Collection of penalties from the insurance company. Penalty under an insurance contract

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case No. 2-1209/2016

SOLUTION

name Russian Federation

On February 18, 2016, Oktyabrsky District Court of Rostov-on-Don, composed of: presiding judge Agrba D.A.

under the secretary Gunchenko A.S.

having considered in open court a civil case based on the claim of the full name against BIN-Insurance LLC for the recovery of a penalty and legal costs,

u st a n o v i l:

The plaintiff filed a lawsuit against BIN-Insurance LLC for the recovery of a penalty for improper fulfillment of obligations under the CASCO agreement, legal expenses, in support of the claim, citing the fact that agreement No. dated 10.11 was concluded between BIN-Insurance LLC and Full Name. 2013 voluntary insurance of land transport and civil liability of vehicle owners (CASCO) car no. 01.11.2014 at:<...>, <...>There was an accident involving the plaintiff's car. As a result of the accident, the plaintiff's car suffered mechanical damage. The plaintiff, having collected all the necessary documents, applied to BIN Insurance LLC with an application for payment of insurance compensation; based on the results of the damage assessment, the insurance company accrued insurance compensation in the amount of 520,091 rubles. and transferred to the plaintiff to the account specified by her. Having disagreed with the amount of insurance compensation paid, the plaintiff turned to independent experts from Hermes LLC to determine the amount of restoration repairs for her car. According to the conclusion of the technical examination, the amount of damage amounted to 845,169.78 rubles.

To restore the violated right to receive insurance compensation, the plaintiff went to court. During the consideration of the case, the defendant made an additional payment of insurance compensation according to the results of the forensic auto-merchandising examination in the amount of 338,020.91 rubles, which is confirmed by payment order No. dated November 10, 2015. Decision of the Oktyabrsky District Court of Rostov-on-Don dated November 16, 2015 with LLC BIN Insurance collected a fine in the amount of 171,510.45 rubles, compensation for moral damage in the amount of 5,000 rubles, as well as legal expenses in favor of the full name. However, since the defendant violated the terms of payment of insurance compensation, the plaintiff asked to recover from the defendant a penalty for the period from 12/21/2014 to 11/10/2015 in the amount of 69,615.00 rubles. and the cost of paying for the services of a representative is 30,000.00 rubles.

The plaintiff did not appear at the court hearing, was duly notified of the place and time of the trial, and submitted an application for hearing the case in her absence at the court hearing, therefore the court is hearing the case in the absence of the plaintiff in accordance with Art. .

The plaintiff's representative, by proxy, supported the claims at the court hearing and asked to satisfy them, giving explanations similar to the arguments of the claim.

The representative of the defendant LLC "BIN Insurance" did not appear at the court hearing, the time and place of the consideration of the case was duly notified, which is confirmed by a receipt for appearance, therefore the case was considered in the absence of the representative of the defendant in accordance with Art. .

The court, having heard the persons participating in the case and having studied the materials of the case, considers the stated demands to be satisfied on the following grounds.

In accordance with the provisions of Art. and art. the court collects from the defendant a state duty in the amount of rubles.

decided:

The full name's claims against BIN-Strakhovanie LLC for the collection of penalties and legal costs are partially satisfied.

To recover from BIN Insurance LLC in favor of the full name a penalty for the period from December 21, 2014 to November 10, 2015 in the amount of 69,615.00 rubles, a fine in the amount of 34,807.50 rubles, expenses for paying for the services of a representative in the amount of 15,000 rubles.

To recover from BIN Insurance LLC a state duty in the amount of RUB 3,288.45.

The decision can be appealed to the Rostov Regional Court through the Oktyabrsky District Court of Rostov-on-Don within a month from the date the reasoned decision was made.

Court:

Oktyabrsky District Court of Rostov-on-Don (Rostov Region)

Plaintiffs:

Lugantseva M.A.

Respondents:

LLC "BIN-Insurance"

Other persons:

Efimenko A.V. (REPRESENTATIVE)

Judges of the case:

Agrba Diana Abkhazgireevna (judge)

Litigation on:

abuse of right

Judicial practice on the application of the norm of Art. 10 Civil Code of the Russian Federation

Reduction of penalties

Judicial practice on the application of the norm of Art. 333 Civil Code of the Russian Federation

Last update: 03/16/2019

If the deadline within which you must receive an insurance payment under compulsory motor liability insurance is violated, or receive a referral from the insurance company to repair your car, you have the right to receive a penalty (penalty) from the insurance company for improper fulfillment of obligations.

The insurance company must review the claim and then decide whether to pay the insurance amount or refuse. If the refusal is not justified by objective reasons, the insurer faces penalties under compulsory motor liability insurance.

Cases of payment of penalties under compulsory motor liability insurance

The insurance company must transfer the penalty for late payment under compulsory motor liability insurance in the following cases:

the insurer refused payment without grounds established by law;
the insurer paid the insurance compensation untimely, violating the deadlines established by law;
the insurer did not pay the insurance in full, reducing the amount of payment;
refusal to issue a referral for restoration work;
untimely issuance of directions for repairs;
violation of deadlines for repair work;
belated response to refusal of recognition insured event.

How to calculate the penalty

The law quite clearly defines how the penalty for compulsory motor liability insurance is calculated. Compensation is calculated as follows:

for late payment under compulsory motor liability insurance or failure to issue a repair order penalties are calculated based on 1% of the loss and is paid for each overdue day. In this case, the maximum amount of loss cannot exceed RUB 400,000. in case of damage to the car and 500,000 rubles. in case of harm to health;
for violation of repair deadlines calculated based on 0.5 percent the cost of repairing a car, taking into account its wear and tear in the amount of for each day of delay. But the maximum amount of this type of penalty cannot be more than the cost of repairs, regardless of the length of the delay. It turns out that the insurance organization is responsible for the actions of the repair shop;
for untimely written refusal of insurance payments. The response must be sent within 20 days (not counting holidays). If the deadline is missed, a sanction in the amount of 0.05 percent from the insurance amount (400,000 rubles or 500,000 rubles in case of harm to health) for each day of delay.

Subtleties to consider:

the penalty must be paid for the entire period of non-payment or delay, inclusive of the day of its payment or the issuance of a direction or response (depending on the violation). Holidays and weekends are not excluded from the calculation;
if the collection of a penalty is associated with incomplete payment of insurance, then the amount of the penalty is calculated from the amount that is unpaid.

The total maximum amount of the penalty under compulsory motor liability insurance cannot exceed the amount of the insured amount. That is, for damage to a car - 400 thousand rubles, for damage to health - 500 thousand rubles.

For example, the insurance company did not provide a response to the claim for damages and did not provide a referral for repairs. As a result, the victim calculated a penalty for the lack of direction for repairs in the amount of 560 thousand rubles. and 75 thousand rubles. for failure to provide a response to an insurance claim. The total amount of penalties amounted to 735 thousand rubles. However, the court will reduce the amount of penalties and sanctions to 400 thousand rubles.

The maximum amount of claims for compensation and penalties for damage to a car can reach 800,000 rubles. = 400,000 rub. insurance compensation + 400,000 rub. penalty/sanction for failure to receive a response to an application.

The amount of the claim for the victim in connection with harm to health using a similar formula will be 1 million rubles.

The total amount of the claim may be increased by the amount of a fine, moral damage, and legal costs.

