The insurance contract is valid if the person who drives the vehicle in the presence of the policyholder has the right to drive it.

In accordance with subparagraph 1) according to paragraph 5 of Article 11 of Law No. 446, under a standard contract, the civil liability of the policyholder (insured) is considered insured, which arose as a result of harm to third parties by the policyholder (insured) himself or in the case of driving a vehicle by a person entitled to drive it in the presence of the policyholder (insured) It follows from the content of this provision that the insurance contract is valid if the person who drives the vehicle in the presence of the policyholder, has the right to manage it.

The courts of the city of Almaty denied B.'s claim against JSC "IC "F" to declare illegal the defendant's refusal to make insurance payments, to recover the amount of insurance payment, since the court found that the policyholder R. transferred control to the minor E. As a result of the accident, R., E. and the passengers of the oncoming car, including the plaintiff's spouse, were killed. The courts motivated the decision by the fact that the perpetrator of the accident, minor E., did not have the right to drive a vehicle, and there was no valid compulsory GPO insurance policy.

The immediate responsibility to the victim is borne by the owner, from whose possession the source of increased danger has not left.

Considering the above, the local courts reasonably concluded that in this case the accident was not an insured event, and the insurance company was not obligated to make insurance payments in favor of the plaintiff.

Due to similar circumstances, the courts of East Kazakhstan region correctly denied F.'s claim. to JSC "N" on the recognition of the refusal to make insurance payments as illegal and the recovery of the amount, since it was established that the policyholder A. transferred control of the car to A., whose driver's license expired at the time of the accident. The Judicial Board for Civil Cases of the Atyrau Regional Court unreasonably changed the decision of the Atyrau City Court dated February 12, 2024 in the case of Zh. to JSC "IC "E" on the recognition of an accident as an insured event and the obligation to pay the insured amount to third parties, according to the claim of S. to Zh. to the Insurance Company for the recovery of 2,106,862 tenge of property damage. Recognizing the accident as an insured event, the court of first instance correctly referred to paragraph 5 of Article 11 of Law No. 446, proceeding from the fact that at the time of the accident Zh., who insured his GPO with an insurance company, was in his car, driven by K.

The Court of Appeal came to the incorrect conclusion that driving a vehicle in the presence of Zh. does not attach to the status of the insured. Whereas from the literal interpretation of subparagraph 1) of paragraph 5 of Article 11 of the Law in relation to this case, it follows that the insured is the insured's GPO, Zh., since it arose as a result of harm to a third party while driving the vehicle by a person entitled to manage it (k.) in the presence of the policyholder– Zh.

By the decision of the Judicial Board for Civil Cases of the Supreme Court dated August 21, 2024, the decision of the court of appeal was canceled, while the decision of the court of first instance (3gp-349) remained in force.

By virtue of paragraph 4 of Article 25 of Law No. 446, the beneficiary is the victim (in case of his death, a person who, according to the laws of the Republic of Kazakhstan, has the right to compensation for damage in connection with the death of the victim).

Thus, from the literal verbal expression of this norm, it follows that it refers to a person who, in accordance with current legislation, has the right to compensation for harm in connection with the death of the victim.

The list of persons entitled to compensation for damage caused by the death of a citizen is provided for in Article 940 of the Civil Code.

These include disabled persons who were dependent on the deceased or who had the right to receive maintenance from him on the day of his death; a child of the deceased born after his death, as well as one of the parents, spouse, or other family member, regardless of their ability to work, who does not work and is engaged in caring for the dependent of the deceased's children., brothers and sisters under the age of fourteen.

The analysis shows that the courts still make mistakes in the application of these standards. Thus, by the decision of the district court No. 2 of the Almaly district of Almaty dated January 11, 2024, S.'s claim against JSC IC "E" for the obligation to make an insurance payment was satisfied.

The plaintiff's claims were justified by the fact that her son, S., died in an accident. The plaintiff focuses on the expression contained in paragraph 1 of Article 940 of the Civil Code of the Russian Federation "or who had the right to receive maintenance from him on the day of his death" and refers to paragraph 1 of Article 145 "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code about marriage).

In satisfying the plaintiff's claims, the court of first instance proceeded from the fact that, in accordance with article 145 of the Marriage Code, able-bodied adult children are required to support and take care of their parents who are unable to work.

At the same time, it follows from the content of paragraph 1 of Article 940 of the Civil Code that the right to receive maintenance must exist at the time of the deceased's death. From the literal content of paragraph 1 of Article 145 of the Marriage Code, it follows that disabled parents who need help have the right to receive maintenance from adult children.

