Response to the defendant's appeal
The Judicial Board for Civil Cases
Mangystau Regional Court
130000, Aktau, 8th microdistrict, 39 "V"
1201@sud.kz
8 (7292) 70-14-40, internal number: 0414.
From the defendant: Yu And Ye
IIN ......
Almaty, Suyunbaya ave., ...., 24 block.
8 701 .....
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Plaintiff: R. Z. S.
IIN .
Aktau, .
8 701 ...
Feedback
on the appeal of defendant -1 against the decision of the Court No. 2 of Aktau, Mangystau region, dated November 11, 2024, on compensation for damage
On November 11, 2024, Court No. 2 of Aktau, Mangystau region, consisting of: the presiding judge G.S. Sakhanova, considered in open court the civil case No.4711-24-00-2/3819 on the claim of: R. Z. Stepanovna (dale Plaintiff) against the Defendants: Limited Liability Company "S. Dent" (hereinafter referred to as Respondent–1), both J and E; (hereinafter referred to as Respondent-2). Third parties: The Republican State Institution "Department of the Committee for Medical Pharmaceutical Control of the Ministry of Health of the Republic of Kazakhstan for the Mangystau region", - for damages, the court DECIDED: The claim of R. Z. Stepanovna to the limited liability company "S. Dent" and partially satisfy the claim for damages.
To recover from S. Dent LLP both legal entities in solidarity in favor of R. Z. Stepanovna moral damage in the amount of 1,000,000 tenge.
To collect court costs in the amount of 100,923 tenge from the Sofi Dent limited liability partnership in favor of Zinaida Stepanovna Reznichenko.
To collect court costs in the amount of 100,923 tenge from the Legal entity in favor of R. Z. Stepanovna.
The rest of the claim must be dismissed.
According to Article 224 of the CPC, the court's decision must be lawful and justified. A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.
We partially agree with the decision of the court of first instance regarding the recovery from Defendant-1 S. Dent LLP of moral damage in the amount of 1,000,000 tenge and court costs in the amount of 100,923 tenge in favor of Zinaida Stepanovna Reznichenko.
We disagree with the court's decision regarding the recovery from the Defendant-2nd, 3rd and E in solidarity in favor of R. Z. S. moral damage in the amount of 1,000,000 tenge and the recovery of court costs in the amount of 100,923 tenge.
We consider that the specified part of the court decision is subject to cancellation on the following grounds:
In the decision, the court motivates its arguments that, in accordance with paragraph 1 of Article 917 of the Civil Code, which regulates the general grounds for liability for harm, unlawful actions (inaction) of the person who caused the harm are a prerequisite for liability for property and (or) non-property damage.
However, the court did not take into account paragraph 2 of Article 917 of the Civil Code of the Republic of Kazakhstan, which stipulates that the person who caused the harm is exempt from compensation if he proves that the harm was caused through no fault of his own. In this case, Defendant-2 did not harm the Plaintiff, as evidenced by the arguments set out in the Review provided to the presiding judge.
The court also cites in its arguments Articles 951 of the Civil Code of the Republic of Kazakhstan Compensation for moral damage by paragraphs 1,2,3 of this Article, however, it overlooks the norms of paragraph 4 of Article 951 of the Civil Code of the Republic of Kazakhstan, which provides that moral damage caused by actions (inaction) violating the property rights of a citizen is not subject to compensation.
The court's arguments that the Plaintiff has suffered diminution or deprivation of personal non–property benefits and rights, including moral or physical suffering, humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort as a result of the offense committed against him, are considered unfounded since Defendant 2 did not cause damage and is not responsible to the Plaintiff, as Defendant-2 has done work on bone grafting and implant placement. In addition, paragraph 2.3, Article 951 of the Civil Code of the Republic of Kazakhstan strictly stipulates that moral damage is compensated by the causer if there is fault of the causer – in this case, we consider there is no fault of the Defendant-2.
