When collecting an insurance payment by way of recourse, the insurer has the right to claim back
By virtue of subparagraph 3) of paragraph 1 of Article 28 of Law No. 446, the insurer has the right to reverse the claim if the person driving the vehicle did not have the right to drive it at the time of the accident. A person who does not have the right to drive a vehicle should be recognized as a person who does not have a driver's license, that is, At the time of the traffic accident, he lacked the necessary knowledge and skills in the scope of standard training programs for drivers of vehicles of the appropriate category and he did not pass the exams in accordance with the established procedure.; either it does not have the appropriate category for driving this type of transport (for example, for driving a truck or bus); or it has been deprived of the right to drive.
By the decision of the District court No. 2 of Almaly district of Almaty dated May 21, 2015, which was left unchanged by the decision of the appellate instance, the claims of JSC IC O for recovery of insurance payments from K. by way of recourse were satisfied. Satisfying the plaintiff's claims, the court proceeded from the fact that at the time of the accident K. She did not have the right to drive a vehicle because she did not have a power of attorney registered with the traffic police from the owner of the vehicle. These conclusions cannot be considered justified. In accordance with Article 188 of the Civil Code, the owner has the right to own, use and dispose of his property. By issuing a power of attorney for the right to drive a car, the owner transfers his right to own and use the property and the person holding such a power of attorney becomes the owner of the vehicle. Thus, a power of attorney gives the right to own a vehicle, whereas the right to drive must be confirmed by a driver's license, that is, the concepts of "right to drive a vehicle" and "right to own a vehicle" are not identical. It should be borne in mind that by Government Decree No. 472 dated June 23, 2015, the Rules of the Road in the section "2. General duties of drivers" the fifth paragraph of subparagraph 1) of paragraph 1 has been deleted as follows: a document confirming the right to own, use, or dispose of this vehicle, with mandatory registration of an individual driving a vehicle transferred to temporary possession and use with an authorized body – in the case of driving a vehicle in the absence of its owner. Thus, the presence of a written power of attorney for driving a vehicle is currently not mandatory and the absence of a power of attorney cannot be regarded as the absence of the right to drive a vehicle.
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