That is, the mere fact that parents have reached retirement age is not enough to qualify for maintenance, it is necessary to prove the need for assistance.

By virtue of subparagraph 4-1) of paragraph 2 of Article 25 of Law No. 446, a document confirming the beneficiary's right to compensation for damage (a copy) is attached to the application for insurance payment.

S. did not submit such documents to the insurance company. In particular, judicial acts on the recovery of alimony from S. for the maintenance of the mother, or on the establishment of the fact that the plaintiff needed help, or that the mother was dependent on her son, were not presented.

By the decision of the court of appeal of April 11, 2024, the court's decision was overturned, and a new decision was made to dismiss the claim. The property interests, life and health of the insured person (the owner of the vehicle) under the GPO insurance contract are not subject to insurance. By the decision of the appellate board of the Almaty City Court dated January 10, 2023, the decision of the District court No. 2 of the Almaly district of Almaty dated September 27, 2022 in the case of the claim of A. was correctly canceled. (in the interests of minor children) to JSC IC "E" on the recognition of the refusal to pay the insurance payment as illegal and the obligation to make the insurance payment.

According to the circumstances of the case, on April 10, 2021, the driver of K., driving a car in the presence of the insured A., having lost control of the steering, committed an accident, as a result of which A. died from his injuries.

At the time of the accident, GPO A. was insured by JSC IC "E". The insurance company sent a decision to the plaintiff to refuse to make insurance payments, citing the lack of grounds for recognizing the incident as an insured event.

By the decision of the District court No. 2 of Almaly district of Almaty dated September 27, 2022, the claim was satisfied. The board of the regional court did not agree with the conclusion of the court of first instance on the following grounds.

According to paragraph 1 of Article 4 of Law No. 446, the purpose of compulsory liability insurance for vehicle owners is to ensure the protection of the property interests of third parties whose lives, health and (or) property have been harmed as a result of the operation of vehicles through insurance payments.

In accordance with Article 3 of Law No. 446, the object of compulsory insurance for vehicle owners is the property interest of the insured person related to his obligation, established by the civil legislation of the Republic of Kazakhstan, to compensate for damage caused to life, health and (or) property of third parties as a result of the operation of the vehicle as a source of increased danger.

Consequently, the property interests, life and health of the insured person (the owner of the vehicle) under the GPO insurance contract are not the object of insurance.

It follows from the case file, and it is not disputed by the parties, that A. was the owner of the vehicle, as well as the policyholder and at the same time insured under the insurance contract.

No other persons are listed as insured in the insurance contract. By virtue of paragraph 5 of Article 5 of the Law, the civil liability of a person driving a vehicle in the presence of the vehicle owner on the basis of his will is not subject to compulsory insurance without a written form of the transaction.

In accordance with subparagraph 1) According to paragraph 5 of Article 11 of the Law, under a standard contract, the civil liability of the policyholder (insured) is considered insured, which arose as a result of harm to third parties by the policyholder (insured) himself or in the case of driving a vehicle by a person entitled to drive it in the presence of the policyholder (insured).

It follows from the above provisions that, regardless of who was driving the vehicle, the owner himself (policyholder/ insured) or another person in his presence, according to the standard insurance contract, the insured will be considered the GPO of only the policyholder (insured).

Therefore, driving a vehicle in the presence of A. does not attach importance. the status of the insured.

In turn, A., being insured, does not simultaneously acquire the status of a third party. Thus, the death of insured A., which occurred on April 10, 2021, does not fall under the definition of an insured event provided for in article 22 of the Law, therefore, the insurance company reasonably refused insurance payment.

On similar grounds, the Supreme Court rejected M.'s claim in the interests of minors against JSC Insurance Benefit Guarantee Fund for recognizing the decision to refuse insurance payments as illegal (3gp-11 dated February 1, 2023).

The absence of guilt of the harm-doer, reflected in the decision to terminate the criminal case, has no legal significance, because by virtue of Article 931 of the Civil Code, the owner of a source of increased danger can be released from compensation for harm only if he proves that the harm arose as a result of force majeure or intent of the victim. She filed a lawsuit with the insurance company to recover the insurance payment, arguing that the defendant refused to make the insurance payment, stating that the accident was caused by her husband H., who was intoxicated, in violation of traffic regulations, crossed the road in the wrong place, which caused the fatal accident.;

The criminal case was terminated due to the absence of elements of a criminal offense in M.'s actions, thus, the driver's GPO did not occur.

