Reimbursement of expenses caused by damage to health by a person who has insured his liability by way of voluntary or compulsory insurance is possible only if the insured amount is insufficient to fully compensate for the damage caused and in the form of a difference between the insured amount and the actual amount of damage.

 

Plaintiff K-yekova S.A. appealed to the Zhezkazgan City Court of the Karaganda region to the defendant Kazakhmys Corporation LLP with a claim for recovery of additional costs for examination, treatment and transportation to the place of treatment incurred as a result of labor injury. The claims are motivated by the fact that on January 27, 2013, she was returning from a business trip by train in a compartment car, when trying to climb to the top shelf, due to the lack of proper handrails, she fell from a height and injured her right shoulder, and therefore had to seek medical services and bear the costs of restoring her health, however the employer does not want to voluntarily compensate her for the damage. She requested to collect additional expenses for examination, treatment and transportation to the place of treatment incurred as a result of a labor injury in the amount of 319,298 tenge.

By the decision of the Zhezkazgan City Court of the Karaganda region dated February 02, 2015, the claim was partially satisfied, it was decided to recover from Kazakhmys Corporation LLP in favor of K-kova S.A. expenses caused by health damage totaling 30,813 tenge and a state duty to the state revenue in the amount of 308 tenge.

In the appeal, Kazakhmys Corporation LLP asked the court to cancel the decision and dismiss the claim, stating that, in accordance with the requirements of the law, it fulfills its obligations related to compensation for damage caused to the plaintiff's health in a timely manner. The plaintiff receives payments related to the reimbursement of lost earnings on a regular monthly basis. K-kova S.A. was paid a one-time insurance payment in the amount of 2,596,500 tenge for the purpose of compensating for expenses caused by damage to health, that is, for the purchase of medicines, sanatorium treatment, etc. The plaintiff did not provide evidence that she had spent the entire insurance amount for the specified purposes.

The appeal board of the Karaganda Regional Court disagreed with the conclusions of the court of first instance and pointed out that, according to the circumstances of the case, on January 27, 2013, Kova S.A., following a business trip by train on the message "Karaganda-Zhezkazgan", while in compartment car No. 7 and while climbing to the top shelf, she fell and was injured in the form of closed spiral fracture of the n/a diaphysis of the right shoulder with displacement.

The conclusions of the Karaganda Department of ITU dated September 25, 2013 and March 05, 2014 by K-ekova S.A. for the first time established the II disability group with the loss of professional working capacity of 70 percent, subsequently established the III disability group with the loss of professional working capacity of 50 percent.

As a result of her labor injury, K-bekova S.A. applied for medical services in the form of consultations, examinations, treatment, purchased medicines and special equipment, used transport to travel to the place of treatment, for which she spent 319,298 tenge, which she requested to recover from the defendant as additional expenses to compensate for harm to health.

In satisfying the claim regarding the recovery of additional costs, the court, with reference to paragraph 1 of Article 937 of the Civil Code and paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated July 09, 1999 "On certain issues of application by courts of the Republic of Kazakhstan of legislation on compensation for damage caused to health," indicated that if a citizen is injured or otherwise injured, compensation for the earnings (income) lost by the victim, which he had or could not have had, as well as expenses caused by damage to health (for treatment, additional nutrition, purchase of medicines, prosthetics, outside care) are subject to, sanatorium treatment, purchase of special vehicles, preparation for another profession, etc.); these expenses are subject to compensation if the conclusion of the medical and social expert commission recognizes that the victim needs these types of assistance and care and does not receive them for free.

According to the conclusion of the ITU, Kova S.A. needed additional types of assistance in the form of sanatorium treatment, additional types of assistance, inpatient treatment according to indications, which, according to the court, taking into account proven documents in the amount of 30,813 tenge, was the basis for satisfying the claim. The appeals board did not agree with the court's conclusions.

In accordance with the provisions of the Labor Code (paragraph 12 of Article 317), the employer is obliged to insure his liability for harm to the life and health of the employee in the performance of work duties.

Employer's liability insurance for harm to the health and life of an employee in the performance of their work duties is regulated by the Law of the Republic of Kazakhstan dated February 7, 2005 No. 30 "On Compulsory Insurance of Civil Liability of an Employer for Harm to the life and health of an employee in the Performance of his work (official) duties" (hereinafter referred to as the Law), which provides for the employer's obligation to conclude the contract of compulsory insurance of employees against accidents with the insurer.

According to Article 6 of the Law, the purpose of compulsory accident insurance for employees is to ensure the protection of the property interests of employees whose lives and health have been harmed in the performance of their work (official) duties by making insurance payments.

Compulsory insurance of an employee against accidents is carried out on the basis of a contract concluded between the policyholder and the insurer in accordance with this Law and the Civil Code of the Republic of Kazakhstan in favor of an employee whose life and health may be harmed in the performance of his labor (official) duties (art. 11 of the Law)

The corresponding contract of compulsory insurance of an employee against accidents in the performance of his labor (official) duties No. D1324-190923-001124 dated 02/25/13 was concluded by the employer with JSC BTA Bank's Subsidiary Life Insurance Company BTA Life, under which K-ekova S.A. made a one-time insurance payment in the amount of 2,596,500 tenge, as confirmed by the payment order dated November 15, 2013.

The specified insurance payment was made by virtue of the requirements of paragraph 2 of Article 19 of the Law, which imposed on insurance organizations the obligation to make insurance payments to reimburse expenses caused by damage to the employee's health in the event of establishing the degree of professional disability using the MCI for the relevant financial year, established by the law on the republican budget.

From this it can be concluded that the lump sum payment provided for in paragraph 2 of Article 19 of the Law should be understood as a payment made to reimburse 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, etc. etc.), which corresponds to the provisions of paragraph 1 of art.937 of the Civil Code

At the same time, the court of first instance did not take into account that, according to art.924 of the Civil Code, reimbursement of expenses caused by damage to health by a person who insured his liability by way of voluntary or compulsory insurance is possible only if the insured amount is insufficient to fully compensate for the damage caused and in the form of the difference between the insured amount and the actual amount of damage. No such circumstances have been established in the case, and the plaintiff has not provided evidence of non-coverage of the expenses incurred by the insurance payment. There is an obvious misuse of substantive law

According to subclause 1) of art.365 of the CPC, the norms of substantive law are considered violated or incorrectly applied if the court has not applied the law to be applied.

The failure of the court of first instance to apply the provisions of paragraph 2 of Article 19 of the Law "On Compulsory Insurance of an employee against accidents in the performance of his labor (official) duties" to these disputed legal relations indicates the incorrect application of material norms, entailing a change in the court decision.

Based on the above, the court's decision regarding the satisfaction of the plaintiff's claim in the amount of 30,813 tenge by the appeals board was changed with the refusal to satisfy the claim.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases