The insurer has the right to claim back against the owner of the vehicle, the culprit of the damage caused.
In accordance with paragraph 2 of Article 28 of Law No. 446, if, in the cases listed in paragraph 1 of this Article, the person responsible for the damage caused is the person operating the vehicle by virtue of an employment relationship with its owner or in the presence of its owner without making a written transaction, the insurer has the right to reverse the claim against the owner of the vehicle. The analysis showed that the courts make a mistake in applying this rule and collect the sum insured jointly from both the owner of the vehicle and the person driving the vehicle. Thus, by the decision of the Alatau District Court of Almaty dated July 20, 2016, the claim of JSC "Ts" against S. and M. for the recovery of the amount jointly and severally in the order of the reverse claim was satisfied. It was established in court that S., in the presence of the owner M., was driving a vehicle under the influence of alcohol, for which he was brought to administrative responsibility. In satisfying the plaintiff's claims, the court referred to subparagraph 2) of paragraph 1 of Article 28 of Law No. 446 and paragraph 3 of Article 287 of the Civil Code, according to which, in case of joint obligations of debtors, the creditor has the right to demand performance from all debtors and from any of them individually, both in full and in part of the debt.
However, the court did not take into account that, by virtue of paragraph 1 of Article 287 of the Civil Code, a joint obligation or a joint claim arises if it is provided for by a contract or established by legislative acts, in particular, if the subject of the obligation is indivisible. Law No. 446 does not provide for joint liability of the vehicle owner and the person driving the vehicle. The courts incorrectly collect the insured sum jointly from the policyholder and the insured (the decision of the district court No. 2 of the Auezovsky district of Almaty dated March 15, 2016 on the claim of IC "L" to M. and R., the parties have not appealed; the decision of the Panfilovsky District Court of July 14, 2016 on the claim of JSC "S" against K. and S. was left unchanged by the decision of the appellate instance of the Almaty Regional Court of September 8, 2016). There is no provision for joint liability of the owner of the vehicle and the person who owns it on another legal basis (lease agreement, power of attorney), as well as joint liability of the insurer and the policyholder (decision of the Taraz City Court of September 7, 2015 on the claim). to JSC "N" and A. on the joint recovery of material damage. The error was corrected by the court of appeal). The Almaty City Court correctly drew attention to the error made by the city courts when, satisfying the insurer's claim to the policyholder to recover the amount in the order of the reverse claim, the courts, in addition to paragraph 1 of Article 28 of Law No. 446, simultaneously make reference to Article 840 of the Civil Code. The opposite examples of simultaneous application of Article 28 of the Law during subrogation (Article 840 of the Civil Code) have already been analyzed above, which generally indicates ignorance or misunderstanding by judges of these provisions of the law.
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