REVIEW ON SELECTED JUDICIAL PRACTICE ISSUES RELATED TO
VOLUNTARY INSURANCE OF PROPERTY OF CITIZENS
the Supreme Court of the Russian Federation jointly with the supreme courts of the republics,
territorial, regional and corresponding courts carried out
study of civil cases on disputes arising from the contract
voluntary insurance property considered by the courts of Russia in
period from 2010 to 2011.
The subject of the study were cases on claims for invalidity
property insurance contracts (Articles 930, 944, 951 and 959 of the Civil Code of the Russian Federation),
on the release of the insurer from the performance of obligations (Article 961,
963, 964 and 422 of the Civil Code of the Russian Federation), on the amount of insurance payment, on the recovery
interest for the use of others in cash(Article 395 of the Civil Code
RF), etc.
As a property insurance subject, as a rule,
objects of real estate act: apartments, houses, dachas, buildings,
structures, as well as vehicles, household property.
In addition, the subject of property insurance were property
rights that have their own value.
Form of state statistical reporting
provides for accounting of all cases on disputes related to voluntary
property insurance, in general, as for "disputes about the recovery
insurance compensation, payments", without singling out specific categories
these cases.
The analysis of judicial practice showed that the courts in the majority
cases correctly determine the law to be applied to disputed
relations, take into account the legal positions of the Constitutional Court of the Russian Federation and
clarifications of the Plenum Supreme Court RF.
Substantive Law Issues
Consideration by courts of cases on contesting a voluntary agreement
property insurance
The study of judicial practice has shown that the courts, when resolving
cases of this category correctly proceed from the fact that the relations
arising from the insurance contract are regulated by chapter 48
"Insurance" of the Civil Code of the Russian Federation, Law of the Russian Federation of November 27, 1992 N 4015-I
"On the organization of insurance business in Russian Federation" (Further -
Law N 4015-I) and the Law of the Russian Federation of February 7, 1992 N 2300-I
"On the protection of consumer rights" in the part not regulated
special laws.
In addition, courts tend to take into account clarifications on
application of civil law contained in
decision of the joint Plenum of the Supreme Court of the Russian Federation and the Plenum
(as amended by the resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme
Arbitration Court RF dated December 4, 2000 N 34/15).
Generalization of judicial practice showed that the courts are mainly
correctly apply the rules of substantive law and determine
priorities in the relationship between the contract and the law in resolving cases
the specified category.
During the analyzed period, the courts considered cases of
recognition of insurance contracts as invalid mainly
claims of insurers against insurers.
The presence of a legitimate interest in the person in whose favor
insurance is carried out, is the basis of reality
voluntary property insurance contracts.
As the study of judicial practice has shown, the courts, having determined
the person claiming the insurance indemnity has an interest
in the preservation of property, upon the occurrence insured event accepted
into account, first of all, whether the person has a legal
(legal) connection with the subject of insurance.
At the same time, the courts correctly proceeded from the fact that the presence of
the person in whose favor insurance is provided, interest in
preservation of property testify to any rights in relation to
insured property or related obligations.
For example, Sh. filed a lawsuit against the branch
OOO "Rosgosstrakh" in Kirov region on collection of insurance
compensation, stating that the house was destroyed as a result of the fire,
insured under a voluntary insurance contract. Respondent
refused to pay insurance compensation, referring to the fact that Sh.
there was no legitimate interest in the preservation of the insured property,
because she did not draw up documents confirming the right
ownership of the house after the death of her husband.
Satisfying the claims of Sh., the court proceeded from the fact that
she had an interest in keeping the insured house, which was her
sole place of residence, therefore, acquired the right to
receiving insurance compensation in the event of an insured event
(fire) (based on the judicial practice of the Kirov Regional
court).
The study of judicial practice showed that the courts, resolving a dispute about
invalidity of the property insurance contract due to
lack of legitimate interest of the person in whose favor the
contract, correctly proceed from the fact that the obligation to prove
the absence of a legitimate interest lies with the person presenting such
requirement.
The policyholder is obliged to notify the insurer at the conclusion
voluntary insurance contract all circumstances that have
insured event and the amount of possible losses from its occurrence.
Among the obligations of the insured under the insurance contract, the law
highlights the obligation to inform the insurer of the information known to the insured about
at the time of conclusion of the insurance contract, the circumstances having
essential for determining the likelihood of occurrence
insured event and the amount of possible losses from its occurrence
(insurance risk), if these circumstances are not known and should not
be known to the insurer (clause 1, article 944 of the Civil Code of the Russian Federation).
Failure to fulfill this obligation by virtue of paragraph 3 of Art. 944 of the Civil Code of the Russian Federation may
entail under paragraph 1 of Art. 179 of the said Code
effects.
At the same time, as the courts rightly point out, when resolving disputes
this category prerequisite for the application of the
the invalidity of the transaction is the intent of the insured,
aimed at concealing circumstances or providing false
information material to the determination of the likelihood
occurrence of an insured event and the amount of possible losses from its
offensive.
Paragraph 2, paragraph 1, Art. 944 of the Civil Code of the Russian Federation does not contain an exhaustive list
significant circumstances, only indicates that such
circumstances are recognized that are expressly stipulated by the insurer in
standard form of an insurance contract (insurance policy) or in
his written request.
For example, Ch. filed a lawsuit against OOO SK VTB
Insurance" about the obligation to make repairs vehicle
at the station Maintenance vehicles, extension
the validity of the contract, the recovery of court costs, referring to the fact that
between him and the defendant entered into a contract of voluntary insurance
vehicle. In the event of an insured event (theft
cars) OOO SK " VTB Insurance"refused to pay insurance
compensation in connection with the presentation by the plaintiff of false information about
object of insurance when concluding an insurance contract.
LLC IC "VTB Insurance" filed a counterclaim with the court
to Ch. on the recognition of the insurance contract as invalid.
When resolving the dispute, the court found that when concluding
between the parties to the contract of voluntary car insurance Ch.
provided the insurer with false information about
maintenance of insured property with satellite anti-theft
complex "Cobra Connex Garant". Meanwhile, a prisoner between Ch. and
LLC "Autoconnex" contract for the maintenance of satellite
anti-theft complex "Cobra Connex Garant" terminated until
Resolving the dispute and satisfying the claims of IC VTB LLC
Insurance”, the court proceeded from the fact that Ch.
insurance reported knowingly untrue
information about circumstances that are material to
determining the probability of occurrence of an insured event, and this
the fact is the basis for recognition of the insurance contract,
concluded between the parties, invalid according to the rules of Art. 179
Civil Code of the Russian Federation.
This conclusion of the court is correct and based on the law.
(Based on the materials of the judicial practice of the Moscow City Court).
The sum insured must not exceed the actual (market)
the value of the insured property.
By virtue of paragraph 2 of Art. 947 of the Civil Code of the Russian Federation for property insurance, if
the insurance contract does not provide otherwise, sum insured not
must exceed its actual value (insurance
price). This norm contains dispositive regulation
determination of the sum insured.
However, Art. 951 of the Civil Code of the Russian Federation expressly provides that, if
the sum insured specified in the property insurance contract or
entrepreneurial risk exceeds the insurance value, the contract
is negligible in that part of the sum insured which exceeds
insurance value. Moreover, this imperative norm is contained in
Art. 10 of Law N 4015-I.
Thus, the sum insured is determined by agreement
parties to the insurance contract, but must not exceed
the actual value of the property. For a property of this value
its actual value at its location in
the day the insurance contract is concluded (clause 2, article 947 of the Civil Code of the Russian Federation).
Based on Art. 945 of the Civil Code of the Russian Federation when concluding an insurance contract
property, the insurer has the right to inspect the insured
property, and if necessary - to appoint an examination in order to
establishing its true value.
In accordance with Art. 7 federal law July 29, 1998
N 135-FZ "On valuation activities in the Russian Federation"
(hereinafter - Law N 135-FZ), if in the regulatory legal
an act requiring mandatory estimates
of any object, or the contract does not specify a specific type
the value of the appraisal object, the market value is to be determined
this object.
This rule also applies when used in the regulatory
legal act not provided for by the specified Law or standards
assessment of terms that determine the type of value of the object of assessment, including
terms "true value", "reasonable value",
"equivalent value", "real value", etc.
According to Art. 3 of Law N 135-FZ under the market value of the object
valuation is understood as the most probable price at which the given object
may be alienated open market in a competitive environment where
the parties to the transaction act reasonably, having all the necessary
information, and the value of the transaction price does not reflect any
emergency circumstances.
Thus, when insuring property and determining
the insurance value, the parties to the contract should proceed from
the actual value of the property, which may be equivalent to
market value property at its location on the day
conclusion of an insurance contract.
However, Art. 948 of the Civil Code of the Russian Federation establishes cases when the insurance
the value of the property can be disputed, namely when the insurer,
not exercising its right to appraisal prior to the conclusion of the contract
insurance risk (clause 1, article 945 of the named Code), was deliberately
misled about this value.
"ZHASO" on the recovery of insurance compensation, indicating that between him and
the defendant entered into a contract of voluntary insurance
owned by the plaintiff residential building and its interior decoration.
The sums insured for this property were determined by the parties
respectively in the amount of 750 thousand rubles and 100 thousand rubles with
setting a limit on payments in the specified amounts. insurance premium
paid in full. During the period of validity of the insurance contract in
As a result of an insured event (fire), the house burned down.
The insurance indemnity was paid to the insured within
the actual value of the said property in the amount of 339,664
rub. Disagreeing with the amount paid under the insurance contract
amount, T. filed a claim for imposition on the insurance company
obligation to pay insurance indemnity in full
in the amount of 850 thousand rubles.
In objections to the claim of JSC " Insurance company"ZHASO" referred
on the nullity of the insurance contract in terms of determining the insurance
amount in excess of the actual value of the property, indicating
that at the time of the insured event, the market value of the house
and its interior decoration amounted to 365 thousand rubles.
In partly satisfying the claims, the court proceeded from the fact that
that in the insurance contract the policyholder has a valid (insurance)
the value of the property at the time of conclusion of the contract was clearly
overstated, the insurance contract regarding the excess of the sum insured
over the insurance value of the property (in the amount of 485 thousand rubles)
is void, in connection with which he collected from the insurer on account
insurance compensation 25,336 rubles. When determining insurance
the value of the property, the court proceeded from its market price at the time
conclusion of an insurance contract.
In doing so, the court took into account the fact that
disputed contract insurance, the insurer did not use
the right granted to him and did not carry out an examination of the insured
property in order to establish its true value, and
agreed with the value of the property indicated by the insured, having received
the corresponding insurance premium based on this amount. Doubts
regarding the reliability of the information provided by the insured about
the actual value of the insured property arose from
the insurer only after the occurrence of the insured event.
Evidence of misleading the insurance company
regarding the price at which the property was acquired by the insured,
was not presented (based on the judicial practice of the Altai
regional court).
Legal grounds release of the insurer
from the payment of insurance compensation
The materials of the studied judicial practice indicate that
that the solution of issues related to the occurrence of an insured event,
associated with the question of the grounds for exempting the insurer from
payment of insurance compensation.
Often, insurers, listing in one paragraph of the rules
insurance, which are integral part voluntary
property insurance, specific insured events, in another paragraph
indicate exceptions that are not related to insured events events,
occurred in connection with any actions of the insured, those
thereby actually expanding the list of legal grounds for release
from the payment of insurance compensation.
When resolving such disputes, the courts are guided by Art. 961,
963, 964 of the Civil Code of the Russian Federation, providing for the grounds for exemption
the insurer from the payment of insurance compensation, and the provisions of clause 1
Art. 422 of the Code, by virtue of which the contract must comply
legal acts(imperative rules) in force at the time of its
conclusions.
For the obligation of the insurer to pay the insurance
compensation for the property of a citizen that has been lost or
damaged must be insured.
When resolving this category of disputes, the courts proceed from
that, by virtue of the provisions of Art. 942 of the Civil Code of the Russian Federation when concluding an agreement
property insurance between the insured and the insurer
an agreement must be reached on certain property, or
other property interest that is the object of insurance.
In the event that the parties to the contract have not agreed on special
claims in relation to the insured object, this condition is in force
Art. 943 of the Civil Code of the Russian Federation is determined by the standard insurance rules
appropriate type, accepted, approved or approved
by an insurer or an association of insurers (insurance rules).
For example, the court decision partially satisfied the claims
K.'s claims against CJSC Spasskiye Vorota Insurance Group, in favor of
the plaintiff received insurance compensation, interest for violation of deadlines
payments, court costs.
Objecting to the satisfaction of the claims of K., the defendant
stated that the plaintiff did not provide admissible evidence that
that the insurance contract was concluded specifically in relation to the burnt
a residential building, since the application and the policy do not contain data on
the owner of the property, the number and date of issue are not indicated
certificates of state registration rights, area
of the insured building does not correspond to the area of the building according to
testimony and technical passport.
