The purpose of compulsory liability insurance for vehicle owners
In accordance with paragraph 1 of Article 4 of the Law of the Republic of Kazakhstan "On Compulsory Insurance of Civil Liability of vehicle Owners", the purpose of compulsory liability insurance for vehicle owners is to ensure the protection of the property interests of third parties, whose life, health and (or) property has been damaged as a result of the operation of vehicles, through insurance payments.
According to paragraph 1 of Article 7 of the said Law, the operation of a vehicle in the absence of its owner's compulsory liability insurance contract for the owner of vehicles is not allowed.
A victim of an accident who has suffered harm to life and health is entitled to receive insurance benefits if the person's civil liability is insured by an insurance company. The amount of damage caused to the life and health of the victim is determined on the basis of documents issued by the relevant organizations.
Article 25 of the aforementioned Law establishes that the following documents serve as documents confirming the harm caused to the life or health of the victim:
- certificate of the health organization on the period of temporary disability of the victim – in case of the fact of harm to the life and health of the victim;
- a certificate from a specialized institution confirming the disability of the victim, if any;
- a notarized copy of the victim's death certificate – in case of death of the victim.
According to Article 24 of the above-mentioned Law, the maximum amount of liability of an insurer for one insured event (insurance amount) is (in monthly terms) for damage caused to the life and health of each victim and resulting in injury, injury or other damage to health without disability, in the amount of the actual costs of outpatient and (or) inpatient treatment, but not more than 300 MPG. The amount of the insurance payment for each day of inpatient treatment should be at least 10 MCI.
It should be noted that the MCI is used for the amount of insurance payment, established in accordance with the legislative acts of the Republic of Kazakhstan on the day of insurance payment, and not on the day of injury to health.
The decision of the Kokshetau City Court of the Akmola region dated June 16, 2015 partially satisfied the claims of B.A.S., acting in the interests of the minor Serik Nurdana Askarkyzy to K.I. Ktov, JSC "BTA Insurance" for the recovery of material damage and moral damage. It follows from the case file that on 17.01.2015, Kozhakhmetov K.I., driving a Lada 21703 g/n 072 BDA 03 car in Kokshetau, violated Traffic Rules, namely, by starting traffic at an enabling traffic light, hit a minor named N.A., who was crossing the roadway at a forbidding traffic light. she had a traffic light signal, and without taking possible measures to provide pre-medical care, he did not deliver her to a medical facility, delivering her to her place of residence.
In connection with the above, K-tov K.I. was brought to administrative responsibility by the decree of the deputy platoon commander of the BDP district of Zh.D. dated January 23, 2015, under art. 611 Part 1 of the Criminal Code of the Russian Federation, responsibility for the failure of the driver to fulfill the duties provided for by the legislation of the Republic of Kazakhstan in the field of traffic, in connection witha traffic accident in which he is a participant, with the exception of the cases provided for in the second part of this article. The resolution has entered into legal force, the administrative fine of K.I. has been paid.
According to the conclusion of the forensic medical examination No. 18 dated January 28, 2014, the following injuries were found in S.K. N.A.: a closed craniocerebral injury in the form of a concussion, an abrasion of the left half of the face. These injuries could have been caused by the action (sliding or friction, impact) of a solid blunt object, which is not excluded in an accident and is classified as causing minor harm to health. According to an extract from the hospital patient's medical record, S-k N. She was hospitalized from January 17 to January 22, 2015 with a diagnosis of closed craniocerebral injury and concussion.
According to the insurance policy of OGPO Avto No. 372089 dated 04/17/2014, the civil liability of the defendant K.I. is insured in JSC BTA Insurance, the term of the contract is from 04/18/2014 to 04/17/2015. The court has reliably established that the insurance payment was not made.
In this regard, the court satisfied the plaintiff's claims to recover 99,100 tenge from the insurance company for five days of inpatient treatment, which is 10 MCI for each day of inpatient treatment.
