Determination of the amount of compensation for damage caused to health

When considering the claim of S.G. and S.M. for compensation for damage caused by the death of the breadwinner, the judicial board for civil cases of the Karaganda Regional Court, changing the decision, indicated that the court of first instance incorrectly determined the amount of damage, incorrectly calculated without taking into account the share of the deceased's salary, which is provided for in paragraph 1 of Article 941 of the Civil Code.

In the decision, the court indicated that it takes into account 80% of the employer's guilt, which contradicts paragraph 4 of Article 935 of the Civil Code, according to which the guilt of the victim is not taken into account when compensating for harm to persons who suffered damage as a result of the death of a citizen.

The court incorrectly proceeded from the amount of earnings with reference to paragraph 5 of Article 938 of the Civil Code, since this provision deals with the possibility of applying a higher salary before the death of a citizen compared with other months included in the calculation when calculating the average monthly salary, but during the life of the victim.

By the resolution of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated March 27, 2023, it was refused to transfer the petition for review of the resolution of the Judicial Board for Civil Cases of the Karaganda Regional Court dated August 27, 2022 for consideration at a court session of the judicial board for Civil Cases of the Supreme Court of the Republic of Kazakhstan.

At the same time, the cassation board pointed out that when determining the amount of compensation for harm by the court of first instance, it was not taken into account that, by virtue of paragraph 1 of Article 941 of the Civil Code, harm is compensated to persons entitled to compensation for harm in connection with the death of a citizen in the amount of the share of earnings (income) of the deceased, calculated according to the rules of Article 938 of the Civil Code, which they received or had the right to receive for their maintenance during his lifetime.

That is, first you should determine the earnings of the deceased according to the rules of Article 938 of the Civil Code - at the time of his death. Next, it is necessary to determine the share of each person entitled to compensation for harm, but at the same time take into account the share of the deceased himself.

In accordance with paragraph 4 of Article 935 of the Civil Code, the guilt of the victim is not taken into account when compensating for harm to persons who suffered damage as a result of the death of a citizen, therefore, the court of appeal correctly determined the amount of damage based on the average monthly salary of S.K. as of December 2018 in 203 559 tenge minus the share of the deceased himself.

The general rule for determining average earnings is given in paragraph 3 of Article 938 of the Civil Code - the average monthly earnings (income) are calculated by dividing the total amount of earnings (income) for the 12 months of work preceding injury or disability by twelve.

If the victim has been working for less than 12 months at the time of the injury, the average monthly earnings (income) are calculated by dividing the total amount of earnings (income) for the number of months actually worked before the injury by the number of these months.

According to paragraph 5 of Article 938 of the Civil Code, if there have been steady changes in the earnings (income) of the victim before the injury or other damage to his health, improving his property status (increased salary for his position, transferred to a higher-paying job, joined the job after graduation and in other cases when stability is proven changes or the possibility of changing the victim's salary), when determining his average monthly earnings (income), only earnings (income) are taken into account, which he received or should have received after the corresponding change.

This provision deals with the possibility of applying a higher salary before the death of a citizen compared to other months included in the calculation of the average monthly salary, but during the life of the victim.

For example, if in the twelve months preceding the injury (death), an employee received 100,000 tenge for 10 months, but in the last two months his salary was officially increased to 150,000 tenge, then only the amount of 150,000 tenge will be taken into account when determining the average monthly earnings.

Jurisdiction of cases

The jurisdiction of cases is determined in accordance with the general rules established by Article 29 of the CPC, that is, at the place of residence of the defendant of an individual or at the location of the defendant of a legal entity.

Along with this, claims for compensation for damage caused by injury or other damage to health, as well as caused by the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of injury (part 5 of Article 30 of the CPC).

State duty

According to paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), a state fee is charged in the following amounts from claims for material damage filed in court: for individuals - 1 percent of the amount of the claim, but not more than 10,000 MCI, for legal entities - 3 a percentage of the claim amount, but not more than 20,000 MCI, from non-property claims - 0.5 MCI.