For example, the plaintiff claimed compensation of 400,000 rubles, a penalty of 490,000 rubles, a fine of 200,000 rubles, moral damages of 100,000 rubles, legal expenses of 50,000 rubles. The court satisfied: insurance compensation - 400 thousand rubles, penalty - 400 thousand rubles, fine 200 thousand rubles, moral damages - 10 thousand rubles, legal expenses 15 thousand rubles. Thus, the total amount of recovery will be 1,025,000.00 rubles.

Procedure for payment of penalties

Having calculated the penalty, the car owner or citizen who suffered harm to health must submit a special application to the insurance company for the payment of penalties and sanctions. That is, a separate document is submitted in addition to the main application for insurance payment.

The application for a penalty is written in free form. It states:

Information from the insurance company;
Citizen data;
Basis and calculation of penalties;
Method of payment of penalties (from the cash register or by transfer);
Bank details if there will be a wire transfer to the victim’s account.

The law does not provide for a clear deadline for the payment of penalties for the insurer. And, as practice shows, insurance companies rarely pay these amounts voluntarily. Therefore, such a monetary issue is resolved in court.

Pre-trial settlement

Contacting the insurance company

If the insurance compensation or referral for repairs within the established time frame (after 20 days) has not been received by the insured, and also the amounts of penalties have not been paid, then insurance company a claim must be submitted.

The claim must include the following:

applicant details (name, address, telephone number);
the name and address of the insurance company that delayed payment;
description of your problem;
account details where funds will need to be transferred;
date of drawing up the claim, signature of the applicant with its transcript.

You can deliver the claim to the insurance company in person, having received confirmation of delivery in the form of an incoming number and the signature of the person who accepted it on a second copy, or you can simply send it by a valuable letter with an inventory and notification.

Claim to insurance company must be reviewed within ten days, after which it will either be satisfied, confirming this with the transferred amount, or a response will be sent to the applicant about the refusal to satisfy it.

You should be very careful about the documents that you enclose with your claim to the insurance company! Such documents include originals or notarized:

passport of the victim;
PTS, vehicle state registration certificate, vehicle purchase and sale agreement;
power of attorney or rental agreement (if insurance is received not by the owner, but by a temporary user of the car);
protocol and resolution on an administrative violation or a ruling on refusal to initiate an administrative case;
notification of an accident if traffic police officers were not called to the scene of the accident;
Polsi OSAGO.
applications for payment of insurance compensation and penalties;
calculation of the penalty (if it was drawn up on a separate document).

It happens that companies, having received a claim, do not inform the victim that the package of documents does not contain everything that is required to receive a penalty for late insurance payment under OSAGO. And after the victim files a claim in court, the insurance company will object, citing the lack of necessary documents, that is, non-compliance with the pre-trial settlement procedure. Compliance with it is a prerequisite for receiving the amount of the penalty.

If you do not have evidence of sending a claim to the insurance company, your claim to the court for payment of a penalty under OSAGO will simply be left without consideration.

You can file a claim in court only after the insurance company either sends the applicant a written refusal to reimburse the penalty, or there is no response to the claim at all.

Director
LLC "Insurance company "Protirisk"
Lobachev L.L.
__________________________
400100, Russian Federation, Novgorod region,
Veliky Novgorod,
st. Dymskogo, house 34, office 77
from the insurer Fomenko F.F.
__________________________
400200, Russian Federation, Novgorod region,
Veliky Novgorod, st. Burskogo, house 17, apt. 65

Claim

September 19, 2017 between Fomenko F.F. and SK Uverennost LLC concluded an agreement on compulsory civil liability insurance of vehicle owners: policyholder and beneficiary Fomenko F.F., vehicle Peugeot 307 VIN z7t4c8fs9bm018219 state registration plate C281НХ191, valid for 1 year. The terms of the contract are confirmed by the insurance policy, series III number 03696875 dated September 19, 2017.

On March 10, 2018, an accident occurred involving driver Ilyin I.I., who was driving a Toyota Korola car, state registration plate C321СХ191, and Fomenko F.F., driving a Peugeot 307 car, state registration plate C281НХ191.

As a result of an accident, the Peugeot 307 car, state registration plate C281НХ191, was damaged (hood, left fender, left door, front bumper, radiator grille, left headlight), which is confirmed by the administrative violation protocol No. 007843 dated March 21, 2018.

In accordance with the resolution on administrative offense No. 00788465 dated March 21, 2018, Ilyin I.I. was found guilty of committing an administrative offense under Part 1 of Art. 12. 12 Code of Administrative Offenses of the Russian Federation. Victims from unlawful actions of Ilyin I.I. was recognized by Fomenko F.F.

Ilyin I.I. insured his liability according to the rules of OSAGO with LLC IC Protirisk, OSAGO insurance policy series XXX number 01938456 dated January 20, 2018.

On March 23, 2018, the victims submitted an application for insurance compensation to SK Protirisk LLC. To date, the insurance company has not inspected the vehicle, nor has it issued a referral for restoration of the vehicle.

On April 20, 2018, the policyholder organized and carried out an assessment of the damage as a result of the accident. The cost of restoration repairs according to assessment report No. 094 dated April 22, 2018 amounted to 123,001 rubles.

By virtue of Part 21 of Art. 12 of the Federal Law “On compulsory civil liability insurance of vehicle owners,” the insurer is obliged to issue the victim a referral for vehicle repair, indicating the service station where his vehicle will be repaired.

In accordance with par. 2 hours 21 art. 12 of the Federal Law “On Compulsory Insurance of Civil Liability of Vehicle Owners”, if the deadline for issuing a direction to repair a vehicle to the victim is not met, for each day of delay the insurer pays the victim a penalty (penalty) in the amount of one percent of the amount of insurance compensation for the type of harm caused to each victim.

The victim should have been given a direction for repairs no later than April 14, 2018.

On April 20, 2018, an application was submitted to SK Protirisk LLC for payment of a penalty in connection with the violation of the deadline for issuing a referral for restoration repairs. The application was left without consideration and satisfaction.

The period of delay as of April 29, 2018 is 15 days. In this connection, the amount of the penalty is 18,450.15 rubles. (RUB 123,001 X 1% X 15 days).

Considering the above,

promptly consider this claim;
issue a referral to carry out restoration repairs at a service station accredited by SK Protirisk LLC and located at the victim’s place of residence (Veliky Novgorod, Zapadny district);
make a penalty payment in the amount of 18,450.15 rubles. non-cash form to the victim’s account in a credit institution.

Application:

copy of Fomenko F.F.’s passport;
a copy of the state registration certificate of the Peugeot 307 vehicle, state number C281НХ191;
a copy of the protocol on administrative violation No. 007843 dated March 21, 2018;
a copy of the resolution on administrative offense No. 00788465 dated March 21, 2018;
copy insurance policy III number 03696875 dated September 19, 2017;
a copy of the application for insurance compensation dated March 23, 2018;
a copy of the application for payment of a penalty dated April 20, 2018;
copy of assessment report No. 094 dated April 22, 2018;
bank account details of Fomenko F.F. at a credit institution.

Sincerely, Fomenko F.F. _________________ 04/29/2018

Contacting the Central Bank

Regardless of the claim to the insurance company and the trial, the victim can write a statement to the Central Bank. The Bank of Russia controls the activities of insurance companies and such a complaint is an alternative way to resolve the problem. More often than not, the issue of payments can be resolved in this way. However, in matters of penalties, such complaints are not so effective. Sometimes, in response to a complaint, the Central Bank advises to contact the court or the Service for the Protection of Consumer Rights of Financial Services.