In resolving the dispute, the court did not agree with the defendant's
arguments and pointed out that the evidence available in the case file
confirm that under the insurance contract it was insured exactly
residential building owned by K., about insurance
the parties could not agree on any other object in connection with its
lack of ownership of the plaintiff. Procedure for concluding a contract
insurance, reaching an agreement by the parties on its
conditions meet the requirements of Article.Article. 942-945.947 of the Civil Code of the Russian Federation. At
In this case, the court indicated that when considering K.'s application for insurance
event, it was ZAO Insurance Group Spasskiye Vorota that should have
eliminate the discrepancy between the numbering and identifying the object
insurance data, also taking into account the information provided by the applicant
evidence, the insurer had the opportunity to consider the application
plaintiff and decide on it. Because in court
the fact of damage to the insured property during the validity period
insurance contract as a result of an event recognized as insurance
in accordance with clause 3.2.1 of the insurance rules, confirmed, the court
recovered from ZAO Insurance Group Spasskiye Vorota in favor of the plaintiff
insurance payment(Based on the materials of the judicial practice of the Tverskoy
regional court).
The insured (beneficiary) is obliged to
notify the insurer of the occurrence of an insured event. Failure
this obligation in itself is not yet unconditional
grounds for refusal to pay insurance compensation.
Article 961 of the Civil Code of the Russian Federation provides for the obligation of the insurer and
beneficiary to notify the insurance company of the occurrence
insured event in the manner and terms established by the contract.
It should be borne in mind that in this case the law does not say
simply about failure to notify the insurer, but about failure to fulfill the obligation to
notice, which includes, in particular, the notice
in a certain way and certain deadlines. Policyholder or
the beneficiary has the opportunity to challenge the refusal of the insurer,
providing evidence that the insurer learned about the
the occurrence of an insured event, or the fact that the lack of
the insurer's information about this could not affect his obligation
pay insurance compensation (clause 2 of article 961 of the Civil Code of the Russian Federation).
For example, Ch. filed a lawsuit against CJSC SK Russkie
insurance traditions" on the recovery of insurance compensation, indicating in
substantiation of the claim on the fact of concluding an agreement with the defendant
voluntary insurance of the plaintiff's vehicle
funds in case of its theft or damage, the sum insured
determined by the parties at 700 thousand rubles, the insurance premium by the plaintiff
paid. December 12, 2009 as a result of a traffic accident
accidents involving the insured vehicle
The plaintiff's car was damaged. In the payment of insurance compensation
denied on the grounds that Ch. did not report the insurance
case, depriving the insurer of the opportunity to check the circumstances
traffic accident on their own.
Satisfying the claims of Ch., the court proceeded from the fact that
The plaintiff presented evidence of the occurrence of an insured event, in
in connection with which the insurer has an obligation to pay
insurance compensation in accordance with the terms of the contract. Wherein
the court indicated that by virtue of paragraph 2 of Art. 961 of the Civil Code of the Russian Federation non-execution
the policyholder's obligation to timely notify the insurer
on the occurrence of an insured event gives the insurer the right to refuse
payment of insurance indemnity, unless it is proved that
the insurer has timely learned about the occurrence of the insured event, or
that the insurer's lack of information about this could not affect
his obligation to pay insurance compensation. The case has
material on bringing Ch. to administrative responsibility for
Part 1 Art. 12.15 of the Code of Administrative Offenses of the Russian Federation, from which it definitely follows that
the insured event actually took place, the circumstances
traffic accident set. To the plaintiff's statement
payment of insurance indemnity dated January 11, 2010 was attached
traffic police certificate, protocol and decision on administrative
offense. Therefore, in this case, the insurer could not
refuse to pay insurance compensation with reference to
untimely notification of an insured event (based on materials
judicial practice of the Altai Regional Court).
Occurrence of an insured event due to the intention of the insured,
offensive negative consequences or causing
damage to property, releases the insurer from paying the insurance
reimbursement. In the event of an insured event due to
gross negligence of the policyholder, the insurer is released from
payment of insurance compensation only in cases stipulated by
by law.
It follows from the analysis of the cases received for study that the courts,
resolving cases related to the refusal of insurers to pay
insurance indemnity or with the payment of insurance indemnity in
a smaller amount due to the occurrence of an insured event due to the fault of
the insured (beneficiary) due to his intent, gross
negligence, negligence, imprudence, rightly proceed
from the fact that the release of the insurer from the payment of insurance
indemnification upon the occurrence of an insured event is possible only in
cases, statutory.
So, the consequences of the occurrence of an insured event due to the fault
insured, beneficiary established Art. 963 of the Civil Code of the Russian Federation, in force
which the insurer may be exempted from payment of the insurance
compensation if he proves that the actions of the insured were directed
to cause damage to property and the insured wished to attack
negative consequences.
For example, U. applied to CJSC Guta-Insurance with a lawsuit
on the recovery of insurance compensation, indicating that between him and
The defendant entered into a contract of voluntary insurance
cars. Upon the occurrence of an insured event in the payment of the insurance
he was denied compensation on the grounds that the damage
the insured vehicle is caused as a result of
intentional actions of U., as he forgot to snap on the latch
hood, as a result of which it opened when the car was moving, breaking
glass.
Satisfying the claims, the magistrate
guided by the provisions of Article.Article. 963, 964 of the Civil Code of the Russian Federation and on the basis
collected evidence in the case came to the conclusion that the intent in
there were no actions of U. (according to the materials of judicial practice
Penza Regional Court).
At the same time, in the event of an insured event
due to gross negligence of the policyholder or
beneficiary (including his negligence,
negligence) the insurer may be exempted from payment
insurance compensation, if it is expressly provided for by law (clause 2
Art. 963 of the Civil Code of the Russian Federation).
For example, the court of first instance dismissed
X.'s claim against Dalstar Insurance Company LLC for the recovery of insurance
reimbursement and interest for the use of other people's money and
compensation for moral damage.
The court found that on May 31, 2007 there was a dispute between the parties
concluded an insurance contract for a boat built in 1986. November 25
2007 the ship caught fire and sank while being ferried from one
berth to another for winter parking.
Denying the claim, the court indicated that the actions of the insured
there was gross negligence, expressed in the failure to perform
the shipowner of the requirements of the rules for the use of small size vessels on
water bodies of the Russian Federation. The plaintiff was aware that
the ship has not passed the technical examination, which from October 31
2007 navigation for small boats is closed, but it
ignored the established paragraphs. 3, 8 Terms of use
small boats on water bodies of the Russian Federation prohibitions
for the operation and management of small craft, which led to
the death of the ship.
The court referred to Art.Article. 265, 266 of the Merchant Shipping Code
Russian Federation, by virtue of which the insurer is not liable for losses,
caused intentionally or by gross negligence of the policyholder or
beneficiary or as a result of sending the ship in an unseaworthy
state (based on the judicial practice of the Primorsky Regional
court).
Occurrence of an insured event while managing the insured
vehicle in a state of alcohol (narcotic)
intoxication entails the release of the insurer from the payment of insurance
reimbursement.
A study of judicial practice showed that the courts
when resolving disputes related to voluntary insurance
property, there are difficulties in determining the legality
the insurer's refusal to pay insurance compensation if
the insured (a person admitted to driving) drove the vehicle
means in a state of alcoholic (drug) intoxication, which
caused the traffic accident.
A number of courts believe that driving a vehicle in
state of alcoholic (drug) intoxication is rude
negligence, and therefore, regardless of the presence
causal relationship between the state of intoxication of the insured
and the event that has occurred, the insurer is released from payment
sum insured under a voluntary property insurance contract.
Other courts have held that motor vehicle insurance rules
funds in the part providing for the release of the insurance company
from the payment of insurance compensation under an insurance contract
vehicle (CASCO) in case the damage
of the insured vehicle was due to the fault
the insured, who is driving this car in
state of alcoholic (drug) intoxication, must
recognized by the court as null and void, as contradicting the above
provisions Civil Code RF.
When deciding this issue should be based on the fact that
intention is understood as such actions of the insured, the beneficiary
or the insured person, which knowingly lead to a breach
insurance liability, for example, arson of a house, intentional damage
property, etc.
Gross negligence occurs when a person is aware
illegality and harmfulness of their actions, but frivolously
expects to prevent such consequences from occurring.
Analysis of judicial practice of the considered category of cases
shows that the courts, when resolving disputes, to manifestations of rude
negligence include violation of rules, prohibitions and recognize data
circumstances legal grounds for the release of the insurer
from the fulfillment of obligations for the payment of insurance compensation by virtue of
paragraph 2 of Art. 963 of the Civil Code of the Russian Federation.
However, if the release condition
the insurer from the fulfillment of obligations to pay insurance
compensation for the risk of "damage from an accident" in connection with the commission
traffic accident while under the influence of alcohol
(drug) intoxication is contained in the contract of voluntary
property insurance, and the policyholder, being familiar with
given condition, drives the vehicle in a state
intoxication, thereby violating par. 1 p. 2.7 of the Rules of the road
movements approved by the decision of the Council of Ministers -
Government of the Russian Federation dated October 23, 1993 N 1090, which leads to
committing a traffic accident, the actions
insured by virtue of paragraph. 1 Article. 963 of the Civil Code of the Russian Federation are the basis for
release of the insurer from the performance of its obligations.
Non-submission of the vehicle passport by the insured
either a certificate of its registration, or a set (s) of keys,
of the technical inspection coupon does not release the insurer from the payment of the insurance
compensation for the theft (theft) of a motor vehicle.
As shown by the study of judicial practice in this category
cases, disputes on the recovery of insurance compensation for theft (theft)
car, the payment of which was refused by the insurer for those
motives that the policyholder did not submit a transport passport
funds or a certificate of its registration, or a set
keys, technical inspection coupon, courts are allowed, as a rule, in favor of
insured.
At the same time, the courts proceed from the fact that leaving in a transport
means of registration documents on it by virtue of Art. 963 of the Civil Code of the Russian Federation
cannot be regarded as the intent of the insured, beneficiary or
the insured person in the event of an insured event.
For example, A. filed a lawsuit against OSAO Ingosstrakh about
payment of insurance compensation and interest for the use of other people's
cash. In support of their claims, A.
indicated that an insurance contract was concluded between him and the defendant
cars. The plaintiff's car was stolen. The defendant refused
pay the insurance indemnity because A. did not provide a complete
set of keys.
By the decision of the Kuzminsky District Court of Moscow dated October 15
2007, left unchanged by the definition of the Judicial Board
on civil affairs Moscow City Court of December 11
2007, the claims were denied.
Determination of the Judicial Collegium for Civil Cases of the Supreme
of the Court of the Russian Federation of January 12, 2010, the said court decisions
canceled due to misinterpretation of the material
right, the case was sent for a new trial to the court of the first
instances.
At the same time, the Judicial Collegium of the Supreme Court of the Russian Federation pointed out that
cases of release of the insurer from the payment of insurance compensation
provided by Art.Article. 961, 963, 964 of the Civil Code of the Russian Federation, the provisions of which are not
contain such grounds as failure to submit a complete set of
keys to the insured car. Clauses of insurance rules,
according to which the insurer has the right to completely or partially refuse
in the payment of insurance compensation in the event that the insured has lost
any key to the vehicle without informing the
written form to the insurer within seven days from the moment of its
losses before the occurrence of an insured event, do not contain clear
criteria which would predetermine the terms of such payment or
denial of it, allow you to make decisions on the payment of insurance
indemnifications at the discretion of the insurance company are not
the same for all insurers, which does not guarantee compliance
the principle of equality of participants in the relevant relations.
When resolving the dispute, the court did not examine the question of the form of the plaintiff's guilt,
although this had to be done in order to resolve the issue of
are applicable in this case, taking into account the above requirements of the law
paragraph 1 of Art. 80 and paragraph 4 of Art. 81 of the Insurance Rules of OSAO "Ingosstrakh" and not
whether they are contrary to Art. 963 of the Civil Code of the Russian Federation (determination of the Judicial Collegium for
civil cases of the Supreme Court of the Russian Federation N 5-B09-146).
The insurer is not exempted from payment of insurance indemnity in
in case of violation by the policyholder of the terms of payment of insurance premiums,
if the contract of voluntary property insurance in the prescribed
order is not terminated or terminated.
Conducted study of judicial practice on disputes related to
voluntary property insurance showed that the courts use
different approach to determine the right of the insured to receive
insurance compensation in case of late payment of the next
insurance premium payment.
Thus, a number of courts in resolving this category of disputes
consider non-payment of regular insurance premiums as a basis
to terminate the contract of voluntary property insurance,
based on the following.
According to the provisions of Article.Article. 309, 310 of the Civil Code of the Russian Federation, obligations must
performed properly in accordance with their terms,
unilateral refusal to fulfill obligations, as well as
unilateral change of their conditions is not allowed.
Thus, the insured who did not pay another insurance
premium violates the terms of the insurance contract. In connection with the above
the policyholder is deprived of the right to refer to the violation of his rights and
legitimate interests on the part of the insurer who refused the insurance
payment based on the terms of the insurance contract.
Based on the provisions of paragraphs. 3, 4 art. 954 of the Civil Code of the Russian Federation, an agreement can
determine the consequences of non-payment within the established time limits
regular insurance premiums in the form of termination of obligations
insurer for the payment of insurance compensation, which does not contradict
the provisions of Chapter 48 of the Civil Code of the Russian Federation.
Other courts proceed from the fact that the insurer cannot refuse
in the payment of insurance compensation, but has the right to set off the amount
overdue insurance premium when determining the size of the subject
payment of insurance compensation under a property contract
insurance (Article 954 of the Civil Code of the Russian Federation).
In the event that, in accordance with the insurance contract
the insurance premium is paid in installments and by the time of establishment
circumstances related to the invalidity of the insurance contract
due to the excess of the insured value over the sum insured
(Article 951 of the Civil Code of the Russian Federation), it was not paid in full, the remaining insurance
contributions must be paid in an amount reduced in proportion
the amount insured.
