Determining the amount of damage to restore the vehicle if it is impractical
T.A. filed a lawsuit against Ch.N. for recovery of material damage, arguing that due to the defendant's fault, an accident occurred, as a result of which his Hyundai Elantra car was damaged.
According to the report, the restoration of the car is considered economically impractical. The insurance company made an insurance payment in the amount of KZT 5,087,762, net of the deductible of KZT 553,770 and the amount of usable balances of KZT 2,269,468.
In this regard, he asked to recover from Ch.N. the difference between the amount of damage according to the damage report and the insurance payment in the amount of 9,236,325 tenge, the cost of paying for tow truck services is 12,000 tenge.
By the decision of the Atyrau City Court of November 7, 2022, the claim was partially satisfied.
The amount of material damage in the amount of 553,770 tenge, tow truck services - 12,000 tenge, representative services - 56,577 tenge, state duty in the amount of 5,658 tenge were recovered from Ch.N. in favor of T.A.
By the resolution of the Judicial Board for Civil Cases of the Atyrau Regional Court dated February 23, 2023, the court's decision was changed with an increase in the amount of material damage collected to 7,320,544 tenge, representation expenses to 200,000 tenge, and state duty to 73,205 tenge.
By the decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated June 21, 2023, the decision of the court of appeal was canceled, while the decision of the court of first instance remained in force.
Resolving the dispute, the court of first instance concluded that the claim had been partially satisfied and that the claimant had been reimbursed for the deductible unpaid by the insurer in the amount of 553,770 tenge, as well as losses for tow truck services.
The Appeals Board changed the decision of the court of first instance and increased the amount recovered to 7,320,544 tenge, indicating that according to the 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, in case of complete loss of a vehicle, the amount of damage is determined based on its market value the cost as of the date of occurrence of the insured event.
At the same time, it is not clear from the content of the appeal decision what market value of the car the court took into account when determining the amount of damage, the relevant evidence and calculations are not provided.
The Judicial Board of the Supreme Court of the Republic of Kazakhstan found the conclusions of the court of appeal inconsistent with the factual circumstances of the case, based on the incorrect application of substantive law.
It follows from the case file that the insurer determined the average market value of a similar undamaged car by direct comparative sales analysis according to information on sales prices of several vehicles that are close analogues of the assessed object, which corresponds to the insured value of the plaintiff's car.
The above is confirmed by the fact that the calculation of the economic inexpediency of repairing a damaged car was made as the ratio of the cost of repair to the insured value of the plaintiff's vehicle.
In this regard, the insured value of the car in the amount of KZT 7,911,000 indicated in the report should be considered the market value of the vehicle agreed upon by the parties on the day of the insured event, which, taking into account the freedom of citizens and legal entities to conclude a contract (Article 380), may not correspond to the actual market value of the car.
The plaintiff did not dispute the report, on the contrary, it was submitted to the court in support of the stated claim, and the amount of the insurance payment was received by him.
Consequently, the plaintiff agreed with the result of the amount of damage determined by the insurer and the market value of the car.
Since the repair was deemed impractical, since the estimated costs for it exceed the cost of the car, the plaintiff did not abandon the usable remnants, the court of first instance lawfully calculated the amount of damage based on the cost of the car (7,911,000 tenge) minus the usable remnants (2,269,468 tenge) that remained at the disposal of the plaintiff, and deduction of insurance indemnity (KZT 5,087,762).
Thus, the court of first instance objectively established the circumstances of the case relevant for the proper resolution of the dispute and applied the substantive law rules to be applied.
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 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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