The application must contain almost the same information as the claim to the insurance company. It states:

last name, first name and patronymic of the applicant, his address and telephone number;
name and location of the insurance company;
description of violations by the insurance company, calculation of penalties, etc.;
details of the insurance contract or policy;
number of the payment case filed by the insurance company;
date and signature.

The complaint must be accompanied by the necessary documents, including a copy of the complaint.

An application to the Central Bank can be sent via the Internet, directly through the reception of the Central Bank. There is a corresponding form right on the bank’s website that you just need to fill out. The application must indicate the following:

The Central Bank of the Russian Federation promptly reviews the complaint and informs the applicant about its results.

Going to court

Unsettled disputes regarding payments under the MTPL policy can be resolved through civil proceedings. Judicial practice on MTPL penalties in 2018 is quite extensive.

They go to court after a citizen was denied payment after sending a claim to an insurance company. Accordingly, the basis for going to court is a written refusal to pay a penalty after the insurer receives a claim, or a lack of response to it.

Penalties can be claimed together with the insurance compensation or separately, after the insurance amount has already been collected. That is, according to the second decision.

The claim is drawn up according to a standard template, but with mandatory consideration of the requirements of civil procedural legislation.

The application must indicate the following:

the name of the court to which you are filing your claim;
name and address of the insurance company;
full details of the plaintiff (last name, first name, patronymic, and address);
the circumstances that led to the filing of the claim;
the basis of your claims in the form of references to regulations;
your claims against the insurance company indicating the exact amount of the penalty, as well as its justification in the form of a calculation.

The document must be signed either personally by the applicant or by his representative by power of attorney, which contains such authority.

Documentation

The insurance company has the right to require a specific list of documents for insurance payment.
By the time the issue of collecting a penalty is decided, you must already send all the necessary documents to the company as an attachment to the application for payment and to the application for a penalty. However, it is possible that the documents will have to be duplicated. The documents that may be required by the insurance company (as well as in court) in addition to calculating the penalty are the following:

Documents related to the vehicle:

Copy of PTS;
copy of the SOP;
A copy of the MTPL policy.

Applicant's documents:

a copy of a passport or other identification document;
power of attorney of the representative, certified by a notary;
bank details for transferring funds;

Documents for insurance payment:

a copy of the protocol on the administrative offense;
a copy of the resolution in the case of an administrative offense;
a copy of the ruling refusing to initiate a case of an administrative offense.

Documents for determining damage:

expert assessment of damage;
receipt for payment for expert services.

If the documents provided are in order and presented to the court in full, then the courts, as a rule, side with the victims and satisfy the claims for the recovery of penalties under compulsory motor liability insurance.

The statement of claim may not include a demand for payment of a fine. The court itself will decide the issue of collecting a fine from the insurer for failure to fulfill the obligation.

The amount of the fine is determined in the amount of 50% of the difference between the amount of insurance that was due to the victim and the amount of actual payment. That is, the amount that the plaintiff received, including after the claim was made. Any other amounts that are not included in the insurance compensation are not taken into account when calculating the fine.

In this case, the fine is collected only if the plaintiff is an individual, and in his favor. But if a claim filed by a legal entity is satisfied, such a fine is not collected.

Sample claim for recovery of a penalty from an insurance company

To the Kuibyshevsky District Court
Samara region
443101, Russian Federation, Samara region, Samara,
Pugachevsky tract, 65

Claimant:
Koreikin Igor Ivanovich, born April 10, 1968
Place of residence: 443104, Russian Federation, Samara region,
Samara, st. Bolshevik,
13/3, apt. 45

Respondent:
Limited Liability Company "StrakhVS"
Location: 443106, Russian Federation, Samara region,
Samara, st. Permskaya, 16, office 95
TIN 632323524, OGRN 1125487652312

Third party:
Egor Semenovich Egoshin, born November 12, 1976,
Place of residence: 443104, Russian Federation,
Samara region, Samara, st. Paveletskaya,
33, room 15

Statement of claim
on the recovery of penalties and compensation for moral damage

claim price: 269,000 rub.

01/22/2018 at the intersection of Primorskaya and V.I. Lenin, Samara, Samara region, driver Yegoshin E.S., driving vehicle Toyota Camry brand, registration plate C303НХ163, collided with a Mitsubishi Lancer vehicle, registration plate C945ХХ163, owned by the plaintiff.

An agreement on compulsory civil liability insurance for vehicle owners was concluded between the defendant and the plaintiff.

By resolution in the case of administrative offense No. 180811000076707434 dated February 12, 2018, third party E.S. Egoshin found guilty of committing part 1 of Art. 12.13 Code of Administrative Offenses of the Russian Federation.

On February 15, 2018, the plaintiff was in order with. 14.1 of the Federal Law “On compulsory insurance of civil liability of vehicle owners” applied to the insurance company with an application to issue a referral for restoration repairs.

After the expiration of the established period (20 days), no response was received or a referral was issued.

The plaintiff turned to an independent expert organization to conduct an automotive technical examination. In accordance with the expert’s opinion, the cost of restoration repairs, taking into account wear and tear of the vehicle, amounted to 350,000 rubles.

Due to the fact that the insurer did not voluntarily perform the actions required of it (did not inspect the vehicle, estimate the cost of repairs, did not issue a referral for repairs, etc.), the plaintiff went to court with demands for the obligation of STRAKHVS LLC to issue a referral to a repair shop. organizing and paying for the restoration of the plaintiff’s vehicle in the amount of 350,000 rubles, as well as collecting a fine in the amount of 50% of the amount of the awarded insurance compensation.

As a result of the consideration of the case, a decision was made on 04/05/2018, by which the claims were satisfied in full.

During the trial, the court found that the plaintiff, having legal and reasonable grounds, applied to the defendant on February 15, 2018 with an application to issue a referral to a repair station and subsequent payment for the repairs performed; in the amount of 350,000 rubles; the insurer should have issued a referral for car repairs no later than 03/07/2018.

The judicial act came into force on May 10, 2018 and is binding on the party and third parties.

A writ of execution has been received in the case. An application to initiate enforcement proceedings has been sent to the bailiff service. The defendant has not yet issued a repair order and no repair work has been carried out.

Thus, the defendant violated the plaintiff’s right to receive timely and adequate insurance compensation.

In accordance with par. 2 clause 21 art. 12 of the Federal Law "On compulsory insurance of civil liability of vehicle owners" in case of failure to comply with the deadline for issuing a direction to the victim to repair the vehicle, for each day of delay the insurer pays the victim a penalty (penalty) in the amount of one percent of the amount of insurance compensation determined in accordance with this Federal Law the type of harm caused to each victim.

A judicial act dated April 5, 2018 established the amount of insurance compensation equal to RUB 350,000.

The period for the unfulfilled obligation in full (in the amount of RUB 350,000) as of the date of filing the claim, 05/21/2018, is 74 days. Thus, the amount of the penalty interest is 74, that is, equal to the number of days of the declared delay. Accordingly, the amount of the penalty is determined by the following calculation: RUB 350,000. X 74% = 259,000 rub.

By virtue of clause 4 of Art. 16.1 of the Federal Law “On Compulsory Motor Liability Insurance”, the total amount of the penalty (fine), the amount of financial sanction that is payable to the injured individual, cannot exceed the amount of the insurance amount by type of harm caused, established by this Federal Law.

In accordance with subparagraph “b” of Art. 7 of the Federal Law “On Compulsory Motor Liability Insurance”, the amount of the insurance amount in terms of compensation for damage caused to the property of each victim should not exceed 400 thousand rubles. Since the amount of the penalty within the framework of the requirements is 259,000 rubles, which is less than the maximum value, the calculated level of the penalty meets the requirements of the law, that is, it cannot be reduced by law.

Paragraph 5 of the Law “On Compulsory Motor Liability Insurance” stipulates that the insurer is released from the obligation to pay a penalty (penalty), the amount of a financial sanction and (or) a fine if the insurer’s obligations were fulfilled in the manner and within the time limits established by this Federal Law, and also if the insurer proves that the violation of deadlines occurred due to force majeure or the fault of the victim.

However, the insurance company does not refer to these circumstances and did not provide evidence of the existence of such circumstances. In view of this, the application of this rule is excluded and there are no grounds for releasing the defendant from civil liability.

Paragraph 4, paragraph 21, art. 12 of the Federal Law “On Compulsory Motor Liability Insurance” provides for a penalty (fine) in case of failure to comply with the deadline for making insurance compensation, paid to the victim on the basis of an application submitted by him for payment of such a penalty (fine), which indicates the form of payment (cash or non-cash), as well as bank details for which such a penalty (fine) must be paid if the victim chooses a non-cash form of payment, while the insurer has no right to require additional documents for their payment.

The said application no. dated April 29, 2018 was sent to the defendant. And it was received by the insurer on April 30, 2018, which is confirmed by mail notification.

In addition, the plaintiff additionally sent a claim dated May 11, 2018, with a proposal to resolve the issue of payment of the penalty through an out-of-court procedure.

However, neither the application nor the claim received a response, and no actions were taken to voluntarily fulfill the requirements of the policyholder.

Paragraph 2 of Art. 16.1 of the Federal Law “On Compulsory Motor Liability Insurance” stipulates that the rights and legitimate interests associated with non-fulfillment or improper fulfillment by the insurer of obligations under the compulsory insurance agreement individuals who are victims or policyholders are subject to protection in accordance with the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” to the extent not regulated by the Federal Law.

In accordance with Article 15 of the Law “On Protection of Consumer Rights”, compensation for moral damage is recovered from the insurer.

Due to the fact that the vehicle cannot be operated after the accident and due to the defendant’s failure to take measures to repair it within the framework of insurance legal relations, the plaintiff experiences moral and physical suffering. The plaintiff does not have the opportunity to resolve personal and family problems, is forced to experience daily inconvenience, since the place of work is located in a hard-to-reach place (there are no public transport routes nearby), arrangements for accompanying children in kindergarten and school, etc.

The plaintiff estimates the moral damage caused at 10,000 rubles.

By virtue of paragraph 3 of Art. 17 of the Law “On the Protection of Consumer Rights”, consumers and other plaintiffs in claims related to violation of consumer rights are exempt from paying state duties in accordance with the legislation of the Russian Federation on taxes and fees.

Considering the above, guided by Art. Art. 12, 16.1 Federal Law on Compulsory Motor Liability Insurance”, art. Art. 15, 17 of the Law on Protection of Consumer Rights”, Art. Art. 131, 132 Code of Civil Procedure of the Russian Federation

To collect from StrakhVS LLC in favor of Igor Ivanovich Koreikin a penalty in the amount of 259,000 (two hundred fifty-nine thousand) rubles.
To recover from StrakhVS LLC in favor of Igor Ivanovich Koreikin compensation for moral damage in the amount of 10,000 (ten thousand) rubles.

Application:

Copies of the statement of claim in accordance with the number of persons participating in the case;
A copy of the resolution in the case of an administrative offense
A copy of the decision of the Kuibyshevsky District Court of Samara dated 04/05/2018 in case No. 2-177423/2018;
A copy of the application for payment of the penalty dated April 29, 2018 and a copy of the postal notice;
Copy of the claim dated May 11, 2018;
Detailed calculation of the penalty No. 180811000076707434 dated February 12, 2018;
A copy of the OSAGO insurance policy No. 4245175 dated December 17, 2017.

05/21/2018
___________ (Koreikin I.I.)

Nuances of judicial practice

Let us pay attention to some of the nuances of collecting penalties under compulsory motor liability insurance, which raise many questions in court practice.

Is it possible to apply other measures of liability along with the collection of a penalty?

Penalty, fine and financial sanction are special measures of liability of the insurer, and other measures are not provided. Including interest for use under Art. 395 of the Civil Code of the Russian Federation should not be charged on the amount of insurance paid untimely.

It is also permissible to demand compensation for moral damage. The amount is proven separately according to the rules for the recovery of moral damages.

Difference in maximum payment to an individual and a legal entity

Speaking about the limits of liability of the insurance company, one more circumstance should be taken into account: as already mentioned, the total amount of penalties for late payment under compulsory motor liability insurance, which must be compensated to a citizen (individual), should not be higher than the amount of payment for the type of damage that was caused. Therefore, a paradoxical situation arises in which, if the damage is significant, the amount of the penalty will soon reach the upper limit.

But payment of a penalty for late insurance payment under compulsory motor liability insurance to an insured who is a legal entity does not contain such restrictions. In this case, the payment of the penalty is not restrained by anything.

It turns out that there is an inequality of rights between individuals and legal entities, and it is legal entities that are most financially protected. This circumstance contradicts the Constitution, which guarantees equal rights to everyone.

Neither the decisions of higher courts, which are devoted to the issues of civil liability insurance, nor the Review of Judicial Practice has resolved this issue in any way. Apparently, the Constitutional Court of the Russian Federation must make a decision on this circumstance.

Grounds for refusal of a claim

The claim procedure was not carried out;
There are no documents supporting the victim’s arguments;
There was force majeure opposition, which led to delay. Let's say there was a fire at the insurance company and the documents were destroyed. It took a month to recover. In connection with this, there was a violation of deadlines.
There is dishonest behavior of the victim himself. For example, a citizen does not have an official registration and employees of the insurance company tried to serve a response by calling the victim by phone. But the latter did not show up for calls. Or another example: the victim indicated the wrong bank account number for transferring money. And in court he stated that the money did not arrive to him.
If they refuse to pay compensation, then there will automatically be a refusal of penalties, sanctions and fines.

Determination of the Investigative Committee for civil cases of the Supreme Court of the Russian Federation dated June 26, 2018 N 67-KG18-11 The court canceled the appeal ruling on the refusal of the claim for the collection of insurance compensation, penalties, fines and compensation for moral damage, and referred the case for a new trial, since non-payment the insured within a twenty-day period of insurance compensation is a failure to fulfill the insurer's obligation in accordance with the procedure established by law and for delay in its fulfillment a penalty is subject to recovery from him

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of

presiding Astashov S.V.,

judges Getman E.S. and Maryina A.N.

considered at a court hearing a civil case based on the claim of Savchenko Yu.S. to OJSC AlfaStrakhovanie for the collection of insurance compensation, penalties, fines and compensation for moral damages

on the cassation appeal of representative Savchenko Yu.S. - Shalyupy E.V. on the decision of the Central District Court of Novosibirsk dated April 11, 2017 and the appeal ruling of the judicial panel for civil cases of the Novosibirsk Regional Court dated July 6, 2017.

Having heard the report of the judge of the Supreme Court of the Russian Federation E.S. Getman, the explanations of the representative of AlfaStrakhovanie OJSC by proxy A.V. Rozhkov, who objected to the satisfaction of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:

Savchenko Yu.S. filed a lawsuit against AlfaStrakhovanie OJSC with a claim for the recovery of insurance compensation in the amount of 70,421.73 rubles, a penalty in the amount of 86,046.60 rubles, compensation for moral damage in the amount of 20,000 rubles, a fine in the amount of 50% of the awarded amount, expenses for paying for the services of a representative in the amount of 15,000 rubles.

In support of the claims, Savchenko Yu.S. indicated that her car was damaged as a result of a traffic accident. The insurance company of the tortfeasor recognized the case as insured and paid insurance compensation in the amount of 133,400 rubles. Having disagreed with the amount of insurance compensation, in order to determine the actual amount of losses subject to compensation, Savchenko Y.S. turned to an independent expert, according to whose report the cost of restoration of the vehicle, taking into account wear and tear, amounted to 229,401 rubles, the cost of the appraiser’s services amounted to 12,000 rubles. After filing a claim for additional payment of insurance compensation, Savchenko Yu.S. were satisfied by the insurance company in the amount of RUB 40,679.27.

By the decision of the Central District Court of Novosibirsk dated April 11, 2017, upheld by the appeal ruling of the judicial panel for civil cases of the Novosibirsk Regional Court dated July 6, 2017, the claims were denied.

Representative Savchenko Yu.S. - Shalyupa E.V. filed a cassation appeal, in which she requests that the complaint and the case be transferred for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation in order to cancel the adopted court decisions as illegal.

By the ruling of the judge of the Supreme Court of the Russian Federation Getman E.S. dated May 23, 2018, the cassation appeal with the case was transferred for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

Having checked the case materials, discussed the arguments set out in the cassation appeal, and the objections to the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds provided by law for satisfying the cassation appeal.

In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legal interests, as well as protection of public interests protected by law.

Such violations of the law were committed during the consideration of this case by the courts of both instances.

As established by the courts and follows from the case materials, on February 22, 2016 at the address: Novosibirsk, st. Bogatkova, 92 there was a traffic accident involving four cars, as a result of which Savchenko Yu.S. car "Toyota Corolla" driven by Sokolova S.V. received mechanical damage.

The driver of the Toyota Carina, A.O. Yurkevich, whose civil liability is insured by AlfaStrakhovanie OJSC, was found to be the culprit of the accident.

March 9, 2016 Savchenko Yu.S. contacted the named insurance company with an application for payment of insurance compensation, attaching the necessary documents.

On March 24, 2016, the insurance company paid insurance compensation in the amount of RUB 133,400. (RUB 130,800 towards compensation for damage to the vehicle and RUB 2,600 for vehicle defects), determined by AvtoExpert LLC in expert opinion dated March 22, 2016 N 969/16-L.

On July 5, 2016, Savchenko Y.S., disagreeing with the amount of the insurance compensation paid, filed a claim with AlfaStrakhovanie OJSC, in which she asked to pay additional insurance compensation in the amount of 199,721.50 rubles, attaching an expert opinion from SibAvtoASS LLC. dated June 6, 2016 N 84344.

On July 8, 2016, the insurance company made an additional payment of insurance compensation in the amount of RUB 40,679.27. based on the expert opinion of Priceconsult LLC dated July 6, 2016 N 780331.

The total amount of insurance compensation was 171,479.27 rubles. (RUB 130,800 + RUB 40,679.27).

According to the conclusion of the forensic commodity examination dated February 21, 2017, carried out by Forensic Expertise Laboratory LLC, the amount of damage caused by damage to the Toyota Corolla car owned by Yu.S. Savchenko is 170,580 rubles. - an amount equivalent to the pre-emergency average market value of the vehicle minus the cost of usable remains (240,705 rubles - 70,125 rubles).

In refusing to satisfy the claim, the courts of first and appellate instances proceeded from the fact that the company paid insurance compensation in the total amount of 171,479.27 rubles. within the time period established by law for consideration of the application (20 days) and the claim (5 days), in connection with which they came to the conclusion that there were no grounds for collecting penalties, compensation for moral damage and legal expenses from the company.

We cannot agree with the conclusions of the courts for the following reasons.

In accordance with Article 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with customs or other usually imposed requirements.

By virtue of paragraph 1 of Article 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. Upon a demand for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him.

According to Article 7 of the Federal Law of April 25, 2002 N 40-FZ “On compulsory insurance of civil liability of vehicle owners” (hereinafter referred to as the Law on Compulsory Motor Liability Insurance) (hereinafter the legal norms are given in the wording in force at the time of the emergence of controversial legal relations) insurance the amount within which the insurer, upon the occurrence of each insured event (regardless of their number during the validity period of the compulsory insurance contract) undertakes to compensate the victims for the harm caused, is 400 thousand rubles in terms of compensation for the damage caused to the property of each victim.

By virtue of paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance, within 20 calendar days, with the exception of non-working holidays, from the date of acceptance for consideration of the victim’s application for insurance payment or direct compensation for losses and the documents attached to it, provided for by the rules of compulsory insurance, the insurer is obliged to make an insurance claim. payment to the victim or issue him a referral for repair of the vehicle indicating the repair period, or send the victim a reasoned refusal of insurance payment. If the deadline for making an insurance payment or compensation for damage caused in kind is not met, the insurer shall pay the victim a penalty (penalty) for each day of delay in the amount of one percent of the amount determined in accordance with this federal law the amount of insurance payment according to the type of harm caused to each victim. The penalty (fine) or the amount of a financial sanction provided for by the specified paragraph in case of failure to comply with the deadline for making an insurance payment or the deadline for sending a reasoned refusal of an insurance payment to the victim is paid to the victim on the basis of an application submitted by him for the payment of such a penalty (fine) or the amount of such a financial sanction, which indicates the form settlement (cash or non-cash), as well as bank details for which such a penalty (fine) or the amount of such financial sanction must be paid if the victim chooses a non-cash form of payment, while the insurer has no right to require additional documents for their payment (paragraphs one, second and fourth).

In accordance with paragraph 55 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 29, 2015 No. 2 “On the application by courts of the legislation on compulsory insurance of civil liability of vehicle owners,” which was in force at the time of consideration of the dispute, the penalty is calculated from the day following the day established to make a decision on payment of insurance compensation, and until the day the insurer actually fulfills the obligation under the contract.

Similar explanations are contained in the second paragraph of paragraph 78 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 N 58 “On the application by courts of the legislation on compulsory insurance of civil liability of vehicle owners.”

According to paragraph 2 of Article 16.1 of the Law on Compulsory Motor Liability Insurance, proper fulfillment by the insurer of its obligations under the compulsory insurance contract is recognized as making an insurance payment or issuing a repaired vehicle in the manner and within the time limits established by this federal law.

By virtue of paragraph 5 of Article 16.1 of the Law on Compulsory Motor Liability Insurance, the insurer is released from the obligation to pay a penalty (penalty), the amount of a financial sanction and (or) a fine if the insurer’s obligations were fulfilled in the manner and within the time limits established by the specified federal law, and also if the insurer proves that the violation of deadlines occurred due to force majeure or the fault of the victim.

From the content of the above rules of law and the explanations of the Plenum of the Supreme Court of the Russian Federation, it follows that failure to pay the required amount of insurance compensation to the policyholder within twenty days is a failure to fulfill the insurer’s obligation in the manner prescribed by law; for delay in fulfilling the obligation to pay insurance compensation, the insurer is subject to a penalty, which is calculated from the day following the day when the insurer was supposed to pay the proper insurance compensation until the day of actual fulfillment of this obligation. At the same time, additional payment of insurance compensation in order to settle a claim filed in accordance with the requirements of Article 16 of the MTPL Law does not relieve the insurer from liability for violation of the deadlines established by paragraph 21 of Article 12 of the MTPL Law, and does not exclude the application of civil sanctions in the form of a legal penalties, since the proper period for payment of the insurance compensation corresponding to the given insured event to the insured is exactly twenty days.

