In order to ensure uniform practice in the application by courts of legislation regulating relations in the field of compulsory insurance of civil liability of vehicle owners, as well as taking into account the issues that arise for the courts when considering this category of cases, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2, 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to provide the following clarifications.
Legal regulation of relations regarding compulsory civil liability insurance of vehicle owners
1. Relations regarding compulsory civil liability insurance of vehicle owners are regulated by the norms of Chapter 48 "Insurance" of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), Federal Law of April 25, 2002 N 40-FZ "On compulsory civil liability insurance of vehicle owners" (hereinafter referred to as the Law on Compulsory Motor Liability Insurance), Law of the Russian Federation dated November 27, 1992 N 4015-I “On the organization of insurance business in the Russian Federation” (hereinafter referred to as Law N 4015-I), Law of the Russian Federation dated February 7, 1992 N 2300- I “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights) in the part not regulated by special laws, as well as the Rules for compulsory civil liability insurance of vehicle owners, approved by the Regulations of the Central Bank of the Russian Federation dated September 19, 2014 N 431-P (hereinafter referred to as the Insurance Rules), and other regulatory legal acts of the Russian Federation.
2. The Law on the Protection of Consumer Rights applies to relations arising from a contract of compulsory insurance of civil liability of vehicle owners in cases where insurance is carried out exclusively for personal, family, household, household and other needs not related to business and other economic activities .
The Consumer Rights Protection Law does not apply to relations arising between the victim and the professional association of insurers in connection with compensation payments.
Procedural features of consideration of cases on compulsory insurance of civil liability of vehicle owners
3. Cases on disputes arising from the contract of compulsory civil liability insurance of vehicle owners (citizens, organizations, state authorities, local governments) and not related to their implementation of business and other economic activities are subject to consideration by courts of general jurisdiction (clause 1 of part 1 and part 3 of Article 22 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation).
When determining the jurisdiction of a dispute related to compulsory insurance, the consideration of which falls within the competence of courts of general jurisdiction, the courts should be guided by the general rules established by Articles 23 and 24 of the Code of Civil Procedure of the Russian Federation:
a) cases of property disputes (for example, in the case of a claim for recovery of insurance payment) with the value of the claim not exceeding fifty thousand rubles on the day of filing the application, are subject to the jurisdiction of a magistrate (clause 5 of part 1 of Article 23 of the Code of Civil Procedure of the Russian Federation);
b) cases on property disputes where the value of the claim exceeds fifty thousand rubles on the day of filing the application, as well as cases on claims that are not subject to assessment (for example, violation of the consumer’s right to reliable information), are subject to the jurisdiction of the district court (Article 24 of the Code of Civil Procedure of the Russian Federation).
If, simultaneously with a property claim that is within the jurisdiction of the magistrate, a derivative claim for compensation for moral damage is filed, such cases are within the jurisdiction of the magistrate.
If, when filing a counterclaim, new claims are within the jurisdiction of the district court, all claims are subject to consideration in the district court. In this case, the magistrate makes a ruling to transfer the case to the district court (Part 3 of Article 23 of the Code of Civil Procedure of the Russian Federation).
4. Cases on disputes arising from the contract of compulsory civil liability insurance of vehicle owners and related to the implementation of business and other economic activities by legal entities and individual entrepreneurs are subject to consideration by the arbitration court (part 1 of article 27, article 28 of the Arbitration Procedural Code of the Russian Federation (hereinafter - Agroindustrial Complex of the Russian Federation).
5. Cases on disputes related to compulsory civil liability insurance of vehicle owners are considered according to the general rule of territorial jurisdiction at the location of the defendant (Article 28 of the Civil Procedure Code of the Russian Federation, Article 35 of the Arbitration Procedure Code of the Russian Federation).
A claim against an insurance organization can also be filed at the location of the branch or representative office that entered into a compulsory insurance contract, or at the location of the branch or representative office that accepted the application for insurance payment (Part 2 of Article 29 of the Civil Procedure Code of the Russian Federation and Part 5 of Article 36 of the Arbitration Procedure Code of the Russian Federation).
At the same time, claims in disputes regarding the protection of the rights of a consumer who is an insured, a beneficiary under a contract of compulsory insurance of civil liability of vehicle owners, may also be brought to court at the place of residence or place of stay of the plaintiff or at the place of conclusion or place of execution of the contract (Article 28 and part 7 of article 29 of the Code of Civil Procedure of the Russian Federation).
Claims for disputes related to compensation payments are subject to consideration according to the general rules of territorial jurisdiction - at the location of the professional association of insurers or at the location of its branch or representative office.
6. When the victim files a claim directly against the tortfeasor, the court, by virtue of Part 3 of Article 40 of the Code of Civil Procedure of the Russian Federation and Part 6 of Article 46 of the Arbitration Procedure Code of the Russian Federation, is obliged to involve an insurance organization in the case as a defendant, to which, in accordance with the Law on Compulsory Motor Liability Insurance, the victim has the right to apply with an application for insurance payment or direct compensation for losses (paragraph two of paragraph 2 of Article 11 of the Law on Compulsory Motor Liability Insurance).
7. The fourth paragraph of paragraph 21 of Article 12, the second paragraph of paragraph 1 of Article 16 and paragraph 3 of Article 19 of the Law on Compulsory Motor Liability Insurance (MTPL) from September 1, 2014 provide for a mandatory pre-trial dispute resolution procedure.
The provisions on mandatory pre-trial dispute resolution, provided for in paragraph two of paragraph 1 of Article 16 of the Law on Compulsory Motor Liability Insurance, are subject to application if the insured event occurred after September 1, 2014.
The rules on the mandatory pre-trial procedure for resolving a dispute also apply in the event of a claim being brought against a professional association of insurers for the collection of compensation payments (paragraph three of paragraph 1 of Article 19 of the Law on Compulsory Motor Liability Insurance).
8. The victim has the right to file a claim from the day when he learned or should have learned about the insurer’s refusal to pay insurance compensation or about the insurer not paying it in full, or from the day following the day of expiration of the twenty-day period, with the exception of non-working holidays, from the day of filing an application for insurance payment with the submission of all necessary documents for the insurer to make a decision (clause 21 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Non-working holidays are determined in accordance with Article 112 of the Labor Code of the Russian Federation.
9. The judge returns the statement of claim in the event of failure to comply with the mandatory pre-trial procedure for resolving a dispute when the victim files a claim against the insurance organization or simultaneously against the insurance organization and the tortfeasor (Article 135 of the Code of Civil Procedure of the Russian Federation).
In cases where this circumstance is established when considering a case or involving an insurance organization as a defendant, claims against both the insurer and the tortfeasor are subject to being left without consideration on the basis of paragraph two of Article 222 of the Code of Civil Procedure of the Russian Federation and paragraph 2 of part 1 of Article 148 of the Code of Arbitration Procedure of the Russian Federation.
The rules on mandatory pre-trial dispute resolution also apply in the event of replacing the defendant - the causer of harm - with an insurance company.
Limitation period
10. Courts must take into account that the limitation period for disputes arising from legal relations on compulsory insurance of the risk of civil liability in accordance with paragraph 2 of Article 966 of the Civil Code of the Russian Federation is three years and is calculated from the day when the victim (beneficiary) learned or should have learned about the refusal insurer in payment of insurance compensation or payment by the insurer not in full, or from the day following the day established for making a decision on payment of insurance compensation (issuing a referral for vehicle repair), provided for in paragraphs 17 and 21 of Article 12 of the Law on Compulsory Motor Liability Insurance (MTPL) or an agreement.
11. A change of persons in the obligation (in particular, during subrogation, assignment of the right of claim) for the claims that the new creditor has against the person responsible for losses caused as a result of a traffic accident does not entail a change in the course of the total (three-year) period limitation period and the procedure for calculating it (Article 201 of the Civil Code of the Russian Federation).
12. The basis for interrupting the limitation period may be, in particular, recognition by the insurer of a claim, partial payment of insurance compensation and/or penalties, financial sanctions (Article 203 of the Civil Code of the Russian Federation).
Compulsory insurance contract for civil liability of vehicle owners
13. The compulsory insurance contract must comply with the Law on Compulsory Motor Liability Insurance and the Insurance Rules in force at the time of its conclusion. Changing the provisions of the Law on Compulsory Motor Liability Insurance, the Insurance Rules after the conclusion of an agreement does not entail changes in the provisions of the agreement (in particular, on the procedure for execution, validity periods, essential conditions) except in cases where the law applies to relations arising from previously concluded agreements (paragraphs 1 and 2 Article 422 of the Civil Code of the Russian Federation).
