The amount of compensation for moral damage collected by the court does not meet the criteria of fairness and sufficiency.
K. filed a lawsuit against A. for compensation for damage caused as a result of a traffic accident caused by his driver, which caused disability of group 1 and loss of vision in both eyes. He asked to recover from the defendant the lost earnings for the period of the last three years in the total amount of 1,834,812 tenge, monthly payments in the amount of 50,967 tenge for the loss of earnings for the period from September 05, 2012 to October 11, 2013 before the date of medical re-examination and, taking into account valid reasons, to recover the total amount of payments in a lump sum by capitalization in the amount of 66,2967 tenge, the cost of treatment for the period from 2009 to 2011 in the amount of 2,456,325 tenge, the cost of examination and medical treatment in LLC "Newest Medicine" Moscow (Russia) in the amount of 7,182,315 tenge, the costs of sanatorium treatment and the cost of studying at the Peoples' Friendship University of Russia in the field of International Relations in the 2012-2013 academic year in the amount of 1,207,944 tenge, compensation for moral damage in the amount of 400,000,000 tenge and reimburse court costs. The claim was partially satisfied by the decision of the Zhetysu District Court of Almaty dated October 04, 2012. Recovered from A. in favor of K. in compensation for damage caused by injury to health, lost earnings (income) in the amount of 811,522 tenge, medical expenses in the amount of 421,223 tenge, compensation for moral damage 2,000,000 tenge, a total of 3,232,745 tenge. The rest of the claim was denied. A state duty in the amount of 13,136 tenge was collected from A. to the state revenue. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty City Court dated January 14, 2013, the court's decision was changed, regarding the recovery from A. in favor of K. The amount of lost earnings was 811,522 tenge, medical expenses in the amount of 421,223 tenge were canceled, in this part a new decision was made to dismiss K.'s claim.
The amount of compensation for moral damage collected by the court does not meet the criteria of fairness and sufficiency.
The state duty collected from A. to the state revenue has been reduced to 809 tenge. The rest of the court's decision remains unchanged. By the decision of the Cassation Judicial Board of the Almaty City Court dated February 26, 2013, the court's decision, taking into account the amendments made to it, and the decision of the appeals board remained unchanged. In the petition, K.'s representative asks to review the judicial acts that took place in the case in connection with a significant violation of the norms of substantive and procedural law, and to make a new decision to satisfy M.'s claim in full. He believes that the court unlawfully and unreasonably refused to satisfy the claim for recovery in favor of the plaintiff of lost earnings provided for in Article 937 of the Civil Code, as well as for recovery of monthly payments. Also, he does not agree with the conclusions of the appellate instance that the defendant overpaid the plaintiff the amount of compensation for damage, transferring 1,164,000 tenge to him in 2007, which cover all expenses for medical treatment, the amount of lost earnings and monthly payments for the entire period starting in 2007, believes that these conclusions of the court are not confirmed by what"or evidence." The applicant indicated that due to the injury, the plaintiff needed additional expenses for examination and treatment, which was confirmed by a letter from OOO N City of Moscow (Russia), as well as sanatorium treatment, but the court unreasonably refused to satisfy the claim in this part. The appellate instance, agreeing with the conclusions of the court of first instance on the responsibility and obligations of defendant A. in accordance with Article 931 of the Civil Code for compensation for damage caused to the plaintiff's health, concluded that the court of first instance did not apply Article 924 of the Civil Code when collecting from Defendant A. in favor of the plaintiff, the amount of lost earnings and medical expenses.
The Supervisory Judicial Board of the Supreme Court changed the decisions of the appellate and cassation judicial boards, canceled the refusal to satisfy the claim to recover from defendant A. the amount of lost earnings in the amount of 811,522 tenge at a time and medical expenses in the amount of 421,223 tenge, in this part the decision of the Zhetysu District Court of Almaty remained in force. The judicial acts in this case regarding the recovery of compensation for moral damage in the amount of 2,000,000 tenge from A. in favor of K. were changed, the amount recovered was increased to 7,000,000 (seven million) tenge. The rest of the judicial acts remained unchanged on the following grounds. As can be seen from the case file, the plaintiff received an insurance payment from the insurance company in the amount of 1,036,800 tenge. Of the specified amount, 62,244 tenge was paid for damage caused to property and 974,556 tenge for damage caused to health. Thus, the insurance payment for damage caused to health, paid to the plaintiff in a lump sum in 2009, amounted to 974,556 tenge. In addition, in the period from May 2007 to August 2009, the defendant transferred sums of money to the plaintiff in parts, which amounted to only 1,164,000 tenge, in connection with which, in 2007, the plaintiff wrote a statement refusing to prosecute A. From the explanations of the plaintiff and his representative K. it follows that they received from the defendant 1,164,000 tenge is compensation for material and moral damage for that period of time and in the future, the defendant promised financial assistance until full recovery and restoration of health, however, since 2009, the defendant has stopped providing financial assistance. From 2009 to the present, the plaintiff, being a group 1 disabled person, having completely lost the sight of both eyes as a result of an accident caused by the defendant, receives only a disability pension. At the same time, the plaintiff continues to treat the consequences of a severe traumatic brain injury he sustained as a result of this accident. Under these circumstances, the board considered that the amount of 1,164,000 tenge paid by the defendant was not only compensation for injury to health, but also compensation for moral damage, making amends in order to evade criminal liability.
Taken together, the arguments of the appellate instance that the lost earnings in the amount of 811,522 tenge and medical expenses in the amount of 421,223 tenge collected by the court of first instance are covered by the amount of the insurance payment and the amount paid by the defendant voluntarily cannot be considered justified due to the incorrect application of Article 924 of the Civil Code. According to the expert's conclusion, K. was born in 1984 as a result of an accident. the following damage was caused to health: open traumatic brain injury with severe brain contusion, intracerebral hematoma, fracture of the frontal bone on the right, bruised wounds to the chin, right shin, atrophy of the optic nerves of both eyes, resulting in complete loss of visual functions of the eyes, closed fracture of the pubic and sciatic bones on the right. Partially satisfying the claims for compensation for moral damage in the amount of 2,000,000 tenge, the court took into account the youth, the severity of the moral and physical suffering inflicted on the plaintiff, as well as the degree and form of guilt of the defendant, his behavior after the incident and the provision of financial assistance.
By virtue of paragraph 6 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated June 21, 2001 (with amendments and additions dated March 20, 2003 and December 30, 2011) "On the application by courts of legislation on compensation for moral damage", the amount of compensation for moral damage in monetary terms should be considered fair and sufficient if, when establishing The court took into account all the specific circumstances related to the violation of personal non-property rights of a citizen., and the amount of compensation established by the court allows us to draw a reasonable conclusion about the reasonable satisfaction of the plaintiff's claims. The amount of compensation for moral damage collected by the court of first instance may be reviewed on appeal or supervisory review if it does not comply with the above requirements.
In the opinion of the board, the amount of compensation for moral damage collected by the court of first instance does not meet the criteria of fairness and sufficiency. Considering it necessary to increase the amount of compensation for moral damage, the supervisory judicial board of the Supreme Court took into account the long-term mental pain endured by the plaintiff, the limited opportunity to start a family as a result of complete loss of vision, the inability to work in his chosen profession, and the subsequent behavior of the defendant, who has not provided financial assistance since 2009, while the plaintiff is in correspondence with various He travels to clinics outside the country in the hope of a cure, incurring certain costs. Taken together, the supervisory judicial board of the Supreme Court considered it possible to increase the amount of compensation for moral damage collected from A. in favor of the plaintiff to 7,000,000 tenge.
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