From the circumstances established by the courts, it follows that after the plaintiff’s initial application for payment of insurance compensation on March 9, 2016, the insurer did not properly fulfill its obligation within 20 days, since it did not pay the insurance compensation in full.

The missing part of the insurance compensation was paid by the insurer voluntarily, but after the expiration of the period established by paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance, while the court did not see any grounds for collecting in favor of the plaintiff the amounts of additional insurance payment, which, by virtue of paragraph 3 of Article 16.1 of the Law on Compulsory Motor Liability Insurance, was exempt the insurance company from paying a fine, however, did not deprive the plaintiff of the right to collect a penalty and compensation for moral damage, given that the court did not establish the circumstances that the incomplete payment of insurance compensation occurred due to force majeure or the fault of the victim.

The violations of the law committed by the court of first instance and not eliminated by the court of second instance are significant and influenced the outcome of the case; without their elimination, restoration and protection of the violated rights and legitimate interests of Yu.S. Savchenko is impossible.

In order to comply with reasonable deadlines for legal proceedings (Article 6.1 of the Civil Procedure Code of the Russian Federation), the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considers it necessary to cancel the appeal ruling of the Judicial Collegium for Civil Cases of the Novosibirsk Regional Court dated July 6, 2017 in full and send the case to new appeal hearing.

When reconsidering the case, the court should take into account the above and resolve the dispute in accordance with the requirements of the law.

Guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:

The appeal ruling of the judicial panel for civil cases of the Novosibirsk Regional Court dated July 6, 2017 is cancelled, and the case is sent for a new trial to the appellate court.

Judges

Getman E.S.

Maryin A.N.

Document overview

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation drew attention to the fact that the Law on Compulsory Motor Liability Insurance sets a 20-day period for making insurance payments. For delay in fulfilling the obligation to pay insurance compensation, a penalty is collected. In this case, failure to pay insurance compensation in the required amount within 20 days is a failure to fulfill the insurer’s obligation. Additional payment of insurance compensation in order to settle a claim does not relieve him of liability for delay and does not exclude the application of sanctions in the form of a legal penalty.

In the disputed case, the insurer did not properly fulfill its obligation within 20 days, as it did not pay the insurance compensation in full. The missing part was paid to them voluntarily, but after the expiration of the 20-day period. Therefore, the victim has the right to recover a penalty.

Voluntary motor third party liability insurance (CASCO) is provided as additional insurance in the event of an accident, which may result in damages that are much greater than the compulsory motor liability insurance policy can cover.

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Paragraph 5 of Article 28, relating to the law protecting consumer rights, dated 02/07/92, as amended on 07/13/15, agreed on the limit of the penalty that the insurance company must pay if it delays payments.

Such conditions should always be specified in the contract, so when concluding it, you need to carefully study the text of the document before signing it.

What it is

The penalty in connection with insurance contracts under CASCO is provided in order to compensate as much as possible for those days of waiting that the policyholder (the injured party - the insured person) spends, hoping to receive the due payments.

As soon as an insured event occurs under CASCO, and the client has submitted an application for insurance, the company must immediately begin settlements.

If a company violates the deadlines, then it violates the law not only in relation to the protection of consumer rights, but also in relation to the Civil Code of the Russian Federation -.

It can also be said that the law itself on the protection of consumer rights in relation to the acquisition of CASCO and its operation will be applied exclusively on a general basis.

Legislatively, the product of compulsory motor insurance is protected by a special federal law, which is issued separately - only for compulsory motor liability insurance. But there are no special laws for voluntary insurance.

That is why all norms, rules and obligations under CASCO are carried out on the basis of an agreement and are subject to regulation through those legislative acts that apply to all consumers.

Such relationships will be protected by the following parts of the consumer rights law:

talks about the rights to receive and provide the necessary information;
highlights the responsibility that a violator of consumer rights will bear;
discloses the procedure for compensation of harm;
– moral damage to the consumer and its compensation;
– release on the basis of , .

However, Art. plays the most important role in this matter. 395 of the Civil Code of the Russian Federation, which refers to the insurer’s violation of a monetary obligation to the client upon the occurrence of an insured event.

It is this legal material that talks about the interest that the insurer is obliged to pay in case it delays crediting the client's account with the required insurance.

Also, on the basis of those relationships that imply a specific deadline for making payments, they must be fulfilled on time.

But if they are not completed on time, then a penalty is provided for each day for the party responsible for this.

To summarize, we can say that a penalty under CASCO is a kind of fine for an insurance company that has not fulfilled its obligations to the client on time.

How does collection occur?

If for OSAGO a separate law defines a clear deadline within which the insurance company must meet in order to fully pay the policyholder, then for CASCO there is no such law.

Moreover, there is also no other legal act that could clearly show the period of time allotted for payments by the insurer.

To understand the timeliness of such payments or to prove in court that the insurer is overdue, first of all, you should pay attention to the terms of the contract.

Often, all terms are either specified in the text of the insurance contract, specified in the Insurance Rules, which are issued to the client along with the policy, or are calculated separately when the policyholder applies for payment.

But it is possible to distinguish general practice insurance organizations, where specific deadlines are clearly outlined. Insurers set these terms themselves and stipulate them in the contract. It is the contract that is the basis for the obligations that the insurer has assumed.

The deadlines set by insurance companies for making payments in relation to insured events under the CASCO product:

Conditional level of the insurance company	Approximate threshold for the number of clients served	Deadlines for payments under CASCO agreements	How it is usually carried out in practice (recorded by experts)
Largest insurers	The client base amounts to millions of policyholders.	14 days from the date of application.	They strictly follow their obligations and rarely receive lawsuits or pre-trial claims from clients.
Middle level among insurers	From 50,000 to 1 million policyholders.	Within a month.	They can often delay payments. They are more willing to resolve insurance cases with repairs provided than with monetary compensation payments.
Small insurance companies	From 5,000 to 50,000 clients.	From one week to demand.	From one week until the client starts complaining.
Virtually little-known companies	From 5000 people as clients.	The timing is unstable.	Insurance rarely pays out. Fraud detected. The office may close suddenly.

If the client uses insurance to repair a damaged car, then the most popular insurers promise to fulfill their obligations in one to two weeks.

Only if there is a shortage of some spare parts, repairs may take a longer period - from a month to several months.

It should also be noted that the starting point of the deadline is not the day of the incident, but the day the policyholder submits the full package of documents for payments.

Penalties are collected from the insurer based on filing a pre-trial claim, and then, if the insurer does not respond, a claim can be filed in court.

Calculation of penalties under CASCO

Despite the fact that any insurance company does not advertise the calculation of fines and leaves this to the prerogative of its specialists, nevertheless, each client, if desired, can find out both the calculation formula and the procedure for calculating penalties due to overdue payments by the insurer.

How is it calculated?

Penalty interest should be accrued on the amount of insurance that should compensate for the damage, but it was not carried out due to the insurance company violating its terms and obligations under the voluntary auto insurance agreement concluded with the client.

The moment from which the countdown of unfulfilled obligations on the part of the insurer begins is either the day of refusal to pay (it must be officially documented in writing), or it is the day following the day of the end of the period attributable to the fulfillment of obligations by the insurer under the Insurance Rules.