For example, K. filed a lawsuit against the insurer to recover
insurance compensation. The plaintiff pointed out that under a voluntary agreement
property insurance they insured the car. As a result
traffic accident to the insured vehicle
damage has been caused to the vehicle, the compensation of which is subject to
claim.
The insurer, refusing to pay insurance compensation,
referred to the fact that the contract provided for the introduction
insurance premium in installments and contained a condition, in accordance
with which, in case of delay in making the next payment by the insured
insurance premium, the insurer is released from the obligation
pay insurance compensation, and the contract is considered terminated.
In this case, the insured was late in paying two
subsequent premiums. The insured event occurred during the period
when insurance was not provided.
By the decision of the court of first instance in satisfaction of the claims
requirements are denied.
The court of cassation annulled the judgment and adopted
case a new decision, which satisfied the plaintiff's requirements.
At the same time, the judicial board proceeded from the fact that, according to
current legislation and the conditions of the agreement between the parties
contract road traffic accident, as a result of which
The plaintiff's car was damaged
insured event and entails the obligation of the insurer to pay
insurance compensation to the insured (based on judicial practice
Arkhangelsk Regional Court).
Meanwhile, it seems that the prescription of paragraph 4 of Art. 954 of the Civil Code of the Russian Federation
does not prevent termination of the contract at the initiative of the insurer or
refusal of the insurer from the insurance payment in the case provided for by
insurance contract on the basis of paragraph 3 of Art. 954 of the Civil Code of the Russian Federation. However, this
the provision comes into force if the insurance contract does not
the insurer has the right to pay installments
refuse to perform the contract or, having such a right, he
For some reason, this right was not exercised.
In connection with the foregoing, the courts in resolving these disputes
it is necessary to investigate and evaluate the following circumstances:
consequences of violation of the terms and procedure for payment of insurance premiums,
fixed in the rules of insurance; the fact of acceptance (non-acceptance)
paid by the insurer after the occurrence of the insured event
overdue part of the insurance premium; fact of return (non-return)
by the insurer of the premium paid with delay to the insured; fact
notifications (non-notifications) by the insurer to the insured about the termination
insurance contract in connection with the delay in making the specified
payments.
Loss or damage to property should be the result of
circumstances referred to in the contract as insured events.
The study of cases showed that the courts, when resolving disputes,
related to the refusal of insurers to pay insurance compensation for
on the grounds that damage to property was caused as a result of an event,
which, according to the insurance contract, is not insurance
case, correctly apply the law, take into account the agreed
parties to the terms of insurance contracts, in particular those relating to
list of insured events, and make decisions taking into account
circumstances established in the case, allowing to conclude that
occurrence (non-occurrence) of an insured event.
For example, between F. and Renaissance Insurance Group LLC there was
concluded a contract of voluntary insurance of a residential building, under the terms
which insured events are a natural disaster and a bay,
man-made. During the period of the agreement,
deformation of structures of the extension to residential building in which appeared
cracks. The defendant in the payment of insurance compensation F. was
denied on the grounds that the event resulting in
damage has occurred is not an insured event.
By the decision of the court of first instance, the claims of F.
partially satisfied.
By canceling the decision of the court and refusing to satisfy the claims
claims for the recovery of insurance compensation, judicial board
proceeded from the fact that damage to the extension to the house took place in
as a result of non-compliance with the regulatory requirements made during
construction and during operation, which, by virtue of the contract
voluntary insurance is not an insured event (according to
materials of judicial practice of the Novosibirsk Regional Court).
Driving a vehicle by a person not listed in
insurance policy, does not release the insurer from the payment of the insurance
compensation for the risk of "damage".
The results of the analysis of judicial practice of consideration by the courts
disputes related to voluntary property insurance,
indicate that the courts lack a uniform approach to
application of the provisions of Article.Article. 421, 929, 942 and 943 of the Civil Code of the Russian Federation in the event
refusal of the insurer to pay insurance compensation in connection with
the absence of an insured event due to transport management
by a person not specified in the insurance policy.
For example, N. went to court with a claim to recover
material damage, referring to the fact that between her and LLC "SK
Servicereserve concluded a voluntary insurance contract
of a car owned by her, which included insurance risks
damage or destruction, theft (hijacking) of the vehicle, its
death in connection with an attempted kidnapping (hijacking). During action
contract the car was damaged, the vehicle
was not recoverable. At the time of the traffic
of the accident, the driver A. Plaintiff drove the car by proxy
applied to the defendant with an application for payment of insurance
reimbursement, but the payment was denied because the car
operated by a person not named in the insurance policy.
Resolving the dispute, the court was guided by Art.Article. 421, 929, 942, 943
Civil Code of the Russian Federation and on the basis of the evidence collected in the case came to
conclusion that there are no grounds for satisfying the claims
requirements, because the terms of insurance
OOO "SK "Servicereserve", with which the plaintiff at the time of signing
agreement was familiarized and agreed, it was provided that not
recognized as insured events and not covered by insurance
events that occurred as a result of driving a vehicle
by a person not specified in this agreement (based on the materials of the judicial
practices of the Vladimir Regional Court).
At the same time, the position of others seems to be more correct.
courts, which proceed from the fact that by virtue of paragraph 1 of Art. 422 of the Civil Code of the Russian Federation
the contract must comply with the rules binding on the parties,
established by law and other legal acts (mandatory
norms) in force at the time of its conclusion, i.e. the parties do not
has the right to conclude an agreement on conditions contrary to the law.
Circumstances exempting the insurer from payment
insurance compensation, provided by Art.Article. 961, 963, 964 of the Civil Code of the Russian Federation.
Considering that such a basis for exemption from payments
insurance indemnity, as the absence of an indication in the insurance policy
to the person authorized to drive the car who drove it
at the time of the accident, neither by the norms of the Civil Code of the Russian Federation, nor by any other law
not provided, the inclusion of this condition in the insurance contract
is contrary to the provisions of the Civil Code and,
accordingly, it should not be used.
In addition, it should be noted that Art. 9 of Law N 4015-I
defines insurance risk as an expected event, in case
the occurrence of which is insured, and the insured event -
as an event that has taken place, provided for by the insurance contract
or law, with the advent of which the obligation arises
the insurer to make an insurance payment to the insured or other
persons.
Thus, the components of the insured event are only
the fact of the occurrence of the danger against which insurance is made,
the fact of causing harm and the causal relationship between them.
The insurer is not exempt from payment (in full or
partially) insurance indemnity in the event that the policyholder after
occurrence of an insured event and assessment by the insurer of the cost
restoration work carried out repair work in order to
restoration of the insured property (for example, repaired
motor vehicles), the value of which exceeded the amount of the restoration
repairs determined by the insurer (CASCO agreement).
As a study of judicial practice has shown, allowing data
requirements, the courts proceed from the duty of the insurers in full
reimburse the costs incurred by the insurer in connection with the onset of
insured event, subject to their documentary confirmation.
For example, S. filed a lawsuit against Rosgosstrakh LLC about
recovery of insurance compensation. In support of the claim, S. indicated that
entered into a voluntary property agreement with the defendant
As a result
road traffic accident caused the vehicle
mechanical damage.
The insurer recognized the event as an insured event, paying in
as insurance compensation 87,032 rubles. However, actual
the cost of repairing the vehicle amounted to 152,033 rubles.
The insurer refused to revise the amount of insurance compensation, in
in connection with which the plaintiff asked to recover the difference between the actual
paid insurance indemnity and indemnity due to
payment.
Satisfying the claims, the court proceeded from the following.
In accordance with the rules of voluntary insurance
vehicles a specific option for determining the amount of damage
established by the policyholder and the insurer in the contract
insurance.
By virtue of the concluded insurance contract, the parties have established
the procedure for determining damage in the form of the insurer's calculation or
repair at the service station in the direction
insurer, that by virtue of paragraph 1 of Art. 432 of the Civil Code of the Russian Federation is one of the essential
terms of the contract.
Meanwhile, from the insurance policy submitted to the court, no
it followed that the parties excluded from the list of insurance
reimbursement of the actual costs of repairing damaged property.
On the contrary, in additional agreement there is a transfer to the policy
the amount of insurance compensation determined at the choice of the plaintiff:
calculation of the insurer, calculation of the cost of restoration
repair by an independent appraiser, the cost of the actually performed
repair of a damaged vehicle.
Plaintiff's expenses incurred to repair the vehicle
the insurance amount determined by the insurance contract shall not exceed.
The amount of actual costs by the insurer is not disputed,
circumstances indicating that any repairs
impacts are unreasonable, in the course of the trial there is no
established (based on the judicial practice of the Arkhangelsk
regional court).
Insurance payment
In accordance with paragraph 3 of Art. 10 of Law N 4015-I insurance payment
defined as the amount of money established by federal law
and (or) insurance contract and paid by the insurer
to the policyholder, the insured person, the beneficiary in case of
the occurrence of an insured event.
When considering cases on recovery from the insurer of the insurance
compensation in the form of the difference between the insurance payment made and
actual expenses for the restoration of the insured
vehicle, the courts correctly proceed from the agreed
parties to the terms of the insurance contract.
The study of law enforcement practice showed that the size
damage caused to the insured property as a result of
occurrence of an insured event, is determined by the courts based on
market prices established in the area.
For vehicles covered by warranty
from the manufacturer, the cost of spare parts, materials and
standard hours by type of repair work is determined by the courts according to the data
respective dealers.
When determining the amount of insurance compensation in respect of
vehicles under warranty service in service
centers of official dealers, the courts proceed from the fact that the technical
maintenance and repair of such vehicles during their warranty period
service life must be carried out by the warranty company
service. Failure to comply with the terms of service of such
vehicles only in the service centers of official dealers, as
correctly indicate by the courts, is the basis for termination
warranty obligations, in connection with which, upon the occurrence
warranty case, the person will incur additional losses.
In cases where the establishment of certain circumstances
required special knowledge, the courts appointed examinations for
establishing the cause of damage to the insurance object, for
determining the causes and consequences of a traffic accident,
as well as to determine the amount of insurance payment due in
compensation for damage to the property of the victim.
Inclusion in insurance contracts of conditions for compensation for damage with
taking into account the wear of parts, assemblies and assemblies of vehicles
based on law.
In the course of summarizing judicial practice in this category of cases
revealed a different approach of the courts to determine the amount of insurance
compensation to be collected, depending on the inclusion
the cost of wear of parts, components and assemblies of vehicles.
Thus, by the decision of the cassation instance of June 30, 2011 No.
the decision of the court of first instance of 21 April 2011 was amended,
which Yu.'s claims were satisfied in part.
proceeded from the fact that on August 1, 2010 between CJSC "MAKS"
(the insurer) and Y. (the insured) concluded a voluntary agreement
vehicle insurance for a car,
belonging to the plaintiff on the right of ownership, on the risks of "theft",
"damage" (full "CASCO"). During the validity period of the insurance contract
an accident has occurred. As follows from the plaintiff's submission
conclusions of LLC "Value Determination Group" dated March 14, 2011
N 8027, cost refurbishment car excluding
depreciation is 161,614 rubles, the loss of commodity value
car - 6158 rubles. During the course of a civil case, the plaintiff
paid insurance compensation in the amount of 126 337 RUB. based
act of appraisal performed by OOO "Volan", according to which the cost
restoration repair - 224,001 rubles, the cost of good
balances - 173,000 rubles, the sum insured - 318,250 rubles. When calculating
depreciation cost of the vehicle for the period is excluded
the validity of the contract - 5% (for 4 months) and 3 thousand rubles under the act
disagreements. At the same time, CJSC MAKS referred to the fact that, under the terms
insurance contract in the event that the cost of the restoration
repair exceeds 70% of the sum insured, "total loss" is recognized
car (clause 10.21 of the insurance rules), and the wear rate
vehicle and accessories as a percentage
of the sum insured amount (for the 1st and 2nd years of operation) - 15%
(1.25% per month), unless otherwise specified in the contract
insurance (clause 4.8 of the rules): 318,250 - 173,000 - 5% (15,912 rubles)
wear - 3000 rubles. = 126,337 rubles. taking into account the fact that suitable
the balances remain with the policyholder (clause 10.21.1 of the rules). Together with
the amount of damage recovered by a court decision from the insurer,
determined without taking into account the depreciation of the car owned by Yu, contrary to
the requirements of the above rules, in connection with which the Judicial Collegium
changed the decision of the court in terms of the amount of the recovered sum insured. FROM
taking into account the percentage of depreciation of the car, which for the specified period
amounted to 5% of the sum insured, i.e. 15,912 rubles, judicial
the board reduced the amount recovered in favor of the plaintiff from
RUB 35,276 up to 19 364 rub. (on materials of judicial practice
Samara Regional Court).
Other courts hold that the amount of insurance compensation
must be determined without taking into account depreciation.
So, between K. and ZAO " Insurance Group"UralSib" was concluded
voluntary vehicle insurance contract. Insurance
the amount under the policy amounted to 1,294,270 rubles. Price
restoration repair of the vehicle in case of occurrence
insured event amounted to 70% of the insured value of the car.
The insurance company made an insurance indemnity minus
depreciation amounts - 130,858 rubles. K. asked to recover from
CJSC "Insurance Group "UralSib" in his favor 130,858 rubles.
The court of first instance dismissed the claims.