The plaintiff's claims for recovery of moral damage were partially satisfied and compensation for moral damage in the amount of 70,000 tenge was collected from the defendant K.I.
However, it is not uncommon for the perpetrator of an accident to have an expired insurance policy (a contract of compulsory liability insurance for vehicle owners), or it does not exist at all. In such cases, the provisions of the Civil Code, namely the provisions of Article 917 of the Civil Code, should be applied. (General grounds for liability for harm)
If the person responsible for the accident refuses to voluntarily and fully compensate for the damage caused as a result of the accident, such damage is recovered in court.
By the decision of the Aktobe city Court dated February 11, 2014, the claims of A.V.R. against M.M.M. for compensation of material and moral damage were partially satisfied. It follows from the case file that M.M. had previously been deprived of the right to drive vehicles for a period of 2 years by a decision of the specialized administrative court dated February 13, 2013, and his civil liability was not insured.
A victim who has suffered harm to life and health, in accordance with Article 937 of the Civil Code, is also entitled to compensation for lost earnings, which he had or definitely could have had. At the same time, it should be borne in mind that the lost earnings include all types of remuneration under employment contracts, both at the place of main work and part-time, subject to individual income tax; income from entrepreneurial activity in the presence of a supporting document from the tax administration.
When determining lost earnings, disability benefits awarded to the victim due to injury or other damage to health, other types of benefits awarded both before and after injury, as well as pension payments, are not counted as compensation.
It should also be taken into account that lump-sum payments such as compensation for unused vacation and severance pay are not taken into account. At the same time, the allowance paid during the period of temporary disability is subject to offset.
By the decision of the Appeal Court of the Karaganda Regional Court dated June 11, 2015, the decision of the district court No.2 Kazybekbiysky district of Karaganda dated 28.01.2015 on the claim of A-yuk B.B. to Digicomm-Kazakhstan LLP for compensation of material damage and moral damage in connection with damage to health.
According to the case file, on December 25, 2012, Anton S.H., driving a Toyota Prado R742244 motor vehicle owned by Digicomm-Kazakhstan LLP, collided with a Volkswagen Passat M607LCN car driven by A-suk B.B. As a result of a traffic accident, the plaintiff was hospitalized with a diagnosis of an accident. Combined injury. HMMT. Concussion of the brain. Closed splinter fracture c/Z-n/3 of the left femur with displacement. Bruised laceration of the left knee joint. The condition after PHO. Multiple bruises of the scalp. A-k B.B was in inpatient treatment from 12/25/12 to 05/17/2013. He was in inpatient and outpatient treatment. After the operation and further VTEK A-k, B.B. was diagnosed with a second disability group. After the re-examination of A-k B.B, the 3rd disability group was established. He is recognized as needing sanatorium treatment.
By court verdict No. 1-66 dated September 24, 2014. The defendant, Ab-ov S.X, was found guilty of committing an accident.
Between Agrofirma Kurma LLP and A-k B.B. at the time of the accident, an employment contract was concluded dated 12/01/12 with a salary of 45,000 tenge + 15,000 tenge surcharge each month, as well as a contract for the provision of motor transport services dated 09/20/12, according to which payment for the provision of transport services was made in accordance with the tariff at the rate of 5,399 tenge per day. The financial earnings lost by the plaintiff due to injury to health as a result of an accident per month amounts to 178,778 tenge. Therefore, the compensation for wages for the five months from 12/25/12 to 05/17/13, which is He was on sick leave, it is 893,890 tenge (178,778 x 5).
Compensation for damage related to the establishment of 2 non-working disability groups with 80% loss of professional ability for 12 months from 05/17/2013 to 05/17/2014 amounts to 2,145,336 tenge (178,778 x 12). Compensation for damage related to the establishment of 3 disability groups with a loss of professional disability of 59% for the 12 months from 05/17/2014 to 05/17/2015 amounts to KZT 1,265,748 (KZT 2,145,336 x 59%). The cost of sanatorium treatment is 450,000 tenge. In addition, the plaintiff suffered moral harm (physical and moral suffering due to damage to health), which the plaintiff estimates at 4,000,000 tenge.