When resolving disputes arising from compulsory insurance contracts for civil liability of vehicle owners, it should be borne in mind that the rules of Article 428 of the Civil Code of the Russian Federation on the contract of adhesion are subject to application to the insurance contract in the part in which it is concluded under the terms of the Insurance Rules.
The compulsory insurance contract is public and is concluded on the terms provided for by the Law on Compulsory Motor Liability Insurance and other legal acts adopted for the purpose of its implementation.
Based on the provisions of paragraph 25 of Article 12 of the Law on Compulsory Motor Liability Insurance and paragraph 2 of Article 426 of the Civil Code of the Russian Federation, the terms of a compulsory insurance contract that contradict the Law on Compulsory Motor Liability Insurance and/or the Insurance Rules, including those establishing additional grounds for releasing an insurance organization from the obligation to make an insurance payment, are void (Clause 5 of Article 426 of the Civil Code of the Russian Federation).
In the event of a dispute regarding the content of the insurance contract, the content of the policyholder's application, the insurance policy, as well as the insurance rules on the basis of which the contract was concluded should be taken into account.
14. The compulsory insurance contract does not apply to cases of damage to life, health and/or property when using a vehicle on the territory of a foreign state, including in cases where the amount of damage exceeds the maximum insured amount under the green card insurance rules (Article 31 Law on OSAGO).
15. The issuance of an insurance policy is evidence confirming the conclusion of a compulsory civil liability insurance agreement, until proven otherwise.
Incomplete and/or untimely transfer to the insurer of the insurance premium received by an insurance broker or insurance agent, unauthorized use of compulsory insurance policy forms do not exempt the insurer from fulfilling the compulsory insurance contract (clause 7 of Article 15 of the Law on Compulsory Motor Liability Insurance).
In case of theft of forms of compulsory insurance insurance policies, the insurance organization is exempt from paying insurance compensation only on the condition that before the date of the occurrence of the insured event, the insurer, insurance broker or insurance agent applied to the authorized bodies with a statement about the theft of the forms (clause 7 of Article 15 of the Law on Compulsory Motor Liability Insurance) .
16. After concluding a compulsory insurance contract, replacing the vehicle specified in the compulsory insurance policy, changing the insurance period, as well as replacing the policyholder are not allowed.
When the right of ownership, right of economic management or operational management of a vehicle is transferred from the insured to another person, the new owner is obliged to enter into a contract of compulsory insurance of his civil liability (clause 2 of Article 4 of the Law on Compulsory Motor Liability Insurance).
17. An insured event is an event that results in civil liability of the insured and other persons, the risk of liability of which is insured under a compulsory insurance contract for causing harm to the life, health and/or property of victims when using a vehicle (paragraph eleven of Article 1 of the Law on OSAGO).
The use of a vehicle should be understood not only as mechanical (physical) movement in space, but also all actions associated with this movement and other operation of the vehicle (towing, parking, parking, stopping, etc.).
In relation to the Law on Compulsory Motor Liability Insurance, the use of a vehicle means its operation within the boundaries of roads, as well as in areas adjacent to roads and intended for the movement of vehicles (in courtyards, in residential areas, in vehicle parking lots, gas stations, as well as any other territories , on which it is possible to move (pass) a vehicle).
The operation of equipment installed on a vehicle and not directly related to the participation of the vehicle in road traffic (for example, a slewing bearing of a truck crane, a concrete mixer, unloading mechanisms, a manipulator boom, an advertising structure on a vehicle) is not the use of the vehicle (second paragraph of article 1 of the Law on OSAGO).
18. The right to receive insurance payment in terms of compensation for damage caused to property belongs to the victim - the person who owns the property by right of ownership or other proprietary right. Persons who own property by other rights (in particular, on the basis of a lease agreement or by virtue of an authority based on a power of attorney) do not have an independent right to insurance payment in respect of the property (paragraph six of Article 1 of the Law on Compulsory Motor Liability Insurance).
If the damage caused as a result of a road traffic accident is compensated not by the insurance company of the harm-cauter (or in the case of direct compensation of losses, by the insurance company of the victim), but by another person, then the person who compensated for the damage has the right to compensation for losses.
The person who compensated the victim for harm (the causer of harm, the insurance organization that paid insurance compensation under a voluntary property insurance contract, any other person except the insurance organization of the harm causer or the insurance organization of the victim) has the right to claim against the insurer who insured the civil liability of the victim only in cases allowing direct compensation for losses (Article 14 of the Law on Compulsory Motor Liability Insurance). In other cases, such a requirement is presented to the insurer that insured the civil liability of the tortfeasor.
A person who has compensated for damage caused as a result of an insured event has the right to claim against the insurer in the amount determined in accordance with the MTPL Law. At the same time, the implementation of the transferred right of claim is carried out in accordance with the legislation of the Russian Federation in compliance with the provisions of the Law on Compulsory Motor Liability Insurance, which regulate the relationship between the victim and the insurer (clause 23 of Article 12 of the Law on Compulsory Motor Liability Insurance).
19. The rights of the victim (beneficiary) under a compulsory insurance contract can be transferred to another person only in terms of compensation for damage caused to his property upon the occurrence of a specific insured event within the framework of a compulsory insurance contract for civil liability of vehicle owners (Article 383 of the Civil Code of the Russian Federation).
The transfer of the rights of the victim (beneficiary) under a compulsory insurance contract is allowed only from the moment the insured event occurs.
The rights of the victim to compensation for harm to life and health, as well as the right to compensation for moral damage and procedural rights of the consumer cannot be transferred under an agreement for the assignment of claims (Article 383 of the Civil Code of the Russian Federation).
20. Submission by the beneficiary to the insurer of a demand for payment of insurance compensation does not exclude the assignment of the right to receive insurance compensation. If the beneficiary receives an insurance payment in part, the assignment of the right to receive the insurance payment is allowed in the part not terminated by execution.
21. If from the documents drawn up by the police officers it is impossible to establish the guilt of the insured person in the occurrence of the insured event or to determine the degree of guilt of each of the drivers involved in the traffic accident, the person who applied for the insurance payment is not deprived of the right to receive it.
In this case, insurance organizations make insurance payments in equal shares of the amount of damage suffered by each (paragraph four of paragraph 22 of Article 12 of the Law on Compulsory Motor Liability Insurance).
The insurer is released from the obligation to pay a penalty, the amount of a financial sanction, a fine and compensation for moral damage if the obligation to pay insurance compensation in equal shares of the amount of damage suffered by each of the drivers involved in the road accident has been fulfilled.
In case of disagreement with such payment, the person who received the insurance compensation has the right to file a claim in court to recover the missing part of the insurance compensation. When considering a dispute, the court is obliged to establish the degree of guilt of the persons found responsible for the harm caused, and to recover an insurance payment from the insurance company, taking into account the degree of guilt established by the court of the persons whose civil liability is insured. The law does not provide for an independent statement to establish the degree of guilt.
22. The right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right, including the rights associated with the main claim, including the right of claim against the insurer obliged to make an insurance payment in accordance with the MTPL Law , payment of a penalty, the amount of a financial sanction and a fine (clause 1 of Article 384 of the Civil Code of the Russian Federation, paragraphs two and three of clause 21 of Article 12, clause 3 of Article 16 of the Law on Compulsory Motor Liability Insurance). The right to demand the collection of a fine from the insurer, provided for in paragraph 3 of Article 16 of the Law on Compulsory Motor Liability Insurance, cannot be transferred to a legal entity until the court makes a decision on its collection.
The same rules apply to cases of transfer to the insurer that paid the insurance compensation of the rights of claim by way of subrogation, since such a transfer is a special case of a change of persons in an obligation on the basis of law (subparagraph 4 of paragraph 1 of Article 387, paragraph 1 of Article 965 of the Civil Code of the Russian Federation).
23. An agreement for the assignment of the right to insurance payment is considered concluded if the subject of the agreement is determinable, i.e. it is possible to establish in relation to which right (from which contract) the assignment was made. At the same time, the absence in the contract of indicating the exact amount of the assigned right of claim is not a basis for recognizing the contract as not concluded (clause 1 of Article 307, clause 1 of Article 432, clause 1 of Article 384 of the Civil Code of the Russian Federation).
24. When the rights of the beneficiary (victim) are transferred to another person (for example, assignment of the right of claim, subrogation), not only the rights are transferred, but also the obligations associated with receiving insurance compensation. The acquirer becomes obligated to notify the insurance company, which is obligated to make an insurance payment in accordance with the MTPL Law, about the occurrence of an insured event, to submit an application for insurance payment with all the necessary documents attached, and to submit a claim if these actions have not been previously performed by the beneficiary (victim).