In setting aside the decision of the district court, the panel of judges held that
the law does not provide for a reduction in the sum insured by the amount
percentage of depreciation for the period of the contract, the law does not limit
insurance payment by the condition in which the property was in
the moment of causing harm (based on the materials of the judicial practice of the Samara
regional court).
In accordance with Article.Article. 1082, 15 of the Civil Code of the Russian Federation are subject to compensation
harm and damages, which are understood as expenses that
a person whose right has been violated has made or will have to make for
restoration of the violated right.
It follows from the above rules that the right of a person who has been
damage must be restored to the same extent as before
causing harm. In such circumstances, the insurance indemnity is not
can be determined by the contract in the amount of the cost
restoration repair, taking into account the wear of parts, assemblies and
aggregates of the vehicle, as otherwise
damages would be less than the amount
harm, and the property belonging to the victim would be brought to
worse condition than before the injury.
In addition, by virtue of Part 1 of Art. 422 of the Civil Code of the Russian Federation, the contract must
comply with the rules binding on the parties established by
law and other legal acts (imperative norms) in force
at the time of its conclusion.
The right of the insured (beneficiary) in case of death
insured property to renounce their rights to it in favor of
insurer in order to receive from him an insurance payment (insurance
indemnity) in the amount of the full sum insured established by the named
the rule of law.
Since civil law does not
provides for the payment of insurance compensation in the event of "full
loss" of the vehicle minus the amount of depreciation
depreciation and residual value of the vehicle, then the presence
of this provision in the motor vehicle insurance contract or
in the rules of voluntary comprehensive insurance of motor vehicles
funds is contrary to federal law, which is unacceptable.
In accordance with paragraph 5 of Art. 10 of Law N 4015-I in case of loss,
loss of the insured property the insured, the beneficiary
has the right to waive his rights to it in favor of the insurer in
in order to receive from him an insurance payment in the amount of the full
sum insured.
As a rule, the courts do not raise questions regarding
application of this norm of the law on the risks of "theft", "damage" in
in case of loss, destruction of property, when the beneficiary
waives his rights to the insured property, suitable
balances in favor of the insurer.
For example, the decision of the court of cassation left
without changing the decision of the court of first instance, which partially
M.'s claims against Rosgosstrakh LLC for the recovery of
insurance compensation under an insurance contract, in favor of M. collected
insurance compensation in the amount of 53,943 rubles, and M. is obliged to transfer
LLC "Rosgosstrakh" usable remains of a car (based on the materials of the judicial
practices of the Samara Regional Court).
Interest on borrowed money,
provided for in Art. 395 of the Civil Code of the Russian Federation, subject to collection from the moment of refusal
the insurer in the payment of insurance compensation or its payment not in
in full.
In most of the cases received for generalization by the plaintiffs, in addition to
claims for the recovery of insurance compensation, claims were made
on the collection of interest for the use of other people's funds for
the grounds set out in Art. 395 of the Civil Code of the Russian Federation.
According to Art. 395 of the Civil Code of the Russian Federation for the use of other people's money
means due to their unlawful retention, avoidance of their
return, other delay in their payment or unjustified
receipts or savings at the expense of another person are payable
interest on these funds. The interest rate is determined
existing at the place of residence of the creditor, and if the creditor
is a legal entity - at the location of its discount rate
bank interest on the date of performance of the monetary obligation or
its corresponding part. When collecting a debt judicial order
the court may satisfy the creditor's claim on the basis of accounting
bank interest rates on the day of filing a claim or on the day
making a decision. These rules apply if a different size
interest is not established by law or contract.
If damages caused to the creditor by misuse
his cash, exceed the amount of interest due
him on the basis of paragraph 1 of the named article, he has the right to demand from
debtor for damages in excess of this amount.
Interest for the use of other people's funds is charged daily
payment of the amount of these funds to the creditor, if the law, other legal
acts or agreement is not established for the calculation of interest over
short term.
An analysis of judicial practice shows that when recovering
interest for the use of other people's money by the courts
applied interest rate refinancing, established
the Bank of Russia, which is closest in value to the accounting
rates prevailing during the entire period of arrears.
For example, the court of first instance considered a civil
the case on the claim of S. against LLC "Rosgosstrakh" for the recovery of insurance
reimbursement, interest for the use of other people's money.
In resolving the dispute, the court proceeded from the fact that the defendant did not
fulfilled its obligations arising from the terms of the contract,
provided for in Art. 929 of the Civil Code of the Russian Federation, and came to the conclusion that
claims for the recovery of interest for the use of other people's
in cash in the amount of 12,766 rubles, calculated over 174 days
delay payment in the amount of 264 154 RUB. taking into account bank rate
refinancing 10% per annum (based on judicial practice
Tambov Regional Court).
At the same time, the analysis of judicial practice on disputes related to
The Russian Federation does not have an unambiguous approach to resolving the issue,
how long is interest accrued for the use of someone else's
cash.
Some courts believe that interest on the use of someone else's
cash should be accrued from the moment of entry into
the legal force of the court decision on awarding the sums of the insurance
reimbursement.
For example, K. filed a lawsuit against OAO Energeticheskaya
Insurance Company" on the collection of interest for the use of other people's
money, referring to the fact that between her and the defendant
signed a voluntary motor vehicle insurance contract
funds. During the term of the contract, the car was
kidnapped. The insurance claim was denied. Decision
Court of First Instance dated May 19, 2008 claims for
recovery of insurance compensation are satisfied. The decision went into
entered into force on August 6, 2008
for the use of other people's funds for the period from August 6 to
December 24, 2008, i.e. until the day of its execution.
Satisfying the claims of K., the court of first instance
proceeded from the fact that, according to the explanations set out in paragraph 23
resolutions of the joint Plenum of the Supreme Court of the Russian Federation and the Plenum
of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14
"On the practice of applying the provisions of the Civil Code of the Russian
Federation on interest for the use of other people's money"
(as amended by the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme
of the Arbitration Court of the Russian Federation of December 4, 2000 N 34), in the event that
when the court imposes on the party the obligation to compensate for damages in
money, on the side of the tortfeasor there is monetary
obligation to pay amounts determined by the court. From the moment when
the court decision has entered into force, unless otherwise specified in
law, for the amount determined in the decision in case of delay in its payment
debtor, the creditor has the right to charge interest on the basis of clause 1
Art. 395 of the Civil Code of the Russian Federation (based on the judicial practice of the Saratov
regional court).
More correct is the position of other courts, which
believe that interest on the use of other people's money
should be accrued from the moment the insurer refuses to pay the insurance
compensation or its payment is not in full.
For example, a plaintiff sued an insurance company for
collection of interest for the use of other people's funds,
indicating that an agreement was concluded between him and the defendant
voluntary insurance motor vehicle. During the period
of the named agreement, a road traffic accident occurred
an accident resulting in damage to the vehicle
mechanical damage. In the payment of insurance compensation
was denied by the respondent. The decision of the Court of First Instance dated
January 12, 2011 claims for the recovery of insurance
refunds are satisfied. The decision entered into force
February 21, 2011
The Court of First Instance awarded interest to the defendant
for the use of other people's funds from February 21 to
July 11, 2011, i.e. until the day of its execution.
The decision of the court of cassation this decision
changed, interest on borrowed funds
collected for the period from July 29, 2008, i.e. from the date of refusal to pay
insurance compensation.
Changing the decision of the court of first instance, the judicial board
proceeded from the fact that the obligation of the insurer to pay
insurance indemnity arises from the insurance contract and is not
is liable for damages resulting from
insured event. After the entry into force of the insurance contract
the insurer has its own obligation to pay
in the event of an insured event, a certain amount of money in
in the manner, on the terms and within the time specified in the contract.
Therefore, insurance compensation is monetary.
obligation, for the untimely fulfillment of which
liability under Art. 395 of the Civil Code of the Russian Federation.
Based on paragraph 1 of Art. 314 of the Civil Code of the Russian Federation, if the obligation
provides for or allows to determine the date of its execution or
the period of time within which it must be carried out,
the obligation is due on that day or at any time during
within such a period.
In this case, the company and the plaintiff in paragraph 10.2.2 of the Rules
insurance of vehicles approved by order of OSAO
"Russia" dated April 20, 2007, established the obligation of the insurer to
within 18 days after receipt of all necessary documents,
confirming the occurrence of an insured event, acknowledge the fact
occurrence of an insured event or decide to refuse
payment of insurance compensation, and therefore, from the moment of refusal
by the insurer in the payment of insurance compensation are subject to accrual
interest for the use of other people's money (based on materials
judicial practice of the Tyumen Regional Court).
Loss of commodity value
The loss of the commodity value of the vehicle is
vehicle insurance.
From the analysis of law enforcement practice, it is seen that
courts there is no uniformity on the issue of loss
commodity value of the vehicle to real damage.
A number of courts attribute the loss of commodity value to the real
damage. Resolving claims for compensation for the loss of commodity value,
courts proceed from the following.
By virtue of Art. 929 of the Civil Code of the Russian Federation under a property insurance contract
one party (the insurer) undertakes for the stipulated by the contract
fee ( insurance premium) upon the occurrence of the
event (insured event) contract to indemnify the other party
(the policyholder) or another person in whose favor the contract is concluded
(to the beneficiary), the losses caused as a result of this event
in the insured property or losses due to other
property interests of the insured (to pay insurance
compensation) within the amount specified in the contract (insurance
amounts).
In particular, under a property insurance contract, it may be
the risk of loss, destruction or damage to the vehicle is insured
funds.
Article 943 of the Civil Code of the Russian Federation provides that the conditions under which
insurers (insurance rules).
By virtue of paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may
demand full compensation for the losses caused to him, if the law
or the contract does not provide compensation for damages in a lesser
size.
Real damage is understood as the costs that the person whose
the right has been violated, has done or will have to do for
restoration of a violated right, loss or damage to it
property (clause 2, article 15 of the Civil Code of the Russian Federation).
The loss of commodity value is the reduction
vehicle cost caused by premature
deterioration of the commercial (external) appearance of the car and its
performance as a result of reduced strength and
durability of individual parts, components and assemblies, connections and
protective coatings due to a traffic accident and
subsequent repair.
Thus, the loss of commodity value refers to the real
damage along with the cost of repair and spare parts of the car,
because the reduction of its use value violates the rights
the owner of the vehicle, and in its compensation to the insured
may be denied.
The fact that insurance against the risk of loss of commodity
cost is not provided for by the insurance contract, in itself is not
is grounds for refusing to meet the requirements for
recovery of insurance compensation, since Art. 942 of the Civil Code of the Russian Federation
an insured event is defined as an event in case of occurrence
which is insured.
Thus, within the meaning of the above legal norms, under
an insured event for the risk of "damage" means damage to or
destruction of the insured property as a result of events,
specified in the insurance contract (insurance rules).
The insurance rules and the insurance contract stipulate,
what expected events are recognized as insurance risks, according to
by which an insurance contract can be concluded (in particular, this
damage). Loss of value cannot be recognized
independent insurance risk, as it is a component
part of the insurance risk "damage", because upon the occurrence
insured event is included in the amount of material damage caused
vehicle due to damage resulting from
traffic accident.
Thus, since the loss of commodity value
vehicle refers to the actual damage, it is subject to
collection from an insurance company under a voluntary agreement
insurance.
Other courts, when resolving these claims, proceed from the fact that
that by virtue of paragraph 2 of Art. 1 of the Civil Code of the Russian Federation citizens ( individuals) and
legal entities acquire and exercise their civil rights
their own will and in their own interest. They are free to set their own
rights and obligations on the basis of the contract and in determining any
conditions of the contract that are contrary to the law.
For example, the court of first instance, refusing to satisfy
claims of the insured for the recovery of the amount of loss of commodity value
car, indicated the following.
According to paragraphs. 1,2,4 art. 943 of the Civil Code of the Russian Federation, the conditions on which
an insurance contract is concluded, may be determined in
standard rules of insurance of the respective type adopted,
approved or approved by the insurer or association
insurers, and binding on the insured.
As stated in paragraph 4.5 of the rules of voluntary insurance, not
covered by insurance against risks "damage" and "car hull" indemnity
loss of commodity value.
By virtue of Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to
conclusion of an agreement. The terms of the contract are determined at the discretion
parties, unless the content of the relevant condition
prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation).
According to paragraph 1 of Art. 422 of the Civil Code of the Russian Federation, the contract must comply
binding on the parties to the rules established by law and other
legal acts (imperative norms) in force at the time of its
conclusions.
In accordance with paragraphs. 7.9.4 and 8.1.4 insurance rules
recoverable loss is determined by the insurer based on the amount
direct damage in accordance with the estimate (calculation) of the costs of
restoration of a damaged vehicle, compiled
by an expert of the insurer or confirming the actual costs
the insured for the restoration of the vehicle in the repair
organizations.
The magnitude of the loss of commodity value is not aimed at
restoration of the vehicle, and to compensate for the damage caused
due to misconduct losses.
Rules for insurance of means of land transport expressly
an exception to the amount insurance coverage by risk
"damage", "hull" of the amount of loss of commodity value caused by
insured event.
With the specified rules, the plaintiff at the conclusion of the contract
voluntary property insurance of the vehicle was
acquainted. By his signature on the insurance policy, he certified his
consent to the conclusion of an agreement on the terms and conditions set out in that
including insurance rules.
