Until the entry into force of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 “On the consideration by courts of civil cases on disputes on the protection of consumer rights” Russian legislation was applied in accordance with the position reflected in the Legislative Review and judicial practice Supreme Court Russian Federation for the first quarter of 2008, approved by the Decree of the Presidium of the RF Armed Forces dated May 28, 2008. Thus, the Presidium of the Armed Forces of the Russian Federation considered that property insurance relations are not subject to regulation by the Law of the Russian Federation of February 7, 1992 N 2300-1 “On Protection of Consumer Rights” (hereinafter - the Law of the Russian Federation N 2300-1) property insurance not applicable for the following reasons.
Insurance relations are regulated by Ch. 48 of the Civil Code of the Russian Federation, the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business" (hereinafter - the Law of the Russian Federation N 4015-1), as well as special laws on certain types of insurance. According to paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, one party (the insurer) undertakes to pay a fee (insurance premium) stipulated by the contract upon the occurrence of an event provided for in the contract ( insured event) compensate the other party (the insured) or another person in whose favor the contract is concluded (the beneficiary) for the losses caused as a result of this event in the insured property or losses in connection with other property interests the insured (to pay insurance compensation) within the amount specified by the contract (sum insured). In accordance with paragraph 1 of Art. 2 of the Law of the Russian Federation N 4015-1 insurance is a relationship to protect the interests of individuals and legal entities, Russian Federation, subjects of the Russian Federation and municipalities upon the occurrence of certain insured events due to cash funds formed by insurers from paid insurance premiums (insurance premiums), as well as at the expense of other funds of insurers. The purpose of insurance when concluding a property insurance contract is to cover at the expense of the insurer the risk of property liability to other persons or the risk of other losses as a result of an insured event. It was on the basis of the analysis of the above legal norms that the Supreme Court of the Russian Federation concluded that the Law on the Protection of Consumer Rights was inapplicable to insurance relations.
Currently subject to mandatory application by all courts of the Russian Federation, the position set out in the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 “On consideration by the courts of civil cases in disputes on the protection of consumer rights” (hereinafter referred to as the Decree of the Plenum of the Russian Federation N 17). As stated in the document, increasing the guarantees and effectiveness of the means of protecting violated or contested rights, freedoms and legitimate interests of participants civil rights relations while complying with the requirements of the law is the task of civil proceedings.
The Supreme Court of the Russian Federation in its Resolution indicates that when considering civil cases, courts should take into account that relations, one of the parties to which is a citizen who uses, acquires, orders or has the intention to purchase or order goods (works, services) exclusively for personal, family, household , domestic and other needs not related to the implementation entrepreneurial activity, and the other - an organization or an individual entrepreneur (manufacturer, performer, seller, importer) selling goods, performing work, providing services, are relations regulated by the Civil Code of the Russian Federation, Law of the Russian Federation N 2300-1, other federal laws and adopted in accordance with them other regulatory legal acts RF. At the same time, if certain types of relations with the participation of consumers are also regulated by special laws of the Russian Federation containing civil law norms (such contracts, in particular, include an insurance contract, both personal and property), relations arising from such contracts, the Law RF N 2300-1 applies to the extent not regulated by special laws. Subject to the provisions of Art. 39 of the Law of the Russian Federation N 2300-1 to relations arising from contracts for the provision of certain types of services with the participation of a citizen, the consequences of violation of the conditions of which are not subject to Ch. III of the Law of the Russian Federation N 2300-1, the general provisions of the Law of the Russian Federation N 2300-1 shall apply. Moreover, in the considered Decree of the Plenum of the Russian Federation N 17 it is directly indicated that the relationship to the provision of medical services to citizens provided by medical organizations within the framework of voluntary and mandatory health insurance, consumer protection laws apply.
It should be noted that the insurer is liable for violation of consumer rights as provided by law or contract. Unless otherwise provided by law, losses caused to the consumer are subject to compensation in full in excess of the penalty (penalty) established by law or contract. At the same time, the payment of a penalty (penalty) and compensation for losses do not release the insurer from the fulfillment of the obligations imposed on him in kind to the consumer.
Note! According to paragraph 5 of Art. 28 of the Law of the Russian Federation N 2300-1 in case of violation of the established deadlines for the performance of work (provision of services) or new deadlines assigned by the consumer, the contractor pays the consumer for each day of delay a penalty (penalty) in the amount of 3% of the price of performing work (provision of services), and if the price of performance of work (rendering services) is not defined by the contract for the performance of work (rendering services) - the total price of the order.
The consumer's claims for the payment of a penalty (fine) provided for by law or an agreement are subject to satisfaction by the insurance company in voluntarily. If the court satisfies the requirements of the consumer established by law, the court collects from the insurer for non-compliance with the voluntary satisfaction of the requirements of the consumer a fine in the amount of 50% of the amount awarded in favor of the consumer (clause 6, article 13 of the Law of the Russian Federation N 2300-1).
Damage caused to the life, health or property of the consumer due to design, production, prescription or other defects in the goods (work, service) is subject to compensation in full.
In addition, the moral damage caused to the consumer as a result of the violation by the insurance company of the consumer's rights provided for by the laws and legal acts of the Russian Federation regulating relations in the field of consumer protection is subject to compensation by the tortfeasor in the presence of his fault. The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage.
Also, the client of the insurance organization gets the opportunity to use the right of alternative jurisdiction. In accordance with paragraph 2 of Art. 17 of Law of the Russian Federation N 2300-1, statements of claim in this category of cases are presented to the court at the place of residence or stay of the plaintiff, at the place of conclusion or execution of the contract, or at the location of the organization (its branch or representative office) or the place of residence of the defendant, which is individual entrepreneur. Courts cannot return statement of claim with reference to par. 2 p. 1 art. 135 of the Code of Civil Procedure of the Russian Federation, since by virtue of paragraphs 7, 10 of Art. 29 Code of Civil Procedure of the Russian Federation, the choice between several courts that have jurisdiction over the case belongs to the plaintiff.