Plaintiffs in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner, are exempt from paying state duty on the basis of subparagraph 5) of Article 616 of the Tax Code.

The legislation does not provide for pre-trial settlement

Courts should keep in mind that the legislation does not provide for the plaintiff's compliance with the procedure for pre-trial settlement of disputes on compensation for damage caused by a source of increased danger (hereinafter referred to as IPO).

Example: By the ruling of the Alatau District Court of Almaty dated April 5, 2023, the claim of N.D. to K.K. and Zh.E. for recovery of material damage caused by IPO in connection with non-compliance with the procedure for pre-trial settlement of the dispute was dismissed.

In accordance with subparagraph 1) of Article 279 of the CPC RK, the court leaves the claim without consideration if the plaintiff has not complied with the procedure established by law for this category of cases or the procedure provided for in the contract for pre-trial dispute settlement and the possibility of applying this procedure has not been lost.

If the law establishes or the contract provides for a pre-trial dispute settlement procedure for a certain category of cases, an appeal to the court may be after observing this procedure (part 6 of Article 8 of the CPC RK).

Taking into account these norms, by the ruling of the judicial board for Civil Cases of the Almaty City Court dated May 18, 2023, the ruling of the court of first instance was canceled, with the transfer of the case to the court of first instance for consideration on the merits.

The plaintiffs are citizens and legal entities.

In accordance with Part 1 of Article 47 of the CPC RK, plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by this Code.

Determination of the defendant in a claim for damages

When determining the defendant in a claim for damages, it is necessary to check the legal grounds for the defendant's ownership of IPO property.

M.E. filed a lawsuit against B.E., K. for recovery of material damage and monetary compensation for moral damage caused as a result of the accident.

By the decision of the Borodulikhinsky district Court of the Abai region dated January 12, 2023, the claim was partially satisfied, material damage in the amount of 852,459 tenge was recovered from B.E. in favor of M.E., monetary compensation for moral damage in the amount of 1,200,000 tenge.

The court found that the Lada 21713 car belongs to the defendant K.A., the defendant B.E. drove the vehicle on the basis of an insurance policy.

By the verdict of the court No. 2 of the city of Semey, East Kazakhstan region, dated December 21, 2021, B.E. was found guilty of committing a criminal offense under part 2 of Article 345 of the Criminal Code of the Republic of Kazakhstan, which established that B.E., driving a Lada 21713 motor vehicle, made a head-on collision with a Toyota Avensis motor vehicle.

As a result of the accident, M.E. suffered serious harm to her health.

Based on paragraph 1 of Article 931 of the Civil Code of the Republic of Kazakhstan, B.E., who was legally driving the vehicle, was reasonably recognized as the owner of the Lada 21713 vehicle at the time of the accident.

The presence of an insurance policy indicates the insurance of the defendant's GPO as the owner of the vehicle.

Regulatory and legal framework

The normative legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:

- The Constitution of the Republic of Kazakhstan;

- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);

- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC);

- The Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Administrative Code);

- The Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code),

- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of vehicle owners";

- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of the carrier to passengers";

- The Law of the Republic of Kazakhstan "On Road Traffic" dated April 17, 2014;

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8 "On Judicial practice in disputes arising from insurance contracts";

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage";

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 9 "On certain issues of application by courts of the Republic of legislation on compensation for damage caused to health";

- Rules for determining the amount of damage caused to a vehicle, approved by Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016;

- Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No. 534 "On approval of the Rules of the Road, the Basic provisions for the admission of vehicles to operation, the list of operational and special services, the transport of which is subject to equipment with special light and sound signals and coloring according to special color schemes";

- Standard Rules for keeping and walking pets, approved by Order No. 168 of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated May 20, 2022; - Standard Rules for grazing farm Animals, approved by Order No. 145 of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020.

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