Voluntary insurance

In accordance with paragraph 6 of Article 806 of the Civil Code, voluntary insurance is insurance carried out by virtue of the will of the parties. The types, conditions and procedure of voluntary insurance are determined by agreement of the parties.

With. she filed a lawsuit with JSC IC B to declare illegal the refusal to pay the insured amount and send it in favor of JSC K, to recognize the occurrence of an insured event, arguing that she had concluded voluntary insurance contracts with the defendant, under which the Insured's property interests related to with compensation for the damage caused to his life and health as a result of the accident and the property interests of the Policyholder, related to compensation for losses caused to him as a result of the loss of his last job due to a reduction in the number or staff of employees.

The courts of the Aktobe region reasonably denied the claim, since the controversial case related to the plaintiff's loss of work and earnings due to unlawful conviction and imprisonment is not provided for in the terms of voluntary insurance contracts.

A beneficiary is a person who, in accordance with an insurance contract or legislative acts of the Republic of Kazakhstan, is a recipient of insurance benefits on a voluntary basis appointed by the policyholder. beneficiary M. filed a lawsuit with the court against JSC "IC"J", a third party of JSC "N" for the recovery of insurance payments.

In the case, it was established that a voluntary car insurance contract had been concluded between the insurance company and the plaintiff. The object of insurance under the contract is the property interests of the policyholder related to the ownership, use, and disposal of a motor vehicle as a result of its damage, destruction (death), or loss.

In accordance with paragraph 4 of the Insurance Contract, the beneficiaries of the contract are: DB JSC "S" within the remaining amount of the principal debt under the loan agreement and the plaintiff - over the amount of the remaining principal debt under the loan agreement. On July 29, 2022, an accident occurred, as a result of which the plaintiff's car was damaged.

In satisfying the claim, the inter-district Court for Civil Affairs of the city of Shymkent proceeded from the fact that the defendant had no grounds for release and refusal to pay the insured sum provided for in Article 839 of the Civil Code.

The Judicial Board for Civil Cases of the Shymkent City Court did not agree with such conclusions, the court's decision was overturned, and the claim was denied. At the same time, she correctly motivated the conclusions by the fact that the plaintiff, under the terms of the insurance contract, is the beneficiary of the queue - over the amount of the principal debt under the loan agreement. the second beneficiary of the first stage (within the amount of the principal debt under the loan agreement) is the Bank.

Thus, under the bank loan agreement dated August 27, 2021, concluded between the plaintiff and the Bank, M.'s debt as of the date of filing the claim amounts to 7,611,053.86 tenge. Consequently, the right to file a claim for insurance payment by virtue of the above belongs to the Bank, and to the plaintiff - only if the Bank assigns the right of claim to him.

However, the evidence of the assignment of the right of claim by the plaintiff has not been presented to the court (case no.2a-1558/2023). The Judicial Board for Civil Cases of the Almaty City Court corrected the errors made by the Medeu District Court in the case of S.'s claim against the insurance company for the recovery of insurance benefits in favor of the Bank, and the Bostandyk District Court in the case of B.'s claim against the insurance company for the recovery of insurance benefits. A. appealed to the court with a claim to JSC "IC "X" for invalidation of clause 4 of the policy and recovery of insurance benefits.

In the case, it was established that a voluntary car insurance contract was concluded between the parties. Paragraph 4 of the Policy stipulates that in case of damage to the vehicle, the insurance payment is made in non-cash form, by transfer to the bank account of an authorized Toyota/Lexus dealer in the Republic of Kazakhstan, or to the account of another service station (service station) or another person by agreement of the parties.

In case of complete loss of the vehicle – to the insured or another person by agreement of the parties. Having concluded a voluntary insurance contract on the specified terms, the policyholder – A. thereby agreed that he would become a beneficiary only in the event of complete loss of the vehicle.

The Pavlodar City Court motivated the satisfaction of the claim by the fact that the policyholder and the insured Akimov E.A. are both beneficiaries and therefore paragraph 4 of the Voluntary Insurance Policy violates the above-mentioned legal requirements and is subject to invalidation.

The appellate instance did not agree with such conclusions, canceling the court's decision and rejecting the claim, the board correctly indicated that, in fact, the plaintiff wants to replace the beneficiary after the insured event, whereas in accordance with paragraph 1 of Article 838 of the Civil Code, the policyholder has the right to replace the non-insured beneficiary named in the insurance contract with another person, notifying in writing at the same time, the insurer only does this until the insured event occurs.

In addition, according to paragraph 2 of Article 838 of the Civil Code, the beneficiary cannot be replaced by another person after he has fulfilled certain obligations under the insurance contract arising from his agreement with the policyholder, or has submitted a claim to the insurer for insurance payments.

It has been reliably established that the accident occurred on June 5, 2023, while the application to the insurance company was submitted on June 6, 2023. The claim to the court for recovery of the insurance payment was filed on August 16, 2023, and the application for an increase in claims (including the invalidation of clause 4 of the policy) was filed only on September 26, 2023, that is, after the occurrence of the insured event and after the insurer's claim for insurance payment.

The judicial Board came to the correct conclusion that there are no legal grounds for collecting insurance payments in favor of the plaintiff, since he is not identified by the beneficiary in the insurance contract and the specified issue was not resolved by him before the occurrence of the insured event.

In accordance with Article 815 of the Civil Code, the insured is the person in respect of whom insurance is carried out. Unless otherwise provided by the contract, the policyholder is at the same time insured. R. filed a lawsuit against JSC IC A to declare the refusal to make insurance payments illegal.

The case established that a voluntary vehicle insurance contract had been concluded between the parties. The insured persons are R., J. and, under an additional agreement, H. June 26, 2020 x. the car was sold to unknown persons.

On the same day, at the request of R., this fact was registered in the ERDR under part 1 of Article 389 of the Criminal Code. Upon the plaintiff's appeal to the insurance company upon the loss of the car, he was refused insurance payment on the grounds that the event occurred due to deliberate actions on the part of the insured.

The courts of the West Kazakhstan Region, recognizing the refusal of the insurance company as illegal and satisfying the claim, proceeded from the fact that the insured event had occurred, since, under the Insurance Contract, the insured events are, among other things, illegal actions of third parties in relation to the car.

Canceling judicial acts and rejecting the claim, the Judicial Board for Civil Cases of the Supreme Court indicated that, having established the fact of alienation of H. local courts incorrectly attributed this circumstance to the insured event "illegal actions of third parties in relation to a car", because illegal actions of third parties cannot be recognized as actions of persons who are parties to the insurance contract - the Policyholder, the Insurer, as well as persons in respect of whom insurance is carried out, that is, the Insured.

In this case, the insured person is X. is not a third party . An accident is an event that occurred during the movement of a vehicle on the road and with its participation, resulting in injury to health, death of a person, damage to vehicles, structures, cargo, or other material damage.

U. filed a lawsuit against JSC "IC "E" declaring illegal the refusal to make insurance payments, collecting insurance payments, stating in justification that he had concluded a voluntary insurance contract with the defendant, driving which he hit a road sign, as a result of which the vehicle and the road sign were damaged.

The courts of Kostanay region motivated the refusal to satisfy the claim by the conclusion that U. The offense does not fall under the criteria of an accident with the occurrence of an insured event, since there is no data confirming the infliction of material damage to a third party.

By changing judicial acts and satisfying the plaintiff's claims regarding the recognition of the unlawful refusal of the insurance company to make insurance payments, the judicial board of the Supreme Court pointed out that according to subparagraph 5) of paragraph 1 of the insurance contract, an accident is an event that occurred while driving on the road and with its participation, in which a collision with another vehicle occurred hitting (hitting) moving or stationary objects (structures, obstacles, birds, animals, etc.), overturning, flooding, as well as the fall of an object on it.

In accordance with subparagraph 24) of Article 1 of the Law "On Road Traffic", an accident is an event that occurred during the movement of a vehicle on the road and with its participation, resulting in injury to health, death of a person, damage to vehicles, structures, goods or other material damage.

A similar concept of an accident is contained in subparagraph 29) of paragraph 1 of the Traffic Rules. Given the totality of the circumstances presented, the event that occurred with the plaintiff should be considered an accident.

The terms of voluntary insurance are determined by agreement of the parties. By a decision of the judicial board of the Supreme Court, the decision of the Judicial Board for Civil Cases of the Almaty City Court of November 8, 2023 was annulled, while the decision of the Almaty City Council of July 27, 2023 in the case of the claim of LLP "G" against JSC "IC "A" on recognizing the refusal to make insurance payments illegal and collecting insurance payments remained in force..