Insurance Rules Containing Loss Exclusion Provisions
commodity value from the insurance indemnity, do not contradict the law
and other legal acts regulating relations arising from
insurance contracts (based on judicial practice
Novgorod Regional Court).
The position of the courts seems to be more correct, according to
which the loss of the commodity value of the vehicle is
real damage and is subject to compensation under a voluntary agreement
vehicle insurance.
Limitation of actions
Term limitation period calculated from the moment when the insurer
refused to pay insurance compensation or paid it out of order
in full.
Article 966 of the Civil Code of the Russian Federation establishes a reduced two-year period
limitation period for disputes arising from legal relations
property insurance.
Definition in insurance contract or standard rules
insurance of the corresponding procedure for the performance of duties
participants in the insurance contract, including the establishment of a term
notification of the insurer about the occurrence of an insured event, an indication
list of documents to be attached by the policyholder to
notification, determination of the period during which the insurer
must make a decision to pay (or refuse to pay) and
make payment, allows the parties, and in the event of a dispute, the court,
examining the insurance legal relationship that has arisen between the parties, exactly
establish in each case not only the moment
a corresponding obligation on one side
(the insurer), but also the moment when the other party has the right to
demand its execution and protection of one’s right in case of violation of its
insurer.
Analysis of the judicial practice of considering cases related to
voluntary property insurance, showed that ships
uniform approach to determining the moment of the beginning of the period
There is no statute of limitations for this category of cases.
A number of courts consider that the limitation period starts from
the moment of occurrence of the insured event. In doing so, courts proceed from
that, in accordance with the provisions of Art. 929 of the Civil Code of the Russian Federation
the insurer to compensate the insured for losses and, therefore, the right
the latter to demand the payment of insurance compensation arise from
the moment of occurrence of the insured event.
More correct is the position of the courts, which
believe that the limitation period for this category of cases should be
calculated from the moment when the insurer refused to pay out the insurance
compensation or has not paid it in full.
For example, T. filed a lawsuit against OAO Insurance Company
"Surgutneftegaz" represented by the Kirishi branch on the recovery of insurance
reimbursement. In support of its claims, the plaintiff referred to
the fact that he concluded a voluntary agreement with the defendant
vehicle insurance. Through the fault of Z. happened
road traffic accident, as a result of which the car
T. suffered technical damage. T. asked the court to recover from
OAO "Insurance Company "Surgutneftegas" represented by the Kirishi branch
insurance indemnity, expenses for payment of state duty,
as well as the costs of paying for the services of a representative.
The representative of the defendant did not recognize the claims, stated
application for the application of the statute of limitations.
In resolving the issue of the application of the limitation period, the court
found that on October 15, 2007, i.e. in compliance with
of the ground transport insurance rules established by clause 12.1.2
three days, T. turned to the insurer with a statement about
insured event with the application of the insurance policy, driver’s
vehicle registration certificates.
On September 30, 2009, the plaintiff attached to these documents and
the certificate of form 748 on the road transport is accepted by the insurer
incident, which, being incompletely formalized, is not
allowed to resolve the issue of the guilty in the road traffic
the person and circumstances of the incident. plaintiff, not
recognized as a victim in a criminal case, was deprived of the opportunity
in any way influence the investigation, the investigating authorities
were not required to notify him of the results of the investigation.
In accordance with Part 2 of Art. 200 of the Civil Code of the Russian Federation on obligations, term
execution of which is not determined or is determined by the moment
claims, the limitation period begins from the moment when
the creditor has the right to demand performance
obligations, and if the debtor is granted grace period for
fulfillment of such a requirement, the calculation of the limitation period
begins at the end of the specified period.
Refusing to satisfy the defendant's application for application
consequences of missing the statute of limitations, the court proceeded from the fact that
that T. found out about the violation of his right only on November 24, 2009,
received from OAO Insurance Company Surgutneftegaz represented by
Kirishi branch, a written refusal of insurance payment, to the court with
named claim filed on December 14, 2009. Thus,
statutory period of two years for the case under consideration
statute of limitations, calculated from November 24, 2009, T. missed not
was (based on the judicial practice of the Leningrad Regional
court).
However, when resolving disputes on claims that
the insurer, by way of subrogation, has to the person responsible for
losses recovered as a result of insurance should be applied
limitation period set regulations,
governing the relationship between the insured and the person responsible for
damage inflicted on him.
Generalization of judicial practice on disputes related to
voluntary property insurance showed that the courts in general
correctly and uniformly apply the rules of the current
legislation governing these matters.
However, in some cases, courts have violated
legislation in resolving cases of this category, as well as not
clarifications contained in the decision are always taken into account
Joint Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme
of the Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 "On the practice
application of the provisions of the Civil Code of the Russian Federation on
interest on borrowed money."
In order to prevent such facts, the courts, in particular,
necessary:
- properly prepare cases of this category
to court proceedings, excluding cases of unlawful refusal to
acceptance of the statement of claim, as well as unreasonable abandonment
statements of claim without movement;
- consider cases on disputes related to voluntary
property insurance, taking into account all legally significant
circumstances.
In addition, the generalization carried out showed that with the resolution
disputes of this category, the courts have questions that require
clarifications of the Supreme Court of the Russian Federation in the form of the relevant
resolutions of the Plenum.
Approved
Presidium of the Supreme Court
Russian Federation
ON CERTAIN ISSUES OF JUDICIAL PRACTICE RELATED
WITH VOLUNTARY PROPERTY INSURANCE OF CITIZENS
The voluntary property insurance market is currently characterized by an expansion of the range of financial services and insurance products offered by insurance business entities, as well as an increase in the number of citizens using insurance services to protect their property interests.
Meanwhile, the court of appeal did not take into account that these norms establish cases when the insurer is exempted from paying insurance compensation in the situation when the insured event has occurred.
However, in this dispute, the insured event did not occur, and therefore there were no grounds for applying the indicated norms of the substantive law.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 28, 2017 N 49-KG17-3
3. A contract of voluntary insurance may provide that the loss of commodity value is not subject to compensation by the insurer.
A. filed a lawsuit against the insurance company for the recovery of insurance compensation, forfeit, compensation for non-pecuniary damage, and a fine.
The court established that the plaintiff's car was insured by the defendant on the basis of a voluntary comprehensive vehicle insurance contract dated September 24, 2013.
On August 29, 2014, the specified car suffered mechanical damage, in connection with which the plaintiff applied to the company with a statement about the occurrence of an insured event.
On November 18, 2014, the car was sent to a service station for refurbishment.
On August 31, 2016, A. filed a claim with the insurance company demanding compensation for the loss of the commodity value of the insured car.
September 9, 2016 Insurance Company paid the plaintiff a sum of money to compensate for the loss of commodity value.
In refusing to satisfy the claims, the court of first instance proceeded from the fact that the loss of commodity value was voluntarily paid to the plaintiff in full.
Canceling the decision of the court of first instance in part of the refusal to recover a penalty, compensation for moral damage, a fine and making a new decision in this part on partial satisfaction of the claims, the court of appeal indicated that the restoration repair of the vehicle was carried out without taking into account the loss of commodity value, due to with which for the period from the moment the car is sent for repair until the moment the loss of commodity value is compensated, a penalty is to be collected from the company.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the Court of Appeal, stating the following.
According to the first paragraph of Article 431 of the Civil Code of the Russian Federation, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other terms and the meaning of the contract as a whole.
As established by the court, the insurance contract between the parties was concluded by issuing an insurance policy by the insurer, in which damage and theft are indicated as events for which insurance is carried out. There are no exceptions to these insurance risks in the policy.
The final provisions of the insurance policy contain an indication that the parties to the contract are guided by the Insurance Rules on issues not regulated by this policy.
Under such circumstances, the court of appeal, based on a literal interpretation of the conditions set forth in the insurance policy, came to the correct conclusion that when the insurance contract is concluded by the parties in accordance with the above paragraph 3 of Article 943 of the Civil Code of the Russian Federation, the insured risk (and upon its occurrence - insured event) is defined as theft, regardless of its form and method.
The interpretation by the court of appeal of the terms of the contract on the insured event also corresponds to the provisions of the legislation on the protection of consumer rights.
According to paragraph 1 of Article 16 of the Consumer Rights Protection Law, the terms of the contract that infringe on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection are recognized as invalid.
This rule, as repeatedly pointed out Constitutional Court Russian Federation, aimed at protecting the rights of consumers as an economically weaker and more dependent party in civil relations with organizations and individual entrepreneurs (dated October 4, 2012 N 1831-O, etc.).
On the basis of paragraph 1 of Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor in the amount and on the conditions that existed at the time of the transition of the right. In particular, the rights securing the performance of the obligation, as well as other rights related to the claim, including the right to interest, are transferred to the new creditor.
Within the meaning of these norms, the plaintiff (insured) is obliged to prove the existence of an insurance contract with the defendant, as well as the fact of the occurrence of the stipulated specified contract insured event. The insurer objecting to the payment of insurance indemnity is obliged to prove the circumstances with which the law or the contract relates the possibility of exemption from the payment of indemnity, or has the right to challenge the arguments of the insured about the occurrence of an insured event, in particular, to provide evidence of the existence of another reason for the occurrence of these losses.
In this case, taking into account the plaintiff's statement that the insured car was stolen, and the presence of a decision to initiate a criminal case on this fact, the insurance company could be released from the obligation to pay compensation only if it provided evidence that the plaintiff did not have the car. was kidnapped.
However, the court of appeal, in violation of the provisions of Article 56 of the Code of Civil Procedure of the Russian Federation, incorrectly distributed the burden of proof and did not invite the insurer to provide evidence to substantiate its objections.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 15, 2015 N 5-KG15-188
12. In the event that claims are made against the insurer under the Consumer Rights Protection Law, the burden of proving that the insured property was used by the insured (beneficiary) exclusively for personal, family, household and other needs not related to the implementation of entrepreneurial activity assigned to the plaintiff.
The public organization for the protection of consumer rights, acting in the interests of A.K., filed a lawsuit against the insurance company to recover insurance compensation, compensation for moral damage, and a fine.
In support of the claim social organization indicated that on 17 July 2013 between A.K.R. and the insurance company concluded a property insurance contract - a barbecue cafe owned by A.K. In the period from March 1, 2014 to April 1, 2014, an event occurred that had signs of an insured event - cracks appeared on the outer and inner walls of the said structure. A.K. appealed to the defendant with a statement on the payment of insurance compensation, but the defendant refused with reference to the fact that the claimed event is not an insured event.
Refusing to satisfy the claims, the court of first instance referred to the fact that the plaintiff did not provide evidence of the occurrence of an insured event - natural disaster(flood).
Revoking the decision of the court of first instance and making a new decision in the case on partial satisfaction of the claims, the court of appeal proceeded from the fact that the damage to the insured property was caused as a result of the impact of water caused by the rise of groundwater, which is an insured event according to the insurance contract. The court also indicated that since A.K. not registered in in due course as individual entrepreneur and interrelated actions aimed at making a profit, did not carry out, then its activity in leasing the insured non-residential building is not an entrepreneurial activity and the Law on the Protection of Consumer Rights is subject to disputed legal relations, in connection with which it collected a penalty and a fine.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation pointed out that the court of appeal, when considering the case, violated the norms of substantive and procedural law.
As established by the court, the object of insurance is a barbecue cafe, rented by A.K. for rent A.V.
According to the preamble to the Law on the Protection of Consumer Rights, a consumer is a citizen who intends to order or purchase or ordering, acquiring or using goods (works, services) solely for personal, family, household and other needs not related to entrepreneurial activities.
The burden of proof that the insured property was used by A.K. exclusively for personal, family, household and other needs, not related to the implementation of entrepreneurial activities, is assigned to the plaintiff.
The Court of Appeal, in violation of Article 56 of the Code of Civil Procedure of the Russian Federation, incorrectly distributed the burden of proof and did not invite the plaintiff to provide evidence confirming the use of the insured property by her exclusively for personal, family, household and other needs not related to entrepreneurial activities, A.K. didn't show them either.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 11, 2016 N 47-KG16-12
13. Transfer to the account of the insured (claimant) of the required sum of money does not testify to the groundlessness of the claim and cannot serve as a basis for refusing to satisfy the claims in part of this amount. This circumstance may serve as a basis for the court to indicate that the amount paid is subject to offset against the execution of the decision to satisfy the claim.
K. filed a lawsuit against the insurance company for the recovery of underpaid insurance compensation, interest on borrowed money, and a fine.
The court established that on June 19, 2011, O. and the insurance company concluded a car insurance contract, including for the risk of "damage" for a period of 1 year.
During the period of validity of the insurance contract on May 23, 2012, as a result of unlawful actions of third parties, the car caught fire, which led to its constructive death, in connection with which O. turned to the defendant with an application for payment of insurance compensation.
The defendant recognized this case as insurance, and on October 9, 2012 the insurance payment was made.
Disagreeing with the amount of insurance compensation, O. on October 12, 2012 turned to the defendant with a claim for additional insurance compensation, which was left without satisfaction.
On July 5, 2013, O. and K. concluded an agreement on the assignment of the right to claim, under the terms of which K. transferred the right to demand proper execution of the obligation arising from the death of the said car.
After K. applied to the court, the defendant transferred the previously unpaid part of the insurance compensation.
Resolving the dispute, the court of first instance came to the conclusion that there were no grounds for collecting insurance compensation from the defendant in favor of the plaintiff in connection with the fulfillment by the insurer of obligations to pay insurance compensation during the trial.