In addition, the clients of the insurance company are exempted from paying the state fee in accordance with paragraph 2 of Art. 333.36 of the Tax Code of the Russian Federation (clause 3 of article 17 of the Law of the Russian Federation N 2300-1).
In conclusion, we note that the new interpretation of the Supreme Court of the Russian Federation of legal norms contributes to the expansion of the rights of clients of insurance organizations and a significant increase in liability measures for insurance organizations in case of improper performance of their obligations.
As you know, the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On the consideration by the courts of civil cases in disputes on the protection of consumer rights" extended the effect of the Law of the Russian Federation of February 7, 1992 N 2300-1 "On the protection of consumer rights" to all types of insurance contracts . This could not but cause a strong reaction from the insurance community, which was not mentally prepared for such tough financial sanctions for violation of the terms of insurance transactions by insurers, and ardent support from lawyers acting on the side of policyholders and beneficiaries. Below we present the opinions of representatives of both points of view.
E.L. Platonova, NP National Insurance Guild, President, IC TIT LLC, Deputy General Director for Strategic Development:
The extension of consumer protection legislation to insurance should, in theory, make illegal refusals and delays in insurance payments very costly for the insurer and thereby protect weak side insurance deal. At the same time, the practice cannot but raise objections, according to which the courts do not at all take into account the insurance rules that determine the list of insured events and exceptions from insurance coverage. Meanwhile, at the conclusion of the insurance contract, the insured was acquainted with them and fully agreed. The court decision in these cases simply contradicts the rules of insurance and the terms of the contract. In addition, the obligation of insurers to make insurance payments on the basis of insurance contracts is always due to the presence of certain facts. Often it is the court that determines whether a particular event is an insured event or not. So, will it be fair to recover a large fine from the insurer in a situation where a trial is required to clarify all the facts and recognize the event as an insured event?
In our opinion, this Resolution of the Plenum of the Supreme Court will inevitably lead to three catastrophically negative consequences: 1) an increase in fraud, as it becomes more profitable; 2) an increase in tariffs, since insurers will have to compensate for the increased unprofitability; 3) an increase in the time for consideration of cases in courts, because the number of applications from insurers and beneficiaries with lawsuits will increase significantly.
A.V. Solovyov, lawyer:
The answer to this question should be treated with the utmost care. The problem is that consumer protection legislation does not take into account the specifics of insurance as a financial service, and this is not the case in the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On consideration by courts of civil cases in disputes on consumer protection”. Meanwhile, we can talk about two significant points that make insurance a special form of relationship. The first is that in insurance, making the right decision is based on the evidence of the occurrence of an insured event, their assessment, and analysis of the circumstances of the case. In simple relationships, such as, for example, purchase and sale, everything is different: the goods are paid for, they must be transferred to the buyer on time and comply with the terms of the contract in terms of quality. The subjective side of the offense when the seller fails to fulfill the contract is almost always obvious: unwillingness to fulfill the contract or neglect of one's duties. In insurance, where the decision of the insurer is based on an assessment of documents, facts, etc., it is impossible to exclude discrepancies regarding the results of such an assessment. The subjective side here is often different - there is neither intent nor negligence, that is, there is no guilt. Of course, the insurer may knowingly unreasonably refuse to pay out, but this is a relatively rare situation.
The norms of the Law of the Russian Federation "On the Protection of Consumer Rights" are intended not only to restore the violated right, they are largely punitive in nature: this is a punishment for the negligence of the seller or contractor. I think this is correct for simple relationships. For complex relationships (such as insurance), where the decision is always evaluative, other mechanisms are needed.
The second thing that determines the specifics of insurance in Russia is that now these are contractual relations, which practically do not exist. Judicial practice shows that failure by the policyholder to fulfill the contract most often does not entail negative consequences for him provided for by the contract. In conditions when, in the same situation, the insurer's refusal to pay is considered lawful by some judges, and unlawful by others, with conflicting norms of insurance legislation, it is wrong to punish insurers on an equal footing with those who, in simple respects, intentionally or negligently violate consumer rights.
It is also dangerous to expose the stability of the insurance market to ever-increasing financial pressures, as is the case now.
A.V. Chub, SOJSC "VSK", director of the legal department:
Decree of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 seriously increased the liability of insurers for the so-called consumer types of insurance. The range of legal sanctions applied by the courts to the party providing insurance services. And so, not very extensive legal tools, which were used by insurers in the settlement of not always unambiguous insurance events, became even more scarce. Indeed, now the use of the possibilities of judicial resolution of the dispute as a way to find out the truth, a tool for minimizing the amount of insurance payments and reducing unprofitability has become almost impossible.
The resolution gave rise to many questions and ambiguities: does it apply to legal relations under OSAGO agreements, what to do with insured events that occurred before June 28, 2012, etc. The Plenum did not give an unambiguous answer to these questions, which means that in the conditions of legal uncertainty, one will have to wait for the formation of judicial practice or actively influence its formation.
The threat of additional collection of a fine, forfeit, compensation for moral damage will require insurers to take prompt, extraordinary and comprehensive measures aimed at improving underwriting business processes, settling insurance claims, working in courts and combating insurance fraud.
Of course, there are also positive aspects of the adoption of the Resolution - this is an additional protection of the interests of policyholders, the legal orientation of insurers to the prompt and complete fulfillment of obligations under an insurance contract.
A.V. Rumyantseva, CJSC Insurance Group UralSib, Head of Department legal support activities of the insurance group:
The relationship between the insurer and the policyholder needs to be clearer for a long time. legislative regulation. This issue is especially acute in the field of OSAGO and insurance, carried out in accordance with the conditions loan agreements. Since the legislation does not contain criteria for the quality of insurance services and the insurer's special civil liability for providing services of inadequate quality to the insured, in order to prevent unfair actions on the part of insurance companies, the law enforcer decided to extend consumer protection legislation to relations arising from insurance contracts. However, such a decision seems to be insufficiently substantiated both from a legal and economic point of view. In addition, at present, the question remains completely unclear how, from the position of the Supreme Court of the Russian Federation, consumer protection legislation correlates with compulsory social insurance, including compulsory medical and compulsory pension insurance.