25. If the amount of compensation paid by the insurer under a voluntary property insurance agreement exceeds the maximum insured amount under a compulsory insurance agreement, the insurer, by way of subrogation, along with the right of claim against the insurance organization obligated to make an insurance payment in accordance with the MTPL Law, transfers the right of claim to the causer of harm in excess of this amount (Chapter 59 of the Civil Code of the Russian Federation).
26. If, when considering a case on a subrogation claim of an insurance organization that paid insurance compensation under a voluntary insurance contract, against an insurance organization obligated to make insurance payment in accordance with the MTPL Law, it is established that the latter paid insurance compensation under a compulsory insurance contract, then the court must determine which insurance company paid first.
If the insurance compensation under a compulsory insurance contract was paid earlier than the insurance compensation under a voluntary property insurance contract, then the subrogation claim of the insurer under the voluntary property insurance contract against the insurer under the compulsory civil liability insurance contract is not subject to satisfaction (clause 1 of Article 408 of the Civil Code of the Russian Federation).
In the event that an insurance organization under a voluntary property insurance agreement paid the amount of insurance compensation before the insurance organization under a compulsory insurance agreement, the claim may be rejected if it is established that the insurance organization that received the rights of the beneficiary did not properly notify the insurance company of the causer. harm about the subrogation that occurred (Article 382 of the Civil Code of the Russian Federation).
Insurance payment
27. Insurance payment is understood as a specific amount of money to be paid by the insurer to compensate for damage caused to the life, health and/or property of the victim (clause 3 of Article 10 of Law No. 4015-I, Articles 1 and 12 of the Law on Compulsory Motor Liability Insurance).
Replacing the insurance payment with restoration repairs of the vehicle is allowed at the choice of the victim, if the damage caused to the vehicle did not result in its complete destruction (Article 1082 of the Civil Code of the Russian Federation, paragraph 4 of Article 10 of Law No. 4015-I, paragraph 15 of Article 12 of the Law on Compulsory Motor Liability Insurance).
28. If harm is caused to the victim, restoration and other expenses are subject to compensation, caused by the occurrence of an insured event and necessary for the victim to exercise the right to receive insurance compensation (for example, the cost of evacuating a vehicle from the scene of a traffic accident, storing a damaged vehicle, delivering the victim to medical institution, restoration of a road sign and/or fence, delivery of repair materials to the scene of a traffic accident, etc.).
Expenses incurred by the victim in connection with the need to restore the right violated as a result of damage caused by a traffic accident are subject to compensation by the insurer within the amounts established by Article 7 of the Law on Compulsory Motor Liability Insurance (clause 4 of Article 931 of the Civil Code of the Russian Federation, paragraph eight of Article 1, paragraph one of clause 1 Article 12 of the Law on Compulsory Motor Liability Insurance).
Based on the provisions of Article 15 of the Civil Code of the Russian Federation and paragraph two of paragraph 23 of Article 12 of the Law on Compulsory Motor Liability Insurance in their interrelation, only damages exceeding the maximum amount of the insured amount can be recovered from the tortfeasor on the basis of Chapter 59 of the Civil Code of the Russian Federation.
29. Real damage resulting from a traffic accident, along with the cost of repairs and spare parts, also includes lost marketable value, which is a decrease in the value of the vehicle caused by premature deterioration of the marketable (external) appearance of the vehicle and its operational qualities in as a result of a decrease in the strength and durability of individual parts, assemblies and assemblies, connections and protective coatings due to a road traffic accident and subsequent repairs.
The lost commodity value is also subject to compensation if the victim chooses a method of compensation for damage in the form of organizing and paying for the restoration of the damaged vehicle at a service station with which the insurer has entered into an agreement on the repair of the vehicle under the compulsory insurance agreement.
30. Under a compulsory insurance contract, taking into account the provisions of Articles 1 and 12 of the Law on Compulsory Motor Liability Liability Insurance (MTPL), not only losses caused as a result of damage to the vehicle are compensated, but also harm in the form of loss (damage) of cargo transported in the victim’s vehicle, as well as damage caused property not related to vehicles (in particular, real estate, gas station equipment, road signs and fences, etc.), except for the cases provided for in paragraph 2 of Article 6 of the Law on Compulsory Motor Liability Insurance.
31. The amount of the insurance amount established by Article 7 of the Law on Compulsory Motor Liability Insurance applies to contracts concluded starting from October 1, 2014 (subparagraph "b" of paragraph 6 of Article 1 of the Federal Law of July 21, 2014 N 223-FZ "On Amendments to the Federal the law “On compulsory civil liability insurance of vehicle owners” and certain legislative acts of the Russian Federation). Under contracts concluded before this date, the maximum amount of insurance payments to victims is 120,000 rubles per victim, and in case of harm to several persons - 160,000 rubles.
It should be taken into account that under contracts concluded starting from April 1, 2015, the amount of the insured amount in case of harm to the life or health of the victim will be 500,000 rubles.
32. Under a compulsory insurance contract, the amount of insurance compensation payable to the victim as a result of damage to a vehicle for insured events occurring starting from October 17, 2014, is determined only in accordance with the Unified Methodology for determining the amount of costs for restoration repairs in relation to a damaged vehicle, approved by the Regulations of the Central Bank of the Russian Federation dated September 19, 2014 N 432-P (hereinafter referred to as the Methodology).
In cases where the difference between the insurance payment actually made by the insurer and the claims made by the plaintiff is less than 10 percent, it must be taken into account that, in accordance with paragraph 3.5 of the Methodology, the discrepancy in the results of calculations of the amount of costs for restoration repairs made by different specialists, resulting from the use of different technological decisions and errors should be recognized as being within the limits of statistical reliability.
In case of damage to property not related to vehicles (in particular, real estate, gas station equipment, etc.), the amount of insurance compensation is determined on the basis of an assessment, estimate, etc.
33. In accordance with subparagraph “a” of paragraph 18 and paragraph 19 of Article 12 of the Law on Compulsory Motor Liability Insurance, the amount of losses to be compensated by the insurer in the event of complete loss of the victim’s property is determined by its actual value on the day of the insured event minus the value of serviceable residues taking into account their wear and tear.
34. The provisions of paragraph two of paragraph 19 of Article 12 of the Law on Compulsory Motor Liability Insurance on the maximum amount of depreciation charged on components (parts, components and assemblies) apply to the relationship between the insurer and the victim arising from compulsory insurance contracts concluded starting from October 1, 2014 , in connection with which the maximum amount of depreciation accrued on components (parts, components and assemblies) under contracts concluded before this date cannot exceed 80 percent.
35. At the choice of the victim, compensation for damage caused to the vehicle is carried out by organizing and paying for the restoration repair of the damaged vehicle at a service station with which the insurer has entered into an agreement for the repair of the vehicle under the compulsory insurance contract, or by receiving the amount of the insurance payment in at the insurer's cash desk or transferring the amount of the insurance payment to the bank account of the victim (beneficiary) (clause 15 of Article 12 of the Law on Compulsory Motor Liability Insurance).
If the insurer organizes and pays for the restoration repair of a damaged vehicle at a service station, an agreement must be reached between the insurer, the victim and the service station on the time frame within which the service station carries out restoration repairs of the victim’s vehicle, and on the amount of the full cost of the repair. Moreover, if the cost of restorative repairs of a damaged vehicle is higher than the amount of the insurance payment, the victim pays the service station the difference between the insurance payment and the cost of restorative repairs. In the direction for repair, the agreed amount of the full cost of repair is indicated, as well as the possible amount of additional payment for the cost of spare parts, determined taking into account the wear and tear of components to be replaced during restoration repairs (clause 17 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Applying to the insurer with an application for an insurance payment in the form of organizing and paying for the restoration of a damaged vehicle at a service station is the exercise of the victim’s right to choose a method of compensation for damage. Until the fact of violation of his rights by the service station is established, the victim does not have the right to change the method of compensation for the harm caused.
When the victim chooses a method of compensation for damage in the form of organizing and paying for the restoration repair of a damaged vehicle at a service station with which the insurer has entered into an agreement for the repair of the vehicle, the insurer is not exempt from reimbursement of other expenses caused by the occurrence of the insured event and necessary for the victim to exercise his right to receive insurance compensation.
The insurer's obligations to organize and pay for restoration repairs of the victim's vehicle are considered fulfilled by the insurer properly from the day the victim receives the repaired vehicle.
Responsibility for the failure of the service station to comply with the deadline for transferring the repaired vehicle to the victim, as well as for violation of other obligations for the restoration of the victim’s vehicle, lies with the insurer that issued the referral for repairs (paragraphs seven and eight of paragraph 17 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Other obligations for restorative repairs of the victim’s vehicle, for which the insurer is responsible, should be understood as the proper performance by the service station of work on repairing the vehicle, including their implementation to the extent and in accordance with the requirements established in the direction for repair, and in case their absence - the requirements usually imposed on work of the corresponding type.