By the decision of the inter-district Court for Civil Cases of Astana city dated July 17, 2023, the claim was denied, the court indicated that the plaintiff did not have a document confirming the occurrence of the insured event.

The Judicial Board for Civil Cases of the Astana City Court did not agree with such conclusions, the court's decision was overturned and issued a new decision to satisfy the claim, correctly arguing that in this case the absence of guilt of the harm-doer reflected in the decision to terminate the criminal case does not matter legally, because by virtue of Article 931 of the Civil Code, the owner of the source of increased A person may be released from compensation for harm only if he proves that the harm was caused by force majeure or intent of the victim.

No such evidence has been established in the case.

In accordance with subparagraph 2) paragraph 1 of Article 13 of Law No. 446, the compulsory liability insurance contract for vehicle owners applies to all persons recognized as victims in accordance with this Law, including those in the vehicle of the policyholder (insured) who is guilty of causing harm, with the exception of:

passengers, if the policyholder (insured) is a carrier subject to the requirement of the legislative act of the Republic of Kazakhstan regulating compulsory insurance of the carrier's civil liability to passengers. A. and U. filed a lawsuit against IC "C" and IC "E" to declare illegal the refusal to make insurance payments. In the case, it was established that U. entered into a compulsory insurance contract with SC "C" for the carrier's GPO in front of passengers for a Hyundai Grand Starex car.

IC "E" and Y have concluded a contract of compulsory insurance of the carrier's GPO to passengers as a result of the operation of Toyota Alphard vehicles, and a contract of insurance of the GPO of the vehicle owner. On March 21, 2022, driver Y. collided with a Hyundai Grand Starex vehicle, resulting in the death of the driver of a Hyundai Grand Starex vehicle. Passengers of a Hyundai Grand Starex vehicle, including A. and U., were injured.

By the verdict of the court S. He was found guilty of committing a criminal offense under part 4 of Article 345-1 of the Criminal Code and sentenced to 8 years and 6 months in prison. U. applied to IC "C" with an application for insurance payment, which was refused, stating that at the time of the accident, U. He was not a carrier (the plaintiffs, being relatives, did not conclude a contract of carriage with the driver), and the GPO U., as a carrier, did not come before the passengers. The plaintiffs applied to IC "E" to make insurance payments as passengers. In its responses, IC "E" refused to pay the plaintiffs under the carrier's liability insurance contract to passengers, but made payments on GPO insurance to the owners of the vehicle.

The courts of Almaty, partially satisfying the claim, concluded that the refusal of IC "E" could not be considered legitimate and justified, since the driver Y was found guilty of the accident. at the time of the accident, the carrier's passenger insurance contract concluded with IC "E" was valid.

Canceling the decision of the Bostandyk District Court of Almaty dated December 13, 2023, and the decision of the Judicial Board for Civil Cases of the Almaty City Court dated March 27, 2024 regarding the satisfaction of the claim, the judicial board of the Supreme Court indicated that Insurance Company "E" fulfilled its obligations to the plaintiffs under the insurance contract of the owner of the vehicle(S). and she made insurance payments.

According to article 3 of Law No. 444, the object of compulsory insurance of the carrier's GPO to passengers is the carrier's property interest related to its obligation, established by the civil legislation of the Republic of Kazakhstan, to compensate for damage caused to the life, health and (or) property of passengers during their transportation.

By virtue of subparagraph 2) of paragraph 1 of Law No. 444, a passenger is an individual who has concluded an oral or written contract of carriage with a carrier.

The plaintiffs were not passengers of the carrier S. Therefore, the carrier's GPO insurance contract does not apply to them. The norms of Laws No. 446 and No. 444 were correctly applied by the courts of the Zhambyl region in the case of G.'s claim against JSC "IC "T" for the recovery of insurance benefits.

The judicial Board of the Aktobe Regional Court corrected the error of the court of first instance in the case of the claim of E. to JSC "IC "X" on the recognition of unlawful refusal to make insurance payments. In the case, it was established that the plaintiff's wife K., while on a shuttle bus, fell out of it and died from her injuries. The insurance company motivated the refusal by the fact that the deceased was in an employment relationship with A LLP, but this fact was not confirmed.

The Board, having established that GPO LLP "A" as a carrier was insured, applying the norms of Law No. 444, came to the correct conclusion about the illegality of the insurance company's refusal.