The norms of the Law of the Russian Federation "On the Protection of Consumer Rights", adopted more than 20 years ago, are focused on regulating relations arising from contracts for the sale of consumer goods and the provision of household services, and do not take into account the specifics of financial, including insurance, services.
From the point of view of the development of the market for financial services (banking, insurance, etc.) provided to the population, it is completely justified to extend consumer protection legislation to these services, but this should not be in the form that currently exists. A fairly progressive step in the legislative development of this issue would be the inclusion in the Law of the Russian Federation "On the Protection of Consumer Rights" of a separate chapter "Protection of Consumer Rights in the Provision of Financial Services", which would regulate relations between financial institutions and consumers of their services, taking into account their legal and economic features.
A.V. Merenkov, SK " northern treasury», CEO
:
In insurance relations, some of the provisions of the Law of the Russian Federation "On the Protection of Consumer Rights" can be applied, some require clarification, and the application of one more part will lead to a surge in fraud.
The obligation to inform about essential conditions insurance contract at the time of conclusion of the contract. This is logical, since the policyholder must understand what service he is buying.
What needs clarification:
1. A penalty of 3% for each day of delay and a penalty of 50% of the amount recovered. There are no unified approaches to damage assessment in Russia. Different experts will name different amounts of damage, and during repairs, the amount of the invoice may differ significantly. It is necessary to introduce uniform standards and approaches.
2. Recovery of non-pecuniary damage. The insured (victim) can actively influence the amount of fines and non-pecuniary damage by simply choosing a cheaper expert, and then implementing a more expensive repairs.
Filing a claim at the location of the consumer and exempting him from paying the state duty will have serious consequences. On the one hand, it is convenient for the insured or the victim. On the other hand, it is not clear how to avoid filing a claim and not notifying or late notifying the insurance company in order to get the maximum amount of payment, as well as compensation for the costs of examination and representative.
N.S. Tyurnikov, Glavstrakhkontrol, General Director:
On June 28, 2012, the Supreme Court of the Russian Federation clarified the relationship between the insurance company and its clients by extending the Law of the Russian Federation “On Protection of Consumer Rights” to insurance.
The current position of the Supreme Court of the Russian Federation is in line with the law; there are no grounds for withdrawing insurance services from the scope of the Law of the Russian Federation “On Protection of Consumer Rights” from both a legal and an economic point of view. It is quite obvious that the client of the insurance company, acquiring a complex financial service, must be protected at least as well as, for example, the buyer of an air conditioner in the next hot summer. Previously, this was not the case, and the buyer of an air conditioner was protected from violation of his rights by the seller and the manufacturer of the product, while the insured was not protected from the arbitrariness of the insurance company.
Courts of general jurisdiction are already regularly making decisions on satisfying customer requirements, guided by the Law of the Russian Federation “On Protection of Consumer Rights”.
Only by fighting for their rights, the clients of insurance companies have every chance to soon get the market of insurance services, where client orientation will become the norm, not the exception. In the end, everyone wins. Citizens will receive sufficient compensation. The state will transfer the burden of unjustified budget expenditures for compensation for damage from natural and man-made disasters to private insurance companies. And even insurers will benefit from the fact that they will receive a new influx of premiums from those who trust them with their peace of mind and financial well-being clients.
Now I would like to believe that, despite the expected opposition of the insurance lobby, the Supreme Court of the Russian Federation will not change its mind, and the clients of insurance companies will take an active position and fully benefit from the much-needed and long-awaited clarifications of the Supreme Court of the Russian Federation.
Yu.B. Fogelson, National Research University Higher School of Economics, Professor, Society of Insurance Lawyers of Russia, Senior Partner, Dr. Yu. n.:
At one of the conferences, the extension to insurance contracts of the general part of the Law of the Russian Federation “On the Protection of Consumer Rights” was called “a blow to insurers”.
In the near future, insurers are waiting for another "blow" - the provision of real protection to policyholders from the so-called "unfair terms of contracts." Until now, the courts have been deprived of legal instruments for the implementation of such protection, now they are appearing.
Among the changes in the Civil Code of the Russian Federation, which passed the first reading in the State Duma, there are two important innovations. First: “knowingly unfair exercise of rights” is equated in the new edition of Art. 10 "Limits to the exercise of civil rights" to the abuse of the right. Second: changes in Art. 428 "Accession Agreement" extend this article to contracts, only some of which are standard, that is, including insurance contracts. In addition, the current version of Art. 428 of the Civil Code of the Russian Federation provides for the exclusion of "unfair conditions" from the contract by amending the contract. And changes, as we know, are made only for the future. New edition Art. 428 of the Civil Code of the Russian Federation provides that the contract "is considered to be in force in a modified version or, accordingly, not in force from the moment of its conclusion."
Finally, the third "strike" on insurers is not even planned yet, although the time will come for it. This is about full refund lawyer expenses. So far, they are reimbursed only "within reasonable limits", and as a result, even if a claim is won, a person can not count on full compensation for his expenses, but only on compensation for an insignificant part of them. Insurers take advantage of this and send people to court with or without reason - after all, these processes cost nothing to them.
After all this is fully operational, insurers will inevitably face a dilemma: whether to wind down their business or start doing it honestly, earning not on insurers, but at the expense of investment income. It is time for far-sighted insurers to think about this today.