In the case, it was established that an insurance contract was concluded between the parties, under which the subject of the contract was the GPO of the Partnership for causing harm to third parties as a result of using the vehicle as a freight forwarder.

When the Partnership provided cargo transportation services, the cargo belonging to "P" LLP burned down.

The insurance company, in response to the policyholder's application, offered to provide a complete list of documents, including a court decision that has entered into force, imposing on the plaintiff the obligation to compensate for the damage. LLP "P" has filed a lawsuit for damages.

The Council of Economic and Social Council of Almaty has approved a mediation agreement, under the terms of which the LLP undertakes to pay damage to LLP "P" in the amount of 39,000,000 tenge by November 30, 2022. The plaintiff sent a full package of documents to the insurance company, and the defendant refused to make the insurance payment. The plaintiff submitted an application to the insurance Ombudsman.

By the decision of the Insurance Ombudsman, the Partnership was denied insurance payments.

The court of Appeal, overturning the decision of the court of first instance and making a new decision in the case to satisfy the claim of the LLP, motivated the conclusions by the fact that on May 4, 2022, the plaintiff notified the defendant of the fact of the fire.

The fact of causing harm, its size and the circumstances of the incident are confirmed by a mediation agreement that has entered into force, the conclusion of a specialist, as well as the response of a government agency.

The Judicial Board of the Supreme Court, canceling the decision of the regional court and upholding the decision of the court of first instance, indicated that in accordance with subparagraph 7.2.10 of paragraph 7.2 of Appendix No. 1 to the insurance contract, the policyholder / insured is obliged not to pay compensation, not to partially or fully recognize the claims for damages made by the beneficiary, and not to accept any direct or indirect obligations to settle such claims without the consent of the insurer.

By concluding a mediation agreement without taking into account the interests of the insurance company, the LLP violated the obligations established by the contract.

An agreement on the settlement of a dispute (conflict) through mediation is a procedural document that indicates the end of the dispute (conflict) settlement procedure between the parties, where one party recognizes the other party's claim.

The conclusions of the judicial board of the regional court that the conclusion of a mediation agreement does not mean recognition of the claim, but indicates that the plaintiff has taken measures to reduce the amount of damage in terms of reimbursement of state fees and other court costs, are incorrect (3gp-97 on March 13, 2024).

On the recovery of the insurance premium in case of early termination of the insurance contract

According to the earlier version of paragraph 2 of Article 842 of the Civil Code, if the policyholder withdraws from the contract (paragraph 2 of Article 841 of this Code), unless this is related to the circumstances specified in paragraphs 1 and 1-1 of Article 841 of this Code, the insurance premium or insurance premiums paid to the insurer are non-refundable, unless the contract provides otherwise.

Law No. 138-VII of July 12, 2022 amended Article 842 of the Civil Code, paragraph 2 was redrafted.

According to the third paragraph of paragraph 2 of Article 842 of the Civil Code in the new edition, if the policyholder of an individual refuses an insurance contract related to the loan agreement due to the fulfillment by him (the borrower) of obligations to the lender under the loan agreement, the insurer is obliged to return to the policyholder-individual the insurance premium (insurance premiums) received (received) minus part of the insurance premiums (insurance premiums) are proportional to the time during which the insurance was valid and the costs associated with the termination of the insurance contract, not exceeding ten percent of the insurance premium (premiums) received (received).

On August 1, 2023, K. signed a contract with MFO O LLP for the provision of a microcredit in the amount of 1,920,000 tenge.

On the same day, the plaintiff entered into a voluntary life insurance contract with JSC "Life Insurance Company "F" for an insured amount of 1,920,000 tenge, valid for three years, from August 01, 2023 to August 01, 2026.

In accordance with the terms of the insurance contract, the insurance premium in the amount of 320,000 tenge was paid by the plaintiff as a one-time payment to the settlement account of the insurance company. On August 31, 2023, the plaintiff prematurely repaid the loan amount, including interest, in the total amount of 1,980,500 tenge, and appealed to the insurer to terminate the insurance contract ahead of schedule and refund the insurance premium.

The plaintiff was denied a refund of the unused part of the insurance premium, due to the fact that she applied for termination of this insurance contract after 14 calendar days.

That is, the defendant referred to the second paragraph of paragraph 2 of Article 842 of the Civil Code, whereas in this case we are talking about the early execution of the loan agreement, where a period of 14 days is not provided.