If the service station does not begin the restoration repairs in a timely manner or performs the repairs so slowly that completing them on time becomes clearly impossible, the victim has the right to change the method of compensation for damage and demand payment of insurance compensation in the amount necessary to eliminate the deficiencies and complete the restoration repair. Such requirements are presented to victims in compliance with the rules established by Article 16 of the Law on Compulsory Motor Liability Insurance.
The victim has the right to submit to the insurance organization that issued the referral for restoration repairs requirements for the elimination of hidden deficiencies identified by him after receiving the vehicle repaired by the technical service station. Such requirements are presented in compliance with the rules established by Article 16 of the Law on Compulsory Motor Liability Insurance.
In the event of a violation by a service station of its obligations to restore the victim’s vehicle, the insurance organization has the right to demand compensation for losses on the basis of Articles 15 and 393 of the Civil Code of the Russian Federation.
36. The issue of returning to the victim the components to be replaced (parts, assemblies and assemblies) is essential for the correct consideration and resolution of the dispute between the victim and the insurance company regarding compensation for harm in the form of organizing and paying for the restoration repair of a damaged vehicle at a service station, in in connection with which the court is obliged to bring this issue up for discussion between the parties (Article 56 of the Code of Civil Procedure of the Russian Federation and Article 65 of the Arbitration Procedure Code of the Russian Federation).
In the event that components (parts, assemblies and assemblies) to be replaced are returned to the victim, the amount of the insurance payment is reduced by their cost.
If the victim refuses to receive components (parts, assemblies and assemblies) that need to be replaced, the court does not have the right to impose on the insurer the obligation to return them to the victim.
37. If there are conditions provided for making an insurance payment in the form of direct compensation for losses, the victim has the right to apply for insurance payment only to the insurer that insured his civil liability (clause 1 of Article 14 and clause 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
38. A simplified procedure for registering a traffic accident is applied if contracts for compulsory civil liability insurance of vehicle owners involved in a traffic accident were concluded from August 2, 2014 and are valid until September 30, 2019 inclusive (clause 4 of Article 11 of the Law on Compulsory Motor Liability Insurance) .
If at least one participant in a traffic accident has a compulsory insurance contract for civil liability of vehicle owners concluded before the specified period, the traffic accident can be registered without the participation of authorized police officers, when the amount of damage, as assessed by the participants in the traffic accident, does not exceed 25,000 rubles.
39. Compensation for losses within the amounts established by Article 11 of the Law on Compulsory Motor Liability Insurance is a simplified way of fulfilling obligations by the insurer, as a result of which payment of direct compensation terminates the obligation of the insurer and the causer of harm for a specific insured event (clause 1 of Article 408 of the Civil Code of the Russian Federation).
In this regard, the claim of the victim against the insurer and/or the causer of harm for compensation for damage in an amount exceeding the maximum amount of insurance payment within the framework of the simplified procedure for registering a road traffic accident is not subject to satisfaction, except in cases where the agreement of the participants in the road traffic accident on its registration without the participation of authorized police officers was declared invalid by the court.
The victim, in any case, has the right to contact the insurer who insured the liability of the person who caused the harm, with a claim for compensation for harm caused to life and health, which arose after the filing of a claim for direct compensation for losses and which the victim did not know about at the time of filing the claim (clause 8 of Article 11 and paragraph 3 of Article 14 of the Law on Compulsory Motor Liability Insurance).
40. According to paragraphs 5 and 6 of Article 11 of the Law on Compulsory Motor Liability Insurance, in the event of registration of documents regarding a traffic accident without the participation of authorized police officers, the insurer must be provided with data on the circumstances of damage to the vehicle as a result of the traffic accident, which are recorded using technical means of control that ensure uncorrected recording of information (photo or video recording of vehicles and their damage, as well as data recorded using navigation aids operating using GLONASS or GLONASS system technologies in conjunction with other global satellite navigation systems).
Failure to comply with these requirements is not grounds for refusal to pay insurance compensation, however, the amount of insurance compensation in this case cannot exceed the maximum amount of insurance payment within the framework of the simplified procedure for registering a traffic accident.
41. If a road traffic accident occurred as a result of the interaction (collision) of more than two vehicles (including vehicles with trailers), insurance payment in the form of direct compensation for damage in accordance with Article 14 of the Law on Compulsory Motor Liability Insurance is not made. An application for insurance payment in connection with damage to the property of the victim is sent to the insurer that insured the civil liability of the person who caused the damage (paragraph two of paragraph 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Insurance payment in the form of direct compensation for damage is also not made if the traffic accident occurred as a result of the interaction (collision) of two vehicles (including vehicles with trailers to them), but the civil liability of the harm-doer is not insured under a compulsory insurance contract .
42. The insurance organization has the right to refuse insurance payment and not accept as sufficient documents about a road accident, issued without authorized police officers, if the repair of damaged property or disposal of its remains was carried out before the inspection by the insurer and/or an independent technical examination , independent examination (assessment) of damaged property do not allow one to reliably establish the existence of an insured event and the amount of losses subject to compensation under a compulsory insurance agreement (clause 20 of Article 12 of the Law on Compulsory Motor Liability Insurance).
43. Upon the occurrence of an insured event, the victim is obliged not only to notify the insurer about this within the time limits established by the Insurance Rules, but also to send the insurer an application for insurance payment and the documents provided for by the Insurance Rules (clause 3 of Article 11 of the Law on Compulsory Motor Liability Insurance), and also submit for inspection a vehicle and/or other damaged property damaged as a result of a traffic accident (clause 10 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Submitting an application for insurance payment and submitting the necessary documents, the list of which is established by the Insurance Rules, must be done in ways that ensure that they are sent and received by the addressee.
The twenty-day period for the insurance organization to make a decision on the victim’s application for insurance payment is calculated from the date of submission of the documents provided for in clause 3.10 of the Insurance Rules.
The insurer has no right to demand from the victim documents that are not provided for by the Insurance Rules (paragraph seven of paragraph 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
If there are insufficient documents confirming the occurrence of an insured event and the amount of damage to be compensated by the insurer, the insurer, within three working days from the date of receipt by mail, and when contacting the insurer in person on the day of filing an application for insurance payment or direct compensation for losses, is obliged to report this victim, indicating a complete list of missing and/or incorrectly executed documents (paragraph five of paragraph 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
If victims are presented with documents that do not contain information necessary for payment of insurance compensation, including at the request of the insurer, then the insurance organization is exempt from paying a penalty, financial sanction, fine and compensation for moral damage (clause 3 of Article 405 of the Civil Code of the Russian Federation).
44. The twenty-day period for consideration by the insurer of the victim’s application for an insured event, provided for in paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance, is subject to application to the relationship between the insurer and the victim arising from contracts of compulsory insurance of civil liability of vehicle owners, concluded starting from September 1, 2014.
45. Under a compulsory insurance contract, the insured is the risk of civil liability during the operation of a specific vehicle, therefore, if an insured event occurs either as a result of the actions of the insured or as a result of the actions of another person using the vehicle, the insurer is not exempt from paying insurance compensation (preamble, paragraph 2 of Article 6 and subparagraphs “c” and “e” of paragraph 1 of Article 14 of the Law on Compulsory Motor Liability Insurance).
46. Submission by the insured, when concluding a compulsory insurance contract, of knowingly false information provided for in Article 15 of the Law on Compulsory Motor Liability Insurance (MTPL) does not constitute grounds for the insurance organization to refuse insurance payment. The insurer has the right to demand that such an insurance contract be declared invalid on the basis of Articles 178 and 179 of the Civil Code of the Russian Federation.
47. Failure to submit a damaged vehicle or other damaged property for inspection and/or for an independent technical examination, independent examination (assessment) or their repair or disposal before the insurer organizes the inspection does not entail an unconditional refusal to pay the victim insurance compensation (in whole or in part) ). Such a refusal can only occur if the insurer took appropriate measures to organize an inspection of the damaged vehicle (assessment of other property), but the victim evaded it, and the lack of inspection (assessment) did not make it possible to reliably establish the existence of an insured event and the amount of losses subject to compensation (clause 20 of article 12 of the Law on Compulsory Motor Liability Insurance).
48. If, based on the results of an inspection of the damaged property carried out by the insurer, the insurer and the victim have reached an agreement on the amount of the insurance payment and do not insist on organizing an independent technical examination of the vehicle or an independent examination (assessment) of the damaged property, such examination by virtue of paragraph 12 of Article 12 of the Law OSAGO may not be carried out.