Application of the provisions of the Law of the Russian Federation "On the protection of consumer rights", as well as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 17 dated June 28, 2012 "On the consideration and courts of civil cases in disputes on the protection of consumer rights"
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 20 dated June 27, 2013 "On the application by the courts of legislation on voluntary insurance of property of citizens"
Decree of the Plenum of the Supreme Court of the Russian Federation as amended on June 28, 2012 No. 17 “On consideration by the courts of civil cases on disputes on the protection of consumer rights”
collection insurance compensation on CASCO and the application of the provisions of the Law of the Russian Federation of February 07, 1992 "On the protection of consumer rights", as well as the Resolution of the Plenum of the Supreme Court of the Russian Federation as amended on June 28, 2012 No. 17 "On consideration by the courts of civil cases on disputes on the protection of rights consumers"
Collecting a penalty for Casco Go to
Recovery of a penalty under Article 395 of the Civil Code of the Russian Federation Follow
Penalty under paragraph 5 of Article 28 of the Consumer Rights Protection Law Follow
Compensation for moral damage. Go
The validity of the application of the Law of the Russian Federation "On the Protection of Consumer Rights" to relations arising from the insurance contract Follow
Exemption from payment of state duty Go to
About alternative jurisdiction Go to
Applying to the court with a separate claim for the recovery of a fine for Casco Go to
Failure to comply with the pre-trial (claim) procedure for settling a Casco dispute does not affect the collection of a fine Go to
Refusal to collect a fine in the absence of notification of the insurer about the increase in the amount of insurance compensation Go to
The amount of compensation for moral damage, as well as claims for the recovery of a fine, are not subject to inclusion in the price of the claim.
Refusal of the insured to conclude a settlement agreement with the insurance company in order to recover a fine Go to
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For non-compliance with the voluntary satisfaction of the requirements of the insured, the court reasonably levied a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.
Since the defendant did not voluntarily satisfy the claim of the plaintiff, the insurance contract by its nature and essence is a separate type of relationship with the participation of consumers, then the recovery from the defendant in favor of the plaintiff of a fine under paragraph 6 of Art. 13 of the Law of the Russian Federation "On Protection of Consumer Rights" in the amount of 50% of the amount awarded, justified.
The presence of a violation of the rights of the consumer and the failure to satisfy his requirements on a voluntary basis give rise to a fine in accordance with the provisions of paragraph 6 of Art. 13 of the Law of the Russian Federation of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights".
The court correctly applied the provisions of paragraph 6 of Art. 13, art. 15, paragraph 5 of Art. 28 of the Law "On Protection of Consumer Rights". If the court satisfies the requirements of the consumer in connection with the violation of his rights established by the Law on the Protection of Consumer Rights, which were not satisfied voluntarily, the court shall recover a fine in favor of the consumer from the defendant.
The court rightfully exacted a fine from the defendant in favor of the plaintiff, while taking into account the fact that the insured applied to the insurance company in a pre-trial order with a request for additional payment of insurance compensation.
According to the explanations contained in paragraph 46 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 17 dated June 28, 2012 "On consideration by the courts of civil cases on disputes on the protection of consumer rights", when satisfying the requirements of the consumer in connection with the violation of his rights established by the Law "On the Protection of Consumer Rights consumers” who were not satisfied voluntarily (by the contractor, seller, authorized organization or authorized individual entrepreneur, importer), the court collects a fine from the defendant in favor of the consumer, regardless of whether such a claim was made to the court (paragraph 6 of Article 13 of the Law).
According to part 6 of Art. 13 of the Law of the Russian Federation "On Protection of Consumer Rights", when the court satisfies the requirements of the consumer established by law, the court collects from the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for non-compliance with the voluntary satisfaction of consumer requirements a fine in the amount of fifty percent of amount awarded by the court in favor of the consumer.
According to the clarifications given by the Supreme Court of the Russian Federation in paragraph 46 of the Decree of the Plenum "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" dated June 28, 2012, when the court satisfies the requirements of the consumer in connection with the violation of his rights established by the Law on the Protection of Consumer Rights , which were not satisfied voluntarily by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer), the court collects a fine from the defendant in favor of the consumer, regardless of whether such a claim was made to the court.
Since the amount of the fine is directly established by law and cannot be reduced by the parties or the court in the specified amount, the fine is subject to recovery, regardless of the claims of the plaintiff.
When considering the present case, the court found that the defendant evaded voluntary satisfaction of the consumer's legal requirements, in connection with which the dispute was referred to the court for resolution. Considering that the current legislation recognizes the collection of a fine as an unconditional duty of the court in all cases of satisfaction of the claim, the court considers it necessary to recover a fine from the defendant.
According to paragraph 46 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights". the court collects a fine from the defendant in favor of the consumer, regardless of whether such a claim was made to the court (paragraph 6 of Article 13 of the Law).
An appeal was considered in which it was stated that the court did not apply the applicable norms of the legislation on consumer protection, but applied legal regulation legal relations arising from the OSAGO agreement. In this regard, he believes that the court unreasonably denied the recovery of the penalty and non-pecuniary damage. The court satisfied the complaint, collected a penalty, moral damages and a fine of 50%.
The condition for collecting a fine is non-compliance by the contractor with the requirements of the consumer established by law on a voluntary basis.
It follows from the materials of the case that the plaintiff sent a claim to the defendant with a demand to pay insurance compensation in full, which she was denied.
Compensation for moral damage
When the court decides on the issue of compensation to the consumer for non-pecuniary damage, a sufficient condition for satisfying the claim is the established fact of violation of the consumer's rights.
The conclusions of the court of first instance on the application of the provisions of Art. 15, paragraph 6 of Art. 13 of the Law "On Protection of Consumer Rights" are justified, since the plaintiff's rights were not satisfied voluntarily by the defendant and the fact of causing moral suffering to the plaintiff was confirmed during the trial.
The court finds that the defendant violated the plaintiff's right to receive insurance compensation. The plaintiff's demand for insurance compensation was not voluntarily fulfilled by the defendant, and the refusal to make insurance payments was issued three times.
The amount of non-pecuniary damage to be recovered from the defendant for violation of consumer rights, the court considers it necessary to reduce, taking into account the requirements of reasonableness and fairness, the duration of the violation of the right and the amount of moral suffering caused to the plaintiff, the degree of guilt of the defendant.