The courts of the West Kazakhstan region correctly satisfied the claim. No cases have been received from the regions for generalization of other types of insurance.

Insurance is carried out on the basis of an insurance contract.

Under the insurance contract, one party (the policyholder) undertakes to pay the insurance premium, and the other party (the insurer) undertakes, upon the occurrence of an insured event, to make an insurance payment to the policyholder or another person in whose favor the contract was concluded (the beneficiary), within the amount specified in the contract (the insured amount). The forms of insurance are: by

1) according to the degree of commitment - voluntary and compulsory;

2) according to the object of insurance - personal and property;

3) the grounds for making insurance payments are accumulative and non-accumulative.

An analysis of the cases submitted for summary showed that the following types of disputes were considered by the courts of the republic:

- challenging the results of the calculation of the amount of damage caused to the vehicle;

- on the recovery of insurance payments;

- on appealing the insurer's refusal to make an insurance payment;

- recovery of insurance payment from the policyholder by way of recourse (reverse claim);

- recovery of the paid insurance sum from the harm-doer by way of subrogation;

- on the recognition of the insurance contract as invalid;

- on the collection of penalties for late payment of insurance;

- on the recovery of insurance premiums, etc.

Jurisdiction

Cases of this category are considered according to the general rules of jurisdiction established by Chapter 3 of the CPC – at the location of the defendant.

A claim against an insurance company may be filed at the location of the branch or representative office that concluded the insurance contract.

At the same time, there are cases of unjustified return of a claim due to lack of jurisdiction.

Thus, by the definition of the Council of Economic Cooperation of the East Kazakhstan region dated May 17, 2023, the claim of LLP "Z" to JSC "Insurance Company "E" (hereinafter referred to as JSC "IC "E") for the recovery of insurance payments was returned.

The reason for the refund was the lack of jurisdiction of this lawsuit by the Ministry of Economic Cooperation of East Kazakhstan Region, since the defendant is an insurance company located in Almaty.

However, as indicated above, by virtue of Part 3 of Article 30 of the CPC, a claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office.

According to the claim and the documents attached to it, the plaintiff's location is the city of Ust-Kamenogorsk, the traffic accident (hereinafter referred to as the accident) occurred in the city of Ust-Kamenogorsk, and the insured event statement was accepted from the victim by the branch of JSC IC "E" located in the city of U.

This ruling has not been appealed and has entered into force.

In accordance with Part 11 of Article 30 of the CPC, a claim for recovery of an insurance payment under an insurance contract may be filed at the place of residence of the plaintiff or at the location of the defendant.

Paragraph 2 of the Nominative Resolution provides the following explanation: the concept of "place of residence" means that this provision refers to the plaintiff, an individual, therefore, plaintiffs, legal entities, file lawsuits in the general manner – at the location of the defendant.

The analysis showed that there was a misinterpretation of this rule. By the ruling of the Inter-district Court for Civil Cases of the city of Shymkent dated June 13, 2023, the claim of JSC IC N to D. for recovery of the amount by way of recourse was returned with reference to subparagraph 2) of part of Article 152 of the CPC (the defendant does not reside in Shymkent) and with reference to part 11 of Article 30 of the CPC.

It is recommended that the plaintiff, the insurance company, apply to the court at its location in Almaty. The court of appeal upheld the court's ruling, also stating that the plaintiff could apply to the court at his place of residence.

At the same time, the courts did not take into account that part 11 of Article 30 of the CPC gives the right to choose only to plaintiffs - individuals and only upon request for recovery of insurance payments. In this case, the plaintiff is a legal entity that claims otherwise against the policyholder.

By a ruling dated February 27, 2024, the case on the claim of JSC IC E against M. for debt collection to the military court of the Almaty garrison, the Balkhash District Court of the Almaty region did not take into account that the plaintiff's claims did not affect the interests of military service and were not directly related to military service. The ruling has not been appealed.

State duty

The rates of state duty in cases of this category are determined in accordance with Article 610 of the Tax Code.

In accordance with subparagraph 19) of Article 616 of the Tax Code, policyholders and insurers are exempt from paying state duty in courts for claims arising from compulsory insurance contracts.

Thus, the article deals only with compulsory insurance contracts, and only policyholders and insurers are exempt from paying state duty, while beneficiaries do not enjoy such benefits.