When concluding an agreement to settle an insured event without conducting an independent technical examination of the vehicle or an independent examination (assessment) of the damaged property, the victim and the insurer agree on the amount, procedure and timing of the insurance compensation to be paid to the victim. After the insurer makes the agreed insurance payment, his obligation is considered fulfilled in full and properly, which terminates the corresponding obligation of the insurer (clause 1 of Article 408 of the Civil Code of the Russian Federation).
Concluding an agreement with the insurer to settle an insured event without conducting an independent technical examination of the vehicle or an independent examination (assessment) of the damaged property is the exercise of the victim’s right to receive insurance compensation, as a result of which, after the insurer fulfills the obligation to make an insurance payment in the amount agreed upon by the parties, the grounds for recovery there are no additional damages. At the same time, if there are grounds for recognizing the said agreement as invalid, the victim has the right to file a claim in court to challenge such an agreement and to recover the amount of insurance compensation.
49. The obligation to insure civil liability does not apply to trailers for cars owned by citizens (subparagraph "e" of paragraph 3 of Article 4 of the Law on Compulsory Motor Liability Insurance). At the same time, the obligation to insure civil liability of legal entities and citizens - owners of trailers for freight transport from September 1, 2014 is fulfilled by concluding a compulsory insurance agreement, which provides for the possibility of driving a vehicle with a trailer to it, information about which is entered into the compulsory insurance insurance policy (clause 7 Article 4 of the Law on Compulsory Motor Liability Insurance).
From October 1, 2014, i.e. from the date of introduction of the maximum amounts of base rates of insurance tariffs and coefficients of insurance tariffs, requirements for the structure of insurance tariffs, approved by the Bank of Russia, as well as the procedure for their application by insurers when determining the insurance premium for compulsory civil liability insurance of vehicle owners, damage resulting from road traffic accidents during joint operation of a tractor and trailer as part of a road train are considered to have been caused by one vehicle (tractor), and therefore the maximum insurance payment cannot exceed the insured amount under one insurance contract, including if the owners of the tractor and trailer are different faces.
It should be taken into account that the absence in the compulsory insurance policy of a note about the operation of a vehicle with a trailer, the presence of which is provided for in paragraph 7 of Article 4 of the Law on Compulsory Motor Liability Insurance, cannot serve as a basis for the insurance company to refuse to make an insurance payment. At the same time, in relation to subparagraph “c” of paragraph 1 of Article 14 of the Law on Compulsory Motor Liability Insurance, in this case the insurer has the right of recourse to the insured who caused the harm.
50. The victim has the right to apply to the court with a claim against the insurance organization for payment of insurance compensation after receiving the response of the insurance organization to the claim or after the expiration of the five-day period established by paragraph 1 of Article 16 of the Law on Compulsory Motor Liability Insurance for consideration by the insurer of the pre-trial claim, with the exception of cases of extension of the period provided for paragraph 11 of article 12 of the Law on Compulsory Motor Liability Insurance.
51. When resolving a dispute about insurance payment in court, the victim is obliged to prove the existence of an insured event and the amount of losses (Article 56 of the Civil Procedure Code of the Russian Federation and Article 65 of the Arbitration Procedure Code of the Russian Federation).
Measures of liability of the insurer for violation of terms of payment of insurance compensation
52. If one of the parties, in order to obtain advantages in the exercise of rights and obligations arising from the compulsory insurance contract, acts in bad faith, satisfaction of the claims of this party may be refused to the extent that their satisfaction would create such advantages for it (clause 4 Article 1 of the Civil Code of the Russian Federation).
If the fact of abuse of the injured right is established, the court refuses to satisfy the claims for the recovery of penalties, financial sanctions, fines and compensation for moral damage from the insurer (Articles 1 and 10 of the Civil Code of the Russian Federation).
53. When claims are submitted to the court for the collection of insurance compensation, a penalty and/or a financial sanction at the same time, the mandatory pre-trial procedure for resolving the dispute is considered to be met even if the conditions provided for in paragraph 1 of Article 16 of the Law on Compulsory Motor Liability Insurance are met by the plaintiff only in relation to the claim for insurance payment.
Compliance with the obligatory pre-trial procedure for resolving a dispute provided for in paragraph four of paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance for going to court with claims for the collection of a penalty and/or financial sanction is mandatory if the claim for payment of insurance compensation has been considered by a court decision that has entered into legal force, and claims for The plaintiff did not claim any penalties or financial sanctions.
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The financial sanction is calculated from the day following the day established for making a decision on payment of insurance compensation until the day a reasoned refusal is sent to the victim, and if it is not sent, until the day it is awarded by the court.
55. The amount of the penalty for failure to comply with the deadline for making an insurance payment or compensation for damage caused in kind is determined in the amount of 1 percent for each day of delay of the amount of insurance compensation payable to the victim for a specific insured event, minus the amounts paid by the insurance company voluntarily in the deadlines established by Article 12 of the Law on Compulsory Motor Liability Insurance (paragraph two of paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance).
The penalty is calculated from the day following the day established for making a decision on payment of insurance compensation until the day the insurer actually fulfills the obligation under the contract.
56. Responsibility for non-fulfillment or improper fulfillment of obligations for the restoration repair of a damaged vehicle, including violation of the terms of such repairs, lies with the insurer (clause 17 of Article 12 of the Law on Compulsory Motor Liability Insurance).
The penalty for violating the deadline for issuing directions for restoration repairs or for violating the deadline for completing such repairs is calculated from the amount of the insurance payment determined in accordance with Article 12 of the Law on Compulsory Motor Liability Insurance.
57. Collection of a penalty along with a financial sanction is made in the event that the insurer violates both the deadline for sending a reasoned refusal of insurance payment to the victim, and the deadline for making an insurance payment or compensation for damage caused in kind.
It should be taken into account that paragraph 6 of Article 16 of the Law on Compulsory Motor Liability Insurance establishes a limit on the total amount of penalties and financial sanctions collected by the court only in relation to the victim - an individual.
Advertisement actions (inaction) of the victim (clause 5 of Article 16 of the Law on Compulsory Motor Liability Insurance).
59. Within the meaning of paragraph 7 of Article 16 of the Law on Compulsory Motor Liability Insurance, the insurer cannot be charged any other penalty, amount of financial sanction, or fine not provided for by the Law on Compulsory Motor Liability Insurance.
60. The provisions of paragraph 3 of Article 16 of the Law on Compulsory Motor Liability Insurance on a fine for failure to voluntarily fulfill the demands of the victim apply if the insured event occurred on September 1, 2014 or later. Disputes arising from insured events that occurred before September 1, 2014 are subject to the provisions of paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights.
61. If the court satisfies the demands of the victim, the court simultaneously collects a fine from the defendant for failure to voluntarily fulfill the requirements, regardless of whether such a demand was submitted to the court (clause 3 of Article 16 of the Law on Compulsory Motor Liability Insurance). If such a requirement is not stated, the court raises the issue of collecting a fine for discussion between the parties (Part 2 of Article 56 of the Code of Civil Procedure of the Russian Federation).
If the decision to collect a fine from the insurer is not made by the court, the court has the right, in the manner established by Article 201 of the Code of Civil Procedure of the Russian Federation and Article 178 of the Arbitration Procedure Code of the Russian Federation, to make an additional decision. The absence in the court decision of an indication of the collection of a fine may also serve as a basis for the court of appeal or cassation to change the decision when considering the relevant complaint (Articles 330, 387 of the Code of Civil Procedure of the Russian Federation).
62. The fine for failure to voluntarily fulfill the demands of the victim based on the provisions of paragraph five of Article 1 and paragraph 3 of Article 16 of the Law on Compulsory Motor Liability Insurance is collected in favor of the individual victim.
If the court satisfies the demands made by public associations of consumers (their associations, unions) or local government bodies in defense of the rights and legitimate interests of a particular victim - consumer, fifty percent of the amount of the fine determined by the court is collected by analogy with paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights in the benefit of the said associations or bodies, regardless of whether they made such a demand.
If the court satisfies the claims of legal entities, the specified fine is not collected.
63. The existence of a legal dispute regarding the collection of insurance compensation indicates the insurer’s failure to fulfill the obligation to pay it voluntarily, and therefore, satisfying the claims of the victim during the consideration of the dispute in court does not relieve the insurer from paying a fine.