The court argues that the court session established that the plaintiff applied to defendant -2, who worked for defendant -1, on his territory, to install the implants. According to the informative consents signed by plaintiff and defendant -2, the latter undertook to carry out sinus lifting and implantation of 7 pins. The plaintiff did not give consent to tooth extraction, and defendant-2 did not accept such an obligation. However, the plaintiff's teeth in the amount of 9 pieces were removed.
The above-mentioned arguments of the court established in the court session are not entirely correct due to the circumstances listed below and the arguments of Defendant-2 to the Dental Clinic "S. Dent" (Hereinafter referred to as the clinic) got a job as a Surgeon in July 2019. Since that time, he has been serving the Clinic's clients.
The salary was determined from the work done, i.e. 30% of the amount paid by the patient with a minus for materials (implants, bone materials, etc.).
Regarding the Plaintiff's arguments that she contacted the clinic on 10/25/2021 in order to obtain information about treatment and implant placement, we disagree, since in fact the Plaintiff contacted the clinic much earlier in about August 2021, where dental technician A. B. Asgaraliyogly accepted the Plaintiff and treated all the teeth, installed metal–ceramic crowns that the Plaintiff categorically did not I liked it then, dental technician A. B.A., the Plaintiff made acrylic prostheses, which later also did not like, which caused a verbal conflict between the Plaintiff and the head of the Clinic, as the Plaintiff did not like the work.
On 10/25/2021, as a result of another visit to the Clinic with a complaint from the Plaintiff, dental technician A. B.A., invited Defendant-2 to a consultation for the installation of implants, which would somehow resolve the conflict that occurred between them.
I would like to note for the information of the board that after the installation of the crown and acrylic dentures, the Defendant's teeth were significantly damaged and it was not possible to restore them to their original condition. Accordingly, it was recommended that the Plaintiff have her teeth removed, to which she agreed.
Respondent-2, after examination and medical history, provided a consultation where he highlighted 3 important points: The success of treatment with implants depends on patients:
1) The patient's state of health (presence of chronic diseases and, most importantly, hygiene);
2) Rational surgery;
3) Rational orthopedic treatment.
However, it turned out that the Plaintiff had misled the defendant that she had no chronic diseases, whereas the Plaintiff in her first Claim, civil case No. 4711-23-00-2/4510 dated 09/14/2023, wrote that she had chronic diseases. If the patient has chronic diseases, then Respondent-2 did not recommend implantation.
The Plaintiff also asked for the provision of the Defendant-2: CT scan, 3D scan of the upper and lower jaw, blood test.
After studying the information provided and the CT scan, the 3D scan of the upper and lower jaw, I came to the conclusion that the implants can be installed. Next, Defendant-2 and the Plaintiff drew up a treatment plan and set a day and time for dental implantation.
On 10/30/2021, the Defendant carried out work on the bone grafting of the upper jaw, for which the Plaintiff paid the Clinic funds in the amount of 560,000 tenge, subsequently it took time to integrate the bone.
On 03/09/2022, according to the agreed treatment plan, the Defendant removed 4 teeth in the upper jaw with the installation of 6 implants, with partial bone grafting, for which the Plaintiff paid the clinic 960,000 tenge.
According to the agreed treatment plan, on 05/20/2022, the Defendant removed 5 lower jaw teeth from the Plaintiff and installed 7 implants, for which the Plaintiff paid 935,000 tenge to the clinic.
An implant is an artificial root that is inserted into the bone.
After the installation and healing of the above-mentioned implants, the Defendant's work was completed at this stage.
The court also argues in its decision that, after the installation of the prostheses was completed and their rejection began, in March 2023, the plaintiff took a second 3D image, which was subsequently described by a dentist of the highest category, Iskendirov M, on July 20, 2023: "The compact plate of the upper jaw is thinned. The maxillary sinus is pneumatized. It is required to install an implant in the maxillary sinus area with a "sinus lift operation", which the implantologist did not do. The installed implants are not stable. Implants on the lower jaw are not installed correctly, since the installation of a cantilever prosthesis is contraindicated, taking into account the patient's age. Intact teeth were not removed correctly, although it was possible to leave several teeth among the (treated) teeth for natural support during implantation."