Direct settlement According to article 26-1 of Law 446, in case of a traffic accident, the victim or a person who, according to the laws of the Republic of Kazakhstan, has the right to compensation for damage caused in connection with the death of the victim, has the right to apply to an insurer who insured the victim's liability under a compulsory liability insurance contract for vehicle owners, provided that the person the person who caused the traffic accident, the contract of compulsory liability insurance for vehicle owners.

The insurance company of the person responsible for the insured event reimburses the amount actually paid to the insurer who settled the insured event.

Resolution No. 179 of the Board of the Russian Federation of June 25, 2007 approved the Rules for Direct Settlement. On October 2, 2022, the Insurance Company "X" and A. concluded a contract of compulsory GPO insurance for vehicle owners. On July 27, 2023, driver I. violated the rules of the road and collided with a car belonging to plaintiff A. The plaintiff filed an application with Insurance Company "X" in order to directly settle the dispute over the insurance payment in connection with this accident.

The insurance company denied the insurance payment, stating that the GPO of the culprit of the accident I. was not insured. It is recommended to contact the person responsible for the accident. In rejecting the plaintiff's claim, Uralsk City Court No. 2 concluded that the actions of the Insurance Company were lawful, since the Law and Regulations did not provide for insurance payments to be made in direct settlement due to the absence of an insurance policy from the person responsible for the accident. The Court of Appeal did not agree with these conclusions of the court on the following grounds.

It is established that P. is the owner of the vehicle, which was operated by I. At the time of the accident, P. was in the car and he had a valid insurance policy of the insurance company "E". By virtue of article 5 of Law No. 446, the civil liability of a person driving a vehicle is not subject to compulsory insurance due to the performance of his official or labor duties, including on the basis of an employment or other contract with the owner of the vehicle, or in the presence of the owner of the vehicle on the basis of his will without making a written transaction.

Thus, since I. was driving the car in the presence of the owner of the vehicle, P., his GPO is not subject to compulsory insurance. In this case, there is an insurance contract concluded between the owner of the vehicle, which is P., and the insurance company "E". By the decision of the judicial board for civil Cases of the West Kazakhstan Regional Court dated April 9, 2024, the court's decision was overturned, and a new decision was made to satisfy the claim.

Joint and several liability

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.

Joint liability of owners of sources of increased danger is provided by law only in case of harm to third parties as a result of the interaction of these sources (paragraph 2 of Article 931 of the Civil Code). JSC IC Life Insurance Company K filed a lawsuit against K. and LLP A to recover insurance payments by way of subrogation, arguing that as a result of an accident caused by the driver of the LLP driving the bus, E.'s car was damaged.

The plaintiff under the voluntary insurance contract paid E. 2,139,244 tenge. He asked to collect the specified amount from the defendants in solidarity. In satisfying the claim, the Yenbekshikazakh District Court of the Almaty region (decision of April 15, 2024) referred, among other things, to paragraph one of paragraph 2 of Article 931 of the Civil Code, but did not take into account that it was about harming third parties.

In this case, paragraph 1 and subparagraph 1) of paragraph 2 of Article 931 of the Civil Code are subject to application, according to which the owner of the source of increased danger is responsible. The owner of the bus is LLP "A", and K. was in an employment relationship with him.

By the decision of the appellate instance dated June 19, 2024, the court's decision was changed, in terms of collecting the amount jointly with K. it was canceled. At the same time, when studying this case, the question arose about the correct application by the courts of the statute of limitations on the claim for recovery of the amount by way of subrogation.

According to the second paragraph of paragraph 4 of the Regulatory Resolution, 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 limitation period 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. It follows from the case file that the accident occurred on December 16, 2000, JSC IC Life Insurance Company K paid E. the insurance payment under the voluntary insurance contract on March 2, 2021, but filed this lawsuit with the court only on January 25, 2024.

In court, the defendant declared the application of the limitation period, referring to paragraph 4 of the Regulatory Resolution, believing that the limitation period should be calculated from December 16, 2000, and not from the date of insurance payment – March 2, 2021.

The courts, refusing to apply the limitation period, incorrectly referring to the first paragraph of paragraph 4 of the Regulatory Resolution, concluded that there was no change of persons in the obligation of subrogation in accordance with Article 181 of the Civil Code.

The decision of the Judicial Board for Civil Cases of the Almaty Regional Court corrected the error made by the Talgar District Court in the case of the claim of JSC "IC "E" to A. and O. for the recovery of damages in solidarity by way of subrogation.