64. The amount of the fine for failure to voluntarily fulfill the requirements of the victim is determined in the amount of fifty percent of the difference between the amount of insurance compensation payable to the victim for a specific insured event and the amount of the insurance payment made by the insurer on a voluntary basis. In this case, the amount of a penalty (penalty), financial sanction, monetary compensation for moral damage, as well as other amounts not included in the insurance payment, are not taken into account when calculating the amount of the fine (clause 3 of Article 16 of the Law on Compulsory Motor Liability Insurance).
65. The application of Article 333 of the Civil Code of the Russian Federation on the reduction of the penalty by the court is possible only in exceptional cases when the penalty, financial sanction and fine to be paid are clearly disproportionate to the consequences of the violated obligation. Reduction of the penalty, financial sanction and fine is allowed only at the request of the defendant. The decision must indicate the reasons why the court believes that reducing their size is permissible.
66. The penalty, financial sanction and fine provided for by the Compulsory Motor Liability Insurance Law apply to the professional association of insurers (paragraph three of paragraph 1 of Article 19 of the Compulsory Motor Liability Insurance Law).
Chairman of the Supreme Court of the Russian Federation
V. Lebedev
Secretary of the Plenum,
Supreme Court judge
Russian Federation
It will now become more difficult for unscrupulous auto lawyers to get money from insurers, says Evgeny Ufimtsev, executive director of the Russian Union of Auto Insurers (RUA). He classifies as unscrupulous those auto lawyers who come to the scene of an accident and buy the rights of claim from the victims, for example, for 50,000 rubles, after which they collect significantly larger amounts from the insurer through the court, and pocket the difference. “Now it turns out that most of these funds will go directly to the consumer of the MTPL service,” rejoices Ufimtsev. – And the mediator will need to find arguments and explain why, having won 200,000 rubles in court, he gives the victim 50,000 rubles, and leaves 150,000 rubles for himself. It will be extremely difficult to prove that his services are so expensive.”
This decision of the plenum of the Supreme Court for the first time protects the interests of insurance companies, rather than consumers, to a greater extent, because this rule eliminates, according to the deputy general director of the insurance company Opora, Mikhail Gromtsev, “the most rabid cases of auto-legalism.”
Deputy General Director of RESO Guarantee Igor Ivanov hopes that after this decision of the plenum of the Supreme Court, the number of trials on compulsory motor liability insurance will also be reduced. Over the nine months of 2017, non-insurance payments under compulsory motor liability insurance - that is, what was collected by auto lawyers through the courts - amounted to about 20 billion rubles, of which in 95% of cases the money was received by representatives of the victims, and not by themselves, Ufimtsev complains.
The decision of the Supreme Court will indeed reduce the earning potential for auto lawyers, whose business model is built on the assignment of claims, says Nikolai Tyurnikov, president of the Association for the Protection of Policyholders (engaged in the resolution of litigation). Now, auto lawyers will be able to make money on compulsory motor liability insurance by inflating legal costs, he believes, but the activities of auto lawyers working under a power of attorney from the insured will not suffer in any way. Now, Tyurnikov continues, about 70% of car lawyers practice simultaneously working under a power of attorney and under assignment (assignment of rights of claim). Tyurnikov believes that the plenum of the Supreme Court also limits the rights of car owners: “If earlier a car owner could say: I don’t want to do this, take everything for yourself, including fines, moral damages and anything else, but now he cannot do this.”
The original version of the draft plenum of the Supreme Court provided that documents for settlement of an insured event must be submitted to the same department as the application. However, this norm was not included in the final version of the project. The Supreme Court considered that the introduction of such an obligation would be an unnecessary burden for victims. Unscrupulous insurers sometimes submitted an application to a company division in one region, and then sent the claim to another region, and additional documents to a third region, says Igor Yurgens, president of the All-Russian Union of Insurers. The Supreme Court also introduced restrictions on the procedure for submitting an application for insurance payment. Sending by simple unregistered postal item is excluded from it. Now an application can be sent remotely only by registered or valuable postal mail or courier services. “The main part of the clarifications concerns precisely those loopholes and imperfections of the regulatory framework in the field of compulsory motor liability insurance, which auto lawyers freely use in practice,” says Yurgens.
The Plenum of the Supreme Court also decided that the provision by the client of false information when drawing up an electronic MTPL agreement, which resulted in a reduction in the cost of the policy, cannot be considered a basis for recognizing such an agreement as not concluded. Thus, this does not exempt the insurer from paying when an insured event occurs. .
Most recently, the Supreme Court of the Russian Federation completed the preparation of a review of judicial practices, which will be mandatory for review by absolutely all employees of courts of all instances. In this document, employees of the RF Armed Forces state that this document will play an important role in resolving conflict situations that arise in the field of providing insurance services.
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During the work on this document, special attention was paid to judicial practices that were aimed at resolving conflicts related to road accidents involving drivers under the influence of alcohol.
The Supreme Court also expanded and clarified the term “other vehicles,” which is used in matters of vehicle theft. This term includes vehicles such as buses, trams, trolleybuses, two-wheeled motorized vehicles (moped, motorcycle), tractors, as well as water vehicles (boats, etc.).
However, it was clarified that this addition is applicable only in cases where only theft was committed, without any other crime: theft or theft. An attempt was also made to equate theft with theft, but it was unsuccessful.
Moreover, the Supreme Court ruled that compensation for a stolen vehicle must be paid without deducting the wear and tear on the vehicle that was incurred during its service life.
Innovations
The plenum on compulsory motor liability insurance in 2019 was changed and supplemented during the work of the Armed Forces of the Russian Federation.
In general, the following points of change were the most important:
- mandatory implementation of pre-trial (claim) procedures for resolving conflicts in cases of insurance payments that occurred after September 1, 2019;
- expansion of the scope of application, which now includes the operation of vehicles in the adjacent territory, during towing, parking, etc.;
- compensation for loss of marketable value has become mandatory;
- the possibility of paying for losses incurred due to loss or damage to cargo;
- a fine in the amount of half of the unpaid insurance amount is mandatory, despite the presence of demands for its payment;
- the possibility of transferring rights to receive insurance payments to another citizen;
During its work, the Supreme Court made a number of important decisions that will significantly affect the principle of cooperation with insurance companies in the near future
Issues raised
During the plenum on compulsory motor liability insurance, a number of issues that caused a lot of controversy in the past were clarified. Already today there are documents that control legal relations under compulsory motor liability insurance among various persons, the limitation periods have been discussed, the specifics of the consideration of all litigation under compulsory motor liability insurance have been clarified, and the amounts of insurance payments have been clarified.
According to officials, these issues often caused conflict situations between citizens and insurance companies, which often resulted in litigation. These documents are aimed at reducing the number of “gaps” in modern laws in order to minimize the occurrence of such situations.
They can significantly reduce the base cost of the policy, so the final price of OSAGO can only be found out after providing complete information on the driver’s identity and technical characteristics of the car.
How MTPL for legal entities differs from MTPL for individuals, read in.
Approval of dispute procedures
In the course of its work, the Supreme Court of the Russian Federation made a number of important changes to the regulation of the insurance field of vehicles. According to representatives of the law, this move is aimed at minimizing the role of the courts in disputes between insurance agencies and motorists, since the courts are often used to make unlawful decisions for one party or another.
Many experts argue that these changes should deprive the financial profits of companies that buy out the rights to victims, since then unscrupulous law firms try to maximize the volume of insurance payments from insurance agencies, supplementing insurance premiums with amounts for moral damages and for late payments. The amended law states that it is now necessary to notify the insurer of existing insurance claims pre-trial.
All these changes, according to lawyers, should have a beneficial effect on the state of the modern market, reducing the number of financial losses of insurance companies, which in the future should lead to a significant reduction in the cost of compulsory motor liability insurance for individuals.
Compromise for everyone
As a recent survey of both motorists and representatives of insurance companies shows, the decision of the recent plenum was to the taste of absolutely everyone. Thanks to the coordinated work of all parties, the quality of the document satisfied all parties, which was perhaps the first time in recent years.
According to preliminary calculations, the plenum on compulsory motor liability insurance in 2019 will almost halve the number of judicial conflicts. Insurance companies are delighted that the Supreme Court has allowed insurance disputes to be resolved out of court.
If during the initial appeal the motorist was not satisfied with the decision of his insurance representative, then within 5 days he has the opportunity to re-file the claim with his insurer. If the driver is not satisfied with the decision again, the dispute is sent to the court.
In addition, the Supreme Court has also made a number of decisions that make life much easier for motorists. For example, a driver has the right to use his vehicle for up to 10 days without a compulsory insurance policy from the date of purchase, and no penalties will be imposed on him by inspection authorities.
If road infrastructure was damaged during an accident, the company providing insurance services to the driver will be required to pay the full amount of compensation to the company that is responsible for the condition of this section of the road. This decision seems quite fair to the drivers, which they were happy to report to many sources.