Therefore, if the beneficiary files a claim against the insurer for recovery of insurance payments under the compulsory insurance contract, he is obliged to pay the state fee in the amount provided for in Article 610 of the Tax Code (unless he is exempt from paying it for other reasons).

In this case, the distribution of court costs between the parties must be made according to the general rules provided for in Article 109 of the CPC.

That is, if the decision is made in favor of the beneficiary plaintiff, then the court costs, including the state fee paid by him, are to be recovered from the defendant, the insurance company.

Local courts have repeatedly proposed extending the benefits provided for in subparagraph 19) of Article 616 of the Tax Code to beneficiaries (victims).

Such a proposal was sent to Parliament by the Supreme Court based on the results of the generalization in 2017, but was not supported.

Limitation period

Claims for recovery of insurance payments are often referred to as claims for compensation for damage caused to life and health.

And according to subparagraph 3) of Article 187 of the Civil Code, the limitation period does not apply to claims for compensation for damage caused to the life or health of a citizen. At the same time, the legal relations of the parties (the beneficiary and the insurer) arise not from causing harm, but from the insurance contract.

The purpose of insurance is not to compensate for the damage caused, but to protect the property interests of the policyholder (insured, beneficiary), that is, insurance protection, acting on the insurance market in the form of goods (services).

Therefore, the insurance payment cannot act as compensation for damage, which is consistent with the provisions of article 2 of the Law "On Insurance Activities", by virtue of which insurance is a type of entrepreneurial activity.

Consequently, the general limitation period of three years applies to claims arising from insurance contracts. We would like to draw your attention to the following topical issue that occurs in judicial practice: from what point should the three-year limitation period be calculated for filing a claim against an insurance company.

In accordance with paragraph 4 of the Regulatory Resolution, this period is calculated from the moment when the beneficiary or the policyholder (insured) became aware of the violation of his rights – making a decision to refuse to make insurance payments or reduce its amount, and if no decision has been made – from the end of the period established by law or contract for insurance payments..

That is, until the insurance company has accepted the documents on the occurrence of the insured event, has not reviewed them and has not made a decision to refuse to pay compensation for the damage caused, the beneficiary cannot know that his rights will be violated.

In this case, the beginning for calculating the limitation period will be the day when the policyholder received a refusal or a decision to pay compensation, which is not enough to restore the damaged vehicle.

Zh. Born in 2001, she filed a lawsuit against two insurance companies to declare the decision to refuse insurance payments illegal and impose the obligation to make insurance payments.

She motivated her claims by the fact that, being underage, she was injured in an accident that occurred on July 23, 2018.On January 15, 2019, she was diagnosed with a disability. The liability of drivers responsible for accidents is insured by insurance companies.

She applied to insurance companies in February and March 2023 for an insurance payment. By the decision of the District Court No. 2 of the Almaly district of Almaty dated August 14, 2023, which was left unchanged by the decision of the Judicial Board for Civil Cases of the Almaty City Court dated October 30, 2023, the claim was denied due to the omission of the limitation period (more than three years have passed since the date of the insured event).

By the resolution of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated May 22, 2024 (3gp/200), the judicial acts in the case were changed, a new decision was made to satisfy the claim in terms of claims against one of the insurance companies.

At the same time, the board was guided by paragraph 4 of the Regulatory Resolution, indicating that the plaintiff learned about the violation of his right to make a decision to refuse insurance payment in February and March 2023.

The change of persons in the obligation during subrogation in accordance with Article 181 of the Civil Code does not entail a change in the statute of limitations and the procedure for calculating it, therefore, the debtor may declare the omission of this period in the same way as if the old one had acted instead of the new creditor.

The limitation period for the insurer, when suing the causer of harm by way of subrogation, is calculated from the moment the insured event occurs, and not from the moment the insurance payment is made.

If there is a dispute related to the identification of the harm-causing entity, the limitation period is calculated from the date of entry into force of the judicial act that defines this entity.

Judicial acts of the courts of the Karaganda region serve as an example of the correct application of this norm.

On April 20, 2023, Insurance company "X" filed a lawsuit against S. to recover the amount by way of subrogation. The claims are motivated by the fact that a voluntary car insurance contract has been concluded between the plaintiff and P. On January 17, 2020, due to the fault of driver S., an accident was committed, as a result of which damage was caused to P.'s car in the amount of 2,149,095 tenge.