Formula

Lawyers usually regard compensation for damage as an obligation that must be strictly fulfilled by the persons responsible for it.

The same applies to CASCO insurance. Violations of this type of obligation will be considered by law as illegal use of someone else’s in cash.

Delays in insurance payments must always be compensated by insurers in the proper amount. And in order to calculate such a volume, you need a special formula, which is enshrined at the legislative level and is standard.

According to Article 395 of the Civil Code of the Russian Federation, the penalty for CASCO insurance will be calculated according to the following algorithm:

Insurance under the contract x refinancing rate x how many days are delayed: 360 = amount due to the client (penalty).

Example

For example, some insurance company owes 100 thousand rubles in insurance compensation. At the same time, she has already paid part of the insurance amount to the client in the amount of 250 thousand rubles.

According to the Insurance Rules, the last day on which the insurer is obliged to transfer money to the policyholder’s account is January 24, 2020. However, it is already February 24th, and there have been no transfers.

With the correct approach to calculations, the calculation algorithm will be as follows:

Statement of claim

As a rule, a statement of claim to resolve issues regarding the obligations of insurance companies includes not only a request to oblige the insurance company to pay the plaintiff the due amounts, but also to charge a penalty for overdue days.

Very often, such statements of claim already contain in their text the approximate amount of the penalty under CASCO in the form of a calculation.

A detailed presentation of the essence of the case, indications and references to legislative acts, as well as the most accurate information about the plaintiff and defendant - all this will contribute to a quick and positive court decision - in favor of the plaintiff.

Therefore, it is impossible to do without consulting a lawyer or attorney when drawing up such an application.

Who makes the decision on collection

Such decisions are made by the court. However, relations can also be settled before going to court, through a pre-trial claim that the client submits to the head of the insurance company.

The court will always require documentary evidence that would confirm or help establish the moment of violation of the obligation by the insurance company.

When compensating for damage through repairs, fulfilled obligations will be recognized as the end of the repair work and the receipt by the client of the acceptance certificate of work (services performed).

In the case where the damage is compensated for in money, the fulfillment of the obligation by the insurer is the transfer to the client’s account of the amount due under the contract.

If such obligations are violated, then only a court can force the insurer to fulfill them. The court decision determines not only the company’s fulfillment of its obligations, but also the payment of compensation for the delay - a penalty.

The court will be based on laws protecting consumer rights, as well as on articles of the Civil Code. At the same time, the opinion of experts who calculate the timing and amount of payments will be one of the main documents studied by the judge.

Close attention is also paid to the obligations of the insured - whether he made insurance payments on time every month, whether the case is insured, whether there were any violations of the contract on his part, etc.

After determining the guilt of the insurance company, the court makes a decision that the insurer not only fulfill its obligations under the contract, but also pay a fine in the form of a penalty - say, 3% of the insurance for each overdue day.

Examples from judicial practice

The incorrect interpretation of local judicial authorities over time led the Supreme Court of the Russian Federation to the need to review judicial practice in the regions of the country.

So it was published, which deals with clarifications and clarifications of how the courts should interpret the legislative act on the protection of consumer rights, as well as Art. 395 of the Civil Code of the Russian Federation.

This document reveals the essence of the fact that insurers, be that as it may, are obliged to pay the policyholder a penalty for each overdue day when the company was unable to transfer insurance payments to the client’s account on time.

The legislative document understands a penalty as the unlawful use of other people's funds.

Let’s say the court revealed the conclusion of an agreement between the insurer and the plaintiff for voluntary auto insurance in the amount of 1 million 81,100 rubles.

However, the beneficiary is not the owner of the car, but the bank where the car was purchased on credit. In the middle of the loan agreement, the client submitted an application for the occurrence of an insured event - theft, against which the car was insured.

But the insurance company refused to pay the insurance, responding to the pre-trial claim. As a result, the citizen filed a lawsuit in court at his place of residence. 2 weeks have already passed since the application was submitted to the court.

The amount of damage was determined by the amount of the client’s outstanding debt to the bank under the loan agreement.

The client has already paid half the cost of the car in the amount of - RUB 595,150.45 And since the police investigation showed that the car was not found, the bank requires compensation for damages.

The court in the first instance and in the second (appeal) satisfied the claim and established the following for payment:

1,81,100 – 595,150.45 = 485,949.55 rubles.

It was from this amount that the court calculated the penalty (3%) for 14 days when the insurer did not fulfill its obligations:

485,949.55 x 14 x 3: 360 = 56,694.11 rubles

Thus, by court decision, the insurance company was obliged to pay the beneficiary - the bank

485,949.55 + 56,694.11 = 542,643.66 rubles

Pay

After the lawsuit is satisfied, the late penalty must be paid by the insurer to the account of the beneficiary - the insured person.

The amounts must be transferred in the order established by the court decision for the insurance company. When filing a lawsuit, the applicant indicates his details.

However, the insurer has them even when the client submits an application or pre-trial claim, where he asks the company to fulfill its obligations and pay insurance to the specified account.

If, during the trial, the insurer has already independently paid the due amounts, then the court may recognize this fact and refuse the plaintiff. Such cases are not uncommon in judicial practice.

How is it paid for legal entities?

Insurance of property owned by a legal entity - an enterprise, organization or some kind of institution - is also subject to the same rules as insurance of property of individuals. This also applies to voluntary car insurance.

If an organization is delayed in paying out insurance for an insured car that is on its balance sheet, then the procedure for going to court is exactly the same.

Initially, a pre-trial claim is filed with the insurance company, then, if management does not respond or react in any way, you can already file a claim in court.

Statute of limitations

All claims for voluntary automobile insurance have their own statute of limitations. By law, this period is 2 years. The definition of such a short period is related to property insurance.

Because, in comparison with insurance to cover the costs of restoring health after an accident, the statute of limitations will be completely different - much longer.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of:

presiding Gorshkov V.V.,

judges Astashova S.V., Kiselev A.P.

considered the case in open court

according to the claim of Askhatov A.N.

to OJSC "AlfaStrakhovanie"

on the collection of the amount of insurance payment, compensation for moral damage, penalties and fines under a voluntary property insurance agreement on the cassation appeal of A.N. Askhatov.

to the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated August 8, 2014.

Having heard the report of the judge of the Supreme Court of the Russian Federation, V.V. Gorshkov, and having heard A.N. Askhatov, who supported the arguments of the complaint, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:

Askhatov A.N. filed a lawsuit with the said claim against AlfaStrakhovanie OJSC, indicating that on September 20, 2012, a voluntary car insurance agreement "..." was concluded between him and the defendant, providing for insurance risks of "damage" and "theft", the insured amount was determined in the amount... rub. During the term of the contract, the vehicle was stolen, in connection with which the plaintiff applied to the insurance company with an application for payment of insurance compensation, but his application was denied.

By decision of the Preobrazhensky District Court of Moscow dated May 22, 2014, the claims were rejected.

By the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated August 8, 2014, the decision of the first instance court was canceled, a new decision was made in the case, by which the claim was partially satisfied, an insurance payment, compensation for moral damage, a fine, and reimbursement of expenses were recovered from the defendant in favor of the plaintiff to pay for the services of a representative, the claims for a penalty were denied. The defendant was also charged a state fee.

By the ruling of the Preobrazhensky District Court of Moscow dated June 25, 2015, Askhatov A.N. The deadline for filing a cassation appeal has been restored.