The Board correctly pointed out that, despite the fact that the accident was caused by O., who was driving the car, the responsibility lies with its owner A. Joint liability is excluded.

As an example of the incorrect application of the substantive law on joint liability, the case of B.'s claim against JSC "IC "X" for recognition of the refusal to make insurance payments illegal, reviewed by the courts of the city of Almaty, should be cited.

In the case, it was established that the driver of a Toyota Ipsum car, G., hit a horse, as a result of which the vehicle entered the oncoming traffic lane and made a head-on collision with a Daewoo Nexia car driven by H., which was moving in the opposite direction.

As a result of a head-on collision, driver X and his passenger J. They died of their injuries at the scene. At Zh. There are two minor children left.

Resolution The proceedings on the material of the pre-trial investigation on the grounds of a criminal offense provided for in Article 345, part 4 of the Criminal Code, in respect of G. were terminated due to the absence of elements of a criminal offense. GPO G. is insured by JSC IC "X". B. is the spouse of passenger Zh., who died as a result of an accident and the father of minor children, applied to the defendant for an insurance payment, which was refused.

In rejecting the plaintiff's claim, the local courts proceeded from the fact that G. was not guilty of the incident, therefore, the insured's GPO had not occurred, and therefore there were no grounds for the defendant to make insurance payments.

Canceling judicial acts of local courts and satisfying the claim, the judicial board for Civil Cases of the Supreme Court pointed out that, according to paragraph 2 of Article 931 of the Civil Code, owners of sources of increased danger are jointly and severally liable for damage caused as a result of the interaction of sources (collisions of vehicles, etc.) to third parties on the grounds provided for in paragraph 1 of this article.

The damage caused as a result of the interaction of sources of increased danger to their owners is compensated on a general basis. It follows from the content of this rule that if, as a result of the interaction of sources of increased danger, their owners have caused harm to each other, then it is necessary to proceed from the general grounds of liability established by the rules of Article 917 of the Civil Code, that is, according to the principle of liability for guilt.

If, as a result of the interaction of sources of increased danger, harm is caused to a third party, then the responsibility of their owners comes without fault.

Victim Zh., who was in the cabin of one of the cars, is a third person who was harmed as a result of the interaction of vehicles.

Consequently, their owners are jointly and severally liable to her, without regard to guilt (3gp-240 dated June 11, 2024). The insurance payment guarantee system has been implemented in Kazakhstan since 2003.

The Insurance Benefit Guarantee Fund makes payments not only in case of liquidation of the insurance company, but also in case of harm to the life or health of the victim, when the culprit of the accident has not been identified or has fled the scene.

There is a special reserve in the Fund for such cases. M., in the interests of her minor daughter, filed a lawsuit with JSC IC F, JSC F (hereinafter referred to as the Fund) to recover insurance payments in connection with the death of the father of the child T., which occurred on September 30, 2021 as a result of an accident. The claim was denied by the courts of the Zhambyl region. In the case, it was established that the GPO of the owner of the Volkswagen Golf vehicle, D., was insured by an Insurance company.

The investigation conducted by the Taraz City Police Department found it established that the owner of the vehicle, D., handed over control of the car to an unidentified person, who, unable to control himself, allowed the vehicle to hit a concrete pillar, as a result of which D.'s health was seriously injured, and the passenger, T., died from his injuries at the scene of the accident, while the unidentified person fled the scene. M. applied to the Fund with an application for compensation for the damage caused to the life of the victim T. The Fund refused to satisfy M.'s application, explaining that there were no legal grounds for making the payment, since, in accordance with the norms of civil law, the owner or owner of the vehicle should be responsible for causing harm in connection with the death of the victim.

The insurance company, in response to M.'s statement, indicated that the applicant needed to provide a document confirming the occurrence of the insured event and the amount of damage caused to the victims.

The local courts motivated the refusal with the conclusion that the plaintiff's party had not proved the occurrence of an insured event involving GPO D. as the policyholder under the above-mentioned compulsory insurance contract. Judicial Board of the Supreme Court

The court changed the judicial acts that took place in the case and issued a new decision to recover insurance payments from the insurance company in the amount of 2100 MCI on the following grounds.

In accordance with paragraph 1 of Article 17-1 of the Law "On the Insurance Benefit Guarantee Fund", compensation payments for damage caused to the life and health of the victim and (or) funeral expenses are made by the Fund in cases of failure to identify the person who fled the scene of a traffic accident and is responsible for causing harm to the victim.

It follows from the content of this rule that a person who fled the scene of an accident must be responsible for causing harm to the victim.