Insurance company "C", where civil liability was insured (hereinafter referred to as GPO) S., a payment in the amount of 1,837,800 tenge was made in favor of the plaintiff.

The remaining unpaid amount amounted to 304,795 tenge, which the plaintiff requested to recover from the defendant by way of subrogation.

By the decision of court No. 2 of the Alikhan Bokeikhan district of the city of Karaganda dated June 26, 2023, left unchanged by the decision of the judicial board of the Karaganda Regional Court dated September 18, 2023, the claim was denied.

The courts motivated the decision by referring to paragraph 4 of the Regulatory Resolution and indicated that the limitation period is three years, starting from January 17, 2020 and expiring on January 17, 2023, the plaintiff missed the deadline.

A three-year period for filing an action by the insurer against the policyholder as a counterclaim is calculated from the date of insurance payment (Article 28 of Law No. 446).

Pre-trial dispute resolution procedure

The Insurance Ombudsman has been operating in Kazakhstan since 2007. Thus, Law No. 244 of May 7, 2007 supplemented Law No. 446 with articles 30-1, 30-2, 303 and 30-4 regulating the activities of the Insurance Ombudsman.

Law No. 166-VI of July 2, 2018 supplemented the Law on Insurance Activities with Chapter 15 "Insurance Ombudsman".

Relevant amendments were made to Law No. 446, Law No. 444 and other laws on compulsory insurance, according to which, in the event of a dispute, the policyholder (beneficiary) had the right, at his discretion, to submit a written application to the insurer indicating the requirements and attaching supporting documents, or to send an application to the insurance ombudsman or to the court for dispute settlement. Law No. 138-VII of July 12, 2022 amended the Law on Insurance Activities and the laws on compulsory insurance, according to which contacting the insurance ombudsman became mandatory before going to court.

Paragraph 5 of Article 90 of the Law on Insurance Activity is set out in a new wording: "The persons specified in the second part of paragraph 1 of Article 86 of this Law, who are policyholders (insured, beneficiaries), as well as the insurer, have the right to apply to the court in accordance with the legislation of the Republic of Kazakhstan after receiving the decision of the insurance Ombudsman.

At the same time, the execution of the decision of the insurance ombudsman for the policyholder (insured, beneficiary) is not mandatory."

Relevant amendments have been made to the laws on compulsory insurance. Resolution No. 60 of the Board of the Agency of the Republic of Kazakhstan for Regulation and Development of the Financial Market (hereinafter – the ARFR) dated September 12, 2022 approved the Rules for the election and Implementation of the Activities of the Insurance Ombudsman.

Thus, starting from January 1, 2024, contacting the insurance ombudsman is a mandatory step before applying to the insurance dispute settlement court. In accordance with the second part of paragraph 1 of Article 86 of the Insurance Law, the Ombudsman regulates disputes between insurers (insured, beneficiaries) and insurance organizations arising from insurance contracts.

At the same time, courts should keep in mind that not all disagreements between policyholders (insured, beneficiaries) and insurance organizations arising from insurance contracts are subject to consideration by the insurance ombudsman.

The law distinguishes the subjects of treatment by type of insurance and limits the amount of their claims. Thus, individuals and (or) small business entities that are policyholders (insured, beneficiaries) have the right to contact the insurance Ombudsman to resolve disputes on all types of insurance. Other legal entities may apply to the insurance Ombudsman only for the class (type) of compulsory insurance of civil vehicles. liability of the owners The amount of claims for disagreements of these persons should not exceed ten thousand times the amount of the MCI.

In practice, a question has arisen: should insurance companies exercising their right to claim back (article 28 of Law No. 446) or the right to claim by way of subrogation first contact the insurance ombudsman?

Here it is necessary to pay attention to the content of paragraph 1 of Article 29-1 of the Law No. 446 in the new edition.:

"If there is a dispute arising from the contract of compulsory liability insurance of vehicle owners, the policyholder (victim, beneficiary) has the right in writing:

send an application to the insurer (including through a branch, representative office, other separate structural unit, or the insurer's online resource) indicating the requirements and attaching documents confirming its requirements, or send an application to the insurance Ombudsman (directly to the insurance ombudsman, including through his online resource, or through the insurer, including through its branch, representative office, other separate structural unit, Internet resource) or to the court for dispute settlement, arising from the contract of compulsory liability insurance of vehicle owners, taking into account the specifics provided for by the Law on Insurance Activities.

