The unjustified cancellation by the court of cassation of the judicial act of the court of appeal resulted in the release of the harm-doer from property liability.
LLP "P" and LLP "R.E.T." filed claims against LLP "S-2006" for damages in the amount of KZT 428,793 and KZT 1,399,398, respectively, which are combined into one proceeding. The claim was dismissed by the decision of the specialized inter-district Economic Court of Astana dated March 20, 2012. By the decision of the Appellate Judicial Board of the Astana City Court dated May 30, 2012, the court's decision was overturned. A new decision has been made to satisfy the claim. By the decision of the Cassation Judicial Board of the Astana City Court dated July 17, 2012, the decision of the Appellate Judicial Board dated May 30, 2012 was canceled, while the decision of the court of first instance remained in force. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Cassation Judicial Board of the Astana City Court in this case and upheld the decision of the Appellate Judicial Board of the Astana City Court on the following grounds. It follows from the case file that during excavation work carried out by S-2006 LLP using an excavator to lay a water pipeline on November 19, 2011, 3 cables (10 kV) belonging to R.E.T. LLP and P. LLP were damaged. According to this fact, the employees of JSC "A" have drawn up an act of damage to high-voltage electrical networks. During the consideration of the case, the court of first instance concluded that the excavation of the trench for pumping the water supply was carried out with the permission of the authorized body, and the location of electrical cables in the trench area is not indicated in the diagram. The Court of appeal did not agree with the above conclusions of the court of first instance as they did not correspond to the actual circumstances of the case and the applicable norms of the law.
The unjustified cancellation by the court of cassation of the judicial act of the court of appeal resulted in the release of the harm-doer from property liability.
The Court of Appeal concluded that permission to dig a trench for laying a water pipeline was granted to the defendant on the condition that the work would be carried out manually. However, the defendant used an excavator to dig the trench, which damaged high-voltage electrical cables. The Court of cassation, without taking into account the actual circumstances related to the actual method of excavation and violation of the permitted method of their execution, concluded that the defendant was not guilty of damaging electrical cables. At the same time, the court of cassation overturned the decision of the court of appeal and upheld the decision of the court of first instance. The court of the supervisory instance did not agree with the above conclusions and arguments of the court of cassation. According to paragraph 1 of Article 919 of the Civil Code, property damage caused by unlawful actions to the property rights of legal entities is subject to full compensation by the person who caused the damage. As a result of the damage to the electrical cables, the normal production activities of each of the plaintiffs for the manufacture of manufactured products were disrupted. By virtue of paragraph 4 of Article 9 of the Civil Code, a person whose right has been violated may demand full compensation for the losses caused to him. Losses mean not only the actual damage, but also the unrealized income that this person would have received under normal conditions of turnover if his right had not been violated. Each of the plaintiffs provided evidence to substantiate the damage caused to him by the damage to the electrical cables. The defendant did not refute the evidence and arguments of the plaintiffs. In these circumstances, the decision of the court of appeal is lawful and justified, and its cancellation by the court of cassation is contrary to the provisions of Articles 364 and 383-21 of the CPC.
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