Requests to recover jointly and severally from the defendants A-va S.H. and Digikomm-Kazakhstan LLP the lost earnings for 5 months in the amount of 893,890 tenge, compensation for damage related to disability and loss of earnings when establishing disability group 2 in the amount of 2,145,336 tenge, compensation for damage related to disability and loss of earnings when establishment of 3 disability groups in the amount of 1,265,748 tenge, compensation for moral damage in the amount of 4,000,000 tenge; sanatorium treatment in the amount of 450,000 tenge.
The claim was partially satisfied by the decision of the district court. Compensation for material damage of 2,272,405 tenge, compensation for moral damage of 500,000 tenge, as well as a state duty in the amount of 23,650 tenge was collected from Digicomm-Kazakhstan LLP in favor of A-uk B.B., the rest of the claim was denied. The claim of A-k B.B. to Abulkhanov S.H. for compensation of material damage and moral damage due to damage to health was denied in full.
By changing the decision of the court of first instance, the court of appeal stated the following.
According to the explanatory note of Agrofirma Kurma LLP dated 28.01.2015, it follows that the monthly salary of A-k B.B. is vet.an expert doctor of finished products- as of December 01, 2012, it was 45,000 tenge- salary + 15,000 tenge- allowance, only 60,000 tenge. The allowance is calculated monthly and in full if the employee has worked a full month, according to the working time balance and time table. If an employee is on vacation or on sick leave, the allowance is calculated in proportion to the time worked.
It follows from the above that the surcharge of 15,000 tenge is not a one-time payment, but a permanent one and is not an incentive payment.
According to Article 126 of the Labor Code of the Republic of Kazakhstan, an employee's work is paid on a time basis, piecework and other wage systems.
The Court of Appeal agreed with the plaintiff's argument that the surcharge refers to the wording of the above-mentioned article as another method of remuneration.
Due to the fact that the calculation by the court of first instance was made without taking into account the above-mentioned allowance, the amount of lost earnings should be recalculated taking into account the allowance, the calculation is: 651 788 tenge.- the plaintiff's lost earnings for the period of temporary disability + 1,716 240 tenge.- the amount of lost earnings to be reimbursed when the plaintiff is 2 disability groups with loss of professional disability of 80% + 1,265,727 tenge - the amount of lost earnings to be reimbursed when the plaintiff is identified as having 3 disability groups with loss of professional disability of 59% = 3,633,755 tenge.
Regarding the conclusions of the court of first instance that an insurance payment in the amount of 1,111,200 tenge should be calculated from the amount of lost earnings, it does not comply with current legislation, since in accordance with paragraph 2 of Article 10 of the Law of the Republic of Kazakhstan "On Compulsory Insurance of Civil- legal liability of vehicle owners", the contract of compulsory liability insurance of vehicle owners provides for insurance payments for obligations incurred as a result of harm to the life, health and (or) property of the victim, with the exception of compensation for moral damage and lost profits of the victim, including loss of the marketable value of the property, as well as compensation for penalties in connection with the violation of the victim terms of delivery of goods or performance of works (rendering of services), and his other obligations under contracts (agreements).
Based on the meaning of this article, the insurance payment for damage to the insured's health does not include payments for lost earnings, lost profits, lost income, etc., It is an insurance payment paid to the beneficiary regardless of other amounts owed to him in connection with the damage to health.
In the above circumstances, the court of appeal concluded to increase the amount to be recovered from the defendant Digicomm- Kazakhstan LLP in favor of the plaintiff to 1,361,350 tenge, calculation: amount of lost earnings 3,633,755 tenge – 2,272,405 tenge amount recovered by the court), as well as in accordance with art.110 part 3 The CPC will increase the amount of the state fee collected from the defendant to the state revenue to 12,688 tenge.
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