Thus, this rule deals with the consistency of the dispute resolution procedure for the policyholder, the victim and the beneficiary, but not for the insurer making a claim by way of recourse.

JSC IC J filed a lawsuit against K. to recover the amount of the insurance payment by way of recourse.

By the ruling of the Altai District Court of East Kazakhstan region dated June 7, 2024, the claim was returned. The reason for the refund was the absence of a decision by the insurance Ombudsman, that is, the plaintiff did not comply with the pre-trial dispute settlement procedure established by law, provided for in subparagraph 1) paragraph 1 of Article 152 of the CPC.

Having disagreed with this court ruling, the plaintiff filed a private complaint. In the case of a private complaint, the plaintiff asks to cancel the court's ruling, since this law does not provide for a pre-trial dispute settlement procedure involving the insurance ombudsman.

By the ruling of the Judicial Board for Civil Cases of the East Kazakhstan Regional Court dated July 25, 2024, the private complaint of JSC IC J was returned in connection with its withdrawal. The position of the courts of the Abai region on this issue seems to be correct.

While upholding the decision of the Semeysky City Court, which satisfied the claim of JSC IC N to P. for the recovery of the amount by way of recourse, the court of appeal found the defendant's arguments about the need to dismiss the claim without consideration unfounded, since there is no pre-trial dispute settlement procedure for this category of cases.

With regard to subrogation, Subrogation (Latin subrogatio — replacement) is the transfer to the insurer who paid the insurance indemnity of the right to claim compensation from the person responsible for the damage caused to the insured in the reimbursed. within the limits specified in subparagraph 2) According to paragraph 1 of Article 86 of the Law on Insurance Activity, the Ombudsman regulates insurance disputes between policyholders (insured, beneficiaries) and insurance organizations arising from insurance contracts.

In this case (with subrogation) There is no dispute between the policyholder and the insurer arising from the insurance contract.

The harm-doer, who is being claimed by the insurance company that made the insurance payment, is not a party to the property insurance contract.

The right of claim transferred to the insurer is exercised by it in compliance with the rules governing the relationship between the policyholder (insured) and the person responsible for losses.

Consequently, the requirement for the insurance company to comply with the pre-trial dispute resolution procedure by contacting the insurance ombudsman cannot be considered justified.

Other examples of unjustified return and abandonment of claims without consideration due to non-compliance with the procedure for pre-trial dispute settlement By the ruling of the Zhetysu District Court of Almaty dated May 3, 2024, the claim of G. to LLP "A" for recovery of material damage caused as a result of an accident was unlawfully left without consideration.

The court stated that the plaintiff did not comply with the pre-trial dispute settlement procedure, and the decision of the insurance ombudsman was not submitted.

The appellate instance reasonably, with reference to article 86 of the Law on Insurance Activity, disagreed with this conclusion of the court, pointing out that the subject of the claim is the recovery of material damage caused as a result of an accident, namely, the recovery of the amount of damage uncovered by the insurance payment.

The legal basis of the claim is the norms of Articles 917 and 924 of the Civil Code. In this case, the parties to the case are the victim of the accident and the owner of the vehicle.

On a similar basis, M.'s claim against N. for recovery of material damage caused as a result of an accident was unlawfully dismissed (Zhetysu District Court of Almaty case No. 7515-24-00-2/11).

By a ruling dated February 21, 2024, the Council of Economic and Social Council of Almaty unreasonably returned the claim of JSC IC N to LLP A for the recovery of the amount by way of recourse, indicating the need to comply with the pre-trial dispute resolution procedure by filing a claim.

The appellate instance corrected the error made by the court, pointing out that the stated subject of the dispute does not imply a pre-trial settlement of the dispute, since it is not established by law and there are no contractual relations between the parties.

Analyzing the judicial practice on this topic, the Pavlodar Regional Court asked the question: is the policyholder (insured, beneficiary) entitled, after the ombudsman's decision, to file a claim against the insurance company directly to the court, without appealing the Ombudsman's decision? When applying the above-mentioned norms of insurance legislation in terms of compliance with the pre-trial dispute resolution procedure, the courts must take into account that if the insurance ombudsman has considered a dispute between the policyholder (insured, beneficiary) and the insurance company, then its decision is mandatory for the insurance company if accepted by the policyholder (insured, beneficiary) and optional for the policyholder (insured, beneficiary), who, if they disagree with the decision of the insurance Ombudsman, have the right to apply to the court.

