The employer is obligated to reimburse the employee for the difference between the insured amount and the actual amount of damage.
Due to the fact that the limit of the average monthly earnings is set for the insurer, which is taken into account for calculating the lost earnings to be reimbursed, the employee does not receive full compensation for damage. For example, if the average earnings of an employee amounted to 430,000 tenge in 2016, the insurance company will take only 228,590 tenge for the calculation (the minimum wage for 2016 is 22,859 x 10). The difference in accordance with Article 122 of the Labor Code (Article 164 of the previously valid Labor Code) must be reimbursed by the employer.
The employee of JSC "A" (hereinafter – JSC "AMT") P. received annuity payments, the amount of these payments since April 1, 2015 amounted to 207,858 tenge. On June 29, 2015, after another re-examination, the plaintiff's degree of UPT was confirmed. On July 10, 2015, an annuity insurance contract was concluded between JSC "N" and the defendant JSC "AMT", the monthly annuity payment was determined at 113,309 tenge, taking into account changes in insurance legislation introduced by Law No. 311-V. Thus, there was a decrease in the amount of monthly insurance payments. The court of first instance, refusing to satisfy the plaintiff's claims, referring to the provisions of paragraph 3 of Article 37 of the Law "On Regulatory Legal Acts", concluded that the application of changes in legislation in the calculation of annuity payments led to a significant deterioration in the financial situation of P. and the latter should challenge the actions of the insurance company for the calculation of annuity payments (court decision No. 2 of the Kazybekbi district of Karaganda dated November 23, 2015). The appeal board of the Karaganda Regional Court did not agree with such conclusions. The re-examination of the plaintiff took place after the introduction of changes in insurance legislation, therefore, these changes were correctly applied when calculating the amount of insurance payment to the plaintiff. According to paragraph 1 of Article 164 of the Labor Code, which was in force during the period of the disputed legal relationship, 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 the damage in full, provided for by the Civil Code. If there are insurance payments, the employer is obliged to reimburse the employee for the difference between the insured amount and the actual amount of damage. In such circumstances, the judicial board reasonably imposed on the employer the obligation to compensate the employee for the difference between the insured amount and the actual amount of damage.
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