paying for the services of a representative in the amount of 77,000 tenge, a total of 2,673,500 tenge.
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