Since the defendant did not pay the insurance indemnity in full, in connection with which the insurer violated the rights of the consumer, compensation for moral damage is subject to recovery from the defendant in favor of the plaintiff.
Taking into account the circumstances of the civil case, taking into account that the insurance company did not pay the insurance compensation to the plaintiff in full, which objectively violated the rights of the plaintiff as a consumer, in connection with which he was forced to apply to the court for judicial protection, which entailed for him certain inconvenience, waste of personal time, guided by the principles of reasonableness and fairness, the court believes that the plaintiff's claim for monetary compensation for non-pecuniary damage is subject to partial satisfaction.
In accordance with paragraph 45 of the Plenum of the Supreme Court of the Russian Federation No. 17 dated June 28, 2012, when the court decides on compensation for moral damage, a sufficient condition for satisfying the claim is the established fact of violation of consumer rights. The amount of compensation for moral damage is determined by the court regardless of the amount of compensation for property damage, in connection with which the amount of monetary compensation exacted in compensation for moral damage cannot be made dependent on the value of the goods (work, service) or the amount of the penalty to be recovered. The amount of compensation for moral damage awarded to the consumer in each specific case must be determined by the court, taking into account the nature of the moral and physical suffering caused to the consumer, based on the principle of reasonableness and justice.
Taking into account the specified norm and taking into account the long-term failure by the defendant to fulfill his obligations under the voluntary insurance contract and agreement, the degree of suffering of the plaintiff, who, having not received insurance compensation in full, was deprived of the opportunity to purchase a new vehicle to replace the stolen and damaged car, the judicial board considers it necessary recover moral damages in favor of the insured.
Since in terms of recovery of compensation for moral damage, recovery of a fine for non-compliance with the voluntary satisfaction of the legal requirements of the consumer, relations are not regulated by a special law, in this part the Law of the Russian Federation "On Protection of Consumer Rights" is subject to application.
When resolving the plaintiff's claims for the recovery of compensation for non-pecuniary damage in accordance with the provisions of Article 15 of the Federal Law "On Protection of Consumer Rights", the court concludes that there are grounds for their satisfaction, since the facts of violation of consumer rights in the form of a delay in satisfying the consumer's legal claim for payment of insurance compensation recognized by the court as established, these circumstances caused the plaintiff moral suffering.
Evidence of the absence of guilt in violation of the rights of the consumer by the defendant, on whom the burden of proving this circumstance is assigned by the legislation in the field of consumer protection, applicable in this part to the legal relations of the parties, was not presented to the court.
At the same time, taking into account the actual circumstances of the case: the nature and content of the offense, including its duration, the degree of guilt of the defendant, the court finds compensation for non-pecuniary damage to be recovered from the insurance company in the amount corresponding to the degree of moral suffering of the plaintiff and the requirements of the law on reasonableness and justice.
Given the content of this article, taking into account that the defendant violated the rights of the plaintiff as a consumer on the grounds indicated above, the court considers the stated requirements to be satisfied by law. Determining the amount of compensation for non-pecuniary damage, the court proceeds from the established circumstances of the case, concludes that the amount of claims filed by the plaintiff in the amount of 100,000 rubles is overstated and must be reduced, taking into account reasonableness and fairness, to 20,000 rubles. The Court believes that this monetary compensation will help alleviate the suffering of the plaintiff, as well as restore the balance between the consequences of the violation of the rights of the plaintiff and the degree of responsibility applicable to the defendant.
On the validity of the application of the Law of the Russian Federation "On the Protection of Consumer Rights" to relations arising from an insurance contract
Clause 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" directly indicates that the Law of the Russian Federation "On the Protection of Consumer Rights" is subject to application in resolving disputes arising, including insurance contracts.
With regard to insurance contracts, the general provisions of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights”, in particular, on liability for violation of consumer rights (Article 13) should be applied
The insurance contract by its nature and essence is a separate type of relationship with the participation of consumers.
Taking into account that the court of first instance found a violation of the plaintiff's rights as a consumer, the court reasonably applied the Law of the Russian Federation "On Protection of Consumer Rights" to the disputed legal relations and imposed a fine for non-compliance with the consumer's requirements on a voluntary basis.
The arguments of the complaint about the groundlessness of the application of the Law of the Russian Federation "On the Protection of Consumer Rights" to relations arising from the insurance contract are based on a misinterpretation of the law.
The arguments of the appeal that the court applied the norms of substantive law that are not subject to application, namely the provisions of the Law of the Russian Federation "On Protection of Consumer Rights", cannot be taken into account, since paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 “On consideration by the courts of civil cases on disputes on the protection of consumer rights” directly indicates that this law is subject to application in resolving disputes arising, among other things, from an insurance contract.
On application to relations arising from an insurance contract general provisions Law on the Protection of Consumer Rights, in particular on exemption from the payment of state fees (paragraph 3 of Article 17)
The plaintiff is exempted from paying the state fee by virtue of law. Thus, in accordance with Article 103 of the Civil Procedure Code of the Russian Federation, the defendant must be charged a state duty on income municipal budget in accordance with Part 2 of Article 61.1 of the Budget Code of the Russian Federation.
The plaintiff is exempted from paying the state fee by virtue of law. Thus it is with the defendant according to Article. 103 of the Code of Civil Procedure of the Russian Federation, it is necessary to collect the state duty in the income of the municipal budget in accordance with Part 2 of Art. 61.1 of the Budget Code of the Russian Federation.
Based on paragraph 1 of Art. 103 of the Code of Civil Procedure of the Russian Federation, the state fee, from which the plaintiff was exempted, is recovered from the defendant, who is not exempted from paying court costs, in proportion to the satisfied part of the claims.
