Unjustified joint recovery of damage from the owner of the source of increased danger and the harm-doer, incorrect identification of the IPO owner
H.M. filed a lawsuit against the culprit of the accident, K.B., and the owner of the car, A.S., for recovery of material damage and moral damage. By the decision of the Karasai district Court of the Almaty region dated May 3, 2023, the claim was partially satisfied, the court decided to recover from K.B., A.Sh. in favor of H.M. jointly and severally material damage in the amount of 3,325,123 tenge.
The court found that the titular owner of the BWM 520 car is A.Sh., who sold the car to K.B., but the transaction is not legally formalized.
It was also established in the case that the accident was caused by K.B., who was driving a BWM 520 car on the basis of an insurance policy issued by JSC "H".
Therefore, in this case, the owner of the car should be recognized as K.B., who operated the IPO on the basis of an insurance policy, therefore, the damage was recoverable only from him. In this regard, by the decision of the judicial board for Civil Cases of the Almaty Regional Court dated July 19, 2023, the court's decision was changed, regarding the recovery of damages in solidarity with A.Sh. it was canceled with the adoption of a new decision to dismiss the claim.
Regarding the recovery from K.B., the decision was upheld. At the same time, the decision of the same court of November 16, 2022 upheld the decision of the Balkhash District Court of the Almaty region of September 1, 2022 on the joint recovery of damages from N.G. and S.E. in favor of K.K. According to the vehicle registration certificate, the plaintiff K.K. is the owner of a Toyota Rav 4 car.
According to the Administrative Police Department of the Almaty region, the Daewoo Nexia car belongs to defendant N.G. On July 9, 2021, due to the fault of defendant S.E., who was driving defendant N.G.'s car, an accident occurred, causing damage to the plaintiff's car and causing material damage.
By the decree of the specialized interdistrict Administrative Court of Almaty dated September 7, 2021, S.E. was brought to administrative responsibility for committing an offense under part 1 of Article 610 of the Administrative Code. At the time of the accident, S.E.'s civil liability was not insured, therefore, N.G. was the owner of the IPO at the time of the accident.
In accordance with Article 287 of the Civil Code, a joint obligation or a joint claim arises if it is stipulated in a contract or established by legislative acts, in particular, if the subject of the obligation is indivisible.
Article 932 of the Civil Code stipulates that persons who have jointly caused harm are jointly and severally liable to the victim. In the cases considered, there is no joint infliction of harm, therefore, the requirement to recover the damage caused and moral damage in solidarity with the harm-doer and the owner of the IPO is not based on the law.
In accordance with article 931, subparagraph 1) Paragraph 3 of Article 951 of the Civil Code, property and non-property damage caused to a person by an IPO is compensated by its owner, regardless of the presence or absence of guilt.
On general grounds, that is, according to the rules of Article 917 of the Civil Code, damage caused as a result of the interaction of sources of increased danger to their owners is compensated (paragraphs 2-5 of paragraph 2 of Article 931 of the Civil Code).
Damage caused to third parties (pedestrians, passengers, etc.) as a result of IPO interaction is compensated jointly with IPO owners.
Jurisdiction of cases
The jurisdiction of cases is determined in accordance with the general rules established by Article 29 of the CPC, that is, at the place of residence of the defendant of an individual or at the location of the defendant of a legal entity.
Along with this, claims for compensation for damage caused by injury or other damage to health, as well as caused by the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of injury (part 5 of Article 30 of the CPC).
State duty
According to paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), a state fee is charged in the following amounts from claims for material damage filed in court: for individuals - 1 percent of the amount of the claim, but not more than 10,000 MCI, for legal entities - 3 a percentage of the claim amount, but not more than 20,000 MCI, from non-property claims - 0.5 MCI.
Plaintiffs in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner, are exempt from paying state duty on the basis of subparagraph 5) of Article 616 of the Tax Code.
The legislation does not provide for pre-trial settlement
Courts should keep in mind that the legislation does not provide for the plaintiff's compliance with the procedure for pre-trial settlement of disputes on compensation for damage caused by a source of increased danger (hereinafter referred to as IPO).
Example: By the ruling of the Alatau District Court of Almaty dated April 5, 2023, the claim of N.D. to K.K. and Zh.E. for recovery of material damage caused by IPO in connection with non-compliance with the procedure for pre-trial settlement of the dispute was dismissed.
In accordance with subparagraph 1) of Article 279 of the CPC RK, the court leaves the claim without consideration if the plaintiff has not complied with the procedure established by law for this category of cases or the procedure provided for in the contract for pre-trial dispute settlement and the possibility of applying this procedure has not been lost.
If the law establishes or the contract provides for a pre-trial dispute settlement procedure for a certain category of cases, an appeal to the court may be made after observing this procedure (part 6 of Article 8 of the CPC RK).
Taking into account these norms, by the ruling of the judicial board for Civil Cases of the Almaty City Court dated May 18, 2023, the ruling of the court of first instance was canceled, with the transfer of the case to the court of first instance for consideration on the merits.
The plaintiffs are citizens and legal entities
In accordance with Part 1 of Article 47 of the CPC RK, plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by this Code.
Determination of the defendant in a claim for damages
When determining the defendant in a claim for damages, it is necessary to check the legal grounds for the defendant's ownership of IPO property.
M.E. filed a lawsuit against B.E., K. for recovery of material damage and monetary compensation for moral damage caused as a result of the accident.
By the decision of the Borodulikhinsky district Court of the Abai region dated January 12, 2023, the claim was partially satisfied, material damage in the amount of 852,459 tenge was recovered from B.E. in favor of M.E., monetary compensation for moral damage in the amount of 1,200,000 tenge.
The court found that the Lada 21713 car belongs to the defendant K.A., the defendant B.E. drove the vehicle on the basis of an insurance policy.
By the verdict of the court No. 2 of the city of Semey, East Kazakhstan region, dated December 21, 2021, B.E. was found guilty of committing a criminal offense under part 2 of Article 345 of the Criminal Code of the Republic of Kazakhstan, which established that B.E., driving a Lada 21713 motor vehicle, made a head-on collision with a Toyota Avensis motor vehicle.
As a result of the accident, M.E. suffered serious harm to her health.
Based on paragraph 1 of Article 931 of the Civil Code of the Republic of Kazakhstan, B.E., who was legally driving the vehicle, was reasonably recognized as the owner of the Lada 21713 vehicle at the time of the accident.
The presence of an insurance policy indicates the insurance of the defendant's GPO as the owner of the vehicle.
Regulatory framework
The normative legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);
- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC);
- The Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Administrative Code);
- The Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code),
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of vehicle owners";
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of the carrier to passengers";
- The Law of the Republic of Kazakhstan "On Road Traffic" dated April 17, 2014;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8 "On Judicial practice in disputes arising from insurance contracts";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 9 "On certain issues of application by courts of the Republic of legislation on compensation for damage caused to health";
- Rules for determining the amount of damage caused to a vehicle, approved by Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016;
- Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No. 534 "On approval of the Rules of the Road, the Basic provisions for the admission of vehicles to operation, the list of operational and special services, the transport of which is subject to equipment with special light and sound signals and coloring according to special color schemes";
- Standard Rules for keeping and walking pets, approved by Order No. 168 of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated May 20, 2022; - Standard Rules for grazing farm Animals, approved by Order No. 145 of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020.
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