From the date of entry into force of the court decision on the compulsory liquidation of the insurer organization, the liquidation Commission, whose powers to manage its affairs and property have been transferred, must pay all insurance payments to the creditors of the liquidated organization.
Plaintiff E. filed a lawsuit in court against SV limited liability company (hereinafter referred to as the partnership), Insurance Guarantee Fund Joint Stock Company (hereinafter referred to as the Joint Stock Company) and citizen H. on the collection of moral damage caused by a source of high risk. In general, he demanded 219,566 tenge of material damage, 200,000 tenge of moral damage, 45,000 tenge of expert expenses and a refund of court costs. By the decision of the Temirtau City Court of Karaganda region dated May 28, 2013, the claims of E. were partially satisfied, in his favor 219,566 tenge of material damage from the partnership, 45,000 tenge of expert expenses from the Joint-Stock Company, the remaining claims were dismissed. By the decision of the Appellate Judicial Board of the Karaganda regional court, the court decision was left unchanged. In turn, the court of Cassation left the decision of the appellate instance in force. The Joint-Stock Company submitted an application to the supervisory Judicial Board of the Supreme Court with a request to violate the judicial acts in this part, indicating that it was allowed to misinterpret the substantive rule of law in terms of recovery of expert costs of judicial acts. In its opinion on the application, the company asks to leave the disputed judicial acts unchanged and the application dismissed.
From the date of entry into force of the court decision on the compulsory liquidation of the insurer organization, the liquidation Commission, whose powers to manage its affairs and property have been transferred, must pay all insurance payments to the creditors of the liquidated organization.
Hearing the conclusion of the prosecutor that it is necessary to issue a new decision on the refusal to satisfy the claim, violating the judicial acts in terms of the collection of 45,000 tenge from the Joint-Stock Company, studying the arguments of the appeal and the materials of the case, the supervisory judicial board changed the judicial acts on the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Civil Procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the course of consideration of this case, such a violation was committed. According to the materials of the case, the defendant H. The main car of the partnership was an oncoming, who was driving a Mercedes-Benz car, committed a car accident. As a result, the Kamaz truck and trailer in the private property of the plaintiff E. were seriously damaged. By the decision of the court No. 2 of Shet District of Karaganda region, H. was brought to administrative responsibility under Part 1 of Article 468 of the code of administrative offenses of the Republic of Kazakhstan and obliged to recover damage from a road accident.
According to the report on the assessment of the cost of movable property and the extent of its damage, the repair of a Kamaz truck is estimated at 114,366 Tenge, the restoration of a trailer-1,076,000 tenge. The total amount of damage caused to the plaintiff 1 the Joint Stock Company "Insurance Company" Polis" (Insurance Company), on which the civil liability of the company is insured, paid the insurance fee to E. in the amount of 970,800 tenge. The listed circumstances are not disputed by the defendant Joint-Stock Company. In order to partially satisfy the requirements of E., The Court of first instance, based on articles 917 and 937 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the civil code), collected material damage from the partnership in favor of the plaintiff in the amount of 219,566 tenge and expert expenses from the Joint-Stock Company in the amount of 45,000 tenge. This decision of the court was also agreed by the courts of Appeal and Cassation. At the same time, the applicant makes a reasonable argument that compensation for losses incurred in the activities of an independent expert should fall not on the Joint-Stock Company, but on the insured insurance company, where the civil liability of the owner of the source of high risk lies.
The owner of the source of high risk is insured by the company's civil liability insurance company. By the decision of the Specialized Interdistrict Economic Court of Almaty, which entered into legal force on August 9, 2012, the insurance company was liquidated. The agency of the Republic of Kazakhstan for regulation and supervision of financial trade and financial organizations approved the composition of the commission for the liquidation of the insurance company, in accordance with paragraphs 2 and 3 of Article 50 of the civil code, the authority to manage the affairs and property of a legal entity was transferred to this commission. In accordance with subparagraphs 1) and 2) of Paragraph 1 of Article 7 of the law of the Republic of Kazakhstan "on the insurance payment guarantee fund", the liquidation Commission, whose powers have been transferred from the date of entry into force of the court decision on the compulsory liquidation of the insurance organization-a participant in the guarantee fund:-to pay insurance payments of the forcibly liquidated insurance organization in accordance with the procedure and the contract provided for by the legislation of the Republic of Kazakhstan on insurance and insurance activities; - in all insured events arising under insurance contracts, the compulsory liquidated insurance organization must pay the guaranteed insurance funds in full in accordance with the procedure provided for by the law of the Republic of Kazakhstan "on insurance activities" in cases of refusal to pay creditors or payment of the insurance payment not in whole, but in part. In accordance with subparagraph 14) of Article 1 of the law of the Republic of Kazakhstan" on compulsory insurance of civil liability of vehicle owners " (hereinafter referred to as the law), insurance paymentfunds paid by the insurer to the insured (beneficiary) within the insured amount in the event of an insured event. In subparagraph 12)of Article 1 of this law, the amount of insurethe form of insurance is specified as the amount insured and the limit of the amount of liability of the insurer in the event of an insured event.
In this regard, the payment of the services of an independent expert is not subject to insurance payment, because this cost is not included in the insurance amount, and therefore the insurance guarantor fund, that is, the Joint-Stock Company, cannot guarantee its payment. In accordance with Paragraph 8 of Article 22 of this law, the loss incurred by the insured or the victim (beneficiary) for the activities of an independent expert must be reimbursed by the insurer without participation in the insurance payment. In such a case, in accordance with Paragraph 8 of Article 22 of the law, a claim for compensation for losses as above may be filed with the liquidation Commission of the insurance company that insured the civil liability of the source of high risk. Taking into account the circumstances established in the case and based on the above provisions of the law, the supervisory judicial board amended the judicial acts and annulled them in terms of the recovery of expenses for the payment of the services of an independent expert from the Joint-Stock Company.
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