On the application to relations arising from an insurance contract of the general provisions of the Law on the Protection of Consumer Rights, in particular on alternative jurisdiction (paragraph 2 of Article 17)
Since a special law does not regulate the condition of jurisdiction in disputes arising from relations within the framework of an insurance contract, the Law on the Protection of Consumer Rights is applied to relations arising from such contracts and they are subject to the provisions on alternative jurisdiction provided for by Part 7 of Article 29 of the Code of Civil Procedure of the Russian Federation .
At the hearing, the court raised for discussion the issue of sending the case to jurisdiction at the location of the defendant.
The panel of judges cannot agree with the indicated conclusion of the court, since, in accordance with Article 29 of the Code of Civil Procedure of the Russian Federation, claims for the protection of consumer rights can be brought to the court at the place of residence or place of stay of the plaintiff or at the place of execution of the contract.
Returning the statement of claim, the court referred to the fact that the plaintiff is not a party to the insurance contract concluded between the insured and the insurance company and his legal relationship with the insurance company cannot be subject to the rules of the Law of the Russian Federation "On Protection of Consumer Rights" as regards the payment of the state fee, and regarding the choice of alternative jurisdiction of the dispute.
However, the court did not take into account that since the insurance contract is a contract for compensation, and under the cession contract all rights of claim were transferred, then the RF Law “On Protection of Consumer Rights” is applied to the relations arising from such an agreement to the extent not regulated by special laws .
Since a special law does not regulate the condition of jurisdiction in disputes arising from relations within the framework of an insurance contract, the Law on the Protection of Consumer Rights applies to relations arising from such contracts and they are subject to the provisions on alternative jurisdiction provided for in part 7 of Article 29 of the Civil Procedure Code. Code of the Russian Federation. Given that the plaintiff is registered and lives at: , he has the right to bring the above claim at the place of residence.
The Court of Appeal cannot agree with the findings of the Court of First Instance that the provisions of the Law of the Russian Federation “On the Protection of Consumer Rights” are not applicable to property insurance relations.
The legal relations that have arisen between the plaintiff and the defendant are subject to the provisions of the Law of the Russian Federation "On the Protection of Consumer Rights", namely paragraph 2 of Article 17. In accordance with Part 2 of Art. 17 of the Law of the Russian Federation "On the Protection of Consumer Rights", claims for the protection of consumer rights can be brought at the choice of the plaintiff.
Appeal to the court with a separate claim against the insurance company for the recovery of a fine
Solution district court the plaintiff did not appeal, entered into force. In accordance with Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, the circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. These circumstances are not proven again and are not subject to dispute when considering another case involving the same persons.
In view of the foregoing, the plaintiff's claims for the recovery of a fine based on the amount recovered by decision of the district court are not subject to satisfaction.
In addition, the fine is a measure of responsibility for violation of consumer rights, and does not depend on the will of the plaintiff, these requirements cannot be an independent subject of consideration.
Application for removal has been submitted additional solution in terms of the collection of a fine provided for by the Law of the Russian Federation "On Protection of Consumer Rights".
Civil case on a private complaint against the ruling of the Meshchansky District Court of Moscow dated January 11, 2013, by which it was decided: to refuse to accept the statement of claim for the recovery of a fine.
The case on a private complaint against the ruling of the Meshchansky District Court of Moscow dated December 18, 2012, which ruled: in satisfaction of the application for review of the decision of the Meshchansky District Court of Moscow dated November 19, 2009 in a civil case on a claim for the recovery of insurance compensation due to new circumstances, under new circumstances - to refuse.
Non-compliance by the plaintiff with the pre-trial (claim) procedure for resolving the dispute does not affect the collection of a fine
The law does not make the award of a fine dependent on whether these requirements were stated in the claim. Compliance with the mandatory pre-trial claim procedure is also not provided for by the provisions of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”.
The court’s conclusion that there are no grounds for collecting a fine due to the fact that the plaintiff did not file a pre-trial claim for revising the amount of insurance compensation is contrary to the Law of the Russian Federation On the Protection of Consumer Rights, which does not provide for a pre-trial dispute settlement procedure that is mandatory for the parties.
The arguments of the appeal on non-compliance by the plaintiff with the pre-trial (claim) procedure for settling the dispute, provided for by the Insurance Rules Vehicle, approved by the insurer, are untenable, since these Rules were approved after the conclusion of the insurance contract with the claimant, and, therefore, could not be valid at the time of the conclusion of the contract. Subject to the provisions of paragraph 6 of Art. 13, art. 15 of the Law of the Russian Federation "On the Protection of Consumer Rights", the court of first instance reasonably concluded that the defendant was to recover compensation for non-pecuniary damage and a fine for refusing to voluntarily satisfy the consumer's demand from the defendant in favor of the plaintiff.
When resolving this case, the court of first instance came to the conclusion that there were no grounds for collecting a fine, since the plaintiff did not apply to the insurer with a separate application for payment of compensation indicating the amount.
Meanwhile, these conclusions of the court are based on a misinterpretation and application of substantive law.
The law does not make the award of a fine dependent on the insured's application with an indication of a certain amount to the insurer.
The insurer's arguments that the policyholder did not apply to the insurer with a pre-trial claim for insurance compensation, in connection with which the court unlawfully collected a fine of 50% in favor of the policyholder, cannot be taken into account, since they are based on a misinterpretation of the law and are refuted by the case materials, from which it follows that the plaintiff applied to the defendant with an application for an insurance payment, while the defendant did not pay the insurance compensation within the established time limits.
The refusal to collect such a fine on the grounds of non-compliance with the claim procedure is a violation of the requirements of the law, since the parties did not dispute the fact that the plaintiff applied for insurance payment.
Claims for reimbursement of a fine in favor of the insured were denied due to the lack of notification of the insurer about the increase in the amount payable as insurance compensation
Evidence of the fact that the plaintiff applied to the insurance company after the independent evaluation with the requirement to pay insurance compensation in the required amount, obtained on the basis of the assessment report of an independent expert, and which is greater than the amount paid by the insurer on a voluntary basis, the plaintiff did not submit to the court.