In the case, it was established that the owner of the vehicle at the time of the accident was D., since it was not established that the car was out of his possession as a result of illegal actions by other persons. During the investigation, D. testified that he handed over control to an unidentified person, while he was in the car.

Therefore, in this case, the responsibility for the damage caused by the source of increased danger is borne by its owner, D., who, in turn, is insured under a compulsory insurance contract. According to subparagraph 1) of paragraph 5 of Article 11 of the Law, under a standard contract, the civil liability of the policyholder (insured) that has arisen as a result of harm to third parties by the policyholder (insured) himself or in the case of driving a vehicle by a person entitled to drive it in the presence of the policyholder (insured) is considered insured. M. submitted all the necessary documents to the insurance claim, including a document confirming the occurrence of the insured event – the fact of the occurrence of the GPO D., namely, the decision of the inquirer.

In accordance with subparagraph 8) of paragraph 1 of Article 841 of the Civil Code, in addition to the general grounds for termination of obligations provided for in this Code, the insurance contract is terminated prematurely in the event of changes in the terms and information included in the insurance policy issued by the insurer in accordance with the procedure provided for by legislative acts of the Republic of Kazakhstan. The analysis showed that the courts interpret this provision differently in the case when the policyholder changed the state license plate of the car after the conclusion of the GPO insurance contract.

Thus, by the decision of the Kostanay City Court of August 10, 2023, A.'s claim to JSC IC "E" for declaring illegal the refusal to make insurance payments was denied, while the court motivated the decision by the fact that, by virtue of paragraph 3 of Article 11 of Law No. 446, the insurance policy must contain information about the policyholder (insured, insured) and the operated vehicle.

It follows that the state registration number plate is one of the information about the operated vehicle. Thus, the re-registration of a vehicle with the assignment of a different state registration number of the vehicle refers to a change in the information included in the insurance policy, therefore, it is the basis for termination of the insurance contract.

The judicial Board of the Kostanay Regional Court did not agree with such conclusions, pointing out that when concluding an insurance contract, the object of insurance is not the operation of a particular car as a source of increased danger.

In this case, after the replacement of the state license plate of the car, its owner, the persons whose GPO is insured, as well as the vehicle with its identification data, remained unchanged.

A different decision on similar circumstances was made by the courts of the Karaganda region in the case of A.'s claim against JSC "IC "E". By rejecting the plaintiff's claim, the local courts came to the correct conclusion that the re-registration of the vehicle with the assignment of another state registration number plate refers to a change in the information included in the insurance policy, and as a result, is the basis for termination of the insurance contract.

In addition, the courts took into account that A. was brought to administrative responsibility under Article 230 of Part 2 of the Administrative Code for driving a vehicle without concluding a mandatory insurance contract.

Article 28 of Law No. 446 provides for cases when an insurer who has made an insurance payment has the right to claim back against the policyholder (insured) within the amount paid.

According to subparagraph 1) of paragraph 1 of Article 28 of Law No. 446, an insurer who has made an insurance payment has the right to claim back against the policyholder (insured) within the amount paid if the insured's (insured's) GPO occurred as a result of his intentional actions aimed at causing an insured event or contributing to its occurrence, with the exception of actions committed in a state of necessary defense and extreme necessity.

It follows from the content of this provision that the legislator provided for two types of intentional actions in it: those aimed at causing an insured event and those contributing to its occurrence.

In accordance with paragraph 7 of the Regulatory Resolution, intentional actions aimed at causing an insured event specified in subparagraph 1) of paragraph 1 of Article 839 of the Civil Code are those actions committed by the policyholder (insured, beneficiary) due to the intent to cause an insured event or to create conditions for its occurrence in order to receive insurance benefits. The policyholder must be proven to have such intent.

Intentional actions contributing to the occurrence of an insured event include the actions specified in subparagraph 2) of paragraph 1 of Article 839 of the Civil Code, according to which the insurer may refuse insurance payment if the insured event occurred as a result of actions of the policyholder, the insured and (or) the beneficiary, recognized in accordance with the procedure established by legislative acts of the Republic of Kazakhstan intentional criminal or administrative offenses that are causally related to the insured event.

The analysis showed that the courts still make mistakes in applying these norms. The insurance company "E" filed a lawsuit against B. to recover the amount of the insurance payment, stating that B., whose GPO was insured by the plaintiff, was found guilty of violating traffic rules that caused an accident and brought to administrative responsibility under Article 610 of Part 1 of the Administrative Code.