The Court of Appeal agreed with the conclusion of the Court of First Instance.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the courts of the first and appellate instances.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the courts of the first and appellate instances as erroneous, including the following.
According to the explanations contained in paragraph 1 "On the application by the courts of legislation on voluntary insurance of property of citizens", relations on voluntary insurance of property of citizens are regulated by the norms of Chapter 48 "Insurance" of the Civil Code of the Russian Federation, the Law on the Organization of Insurance Business and the Law on the Protection of Consumer Rights in part, not regulated by special laws.
The Consumer Rights Protection Law applies to contracts of voluntary property insurance of citizens in cases where insurance is carried out exclusively for personal, family, household, domestic and other needs not related to entrepreneurial activities (paragraph 2 of the decision of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 Mr. N 20).
Special laws governing legal relations under a contract of voluntary property insurance of citizens (Chapter 48 "Insurance" of the Civil Code of the Russian Federation, the Law on the Organization of Insurance Business) do not provide for the liability of the insurer for violation of the terms for paying insurance compensation.
Clause 5 of Article 28 of the Law on the Protection of Consumer Rights provides for liability for violation of the terms for the provision of services to the consumer in the form of payment of a penalty charged for each day of delay in the amount of 3 percent of the price for the provision of the service, and if the price for the provision of the service is not determined by the contract for the provision of services - the total price of the order .
The price of the insurance service is determined by the amount of the insurance premium (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20).
According to paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation N 14 dated October 8, 1998 "On the practice of applying the provisions on interest for the use of other people's money" (currently not applied in connection with the adoption of the Civil of the Code of the Russian Federation on Liability for Breach of Obligations") in monetary obligations arising from contracts, in particular, providing for the obligation of the debtor to pay for goods, works or services or pay the funds received under the conditions of return, interest is charged on the overdue amount on the basis of Article 395 of the Civil Code of the Russian Federation.
The same paragraph explains that if the law or agreement of the parties provides for the obligation of the debtor to pay a penalty (fine) in case of delay in the performance of a monetary obligation, then in such cases the court should proceed from the fact that the creditor has the right to demand the application of one of these measures without proving the fact and the amount of losses incurred by him in the performance of a monetary obligation, unless otherwise expressly provided by law or contract.
Thus, in cases where the insured claims a penalty for non-fulfillment of obligations by the insurer, provided for in Article 28 of the Consumer Rights Protection Law, such a claim is subject to satisfaction, and the penalty is calculated depending on the size of the insurance premium.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 26, 2016 N 11-KG15-34
At present, paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 N 7 "On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations" should be guided by paragraph 42, according to which, if a penalty is established by law or by agreement of the parties for violation of a monetary obligation, which is subject to the rule of paragraph one of paragraph 1 of Article 394 of the Civil Code of the Russian Federation, then the provisions of paragraph 1 of Article 395 of the Civil Code of the Russian Federation do not apply. In this case, the forfeit established by law or by agreement of the parties, and not the interest provided for by Article 395 of the Civil Code of the Russian Federation (clause 4 of Article 395 of the Civil Code of the Russian Federation), is subject to collection.
17. The penalty for delay in payment of insurance compensation, provided for in paragraph 5 of Article 28 of the Law on the Protection of Consumer Rights, may not exceed the amount of the insurance premium.
K. filed a lawsuit against the insurance company for the recovery of insurance compensation.
When considering the case, the court established that on July 15, 2014 between K.E.Ts. and the insurer concluded a contract of voluntary car insurance for the risks of "damage" and "theft".
By an additional agreement dated April 23, 2015, concluded between the insurer and K., the latter, as the owner of the specified car, is recognized as the insured and beneficiary under the insurance contract.
On July 22, 2015, K. applied to the insurer for the payment of insurance compensation. The insurance indemnity was not paid.
Resolving the dispute, the court of first instance came to the conclusion that the amount of insurance compensation is to be recovered from the defendant in favor of the plaintiff. The court also came to the conclusion that the defendant was charged a penalty in favor of the plaintiff, provided for in paragraph 5 of Article 28 of the Law on the Protection of Consumer Rights and subject to calculation based on the amount of insurance compensation.
The court of appeal changed the court's decision regarding the amount of the penalty collected, indicating that the court of first instance erroneously calculated the amount of the penalty from the amount of insurance compensation, since in this case it was necessary to be guided by the amount of the insurance premium, amounting to 341,565 rubles. 82 kop. Under such circumstances, the Judicial Collegium for Civil Cases of the Regional Court came to the conclusion that the amount of the penalty was 1,280,871 rubles. 82 kopecks, and reduced it on the basis of Article 333 of the Civil Code of the Russian Federation to 800,000 rubles.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation indicated that the court of appeal violated the norms of substantive and procedural law.
In changing the court's decision regarding the amount of the recovered penalty, the court of appeal was guided by the provisions of paragraph 5 of Article 28 of the Consumer Rights Protection Law and correctly pointed out that the amount of the penalty is to be calculated on the basis of the amount of the insurance premium, and not the insurance indemnity.
At the same time, the court did not take into account the provisions of paragraph 32 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights", according to which the amount of the penalty charged on the basis of paragraph 5 of Article 28 of the Consumer Rights Protection Law cannot exceed the price of an individual type of performance of work (provision of services), in this case - the amount of the insurance premium.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 28, 2017 N 18-KG17-25
18. The recovery of a fine in connection with the failure by the insurer to fulfill the requirements of the consumer on a voluntary basis does not depend on whether the beneficiary himself or his representative by power of attorney certified in accordance with the current legislation applied to the insurance company with an application for insurance payment.
K. filed a lawsuit against the insurance company for the recovery of insurance compensation, interest for the use of other people's money, compensation for non-pecuniary damage.
The court found that on August 14, 2012 the parties concluded a property insurance contract - a residential building for a period of August 13, 2013. The beneficiary under this agreement is K. The property is insured, including against the risk of its destruction in case of fire. During the validity period of the insurance contract - June 29, 2013 - there was a fire, as a result of which the insured residential building was destroyed by fire.
Satisfying in part the claims of the plaintiff, the court of first instance came to the conclusion that the event that occurred on June 29, 2013 was an insured event, in connection with which the insurer had an obligation to pay insurance compensation.
Canceling the decision of the court of first instance regarding the recovery of a fine and refusing to recover it, the court of appeal indicated that K. did not personally apply to the insurer for receiving the insurance payment due to her, as the beneficiary, out of court, M .
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this conclusion of the Court of Appeal for the following reasons.
In accordance with paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights, when satisfying the requirements of the consumer by the court, statutory, the court collects from the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for non-compliance with the voluntary procedure for satisfying consumer requirements a fine in the amount of 50% of the amount awarded by the court in favor of the consumer.
Paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" explains that when the court satisfies the requirements of the consumer in connection with the violation of his rights established by the Law on the Protection of Consumer Rights which were not satisfied voluntarily by the executor, the court collects a fine from the defendant in favor of the consumer, regardless of whether such a claim was made to the court (paragraph 6 of Article 13 of the Law).
The court established that M., acting on the basis of a notarized power of attorney on behalf of K.
In accordance with paragraph 1 of Article 182 of the Civil Code of the Russian Federation, a transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney, an indication of a law or an act authorized to do so government agency or body local government, directly creates, changes and terminates the civil rights and obligations of the represented.
By virtue of paragraph 1 of Article 185 of the Civil Code of the Russian Federation, a power of attorney is recognized as a written authorization issued by one person to another person or other persons for representation before third parties.
In such circumstances, the collection of a fine does not depend on whether the beneficiary himself or his representative, certified in accordance with applicable law, applied to the insurance company with an application for insurance payment.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of April 28, 2015 N 43-KG15-1
19. In case of poor-quality performance of car repairs, that is, improper fulfillment by the insurer of the obligation to provide insurance compensation in kind, the insured may exercise the rights granted to him by paragraph 1 of Article 29 of the Consumer Rights Protection Law (for example, to demand reimbursement by the insurer for the costs of eliminating defects in the performed repair).
S. filed a lawsuit against the insurance company for the recovery of insurance compensation, compensation for non-pecuniary damage, a fine.
The court established that on August 17, 2012 S. entered into a voluntary vehicle insurance contract with the defendant for the period until August 18, 2012.
In accordance with the terms of the contract, one of the forms of insurance compensation is provided - repair at a car service station (STOA) in agreement with the insurer.
On May 28, 2013, a traffic accident occurred, as a result of which mechanical damage was caused to the insured car. The insurer recognized the case as insured and gave S. a referral for car repair at the service station.
On September 13, 2013, the plaintiff notified the defendant of the existence of claims regarding the quality of the repair of his car.
Resolving the dispute on the merits and refusing to satisfy S.'s claims, the court of first instance, with the position of which the court of appeal agreed, proceeded from the fact that the company issued a referral for car repair and paid for it, thereby realizing the plaintiff's right to receive insurance compensation by refurbishment at a service station, carried out at the expense of the insurer, in connection with which there are no grounds for imposing liability on the insurer for poor-quality repairs.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the court orders by specifying the following.
It follows from the provisions of Sections 9 and 10 of the Law on the Organization of Insurance Business that the obligation to pay insurance compensation is monetary. Insurance indemnity can be made in cash or in kind (direction to a car service station).
In paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens" it is explained that, by virtue of Article 313 of the Civil Code of the Russian Federation (as amended at the time the disputed legal relations arose), for the quality refurbishment carried out at the direction of the insurer by the technical service station within the framework of insurance compensation under a voluntary property insurance contract, the responsibility shall be borne by the insurer.
In case of poor-quality repair of the car, that is, improper fulfillment by the insurer of the obligation to provide insurance compensation in kind, the insured may exercise the rights granted to him by paragraph 1 of article 29 of the Consumer Protection Law.
According to paragraph 1 said article the consumer, upon detection of shortcomings in the work performed (service rendered), has the right, at his choice, to demand:
gratuitous elimination of shortcomings of the work performed (service rendered);
a corresponding reduction in the price of the work performed (service rendered);
gratuitous production of another thing from a homogeneous material of the same quality or re-performing the work. In this case, the consumer is obliged to return the thing previously transferred to him by the contractor;
reimbursement of expenses incurred by him to eliminate the shortcomings of the work performed (service rendered) on his own or by third parties.
In the present case, the plaintiff, having established that the repair of his car was made improperly, asked to recover from the defendant-insurer compensation for the costs of eliminating the shortcomings of the work performed, which he intended to carry out on his own or with the involvement of third parties. This requirement complies with the provisions of Article 29 of the Law on Consumer Rights Protection and is not, by its nature, a repeated recovery of insurance compensation from the insurer, from which the court of appeal erroneously proceeded.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 24, 2016 N 78-KG16-22
20. The provisions of the Law on the Protection of Consumer Rights shall apply to relations between the insurer and the heirs of the insured, to whom the insurance service was provided for personal, family, household and other needs not related to entrepreneurial activities.
C.Z. filed a lawsuit against the insurance company for the recovery of losses, interest for the use of other people's funds, penalties, a fine of 50% of the awarded funds, compensation for moral damage, indicating that he is the heir to his father Ch.N., who on May 29 In 2012, using credit funds, he purchased a car and insured it from the defendant in favor of the bank under a comprehensive insurance agreement. On November 29, 2012, an insured event occurred, but Ch.N. was refused, which served as the basis for the latter's appeal to the court with a claim for the recovery of insurance compensation.
By a court decision that has entered into force, the amount of insurance compensation was recovered from the defendant in favor of the bank, in favor of Ch.N. - fine, compensation for moral damage. After the death of Ch.N. the right to claim the fulfillment of obligations by succession passed to the plaintiff, who believed that the defendant had caused losses by the untimely payment of insurance compensation by the defendant.
Resolving the dispute and refusing to satisfy the requirements of Ch.Z. for the recovery of the penalty provided for by the Law on the Protection of Consumer Rights, losses caused as a result of untimely transfer of the amount of insurance compensation to the bank, as well as other requirements, the court proceeded from the fact that during the life of Ch.N. no such claims were made. The court also pointed out that the Law on the Protection of Consumer Rights does not apply to disputed legal relations.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized that the judicial acts held in the case were adopted in violation of the norms of the current legislation.
In accordance with the preamble to the Consumer Rights Protection Law, it regulates relations between consumers and manufacturers, performers, importers, sellers in the sale of goods (performance of works, provision of services), establishes the rights of consumers to purchase goods (works, services) of appropriate quality and safe for life, health, property of consumers and the environment, obtaining information about goods (works, services) and their manufacturers (executors, sellers), education, state and public protection of their interests, and also determines the mechanism for the implementation of these rights.
According to the explanations contained in paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights", if certain types of relations involving consumers are regulated by special laws of the Russian Federation containing norms civil law(for example, a contract of participation in shared construction, an insurance contract for both personal and property, an agreement bank deposit, contract of carriage, contract of energy supply), then to the relations arising from such contracts, the Law on the Protection of Consumer Rights is applied to the extent not regulated by special laws.
Subparagraph "a" of paragraph 3 of the said resolution clarifies that the rights granted to the consumer by the Law and other legal acts issued in accordance with it, as well as the rights of a party to an obligation in accordance with the Civil Code of the Russian Federation, are used not only by a citizen who intends to order or purchase or ordering, acquiring goods (works, services), but also a citizen who uses the goods (works, services) acquired (ordered) as a result of such relations on a legal basis (heir, as well as the person to whom the thing was subsequently alienated, etc. .).