The court concludes that Defendant-2, while working for defendant-1, first performed, without the plaintiff's consent, the removal of her teeth, and then implantation and prosthetics of inadequate quality, which led to inflammation, suppuration and the need to remove the installed implants from the plaintiff's mouth, and subsequently the reinstallation of new implants.
The court does not agree with these arguments, since in July 2022, the head of the clinic, Asgaraliev B, dismissed Defendant 2, and after that he opened his dental office by establishing D&A D. K. LLP.
After 4 months, at the end of February 2023, the Plaintiff and the head of the clinic, Asgaraliev B, came to the Defendant complaining of pain, difficulty opening the mouth, the smell of rot, lack of aesthetics, inability to eat, and after an objective examination of the Plaintiff's mouth area, Defendant 2 saw that the oral mucosa was hyperemic, swelling, there were remnants of urine under the prosthesis, purulent discharge, palpation was painful, orthopedic construction was not performed rationally, not efficiently, X-ray implants are adequate, The effect of the adhesive cement on the body of the implants is determined, as well as partial bone resorption in the areas and contacts with the cement.
Subsequently, a consultation was held with the Plaintiff, where Defendant-2 was recommended to remove the orthopedic structure resulting in complications (osteomilitis).
Having his civic position working in another clinic, Defendant-2 provided assistance to the Plaintiff free of charge, thereby protecting the patient from serious complications of osteomyelitis and jaw fracture.
As a result of cement leakage from the orthopedic structure, destruction (complete resorption) of bone tissue occurred, which could lead to osteomyelitis and pathological fracture of the jaw.
At the request of the patient and the head of the clinic, the Defendant, purely out of human motives, as a former employee, removed the crowns from the Plaintiff free of charge, on March 28 and 29, 2023, with assistant Aiziev M..
Subsequently, the Defendant removed 3 lower jaw implants. In addition, the Defendant had the infected bone tissue removed.
After the above services, Defendant-2 asked for a reframed snapshot of the jaws.
Defendant-2 also removed 3 implants in the upper jaw from the Plaintiff and removed the infected bone tissue, treated it.
After the work done, the Plaintiff came several times for examinations and the healing was very satisfactory.
Subsequently, Defendant-2 warned the Plaintiff that he was leaving the city and that it was necessary to remove stitches from any dentist.
All the arguments of Defendant-2 during the trial were confirmed by R.A. Dzhanov, who was invited as a specialist, who explained and repeatedly answered questions that crowns are categorically not placed on implants if there is rejection and or non-healing, and the specialist explained that implants can be short and long and can also be installed at an angle. Hence, it can be argued that Defendant-2 fulfilled its obligations properly. Defendant-1's arguments that he only assisted and did not insert any crowns are not well-founded, since in the very first and second claims, the Plaintiff claims that Defendant-1 inserted the crowns.
The court also argues that the Plaintiff applied to an expert, Candidate of Medical Sciences, dentist of the highest category I. M.A. to obtain an opinion. At the same time, the court takes into account the description of the dentist of the highest category I. M., which he made during the inspection by the Department, because the Department involved him as a specialist.
According to the expert, I. M.A., makes a description of 3D images of the patient R. Z.S., in order to install an implant on the upper jaw in the maxillary sinus area, a sinus lifting operation is needed, which the implantologist has not done
- to which Defendant-2 explains that sinus lifting was not done as they were doing bone grafting and this was sufficient.