The illegality of the action was expressed in the fact that B. left the vehicle without taking measures to exclude spontaneous movement, thereby allowing the victim's property to be hit.

The insurance company paid 395,159 tenge in favor of the victim, which it requested to recover from the defendant in the order of the reverse claim under subparagraph 1) of paragraph 1 of Article 28 of Law No. 446. By the decision of the Enbekshinsky District Court of Shymkent dated February 28, 2023, which was left unchanged by the decision of the Judicial Board for Civil Cases of Shymkent dated June 6, 2023, the claim of the insurance company was satisfied.

Judicial acts are motivated as follows. Subparagraph 3) Paragraph 3 of Article 54 of the Law "On Road Traffic" stipulates that the driver of a mechanical vehicle is obliged not to leave the vehicle without taking measures to exclude spontaneous movement of the vehicle, as well as in the event of its being stopped by an employee of the internal affairs bodies without his permission.

The Court of first instance concluded that the defendant's actions certainly contributed to the occurrence of the insured event, and the policyholder's GPO resulted from an intentional act contributing to the occurrence of the insured event, which the appellate instance agreed with.

However, according to Article 26 of the Administrative Code, an administrative offense is considered to have been committed intentionally if the individual who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired or consciously allowed these consequences to occur or was indifferent to them.

In accordance with Articles 27 of the Administrative Code, an administrative offense is recognized as negligent if the individual who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds thoughtlessly counted on their prevention or did not foresee the possibility of such consequences, although with due care and foresight it should and could to anticipate them.

The offense provided for in Article 610, part 1 of the Administrative Code does not apply to intentional administrative offenses.

The correct conclusions in a similar case were made by the judicial board for civil cases of the Pavlodar Regional Court in the case of the claim of JSC "IC "E" to B. for the recovery of insurance benefits.

In the case, it was established that B., driving a KAMAZ brand vehicle, allowed the spontaneous movement of the car, which led to a collision with a gate owned by L LLP, which caused damage to the gate, causing material damage. By a court decision, B. was found guilty of committing an administrative offense under Article 610, part 1 of the Administrative Code. Satisfying the claim of the insurance company, the Pavlodar City Court motivated the decision by the fact that the defendant's guilt was established by a court order, which, in accordance with part 3 of Article 76 of the CPC, has a prejudicial significance.

By overturning the court's decision and rejecting the claim, the court of appeal correctly pointed out that the subjective side of this administrative offense involves guilt in the form of negligence.

That is, the defendant had no intention of harming anyone. By the decision of the Judicial Board for Civil Cases of the Supreme Court dated February 8, 2024 (3pp/143), on the recommendation of the Chairman of the Supreme Court of the Republic of Kazakhstan, the decision of the Judicial Board for Civil Cases of the Turkestan Regional Court dated May 17, 2023 was canceled, while the decision of the Maktaaral District Court of the Turkestan region dated February 21, 2023 in the case of the claim of JSC "IC "E" to A. on the recovery of the amount of the insurance payment made, since it was established that A. committed a reckless administrative offense.

The correct decision on similar cases was made by the courts of the appellate instance of Astana (resolution of June 9, 2023 in the case of the claim of JSC "IC "E" to A.), the Almaty City Court (resolution of April 8, 2024 in the claim of JSC "IC "E" to Sh.), the Almaty region (resolution of On January 30, 2024, in the case of the claim of JSC "IC "E" to Sh., the resolution of August 1, 2023 on the claim of JSC "IC "E" to Kh., etc.)

The right of a counterclaim

By virtue of subparagraph 2) of paragraph 1 of Article 28 of Law No. 446, it occurs when the insured's (insured's) GPO occurred as a result of driving a vehicle in a state of intoxication. alcohol, narcotic drugs, or the Courts of the Turkestan region correctly denied the claim of JSC "IC "E" to A. for the recovery of insurance benefits.

The plaintiff motivated his claims by the fact that the policyholder was intoxicated at the time of the accident.

However, these arguments have not been confirmed. It was established that A. was brought to criminal responsibility under Article 345 of part 4 of the Criminal Code, that is, for violating traffic rules or operating vehicles that negligently caused the death of two or more persons.

Whereas the punishment for a violation by a person driving a car of the rules of the road or the operation of vehicles in a state of alcoholic, narcotic and (or) substance abuse intoxication, which negligently resulted in the death of two or more persons, is provided for in Article 345-1, part 4 of the Criminal Code.