As mentioned above, the concept of loss of marketable value of a vehicle was introduced, which must be compensated by the insurance company, but the amount of compensation can only be established in court. Insurance services are concerned about this situation, since they have not yet developed a methodology for calculating the volume of insurance policy, which could ultimately lead to the emergence of new financial fraud schemes in this area.
Representatives of the Central Bank of the Russian Federation claim that work on such methods is being carried out extremely actively at the moment, and in the near future they will be ready for active use in daily judicial practice.
New policy and fakes
During the work of the plenum on compulsory motor liability insurance, it was mentioned that the insurance policy is subject to the strictest form of reporting. From this statement it follows that the production and sale of counterfeit OSAGO policies is punishable by criminal liability under the relevant article (Article 327 of the Criminal Code of the Russian Federation).
It was mentioned that due to the increase in the number of counterfeit policies in the modern car insurance market, it is necessary to introduce clearer control in this area of document flow.
Motorists were given a lot of advice on how to avoid problems with purchasing fake policies, but the most important advice was to purchase insurance only from trusted insurance agents. In this case, the car owner minimizes the likelihood of purchasing a counterfeit and can protect himself from conflict situations with the insurance company in the future.
It was mentioned more than once that it would soon be necessary to replace the policies with new and more modern and protected models, but no official information on this issue was received from verified persons. That is why you should not rush to replace your insurance certificate today.
Despite the problem with insurance policies, the responsibility for purchasing and using a fake certificate lies on the shoulders of the driver
Punishments for such an offense include the following:
- deprivation of the driver of available discounts for accident-free driving experience;
- penalties for driving without a compulsory motor liability insurance policy in the amount of up to 800 rubles;
- in the event of an accident, such a driver will be obliged to independently compensate the amount of damage to the victim if his guilt is proven;
- if an attempt is detected to obtain a financial payment based on an invalid insurance certificate, criminal sanctions may be applied, up to and including the initiation of a criminal case;
Resolution of the plenum on compulsory motor liability insurance in 2019
So, to ensure more complete control over the scope of insurance activities of both companies providing insurance services and drivers who are consumers of such services, the RF Armed Forces have issued a number of resolutions that significantly affect the interaction of both parties.
30. The insurer is obliged to inspect the damaged vehicle, other property or its remains within a period of no more than five working days from the date of receipt of the application for insurance compensation or direct compensation for losses with the attached documents provided for by the Rules, unless another period is agreed upon by the insurer with the victim (paragraph the first paragraph 11 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Proper fulfillment of the insurer’s obligation to organize an independent technical examination, independent examination (assessment) should be understood as sending a notification within the specified period indicating the date, time and place of such examination (clause 3.11 of the Rules).
In this case, the notification is considered delivered even in cases where it was received by the victim, but due to circumstances depending on him, was not delivered to him or he did not familiarize himself with it (clause 2 of Article 1651 of the Civil Code of the Russian Federation).
For example, a message is considered delivered if the victim avoided receiving the correspondence at the post office, and it was returned after the storage period had expired. The burden of proving the fact of sending and delivering a notice to the victim lies with the insurer (Article 56 of the Civil Procedure Code of the Russian Federation and Article 65 of the Arbitration Procedure Code of the Russian Federation).
31. If the damaged property or its remains are not presented to the victims for inspection and (or) independent technical examination, independent examination (assessment) on the date agreed with the insurer, the insurer agrees with the victim a new date for inspection and (or) independent technical examination, independent examination ( assessment) of damaged property or its remains.
If the insurer’s application for insurance compensation or direct compensation for losses in accordance with paragraph four of paragraph 11 of Article 12 of the Law on Compulsory Motor Liability Insurance was returned to the victim, he has the right to re-apply to the insurer with such an application, attaching the documents provided for by the Rules.
32d.), the specified inspection and independent technical examination, independent examination (assessment) are carried out at the location of the damaged property (paragraph three of paragraph 10 of Article 12 of the Law on Compulsory Motor Liability Insurance).
If the insurer evades an inspection and (or) independent technical examination, independent examination (assessment) at the location of the damaged property, the victim has the right to independently organize an independent technical examination, independent examination (assessment) of the damaged property or its remains.
The first of these five cases concerns situations where the owner has the right not to deliver the damaged car to the insurance company and order an assessment of the damage himself.
General provisions
2. As a general rule, the law in force at the time of concluding the relevant insurance contract (clause 1 of Article 422 of the Civil Code of the Russian Federation) applies to relations under compulsory civil liability insurance of vehicle owners.
The lost right to examination has a few more months
18. The right to receive insurance compensation in connection with damage to property belongs to the victim - a person who owns the property by right of ownership or other proprietary right.
Persons who own property by other rights (in particular, on the basis of a lease agreement) or use property by virtue of authority based on a power of attorney do not have an independent right to insurance payment in respect of property (paragraph six of Article 1 of the Law on Compulsory Motor Liability Insurance).
It should be taken into account that the conclusion of a contract for the sale and purchase of a vehicle and its transfer to the buyer does not entail the transfer to the buyer of the right to receive insurance compensation in connection with an insured event that occurred before the specified transfer (clause 1 of Article 458 of the Civil Code of the Russian Federation).
In this case, the person who purchased the damaged vehicle is not a victim in relation to compulsory civil liability insurance, and therefore cannot claim insurance compensation under the compulsory insurance agreement concluded by the previous owner (clause 1 of Article 930 of the Civil Code of the Russian Federation).
In the absence of the persons specified in the first paragraph, the spouse, parents, and children of the victim who are not classified in the categories listed in paragraph 1 of Article 1088 of the Civil Code of the Russian Federation have the right to compensation for harm. Also, other citizens who depended on the victim if he did not have independent income have this right (clause 6 of Article 12 of the Law on Compulsory Motor Liability Insurance).
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The second case is also “Rosgosstrakhov’s”. The company refused to pay insurance compensation to the victim when he presented the results of an independently ordered examination of the damage. Rosgosstrakh considered that the owner of the car no longer had such a right, since on July 4, 2016, a ban on such actions came into force (Article 12 of the law on compulsory motor liability insurance), and the accident occurred on July 22, 2016.
This is the wrong approach, the Supreme Court pointed out. In such cases, courts should pay attention not to the date of the accident, but to the time the contract was concluded, the cassation court explained. And this paper was signed before the amendment to Article 12 of the law on compulsory motor liability insurance.
Damage can be justified directly in court
The third dispute centered on the refusal of the insurance company VSK to pay due to an incomplete package of documents sent by the car owner. In the subsequent lawsuit, the amount of damage was established, and the insurer did not dispute it.
And if so, then the right to insurance compensation cannot be deprived, the Supreme Court decided. Only additional demands can be rejected: compensation for moral damage, penalties, fines, etc.
It follows from the cassation ruling.
“The Supreme Court made a reasoned decision,” says Polina-Stashevskaya. Alekseev from IC MAX does not agree with her, for whom the decision of the Supreme Court raises serious concerns. In his opinion, the court must establish not only the damage, but also document the fact of the accident itself, otherwise all “drunk” collisions with obstacles can turn into accidents.
“There have been abuses in such situations before, and against the backdrop of the cancellation of the certificate of road accident from October 20 (the so-called form No. 154 - IF), you can get a surge in falsified road accidents,” he warns. “The actions of unscrupulous policyholders can be very unpleasant,” the RSA fears. Representatives of the RSA see this as the basis for conflicts and an increase in the number of appeals to the court.
Actions of policyholders and victims upon the occurrence of an insured event
20. In the application for insurance compensation, the victim must also report other damage known to him at the time of filing the application, in addition to the costs of restoring damaged property that is subject to compensation (for example, loss of marketable value, costs of towing a vehicle from the scene of a road traffic accident). incidents, etc.
The list of representatives of the insurer, indicating their locations and postal addresses, means of communication with them and information about the hours of their work is a mandatory attachment to the insurance policy and is subject to delivery against signature.
23. Submitting an application for insurance payment and submitting the necessary documents, the list of which is established by the Rules, are carried out in ways that ensure recording of their direction and delivery to the addressee.
24. The twenty-day period for the insurance organization to make a decision on the victim’s application for insurance payment is calculated from the date of submission of the documents provided for in paragraph 3.10 of the Rules.
The insurer has no right to demand from the victim documents not provided for by the Rules (paragraph seven of paragraph 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
Direct compensation for losses in the absence of insurance from the culprit of the accident
25. If vehicles are damaged as a result of their interaction (collision) and the civil liability of their owners is compulsorily insured, insurance compensation is carried out on the basis of paragraph 1 of Article 141 of the Law on Compulsory Motor Liability Insurance by the insurer that insured the civil liability of the victim (direct compensation for damage).