Thus, within the meaning of the Consumer Protection Law, as a result of the conclusion of an insurance contract, bank account the citizen who ordered and paid for the relevant financial service, and his heirs are consumers of the financial service, and the law on the protection of consumer rights applies to the legal relations that have arisen.
These provisions of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 17 were not taken into account by the courts.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 1, 2016 N 44-KG15-20
Recognize as invalid Overview by specific issues of judicial practice related to voluntary property insurance of citizens, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013
The voluntary property insurance market is currently characterized by an expansion of the range of financial services provided and insurance products offered by insurance business entities, as well as an increase in the number of citizens using insurance services to protect their property interests. The Supreme Court has prepared a review in order to ensure effective protection of the violated rights and legitimate interests of policyholders, beneficiaries and insurers.
A significant part of the review is devoted to disputes over voluntary insurance of vehicles, the so-called CASCO agreements. Pravo.ru studied the document and selected the most interesting of them.
Unjust enrichment of a car owner
The insurance organization paid Oleg Terentyev* an insurance payment in the amount that significantly exceeded the cost of restoring the car, determined by later court on the basis of expert opinion. In this regard, the insurer filed a lawsuit to recover unjust enrichment. The first instance ruled in favor of the plaintiff and established that the amount exceeding the amount of damage is subject to return as unjust enrichment.
The Court of Appeal, on the other hand, held that since the payment was made within the contractual relations, it cannot be considered unjust enrichment. The dispute reached the Supreme Court, and the civil board decided - when the obligation to pay insurance compensation was fulfilled in larger size than was necessary, the overpaid amount is subject to return as unjust enrichment (Determination of October 18, 2016 No. 1-KG16-23).
Poor car repair
As part of one of the disputes, the Supreme Court decided: in the event of poor-quality car repairs, that is, improper fulfillment by the insurer of the obligation to provide insurance compensation in kind, the insured can exercise the rights granted to him by paragraph 1 of Art. 29 of the Consumer Protection Act. For example, to demand reimbursement by the insurer of the costs of eliminating the shortcomings of the repair performed (Determination of May 24, 2016 No. 78-KG16-22).
Fines and non-pecuniary damage upon voluntary payment
Mikhail Dudarin * insured his car in IC "Megaruss-D" and got into an accident during the period of the contract. The insurance company voluntarily made a payment for an insured event, but it did not cover all the expenses of a citizen, in connection with which he turned first to experts to assess the damage, and then, on this basis, to the court to recover the rest of the damage.
The Court of Appeal awarded Dudarin unpaid damages, but denied him the part of recovering compensation for moral damage and a fine, since the man did not apply to the insurance again after his assessment.
The Board of the Supreme Court pointed to the fact that since the courts awarded uncovered damage, it is considered proven that the insurance company did not fulfill the obligation in full. The absence of the repeated application of the insured for additional payment of insurance compensation does not in itself relieve the insurer, who was obliged to properly fulfill the obligations at the first application of the insured, from liability (Determination dated December 1, 2015 No.).
The amount of the penalty
AT Definition dated March 28, 2017 No. 18-KG17-25 The Supreme Court recalled the decision of the Plenum of June 28, 2012 No. 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights", according to which the amount of the penalty charged on the basis of paragraph 5 of Art. 28 consumer protection law (consequences of violation by the contractor of the terms for the provision of services), cannot exceed the amount of the insurance premium.
Replacement of the beneficiary
Sole proprietor Gennady Gorin* insured the car, and later an insured event occurred. He informed the insurance company about this, and then concluded an assignment agreement with Leonid Budzinsky *, according to which the latter accepted the right to claim for the recovery of damage caused to the car in an accident. The Court of Appeal indicated that as a result of the assignment agreement there was a change of the beneficiary, which is not allowed by Art. 956 of the Civil Code, and therefore Budzinsky is not entitled to demand payment of insurance compensation.
The Collegium of the Supreme Court for Civil Disputes pointed to a significant violation of substantive law committed by the court. Sun noted - Art. 956 of the Civil Code does not contain any provisions restricting the assignment by the beneficiary of his rights after he submits a claim to the insurer for the payment of insurance compensation (Determination of October 4, 2016 No. 18-KG16-148).
Repair or money?
Maxim Leonidov* got into an accident on his insured car and applied to the insurance company with a statement, but they refused to accept the document. Then he turned to official dealer for an estimate of the cost of repairs and based on this estimate filed statement of claim to court. The first instance considered proven the fact of the occurrence of the insured event and the fact of Leonidov's appeal to the insurer and satisfied the claims of the plaintiff. The judges did not agree with this in the appeal - they indicated that under the terms of the agreement between the parties, the insurance payment is made by repairing the car at the car inspection station in the direction of the insurer.
Civil Code of the Russian Federation
- chapter 48 "Insurance" (Art. Art. 927 - 970)
- Art. 15 "Indemnification"
- Art. 310 "Inadmissibility of unilateral refusal to fulfill obligations"
- Art. 395 "Responsibility for failure to fulfill a monetary obligation"
- Art. 421 "Freedom of Contract"
- Art. 422 "Contract and Law"
- Art. 1064 General Grounds for Liability for Damage
Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation"
- Art. 9 "Insured risk, insured event"
- Art. 10 "Sum insured, insurance payment, deductible"
Federal Law of February 7, 1992 N 2300-1 "On Protection of Consumer Rights"
- Art. 13 "Responsibility of the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for violation of consumer rights"
- Art. 15 "Compensation for non-pecuniary damage"
- Art. 28 "Consequences of violation by the contractor of the deadlines for the performance of work (provision of services)"
- Art. 29 "Consumer rights upon detection of shortcomings in the work performed (service rendered)"
- Art. 30 "Terms for eliminating deficiencies in the work performed (services rendered)"
- Art. 39 "Regulation of rendering certain types services"
Decree of the Government of the Russian Federation of April 24, 2003 N 238 "On the organization of an independent technical examination of vehicles"
Federal jurisprudence
The basis for the payment of insurance compensation is the very fact of the occurrence of an insured event, and not the infliction of losses caused by an insured event.
(Paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens".)
Driving a vehicle by a person not specified in the insurance contract does not release the insurer from paying the insurance indemnity.
(Review on certain issues of judicial practice related to voluntary property insurance of citizens, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013.)
In case of complete loss of property, that is, in case of its complete destruction or such damage when it cannot be restored, the policyholder is paid insurance compensation in the amount of the full sum insured.
(Paragraph 38 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens".)
The insurer shall be responsible for the quality of the restoration repair of the car, carried out according to the referral for repair issued by the insurer as part of the insurance indemnity.
(Paragraph 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens".)
If, when concluding a voluntary property insurance contract, the policyholder was given the right to choose the method of calculating losses incurred as a result of an insured event (excluding depreciation or taking into account depreciation of the insured property), when resolving a dispute on the amount of insurance compensation, one should proceed from the agreed terms of the contract. In the event of a complete loss of property, that is, in its complete destruction or such damage when it cannot be restored, the insurance indemnity must be paid in the amount of the full sum insured in accordance with paragraph 5 of Art. 10 of the Federal Law of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation".
(Items 36, 38 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance".)
The laws of the Russian Federation dated 07.02.1992 N 2300-1 "On the protection of consumer rights" apply to contracts of voluntary insurance of property of citizens concluded for personal, family, household, household and other needs not related to the implementation of entrepreneurial activities, to the extent not regulated special laws.
(Clause 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens".)
Consumer protection legislation applies to relations on personal and property insurance only to the extent not regulated by special rules. Thus, only general provisions Law of the Russian Federation "On the Protection of Consumer Rights", and these legal relations do not fall under the special provisions of this Law.
(Clause 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On consideration by the courts of civil cases on disputes on the protection of consumer rights".)
Practice of the Moscow City Court
The insurance contract refers to obligations, the term of performance of which is determined by the moment of demand, in connection with which the limitation period in these relations begins from the day of the occurrence of an insured event, entailing the obligation of the insurer to pay insurance compensation.
(Decree of the Presidium of the Moscow City Court dated May 17, 2013 in case No. 44g-39/13.)
The insurer is not entitled to refuse to pay the insurance indemnity to the insured due to the insured's failure to provide a vehicle passport (PTS), since the law does not provide for such a basis for refusing to pay.
(Determination of the Moscow City Court dated March 19, 2014 N 4g / 6-2109 / 14.)
The policyholder has the right to refuse the vehicle repair service in the direction of the insurer and demand payment of insurance compensation in monetary terms.
Regardless of the terms of the insurance contract (payment of insurance compensation or issuance of a referral for repairs), the insurer in any case has monetary obligation. The difference lies only in the final recipient of funds (in the first case, the insurer himself or another person entitled to receive compensation under the contract, and in the second case, the service station that repairs the insured vehicle).
(Appeal ruling of the Moscow City Court dated December 24, 2013 in case No. 11-42863.)
In case of delay in payment by the insurer, interest for the use of other people's funds shall be collected from him for the period from the moment the obligation to pay insurance compensation arises to the day of the actual payment of such compensation.
(Appeal ruling of the Moscow City Court dated December 10, 2013 in case No. 11-40114.)
Briefly about the important
Claim
.
Main:
- on the payment of insurance compensation.
Additional:
- on compelling the gratuitous elimination of deficiencies in the repair performed;
- on the collection of interest for the use of other people's funds;
- on the payment of a penalty for delay in payment or non-payment (payment not in full) of insurance compensation;
- for damages;
- on compensation for losses;
- for compensation for non-pecuniary damage.
The insurer acts as a defendant in disputes related to the payment of insurance compensation, since, in accordance with the terms of the insurance contract, it is the insurer who assumes the obligation to compensate the insured for the losses incurred by him upon the occurrence of an insured event (Article 929 of the Civil Code of the Russian Federation).
When participating in disputes of this category, it must be borne in mind that relations related to liability for violation of the rights of citizens under a voluntary property insurance agreement are not regulated by a special law - therefore, the Law of the Russian Federation "On Protection of Consumer Rights" (Determination of the Supreme Court of the Russian Federation dated October 29, 2013 N 78-KG13-23).
When calculating the limitation period in a case for the recovery of insurance compensation, one should take into account the position of the Supreme Court of the Russian Federation, expressed in paragraph 9 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 20. A two-year limitation period for disputes arising from legal relations on property insurance (Article 966 of the Civil Code of the Russian Federation), is calculated from the moment when the insured learned or should have known about the insurer's refusal to pay compensation under the contract or about the payment of such compensation in an incomplete amount, as well as from the moment the term for paying insurance compensation provided for by law or the contract expires.
With regard to compensation to the insured for moral damage caused by non-performance or improper performance by the insurer of its obligations, the following should be taken into account. When the court decides on the issue of compensation to the consumer for non-pecuniary damage, a sufficient condition for satisfying this requirement is the established fact of violation of the consumer's rights (paragraph 45 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On the consideration by courts of civil cases on disputes on the protection of consumer rights") .
The insurer may be exempted from paying insurance compensation only in cases established by law (Articles 961, 963, 964 of the Civil Code of the Russian Federation).
According to paragraph 1 of Art. 943 of the Civil Code of the Russian Federation, the insurance rules approved by the insurer are an integral part of the insurance contract and should not contain provisions that contradict the law and worsen the position of the insurer in comparison with the rules established by law. Contradictory provisions of the insurance rules are void (Appeal ruling of the Moscow City Court dated December 24, 2013 in case No. 11-42595).
It should be borne in mind that the absence between the insurer and the insurance agent of a valid agency agreement is not an unconditional basis for refusing an insurance payment on the basis of an insurance contract concluded with such an agent. According to the courts, similar situation the fault of the insurer is seen, which, having issued insurance policy forms with a seal and its details to the agent, did not show the due degree of care and discretion (for example, Cassation ruling of the Moscow City Court dated March 12, 2013 N 4g / 2-1549 / 13).
According to the imperative norm of paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, insurance compensation can be made only by paying cash. This must be taken into account when making a claim. So, for example, it is inappropriate to demand that the defendant be obliged to repair a previously insured vehicle, while the requirement to pay money for repairs or transfer these funds to the person who will carry out the repair is in accordance with the law (for example, Ruling of the Moscow City Court dated 01.22.2013 N 4g / 6 -715).
It must be remembered that if the repair is performed poorly, you can demand from the insurer the gratuitous elimination of the identified deficiencies (paragraph 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 "On the application by the courts of legislation on voluntary insurance of property of citizens").
The penalty for the insurer's refusal to pay insurance compensation or the payment of compensation in an incomplete amount should be calculated from the day when the insurer refused to pay or paid compensation in an incomplete amount (Determination of the Supreme Court of the Russian Federation of 14.01.2014 N 20-KG13-33).
It is not recommended to indicate in the claim at the same time the requirement to collect interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) and to collect a penalty (Article 28 of the Consumer Rights Protection Law). The court may consider the requirement to apply two or more measures of liability to the defendant as an abuse of the right and refuse to satisfy them (for example, Ruling of the Moscow City Court dated 07.02.2014 N 4g / 8-914, paragraph 6 of the joint Resolution of the Plenums of the Supreme Court and the Supreme Arbitration Court of the Russian Federation dated 08.10 .1998 N 13/14).