By virtue of paragraph 14 of the Regulatory Decree, a person who does not have the right to drive a vehicle specified in subparagraph 3) of paragraph 1 of Article 28 of the Law on Liability Insurance of Vehicle Owners should be recognized as a person who does not have a driver's license or the appropriate category, that is, a person who does not have the necessary knowledge and skills at the time of the accident. in the scope of standard training programs for drivers of vehicles of the appropriate category, they have not passed the exams in accordance with the established procedure., he is deprived of the right to drive a vehicle by a court decision that has entered into force, or the driver's license expired before the date of the accident.

An analysis of the cases submitted for summary showed that in practice there were cases in which the fact of driving a vehicle with a manual transmission by a driver who passed the exam for the right to drive a car with an automatic transmission was established.

The Judicial Board for Civil Cases of the city of Shymkent, canceling the decisions of the inter-district court for Civil Cases of the city of Shymkent dated April 4, 2024, which denied the claim of JSC IC "E" to O. for the recovery of insurance benefits, and, satisfying the claim, motivated the decision by the fact that the policyholder, being a person who who has the right to drive a car with a manual transmission, committed an accident, as a result of which the victim was paid the amount of damage.

At the same time, the board correctly assumed that, in accordance with paragraph 2 of Article 73 of the Law "On Road Traffic", the right to drive vehicles is granted to persons who have passed exams, subject to the conditions listed in Article 74 of this Law.

Exams are taken on vehicles with manual or automatic transmission. Persons who have passed the exams on vehicles with a manual transmission are granted the right to drive vehicles of the appropriate category or subcategory with any type of transmission.

According to paragraph 12 of the said norm, if a driver's license specifies restrictions on driving, this driver's license is considered valid provided that the restrictions specified therein are observed.

It follows from this that passing the exam for a car with an automatic transmission grants the owner of a driver's license the right to drive a vehicle with an automatic transmission only, which is reflected in the driver's license. It is established that the car on which it is located. He committed an accident with a manual transmission, whereas according to his driver's license, he did not. I took the training and the exam on a car with an automatic transmission.

By virtue of subparagraph 4) of paragraph 1 of Article 28 of Law No. 446, the insurer who has made the insurance payment has the right to claim back against the policyholder (insured) within the amount paid if, during the court proceedings, it was established that the insured event occurred as a result of technical malfunctions of the vehicle, which the policyholder (insured) knew or I should have known.

From the literal meaning of this rule, it follows that it is necessary to establish a causal relationship between the malfunction and the insured event, and, most importantly, the insurer must prove that the policyholder (insured) knew or should have known about the presence of such malfunctions. The analysis showed that courts apply this rule in different ways in similar circumstances. The Semeysky city Court of the Abai region granted the claim of JSC "IC "E" to A. for the recovery of insurance benefits. The court found that the accident occurred as a result of the separation of the wheel from the defendant's car.

The Court limited itself to pointing out that, in accordance with paragraph 2 of Article 49 of the Law "On Road Traffic", the obligation to maintain vehicles involved in road traffic in technically sound condition is assigned to vehicle owners.

However, a reference to the specified law is not sufficient, it is necessary to prove that the policyholder knew or should have known about the presence of such malfunctions.

The case was not considered on appeal. Judicial Board for Civil Cases of the Karaganda Regional Court overturning the decision of the district court No.2 of the Kazybekbiysky district of the city of Karaganda dated November 16, 2023 and making a new decision to dismiss the claim of JSC "IC "E" to K. regarding the recovery of insurance payments in accordance with subparagraph 4) of paragraph 1 of Article 28 of Law No. 446, it was assumed that after the accident the defendant's car was not inspected by either police officers or employees of the insurance company, only during repairs the reason for the separation of the wheels with the hub was discovered – the stocking of the rear axle of the car broke off, which cannot be determined by visual inspection.

However, the plaintiff has not provided indisputable evidence confirming the fact that K. drove a faulty car, reliably knew about the malfunction or discovered it on the way, but continued driving, and there is no evidence in the case file.

A similar decision was made by the courts of the Karaganda region in the case of the claim of JSC "IC "E" to M., the courts of the Atyrau region in the case of the claim of JSC "IC "E" to J.

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 dismissed 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, which was 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 is calculated from the moment the insurance payment is made (Article 28 of Law No. 446) for filing an action of the insurer against the policyholder in the order of the reverse claim.

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 Internet 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 Internet 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 sued 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, did not agree 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 court of Appeal 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 when considering 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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