The insurance company, prior to the receipt of the claim material in court and its acceptance for proceedings, was not properly notified of the increase in the amount payable as an insurance indemnity, and therefore, did not have the opportunity to decide on an increase in the specified payment and its implementation in voluntarily. In connection with the foregoing, the court considers that the plaintiff's claims for reimbursement of a fine in favor of the consumer should be denied.
In this case, the fine in favor of the plaintiff is not recoverable, due to the following: the plaintiff applied to the defendant for the payment of insurance compensation, which was paid by the defendant in an uncontested amount, determined on the basis of a calculation performed by the appraisers-specialists of the insurer. Thus, the defendant fulfilled its obligations in the amount determined at the time of payment in full. The plaintiff, not agreeing with the determined and paid amount, made an assessment of the damage on his own, however, he did not apply to the defendant with these requirements. Thus, the defendant was not able to satisfy the requirements of the consumer voluntarily, in view of the fact that these requirements were not presented to the defendant in the specified amount and there are no grounds for collecting a fine.
The insured sent a statement to the insurance company that he would repair the car, but subsequently did not provide the Insurer with any documents confirming the amount of damage, the cost of restoring the insured car was determined by appointing and conducting a forensic autotechnical examination in the case. It follows from the foregoing that the Insurer was deprived of the opportunity to make an insurance payment on a voluntary basis and in monetary terms. Under such circumstances, the court of first instance incorrectly concluded that the rights of the insured as a consumer were violated by the insurance company and unreasonably collected from the insurance company in favor of the insured the forfeit, moral damage, as well as a fine provided for by the norms of the Law of the Russian Federation "On Protection of Consumer Rights".
Evidence of the plaintiff's appeal to the defendant with claims regarding the reimbursement of insurance compensation in the amount of xxxxxxx RUB. not presented to the court. In addition, the actual amount of damage caused to the plaintiff became known to the parties during the consideration of the civil case in connection with the receipt of the results of a forensic autotechnical examination, in connection with which the defendant was not able to voluntarily satisfy the claims of the plaintiff.
During the consideration of the case, the court found that when considering the issue of payment of insurance compensation, there was a dispute between the parties on the procedure for its payment, therefore, the court does not see grounds for applying a measure of liability in the form of a fine. As follows from the case file, the defendant took measures to resolve the issue of payment by sending letters to the plaintiff and payment options.
The amount of compensation for moral damage, as well as claims for the recovery of a fine, are not subject to inclusion in the price of the claim.
Returning the claim, the trial court was rightly guided by Art. 23, 135 Code of Civil Procedure of the Russian Federation, in connection with which, he came to the correct conclusion that the plaintiff should apply to the justice of the peace, since the price of the claim does not exceed fifty thousand rubles.
The amount of compensation for non-pecuniary damage, the recovery of which is declared as a requirement of a non-property nature by virtue of the provisions of Art. 151 of the Civil Code of the Russian Federation and Art. 15 of the Law of the Russian Federation "On Protection of Consumer Rights", as well as the consumer's requirement to recover a fine for non-compliance with the voluntary satisfaction of consumer requirements, are not subject to inclusion in the price of the claim, in this case, the requirement to recover compensation for non-pecuniary damage and a fine are derived from the main property claim , jurisdictional to the justice of the peace.
The arguments of the private complaint that claims for compensation for non-pecuniary damage are claims of an intangible nature, therefore, are not subject to consideration by the World Court, are based on an incorrect interpretation of the law and cannot serve as a basis for canceling the court ruling. The amount of compensation for moral damage caused to the consumer is not included in the price of the claim and does not affect the rules for determining jurisdiction.
Refusal of the insured to conclude a settlement agreement with the insurance company in order to recover a fine
The plaintiff's refusal to conclude a settlement agreement with the insurance company cannot be regarded as an abuse of the right, if at the time of his application for the payment of insurance compensation the defendant had all the information for the voluntary implementation of the insurance payment.
At the end of January, the RF Armed Forces answered the main questions related to the resolution of disputes on OSAGO (Resolution of the Plenum of the RF Armed Forces dated January 29, 2015 No. 2 ""; hereinafter - the Resolution). Let's consider the most important provisions of the document, and also find out from our experts how successful, in their opinion, the conclusions made by the court.
Consumer rights Protection
Until 2012, the courts, as a rule, did not apply the Law of the Russian Federation of February 7, 1992 No. 2300-I "" to disputes under OSAGO (hereinafter referred to as the consumer protection law). Over time, the situation changed in the opposite direction: a different judicial practice was formed, which was subsequently confirmed by its decision of the Supreme Court of the Russian Federation (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 ""). The court pointed out that the consumer protection law applies to relations arising from personal and property insurance contracts to the extent not regulated by special laws. The wording is rather vague, so even after the adoption of this act, the issue of equating insurers with consumers was raised more than once.
In this regard, the Supreme Court of the Russian Federation in the Decree clearly indicated that the consumer protection law applies to relations arising from the OSAGO agreement (). True, this rule is valid only when the insured vehicle is used for personal, family, household, household and other needs not related to the implementation of entrepreneurial and other economic activity. So, the fact of transporting passengers in a taxi or minibus along the established route on a reimbursable basis will serve as a basis for refusing to collect a fine from the insurance company under the consumer protection law ().
The application of the consumer protection law to relations arising from OSAGO gives drivers:
It should be borne in mind that the relationship between the victim and the professional association of insurers related to compensation payments is not covered by the consumer protection law ().
OUR REFERENCE
Compensation payment- this is compensation for harm carried out by a professional association of insurers (for example, PCA) in cases where insurance payment under compulsory insurance cannot be carried out by an insurance company.
In case of damage to property, a compensation payment is made if the insurer has gone bankrupt or its license has been revoked. If the harm is caused to life and health, then in addition to these grounds, there are two more: the culprit of the accident is unknown or he does not have a valid OSAGO policy (paragraphs 1-2 of article 18 federal law dated April 25, 2002 No. 40-FZ "").