It should not be required from the insurer to reimburse the costs of paying the amount of the unconditional deductible, since the obligation to pay the unconditional deductible is imposed by the insurance contract on the insured (claimant) (for example, Cassation ruling of the Moscow City Court dated 04.10.2013 N 4g / 2-7537 / 13).
If the insurance contract contains a condition that the theft of a car with a key or registration documents left in it is not an insured event, the court should be drawn to the fact that such a condition is contrary to the Civil Code of the Russian Federation and should not be applied (for example, the Ruling of the Supreme Court of the Russian Federation dated 08.10 .2013 N 78-KG13-20, Review on certain issues of judicial practice related to voluntary property insurance of citizens, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013).
Due to the fact that the Law of the Russian Federation dated 07.02.1992 N 2300-1 "On Protection of Consumer Rights" is applied to relations under voluntary auto insurance contracts, if the court reveals the fact of violation by the insurance company of the rights of the insured, expressed in dissatisfaction with his requirements on a voluntary basis, the court collects from the defendant in favor of the consumer a fine, regardless of whether such a claim was made by the plaintiff. Nevertheless, we recommend that such a requirement be included in the statement of claim (paragraph 46 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17).
You need to know that if the insured property died or was lost, the insured has the right to waive his rights to it in favor of the insurer and require him to pay insurance compensation in the amount of the full sum insured (clause 5, article 10 of the Federal Law of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation").
In accordance with Art. 15 of the Law of the Russian Federation of 07.02.1992 N 2300-1 "On Protection of Consumer Rights" consumer - i.e. in this case, the insured has the right to demand compensation for moral damage caused by the violation of his rights by the insurer in the presence of the latter's fault. Thus, it is advisable to include such a requirement in the statement of claim. At the same time, it should be borne in mind that the amount of compensation for moral damage does not depend on the amount of compensation for property damage, is carried out regardless of compensation for property damage and losses incurred, and is determined by the court.
To make a decision in favor of the plaintiff, it is necessary to prove the circumstances indicated in the table.
|
Circumstances to be proven |
Evidence supporting these circumstances |
Examples from judicial practice |
|
The insurer made a delay in insurance payment |
Insurance act on recognition of an event as an insured event Payment order for insurance payment |
Determination of the Moscow City Court dated February 7, 2014 N 4g / 8-914 |
|
Property insured against the risk of theft was stolen |
Decision to initiate a criminal case |
Decree of the Presidium of the Moscow City Court dated October 05, 2012 in case No. 44g-148 |
|
The cost of restoring the insured car was determined incorrectly by the insurer |
Insured Vehicle Appraisal Report Report on the assessment of the market value of the restoration repair |
Determination of the Moscow City Court dated January 22, 2013 N 4g / 6-715 Appeal ruling of the Moscow City Court dated December 24, 2013 in case No. 11-42863 Appeal ruling of the Moscow City Court dated December 18, 2013 in case No. 11-41311 |
|
The insured value of the car specified in the insurance contract was not overstated |
Vehicle purchase agreement |
Determination of the Moscow City Court dated July 22, 2013 N 4g / 6-6460 / 13 |
|
Car repair work according to the direction of the insurer was performed poorly |
Conclusion based on the results of the inspection conducted by a specialized organization |
Determination of the Supreme Court of the Russian Federation of January 28, 2014 N 46-KG13-7 |
|
The insured did not intend to cause damage to the vehicle in order to receive an insurance payment |
Lack of evidence that the insured has the intent to cause damage to the insured vehicle |
Determination of the Moscow City Court dated May 13, 2014 N 4g / 6-4826 / 14 |
|
The insured did not receive insurance compensation |
Lack of evidence of receipt of insurance compensation by the insured |
Appeal ruling of the Moscow City Court dated January 10, 2014 in case No. 11-0262 |
|
The expert's conclusion about the circumstances of the damage to the car does not correspond to the real circumstances |
Testimony of witnesses about the circumstances in which the car was damaged Case materials about administrative offense initiated as a result of an accident Photos taken by the traffic police inspector at the scene of an accident |
Appeal ruling of the Moscow City Court dated December 10, 2013 in case No. 11-40582 |
|
In violation of the insurance contract, the insurer did not issue a referral to the insured for car repairs |
Lack of evidence of issuance of a referral to the insured for car repairs |
Appeal ruling of the Moscow City Court dated December 4, 2013 in case N 11-37112/2013 |
|
The insurer refused to accept the good remains of the insured car from the insured |
Witness testimony |
Appeal ruling of the Moscow City Court dated November 14, 2013 in case No. 11-36215 |
Statement of claim for the recovery of insurance compensation under a motor insurance contract (casco)
To ____________________________ District Court
Plaintiff: ___________(full name)______
Claimant's representative: ____ (full name)______
address: _______________________________,
telephone: _____________________________,
email mail: ____________________________
Respondent: ________ (name) _______
address: _______________________________,
telephone: _____________________________,
email mail: ____________________________
Price of the claim: _____________________ rubles
State duty: ____________________ rubles
Statement of claim
on the recovery of insurance compensation under a voluntary motor insurance (casco) agreement
"___" ________ ___ at the address _____________________________ there was a traffic accident (hereinafter referred to as an accident) involving a car __________________, state register sign ___________________, driven by __________________________ and my car __________________________, state registration plate ___________________, driven by _________________________
"___" ___________ _____, my car brand ____________________________, parked at _______________, was stolen by unknown persons.
The car ______________ that belongs to me is insured under the program of comprehensive auto insurance (casco) in the insurance company ____________________, which is confirmed by the insurance policy N __________________.
"___" ___________ ____ I applied to the insurance company ________________ (hereinafter referred to as the Respondent) with an application for payment of insurance compensation, attaching all Required documents. On the other hand, the insurance company
- made a delay in the payment of insurance compensation, which is confirmed by: an insurance act dated "___" ________ _____ on recognizing the case as an insurance / payment order dated "___" ________ _____
According to paragraph 5 of Art. 28 of the Federal Law of 07.02.1992 N 2300-1 "On Protection of Consumer Rights" in case of violation deadlines performance of work (provision of services) or new terms appointed by the consumer, the contractor pays the consumer for each day (hour, if the term is defined in hours) of delay a penalty (penalty) in the amount of three percent of the price of performing work (provision of services), and if the price of performing work (provision of services) services) contract for the performance of work (provision of services) is not defined - the total price of the order. An agreement on the performance of work (provision of services) between the consumer and the contractor may establish a higher amount of the penalty (fine);
- illegally denied me an insurance claim, since the fact of the theft of the car is confirmed and the insured event takes place, which is confirmed by: the decision to initiate a criminal case dated "___" ________ ____
According to paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, one party (the insurer) undertakes, for the fee stipulated by the contract (insurance premium), upon the occurrence of an event (insurance event) provided for in the contract, to reimburse the other party (the insured) or another person in whose favor the contract was concluded (the beneficiary) losses caused as a result of this event in the insured property or losses in connection with other property interests of the insured (to pay insurance compensation) within the amount specified by the contract (sum insured);
- incorrectly determined the cost of the restoration repair, which is ____________________ rubles, which is confirmed by: an assessment report dated "___" ________ ____
According to Art. 947 of the Civil Code of the Russian Federation, the amount within which the insurer undertakes to pay insurance compensation under a property insurance contract or which he undertakes to pay under a contract personal insurance(sum insured) is determined by agreement between the insured and the insurer in accordance with the rules provided for by this article;
- illegally refused to pay insurance compensation, referring to the overstatement of the insurance value of the car when concluding an insurance contract, which is confirmed by: a contract for the sale of a car dated "___" ________ ____
According to paragraph 2 of Art. 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation" when insuring property, the sum insured cannot exceed its actual value (insurance value) at the time of conclusion of the insurance contract. The parties may not dispute the insured value of the property determined by the insurance contract, unless the insurer proves that he was deliberately misled by the insured;
- issued a referral for car repair, but the repair was performed poorly, which is confirmed by: a conclusion based on the results of an inspection conducted by a specialized organization.
In accordance with Art. 29 of the Law of the Russian Federation "On Protection of Consumer Rights", the consumer, upon discovering deficiencies in the work performed (service rendered), has the right to demand, among other things, the elimination of deficiencies in the work performed free of charge.
Art. 30 of the Law of the Russian Federation "On Protection of Consumer Rights" provides that the shortcomings of the work (service) must be eliminated by the contractor within a reasonable time, appointed by the consumer;
- refused to pay insurance compensation, indicating that the damage to the vehicle was caused intentionally in order to receive insurance payment, but did not provide evidence of this.
According to Art. 963 of the Civil Code of the Russian Federation, the insurance company is exempt from paying insurance compensation or the sum insured if the insured event occurred due to the intent of the insured, beneficiary or insured person;
- refuses to pay the insurance premium, arguing that the indicated amount was paid, although there is no evidence of this.
- refuses to pay the amount of insurance compensation, based on the expert's opinion on the circumstances of the damage to the car, which does not correspond to real circumstances, which is confirmed by: testimony of witnesses / materials of the case of an administrative offense / photographs from the scene of an accident.
According to paragraph 2 of Art. 9 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation" an insured event is an event that has occurred, provided for by an insurance contract or law, upon the occurrence of which the insurer is obliged to make an insurance payment to the insured, the insured person, the beneficiary or other third party persons;
- in violation of the insurance contract, did not issue a referral to the insured for car repairs, and also failed to provide evidence of the issuance of such a referral.
According to Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, one party (the insurer) undertakes, for the fee stipulated by the contract (insurance premium), upon the occurrence of an event (insurance event) provided for in the contract, to reimburse the other party (the insured) or another person in whose favor the contract was concluded (the beneficiary) losses caused as a result of this event in the insured property or losses in connection with other property interests of the insured (to pay insurance compensation) within the amount specified by the contract (sum insured);
- refuses to accept the good remains of the insured vehicle, which is confirmed by the testimony of witnesses __________________.
According to paragraph 5 of Art. 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation" in the event of the death of the insured property, the insured, the beneficiary has the right to waive his rights to it in favor of the insurer in order to receive insurance compensation from him in the amount of the full sum insured .
The above actions of the insurer caused my moral feelings, in connection with which I believe that I also suffered moral damage, which is subject to compensation on the basis of Art. 15 of the Law of the Russian Federation of February 7, 1992 N 2300-1 "On the Protection of Consumer Rights" and the amount of which I estimate at _____ rubles.
According to Art. 309 of the Civil Code of the Russian Federation, obligations must be duly performed in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements.
In accordance with Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill obligations and a unilateral change in its conditions are not allowed, except as otherwise provided by law. Unilateral refusal to fulfill an obligation related to the implementation of entrepreneurial activities by its parties, and a unilateral change in the terms of such an obligation are also allowed in cases where stipulated by the agreement unless otherwise follows from the law or the nature of the obligation.
In accordance with the provisions of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm. By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor.
In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
According to paragraph 6 of Art. 13 of the Law of the Russian Federation "On Protection of Consumer Rights", when the court satisfies the requirements of the consumer established by law, the court collects from the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for non-compliance with the voluntary satisfaction of consumer requirements a fine in the amount of fifty percent of amount awarded by the court in favor of the consumer.
In connection with the above, in accordance with Art. Art. 15, 309, 310, 929, 931, 1064 of the Civil Code of the Russian Federation; Art. Art. 3, 29 Code of Civil Procedure of the Russian Federation; Art. Art. 12, 14.1 FZ dated April 25, 2002 N 40-FZ; Art. Art. 9, 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation", Art. Art. 13, 15, 17 of the Law of the Russian Federation "On Protection of Consumer Rights"
Collect from the Respondent in my favor:
- Insurance indemnity in the amount of _____ rubles.
- Expenses for conducting an examination in the amount of _____ rubles.
- A penalty in the amount of _____ rubles / interest for the use of other people's funds in the amount of _____ rubles.
- Compensation for non-pecuniary damage in the amount of _____ rubles.
- The cost of paying a representative in court in the amount of _____ rubles.
- A fine of 50% of the amount awarded to me.
Applications:
- A copy of the insurance contract dated "___" ______ ____, N ___.
- Evidence of the fact of delay in payment of insurance compensation: a copy of the insurance act on the recognition of the event as an insured event / payment order for the transfer of insurance payment.
- Evidence of the theft of the insured vehicle: a copy of the decision to initiate a criminal case.
- Evidence that the insurance company has incorrectly determined the cost of restoring the insured vehicle: a copy of the damage assessment report of the insured vehicle.
- Evidence that at the conclusion of the insurance contract the insured value of the car was not overestimated: a copy of the contract of sale of the insured car with an indication of its price.
- Evidence that the repair in the direction of the insurance company was of poor quality: a copy of the conclusion based on the results of an inspection conducted by a specialized organization.
- Evidence that the circumstances of the damage to the insured car are true: copies of the case file on an administrative offense / photographs from the scene of an accident.
- Calculation of claims.
- Copies of the statement of claim and attached documents to the Respondent.
- Receipt of payment of state duty.
- Power of attorney of the representative from "___" _________ ____ g. N ___ (if the statement of claim is signed by the representative of the Claimant).
"___" __________ ____ G.
Claimant (representative):
_________________________/_____________________/
(signature) (full name)
Judicial acts attached to the statement of claim:
- Determination of the Moscow City Court of February 7, 2014 N 4g / 8-914
- Determination of the Moscow City Court of January 22, 2013 N 4g / 6-715
- Determination of the Moscow City Court of February 6, 2014 N 4g / 8-859