26. If a road traffic accident occurred before September 26, 2017 as a result of the interaction (collision) of more than two vehicles (including vehicles with trailers), insurance payment in the form of direct compensation for losses on the basis of Article 141 of the MTPL Law is not made .
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Insurance compensation in connection with damage to the life and health of the victim is not provided for direct compensation of losses (paragraph two of paragraph 1 of Article 12 of the Law on Compulsory Motor Liability Insurance).
27. If the civil liability of the tortfeasor is not insured under a compulsory insurance contract, insurance compensation in the form of direct compensation for damage is not made.
Refurbishment: cost calculation
49. As a general rule, payment for the cost of restoration repairs is carried out by the insurer, taking into account the wear and tear of components (parts, assemblies, assemblies) (clause 19 of Article 12 of the Law on Compulsory Motor Liability Insurance).
The victim must submit a corresponding application to the insurer for reimbursement of other expenses.
51 The achievement of such an agreement is evidenced by the receipt by the victim of a referral for repairs.
52. If the insurer violates its obligations to issue a direction to the victim for repairs or to pay insurance compensation in cash equivalent, the victim has the right to file a claim in court to recover insurance compensation in the form of an insurance payment.
If the insurer violates the requirements for organizing restoration repairs, the victim also has the right to file a claim in court to compel the insurer to take the required actions, including issuing a referral for repairs (clause 1 of Article 3083 of the Civil Code of the Russian Federation).
At the request of the plaintiff, the court may award money in the event of failure to comply with the relevant judicial act in favor of the victim (judicial penalty).
53. Applying to the insurer with an application for insurance compensation in the form of organizing and paying for the restoration of a damaged vehicle at a service station is the exercise of the victim’s right to choose a method of compensation for damage.
Until the fact of violation of his rights by the service station is established, the victim does not have the right to change the method of compensation for the harm caused. Such demands are presented to the victims in compliance with the rules established by Article 161 of the Law on Compulsory Motor Liability Insurance.
In the event that components (parts, assemblies and assemblies) to be replaced are returned to the victim, the amount of the insurance payment is reduced by their cost.
If the victim refuses to receive components (parts, assemblies and assemblies) that need to be replaced, the court does not have the right to impose on the insurer the obligation to return them to the victim.
The Supreme Court paid special attention to calculating the cost of restoration of the damaged vehicle, which must be organized or paid by the insurer.
Thus, the court emphasized that when the insurer pays for restoration repairs, the wear of component parts is not taken into account (as a general rule, it is taken into account). They are paid at full price.
This is a kind of compensation for the insured who, with some exceptions, does not have the opportunity to receive insurance compensation in the form of an insurance payment due to the establishment of priority for natural compensation for harm, as described above.
The Supreme Court noted that compensation in kind includes not only the restoration of the vehicle to its pre-accident condition. Also, the insurer, at the request of the policyholder, must reimburse expenses associated with:
- with the evacuation of a car from the scene of an accident;
- delivery of victims to a medical facility;
- restoration of road signs, etc.
But the insurer is not obliged to pay the costs associated with the restoration of pre-accident elements of the vehicle that are not taken into account by the Unified Methodology for Determining the Costs of Restoration Repairs (Appendix to BR Regulation No. 432 dated September 19, 2014), the Supreme Court believes. We are talking about airbrushing and other drawings applied to the vehicle.
The Supreme Court informed car owners-insurers that if the insurance company fails to fulfill its obligation to organize repairs, they have the right to file a claim demanding compensation from the insurer in the form of an insurance payment or force it to fulfill its obligations, including issuing a referral for repairs.
Assignment, subrogation, recourse
68. Submission by the beneficiary to the insurer of a demand for payment of insurance compensation does not exclude the assignment of the right to receive insurance compensation. If the beneficiary receives the insurance payment in part, the right to receive the insurance payment in the part not terminated by execution may be assigned.
In 2017, significant changes to the law on compulsory motor liability insurance dated April 25, 2002 No. 40-FZ began to apply:
- from January 1, insurers are required to issue a car insurance policy in electronic form to everyone who contacts the insurance company with a corresponding application (new edition of paragraph 7.2 of Article 15 of Law 40-FZ);
- from April 28, priority is given to in-kind compensation for damage caused to passenger vehicles (TS) as a result of an accident, that is, instead of paying cash to the owners of damaged vehicles, insurers themselves organize or pay for their restoration repairs (new clause 15.1 of Article 12 of Law 40-FZ);
- from September 26, it became possible to directly compensate for losses in the event of a collision of not only two, but also a larger number of vehicles (new edition of subparagraph “b” of paragraph 1 of Article 14.1 of Law 40-FZ).
The changes were made: the first - by the law of June 23, 2016 No. 214-FZ, the second and third - by the law of March 28, 2017 No. 49-FZ.
In connection with the novelties that have come into force, Resolution No. 58 of the Plenum of the Armed Forces of the Russian Federation dated December 26, 2017 provided new clarifications on the application of the legislation on compulsory motor liability insurance, and also updated the previous data on the same issues in Resolution No. 2 dated January 29, 2015. About the most important of Read below for car insurers.
On the provision of false information when concluding an MTPL agreement
If the policyholder, when concluding a compulsory motor liability insurance contract, electronically provided the insurer with false information (in order to reduce the insurance premium), then this fact in itself is not a basis to consider the contract not concluded, and the insurer as free from compensation for damage upon the occurrence of an insured event. However, subsequently the insurer may recover from the unscrupulous insured the amount of compensation paid to him by way of recourse.
The insurer may recover funds unreasonably saved by the owner of the car due to the provision of false information from him if the fact of fraud is revealed and without the occurrence of an insured event (paragraph 6 of clause 7.2 of Article 15 of Law 40-FZ). But then the insurance premium will be considered paid in full, and the insurer will lose the right to recourse to collect insurance compensation after the occurrence of an insured event, the Supreme Court believes.
Applying to the insurer for compensation for losses
Applications from the auto insurer for insurance or direct compensation in connection with damage caused when using a vehicle are sent either directly to the insurer or to its authorized representative (paragraph 3 of paragraph 1 of Article 12 of Law 40-FZ). The Supreme Court advises that in all subsequent documents sent to the insurer, including claims regarding the latter’s improper fulfillment of its obligations, a note should be made with reference to previously submitted applications with information about them (for example, to which division of the insurance company they were sent). This will enable the insurer to compare the received documents with all previous events under the MTPL agreement with this policyholder.
The Supreme Court also notes that when concluding an MTPL agreement, the insurance company must, under the signature of the policyholder, provide him with a list of its representatives entitled to compensate for insurance/direct losses.
Direct compensation for losses in the absence of insurance from the culprit of the accident
Direct compensation for losses, that is, compensation for damage to the policyholder by his insurance company, including in the event of a collision of more than two vehicles, is possible provided that all participants in the accident have an MTPL insurance policy.
Don't know your rights?
The Supreme Court explained how compensation for losses is carried out if the tortfeasor is not insured:
- losses resulting from damage to the property of victims are compensated by vehicle owners (in accordance with the norms of Chapter 59 of the Civil Code of the Russian Federation);
- losses due to harm to life and health - a professional association of insurers with the participation of the harm causer in the event that the compensation payment is not enough.
Refurbishment: cost calculation
The Supreme Court paid special attention to calculating the cost of restoration of the damaged vehicle, which must be organized or paid by the insurer.
Thus, the court emphasized that when the insurer pays for restoration repairs, wear and tear of component parts is not taken into account (as a general rule, it is taken into account). They are paid at full price. This is a kind of compensation for the insured who, with some exceptions, does not have the opportunity to receive insurance compensation in the form of an insurance payment due to the establishment of priority for natural compensation for harm, as described above.
The Supreme Court noted that compensation in kind includes not only the restoration of the vehicle to its pre-accident condition. Also, the insurer, at the request of the policyholder, must reimburse expenses associated with:
- with the evacuation of a car from the scene of an accident;
- delivery of victims to a medical facility;
- restoration of road signs, etc.
But the insurer is not obliged to pay the costs associated with the restoration of pre-accident elements of the vehicle that are not taken into account by the Unified Methodology for Determining the Costs of Restoration Repairs (Appendix to BR Regulation No. 432 dated September 19, 2014), the Supreme Court believes. We are talking about airbrushing and other drawings applied to the vehicle.
The Supreme Court informed car owners-insurers that if the insurance company fails to fulfill its obligation to organize repairs, they have the right to file a claim demanding compensation from the insurer in the form of an insurance payment or force it to fulfill its obligations, including issuing a referral for repairs.