In this case, the subject of the claim will not be the decision of the Ombudsman, but the decision of the insurance company. In this case, an analogy can be drawn with the resolution of labor disputes, when contacting the conciliation commission is mandatory for the party to the dispute, but in case of disagreement with such a decision, the party applies to the court for dispute resolution without appealing the decision of the conciliation commission.

As a result of the accident, K. caused damage to T.'s car, which contacted the insurance company of the perpetrator.

The insurance company determined the amount of damage in the amount of 212,869 tenge. Due to the disagreement with the calculation, the plaintiff applied to the insurance ombudsman with an application for an increase in the amount of the insurance payment.

By the decision of the Insurance Ombudsman, the amount of insurance payment was increased by 97,463 tenge.

Disagreeing with the Ombudsman's decision, T. appealed to the Taraz City Court to JSC IC J with a claim for invalidation of the calculation results and recovery of the difference in the insurance payment.

Based on the results of the analysis, the courts of the republic propose to create representative offices of the Ombudsman in the regions, since the resolution of all disputes in the republic by one person creates a large influx of appeals and delays in their resolution.

The Mangystau Regional Court and the Shymkent City Court consider it necessary to propose the creation of regional insurance ombudsmen, and the Abai Regional Court suggests providing a representative insurance ombudsman in each region.

However, it should be noted that in accordance with the norms contained in chapter 15 of the Law on Insurance Activities, only one insurance ombudsman can act in the republic.

According to paragraph 5 of Article 91 of the Law on Insurance Activities, the office of the Insurance Ombudsman must contain services and specialists in information technology, law, accounting and financial reporting, in the field of assessment, handling applicants' complaints and other (other) services (specialists) based on the decision of the Insurance Ombudsman, approved by the Council of representatives of the Insurance Ombudsman.

The courts of the West Kazakhstan region and Aktobe region propose to consider amendments to Article 92-1 of the Law "On Notaries", to introduce mandatory out-of-court settlement of disputes on claims for recovery of insurance payments by way of a reverse claim (Article 28 of Law No. 446), that is, an appeal to notaries on the issue of obtaining an executive inscription.

However, the generalization showed that such requirements cannot be considered indisputable.

Simplified (written) proceedings may be recommended.

Regulatory framework

The main regulatory legal acts to be applied in the consideration of cases of the generalized category are:

The Constitution of the Republic of Kazakhstan,

The Civil Code (hereinafter referred to as the Civil Code);

The Civil Procedure Code (hereinafter referred to as the CPC);

The Labor Code (hereinafter referred to as the Labor Code);

The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code) dated December 25, 2017 No. 120-VI SAM (hereinafter referred to as the Tax Code);

The Code of the Republic of Kazakhstan "On Administrative Offenses" dated July 5, 2014 No. 235-V SAM (hereinafter CAO);

Laws of the Republic of Kazakhstan:

"On Insurance Activities" dated December 18, 2000 No. 126 (hereinafter referred to as the Law on Insurance Activities);

"On compulsory insurance of civil liability of private notaries" dated June 11, 2003 No. 435;

"On compulsory insurance of civil liability of audit organizations" dated June 13, 2003 No. 440;

"On Compulsory Insurance of the carrier's Civil Liability to Passengers" dated July 01, 2003 No. 444 (hereinafter referred to as Law No. 444);

"On Compulsory Insurance of civil Liability of Vehicle Owners" dated July 01, 2003 No. 446 (hereinafter referred to as Law No. 446);

"On compulsory tourist insurance" dated December 31, 2003 No. 513;

"On compulsory insurance of civil liability of owners of facilities whose activities are associated with the risk of harm to third parties" dated July 7, 2004 No. 580;

"On compulsory insurance of an employee against accidents in the performance of his labor (official) duties" dated February 7, 2005 No. 30; "On compulsory social health insurance" dated November 16, 2015 No. 405-V;

"On the Insurance Benefit Guarantee Fund" dated June 3, 2003 No. 423;

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" (hereinafter referred to as the Regulatory Resolution);

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 (hereinafter referred to as the Rules) and other regulatory legal acts.

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