The expert, I. M.A., describes the installed implants as unstable. The implants on the lower jaw are not installed correctly, since the installation of a cantilever prosthesis is contraindicated, taking into account the patient's age
– To which Defendant-2 explained that he did not prostheticize the Plaintiff, the head of the clinic in the person of dental technician A. B. prostheticized, as evidenced by the Claim and the testimony of the Plaintiff during the court session
In addition, the Opinion of the independent medical expert I. M. dated 07/20/2023, according to the description of the 3-D pictures of the patient, was not drawn up correctly, whereas the independent medical expert I. M. is not a member of the Chamber of the Republican Chamber of Forensic Experts, which can be checked at the link https://rpse.kz /, does not have a license issued by an authorized state body to engage in expert activity;
I did not attach the confirmed Certificates to the conclusion. Thus, we believe that I. M. is also not a specialist in the field of medicine, since evidence of work and a Diploma of higher or secondary specialized education in the field of medicine were not attached.
The expert opinion submitted to the court by the Plaintiff's party dated 07/20/2023, No number, no examination of the subject of the study, I. M., in accordance with art. 420 of the Criminal Code of the Republic of Kazakhstan has not been warned about criminal liability for knowingly giving a false conclusion, it is not numbered, laced or stamped by an expert or specialist, or if the conclusion is drawn up in electronic format or signed with an electronic digital signature of the expert, it is not indicated what work experience the expert has in the specified specialty, what Methodological manuals, Literature and etc., research methods are not specified, and what equipment and tools were used in the study are not indicated. Which contradicts art. 38, 39 Contents and Expert Opinions of the Law of the Republic of Kazakhstan On Forensic expertise.
In addition, Defendant-2 was not notified that the Plaintiff was conducting an independent medical expert I. M., an expert examination and or obtaining a specialist's opinion, whereas with proper notification by the Plaintiff's side about the Examination, Defendant-2 could have asked his questions, provided arguments and evidence for an objective study.
Article 9 of the Law of the Republic of Kazakhstan on Forensic Expertise provides for the comprehensiveness, completeness, objectivity and scientific validity of forensic expert research. In addition, the Law stipulates that when conducting a forensic examination, a forensic expert must take all measures for a comprehensive, complete and objective examination of objects based on special scientific knowledge. The expert's opinion should be based on provisions that make it possible to verify the validity and reliability of conclusions based on generally accepted scientific and practical data.
In addition, M. Iskendirov, assuming himself as an expert or specialist in accordance with the Law of the Republic of Kazakhstan "On Forensic Expertise", has no right to rely on assumptions and/or unconfirmed possibilities without objectivity and scientific validity.
If cases of violations of legality are identified, the court has the right to issue and send a private ruling to the authorized body in accordance with art. 270 of the CPC RK.
In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.
The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
Accordingly, the Plaintiff's arguments on the examination are unacceptable and not relevant as evidence.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
The expert's opinion cannot serve as a basis for the satisfaction of the claim, since it does not disclose the essence of the dispute.
We believe that the Defendant, 2 Y.I.E., is an improper defendant in this civil case.
In accordance with Article 44 of the Civil Code of the Republic of Kazakhstan, Liability of a legal entity stipulates that legal entities are liable for their obligations with all their property.
In addition, the Plaintiff paid all the money to the settlement account of the blade and the blade returned to the Plaintiff the full amount paid by the plaintiff. Accordingly, we consider that in this civil case there is a need to replace an improper defendant with a proper defendant.
In accordance with art. 50. of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that Replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one.
According to the totality of the data obtained, the claim should be brought against the clinic in which two non-rational stages of prosthetics were performed, represented by a dental technician A. B., who does not have sufficient education and does not have the right to work with patients.
If the plaintiff does not agree to replace the improper defendant with a proper defendant, the court considers and resolves the case according to the claim.