In the cassation appeal Askhatov A.N. raises the issue of canceling the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated August 8, 2014 regarding the refusal to satisfy demands for the collection of a penalty, as well as regarding the collection of a fine and legal costs for a representative.

By the ruling of the judge of the Supreme Court of the Russian Federation Astashov S.V. dated November 16, 2015, the cassation appeal and the case were transferred for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

Having checked the case materials and discussed the arguments set out in the cassation appeal, the Judicial Panel finds that there are grounds provided for in Art. 387 of the Code of Civil Procedure of the Russian Federation, to cancel the court decision regarding the refusal to satisfy demands for the collection of a penalty, as well as regarding the collection of a fine and state duty in cassation.

The court established and is confirmed by the case materials that on September 20, 2012, an agreement was concluded between the parties to insure a means of ground transport by issuing an insurance policy N... The object of insurance was that belonging to A.N. Askhatov. car "..." on CASCO terms for insurance risks "damage/theft". The insured amount was... rub.

On May 12, 2013, an unknown person took possession of the above-mentioned vehicle by deception; a criminal case was opened under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, which is currently suspended due to failure to identify the person to be charged as an accused.

On July 30, 2013, the defendant refused to pay the insurance compensation to the plaintiff because the plaintiff violated the terms of the concluded insurance contract.

When considering the case, the court of appeal established the fact of the occurrence of an insured event, the fact that the plaintiff properly applied to the defendant for payment of insurance compensation, and the fact of the defendant’s failure to fulfill obligations to pay insurance compensation.

Refusing to satisfy the claims of Askhatov A.N. on the collection of the penalty provided for in paragraph 5 of Art. 28 of the Law of the Russian Federation of February 7, 1992 N 2300-I “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights), the court indicated that violation of the terms of payment of insurance compensation constitutes a violation of the insurer’s fulfillment of a monetary obligation to the policyholder, for which art. 395 of the Civil Code of the Russian Federation provides for liability only in the form of payment of interest accrued on the amount of insurance compensation payable, but the plaintiff did not make such claims.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that the decision of the appellate court in the part in which the recovery of the penalty was refused was adopted in violation of the norms of the current legislation and cannot be agreed with for the following reasons.

By virtue of paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, the insurer undertakes, for a fee stipulated by the contract (insurance premium), upon the occurrence of an insured event, to pay insurance compensation to the policyholder or beneficiary within the limits of the insured amount specified in the contract.

Voluntary property insurance contracts for citizens, concluded for personal, family, household, household and other needs not related to business activities, are subject to the Law on the Protection of Consumer Rights to the extent not regulated by special laws (clause 1 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 20 “On the application by courts of legislation on voluntary insurance of citizens’ property”).

The laws governing legal relations under the contract of voluntary insurance of property of citizens (Chapter 48 "Insurance" of the Civil Code of the Russian Federation and the Law of the Russian Federation of November 27, 1992 N 4015-I "On the organization of insurance business in the Russian Federation"), the insurer's liability for violation of deadlines no insurance compensation is provided. Consequently, the conclusions of the appellate court that the legal relations associated with the provision of voluntary property insurance services for citizens, the provisions of Art. 28 of the Consumer Protection Law do not apply and are erroneous.

Responsibility for violation of the terms of provision of services to the consumer in the form of payment of a penalty accrued for each day of delay in the amount of three percent of the price of the service, and if the price of the service is not determined by the contract for the provision of services - total price order, provided for in clause 5 of Art. 28 of the Law on Protection of Consumer Rights.

An insurance service is understood as a financial service provided by an insurance organization or a mutual insurance company in order to protect the interests of policyholders (beneficiaries) in the event of certain insured events at the expense of funds formed by insurers from paid insurance premiums (insurance contributions), as well as at the expense of other funds of insurers . The price of an insurance service is determined by the amount of the insurance premium (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 20 “On the application by courts of legislation on voluntary insurance of citizens’ property”).

According to paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds” in monetary obligations arising from contracts, in particular, providing for the obligation of the debtor to pay for goods, works or services or to pay funds received under the terms of return, interest is subject to accrual on the overdue amount on the basis of Art. 395 Civil Code of the Russian Federation.

At the same time, the same paragraph clarifies that if the law or agreement of the parties provides for the obligation of the debtor to pay a penalty (fine) in case of delay in fulfilling a monetary obligation, then in such cases the court should proceed from the fact that the creditor has the right to make a demand for the use of one of these measures, without proving the fact and amount of losses incurred by him in case of failure to fulfill a monetary obligation, unless otherwise expressly provided by law or contract.

In accordance with the provisions of paragraph 1 of Art. 9 of the Civil Code of the Russian Federation, which establishes that citizens and legal entities, at their own discretion, exercise their civil rights, the choice of one of the methods provided for by law to protect a violated right belongs to the person whose right is violated.

In the present case, Askhatov A.N. demands for the recovery of penalties provided for in Art. 28 of the Law on the Protection of Consumer Rights, requirements for the application of the provisions of Art. He did not declare Article 395 of the Civil Code of the Russian Federation.

Thus, when the policyholder does not raise the issue of liability for violation of the insurer’s obligation under Art. 395 of the Civil Code of the Russian Federation, but declares a demand for the recovery of a penalty provided for in Art. 28 of the Law on the Protection of Consumer Rights, such a requirement is subject to satisfaction, and the penalty is calculated depending on the size of the insurance premium.

The violations of substantive law committed by the appellate court are significant and insurmountable, and therefore can only be corrected by canceling the appeal ruling in terms of refusal to satisfy claims for a penalty, as well as in terms of collecting a fine and state duty.

Based on the above and guided by Article.Article. 387, 388, 390 of the Code of Civil Procedure of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:

the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated August 8, 2014 is to be canceled in terms of the refusal to satisfy demands for the collection of a penalty, as well as in terms of the collection of a fine and state duty, in this part, to send the case for a new appeal consideration to the judicial panel for civil cases of the Moscow City Court.

Document overview

A citizen filed a claim against an insurance company that did not pay him insurance under a voluntary insurance agreement for a stolen car.

The plaintiff, among other things, asked to recover a penalty provided for by the Law on the Protection of Consumer Rights.

The collection of the penalty was refused.

According to the appellate court, violation of the terms of payment of insurance constitutes a failure by the insurer to fulfill a monetary obligation to the policyholder. Responsibility for it is provided only in the form of interest for the use of other people's funds, accrued on the amount of insurance payable. However, the plaintiff did not make such demands.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with this conclusion.

The laws regulating legal relations under a contract of voluntary insurance of property of citizens do not provide for the liability of the insurer for violation of the deadlines for payment of insurance.

These legal relations are subject to the provisions of the Law on the Protection of Consumer Rights, which determine the consequences of violation by the contractor of the deadlines for completing work (rendering services). The appellate court's findings to the contrary are erroneous.

This law provides for a penalty for violating the terms of provision of services to the consumer. It is charged for each day of delay. Its size is 3% of the price of the service, and if such a price is not specified in the contract - of the total price of the order.

If the law or agreement of the parties provides for the debtor’s obligation to pay a penalty (fine) in case of delay in fulfilling a monetary obligation, then in such cases the creditor has the right to demand either interest for the use of someone else’s money or a penalty.

The citizen demanded to collect a penalty provided for by the Law on the Protection of Consumer Rights.

Thus, the policyholder does not raise the issue of liability for the insurer’s failure to fulfill a monetary obligation in the form of interest for the use of someone else’s money. He wants to get a penalty. This requirement must be satisfied. In this case, the penalty is calculated depending on the size of the insurance premium.