The right of claim transferred to the insurer by way of subrogation must be carried out in compliance with the same rules as the right of claim of the original creditor.
The court of the supervisory instance, due to a significant violation by the courts of lower instances of the norms of substantive law, annulled the judicial acts that took place in the case of the claim of JSC IC Kazkommertspolis against O. for the recovery of 350,333 tenge by way of subrogation. It can be seen from the case file that a voluntary property insurance contract in the form of a BMW X5 car was concluded between Kazkommerts-Polis IC JSC as an insurer and D. as an insured. According to the voluntary property insurance contract, the insured's property interests are the insured's property interests, which are expressed in compensation for property damage in the event of destruction or damage to the insured property as a result of an insured event. Upon the occurrence of an insured event, the policyholder submits all documents substantiating the occurrence of the insured event and the amount of property damage caused. In this case, the insurer makes an insurance payment to the policyholder in the amount of the property damage caused, but minus the insurance deductible provided for in the insurance contract. After making the insurance payment, the insurer acquires the right of subrogation (claims against the person who caused the insured event). If the policyholder does not provide the insurer with documents substantiating the occurrence of the insured event and the amount of property damage caused, the insurer does not make an insurance payment to the policyholder and, accordingly, does not acquire the right of subrogation. On September 24, 2008, the insurer JSC "S" and the policyholder O. concluded a contract of compulsory insurance of civil liability of the vehicle owner for the period from September 25, 2008 to September 24, 2009. Under the contract of compulsory insurance of civil liability of the vehicle owner, the object of insurance is the property liability of the vehicle owner for damage caused to the life, health or property of the victim (third party). The amount of the insurance payment is limited by the law. On December 21, 2008, O., driving a Toyota Camry car, contrary to the requirements of paragraph 13.13 of the Traffic Regulations (hereinafter referred to as the Traffic Regulations), did not miss a BMW X5 car moving on the right, and allowed the vehicles to collide.
The right of claim transferred to the insurer by way of subrogation must be carried out in compliance with the same rules as the right of claim of the original creditor.
By the decision of the specialized administrative court, O. was brought to administrative responsibility for the violation of traffic rules under part 1 of Article 468 of the Administrative Code in the form of an administrative fine. When considering the case, the court of first instance proceeded from the provisions of paragraph 1 of Article 840 of the Civil Code, according to which the insurer who made the insurance payment, transfers, within the amount paid, the right of claim that the policyholder (insured) has against the person responsible for losses compensated as a result of insurance. According to paragraph 4 of Article 9 of the Civil Code, losses mean expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property. Subrogation is understood as the transfer to the insurer of the policyholder's rights to compensation for losses, that is, a change in the creditor's obligation to compensate for losses. When considering the case, the court of first instance proceeded from the fact that, by virtue of Article 931 of the Civil Code of the Russian Federation, O., as the owner of the source of increased danger, is obliged to compensate for the losses caused to D. as a result of damage to the BMW X5 car. However, the provisions of Article 931 of the Civil Code apply to obligations that have arisen directly between the owner of a source of increased danger and the victim, to whom the source of increased danger has caused harm to life, health or property. The victim D. did not file a claim against O. as the causer of harm (the owner of the source of increased danger). On the basis of a voluntary insurance contract for a BMW X5 car, JSC SK, as the insurer, made an insurance payment to D. as the policyholder. By virtue of the property insurance contract and the insurance payment made, the insurer has transferred the policyholder's right to compensation for losses, which the policyholder has to the person responsible for the losses. The right of claim transferred to the insurer by way of subrogation must be exercised in compliance with the same rules as the right of claim of the original creditor (policyholder).
As a result of the incorrect application and understanding of the norms of the substantive law, the court of first instance did not investigate the question of which rules and to whom the original creditor (policyholder D.) had the right to claim in the resulting obligation to compensate for damage caused by damage to the car. Clarification of these circumstances relevant to the case is necessary to establish the norms of applicable law and the correct resolution of the dispute. The court of first instance indicated in the decision that O. has the right to file a claim for compensation of the amount recovered from him by way of recourse from JSC "S." It can be seen from the case file that on September 24, 2008, O., as the owner of a Toyota Camry car, entered into a compulsory civil liability insurance contract with C JSC for vehicle owners. Under the terms of the contract and in accordance with the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners", the insurer makes an insurance payment to the victim (beneficiary) as a result of harm to life, health, and property caused by a moving car driven by the policyholder who violated the rules of road safety. O. duly notified the insurer of JSC "S" about the insured event. Having made the insurance payment to the insured D., JSC "SK" applied to JSC "S" on the issue of reimbursement of the insurance payment by way of subrogation. During the consideration of the case, the court did not reliably establish which person JSC "SK", as the policyholder under the property insurance contract, has the right to claim by way of subrogation - the owner of the source of increased danger O. or the policyholder of his civil liability under the compulsory insurance contract - JSC "S". The Court of cassation concluded that the person responsible for the losses caused by the damage to the BMW X5 car is JSC "S". At the same time, with reference to article 28 of the Law "On Compulsory Insurance of Civil Liability of Vehicle Owners", the court indicated that there were no grounds for JSC "IC" to claim recovery from JSC "C" by way of recourse of insurance payment.
Meanwhile, the court did not take into account that the right of subrogation and the right of recourse are independent legal institutions. The right of subrogation arises from the insurer under a voluntary property insurance contract and is implemented by suing the person who caused losses to the insured's property. The right of recourse arises from the insurer under the contract of compulsory insurance of civil liability and is implemented by the insurer by filing a claim against the policyholder, if there are grounds provided for in Article 28 of the Law "On Compulsory Insurance of Civil Liability of vehicle owners". Neither the court of first instance nor the court of cassation examined these circumstances relevant to the case at the court session, which led to the cancellation of judicial acts by way of judicial supervision and the referral of the case for a new judicial review. When considering cases of recovery of insurance payments by way of subrogation, it should also be borne in mind that the person responsible for losses reimbursed as a result of insurance is not responsible for the delay made by the insurer. The Policyholder has no right to require the person responsible for the damage to pay interest for the delay of the insurer who has not paid compensation on time. Since the interest is paid by the insurer due to the late fulfillment of its own obligations to the policyholder and cannot be recovered by way of subrogation from the person responsible for the damage. The harm-doers, not agreeing with the collection of a legal penalty, refer to the fact that the penalty is collected only for monetary obligations, and the insurance contract does not entail a monetary obligation. At the same time, paragraph 1 of Article 295 of the Civil Code provides for the creditor's right to demand payment of a statutory penalty, regardless of whether the obligation to pay it is provided for by agreement of the parties.
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