In addition, the 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 strictly stipulates that in the statement of claim the plaintiff is obliged to indicate the circumstances and provide evidence confirming the violation of his personal non-property benefits and rights, and the need for their protection, as well as the amount of compensation, which, In his opinion, he will provide compensation for the moral damage caused to him. – however, the Plaintiff probably did not suffer for days and nights, even if it was not the fault of the Defendant -2, and the arguments given in the Statement of Claim are not grounds for recovery of moral damage.
According to the requirements of Article 952 of the Civil Code, moral damage is compensated in monetary form. At the same time, the court determines the amount of compensation based on the criteria of reasonableness and fairness.
The amount of compensation for moral damage should be considered reasonable and fair if, when establishing it, the circumstances related to the violation of personal non-property rights of a citizen are taken into account. The measure of responsibility for the committed unlawful act and its consequences for the harm-doer is the amount of monetary compensation.
The amount of compensation for moral damage collected by the court of first instance may be reviewed by higher courts if it does not comply with the above requirements.
When determining the amount of compensation for moral damage, courts must take into account both a citizen's subjective assessment of the severity of the moral or physical suffering caused to him, and objective evidence of this, in particular: the vital importance of personal non-property benefits and rights (life, health, freedom, inviolability of the home, personal and family secrets, honor and dignity, etc.); the degree of moral or physical suffering experienced by the victim; the form of guilt (intent, negligence) of the harm-doer, when its presence is necessary to compensate for moral damage.
Accordingly, the circumstances stated in the court's decision do not indicate that the Plaintiff suffered moral harm from the Defendant-2 and are subject to denial of the claim in the specified part, and the court's decision is subject to change.
The court's arguments that the plaintiff was forced to seek the protection of a Lawyer and incurred the cost of paying for the services of a representative in the amount of 200,000 tenge and then went to court to eliminate the violated rights is an indisputable fact. However, when satisfying the Claim for representation expenses, the court did not consider it necessary to pay attention to Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, where, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the representative's assistance, for property claims, the total amount of these costs should not exceed ten percent of the satisfied portion the claim. According to non–property claims, the amount of expenses is collected within reasonable limits - accordingly, we believe the court should have reduced the total amount to 100,000 tenge.
In addition, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 On the application by the courts of the Republic of Kazakhstan of Legislation on court costs in civil cases provides that in the case of an excessively high amount of expenses (payment order or receipt) for the payment of assistance from a representative involved in the process, the court must be guided by non-property requirements. the criteria of good faith, fairness and reasonableness provided for in paragraph 4 of Article 8 of the Civil Code and part five of Article 6 of the CPC.
Article 68 of the CPC RK. The "Evaluation of evidence" states that each piece of evidence must be evaluated taking into account its relevance, admissibility, and reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe the falsity of the evidence provided and the groundlessness.
According to the norms, art.65 of the CPC RK - each party must prove the circumstances to which it refers both on the basis of its claims and objections, and in accordance with art.66 of the CPC RK - evidence is provided by the parties and other persons involved in the case. And by virtue of paragraph 2 of Article 68 of the CPC RK, in accordance with Article 16 of this Code, a judge evaluates evidence according to his inner conviction.
In such circumstances, the decision of the Aktau City Court of Mangystau region dated November 11, 2024, issued in violation of substantive and procedural law, which limited the rights of participants in civil proceedings guaranteed by the Constitution of the Republic of Kazakhstan and the CPC of the Republic of Kazakhstan, cannot be recognized as lawful, justified and fair.
In accordance with art. 408 of the CPC RK, the person participating in the case sends a response to the appeal, the prosecutor's petition to the court of appeal, to other persons participating in the case, accompanied by documents confirming objections to the appeal, the prosecutor's petition.
Based on the above and guided by the requirements of art. 408 of the CPC of the Republic of Kazakhstan,
I ask the Court:
· The appeal of Defendant-1 against the decision of the Aktau city Court No. 2 of the Mangystau region dated November 11, 2024 on compensation for damage should be dismissed.
Sincerely, Proxy representative
Lawyer: ___________/Sarzhanov G.T.
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