In addition, in accordance with, an insurer that has not fulfilled its obligation to pay insurance compensation must pay a fine to the victim. Previously, the courts focused on this provision. However, since September 1, 2014, a similar rule has been in force in the OSAGO legislation - according to it, the amount of the fine imposed on the insurer is 50% of the difference between the amount of insurance compensation awarded by the court and the amount of insurance payment made on a voluntary basis (clause 3 of Art. 16.1 of the Federal Law of April 25, 2002 No. 40-FZ ""; hereinafter - the law on OSAGO). Such a wording allowed insurance companies to delay the payment of insurance compensation to the last minute and pay it out only when it became obvious that the court decision would not be in their favor. Thus, it was believed that the insurer had fulfilled its obligation, which means that there were no grounds for imposing a fine.
By the way, some drivers took retaliatory measures, by all means preventing the payment of compensation until the end of the trial. "The insurers paid the victims before the last court hearing. And the insurers, trying to respond to the insurers' trick, began to close their bank accounts after filing a lawsuit,” says the managing partner of the Antistrakhovshchik company, the head of the Antistrakhovshchik.RF portal Ilya Afanasiev.
Taking this into account, the Court, in its Resolution, additionally emphasized that the existence of a litigation in itself indicates a failure by the insurer to fulfill the obligation to pay insurance compensation on a voluntary basis (). And this means that the satisfaction of the requirements of the victim during the period of consideration of the dispute in court does not exempt the insurer from paying a fine.
In addition, if earlier the pre-trial procedure for resolving a dispute was not always followed (it depended on the driver’s discretion), then from September 1, 2014 it is mandatory (). This was also confirmed by the Armed Forces of the Russian Federation, but with one caveat: this rule applies only to insured events that occurred after September 1, 2014 (). If the victim fails to comply with the claim procedure, the court has the right to return the statement of claim to him.
Moreover, the rules on the mandatory pre-trial procedure for resolving the dispute are also applied in the event of a claim being filed against a professional association of insurers for the recovery of compensation payments (), and in the case of replacing the defendant with an insurance company ().
Conclusion of an OSAGO agreement
The court emphasized that the extradition insurance policy is evidence confirming the conclusion of an OSAGO agreement, until proven otherwise (). The reason for this conclusion was the numerous litigation, within which Insurance companies refused to compensate for the damage caused to the victim due to the fact that at the time of the accident the civil liability of the perpetrator who presented the policy was not properly insured (for example, insurance premium was not paid in full, the submitted insurance policy was issued by fraudsters, etc.).
So, in the framework of one of the court cases, the insurer referred to the fact that he wrote off the form of the insurance policy as damaged and destroyed it, and on the receipt for the payment of the insurance premium for the conclusion of the insurance contract presented in the case materials, there is an imprint of a seal that does not belong to the insurance company. However, the court drew attention to the fact that the PCA confirmed that the specified form belonged to the insurer, and also to the fact that the latter did not submit a valid judicial act establishing the invalidity / non-conclusion of the relevant contract. Thus, the arguments of the insurance company were rejected, and the insurance compensation was collected from it ().
In its Decree, the Supreme Court of the Russian Federation emphasized that the insurer is not exempt from fulfilling its obligations under the contract even if:
However, there are concerns about the protection of drivers who may suffer from the alleged conclusion of an OSAGO agreement with a fraudster who illegally took possession of policy forms. It remains unclear how the information that the forms of insurance policies are invalid due to their theft will be brought to the attention of the insured and how his rights will be protected in this case.
Vehicle use
Perhaps one of the most significant provisions of the new Decree is the definition by the Court of such a concept as "use of a vehicle", which previously caused a lot of controversy among specialists. Under it, the Armed Forces of the Russian Federation proposes to understand not only the movement of the car, but also all actions related to its operation (towing, parking, parking, stopping, etc.) (). “This cannot but rejoice, since now there is a real opportunity to claim insurance compensation in cases where the driver of a car standing on the side of the road unexpectedly opens the door and the vehicle passing by (as well as the one that is standing) is damaged,” commented on the position Ships Ilya Afanasiev.
The use of a car, in the opinion of the Court, can take place not only within roads, but also in areas adjacent to them and intended for movement (in yards, in residential areas, in parking lots, gas stations, as well as any other areas where there is a possibility of movement (passage) of the vehicle). However, an accident in which the equipment installed on the vehicle was involved (for example, a truck crane, a concrete mixer, unloading mechanisms, a manipulator boom, an advertising structure on a car) will not be an insured event ().
Insurance payment
Important conclusions were made by the Court in relation to the insurance payment. So, if it is impossible to determine the degree of guilt of each of the drivers from documents compiled by police officers, insurers make insurance payments in equal shares of the amount of damage suffered by each (). While the law links the adoption of this decision with the relevant court act (), the RF Armed Forces gave insurance companies the opportunity to pay compensation in equal shares based on traffic police documents ().
At the same time, the amount of insurance indemnity for insured events that have occurred since October 17, 2014 should be established only in accordance with the Unified Method for determining the amount of expenses for restoration repairs in relation to a damaged vehicle (hereinafter referred to as the Unified Method). This document is designed to help calculate the cost of repair, paintwork and other work, make this process more systematized and eliminate possible abuse by insurers and service stations. A unified methodology provides for the creation in the form electronic bases data of special directories average cost spare parts, materials and labor hours. In response to this requirement, PCA has launched an online service on its website to determine repair costs.
At the same time, the FBU "Russian Federal Center for Forensic Science" under the Ministry of Justice of Russia recommended that experts not use the reference books mentioned in the Unified Methodology if:
However, to talk about significant pros or cons unified methodology it is still too early - it is necessary to wait until a stable practice of its application is formed both on the part of insurers and on the part of the courts.
Continuing the topic of the insurance payment, the Court noted that, among other things, recovery and other expenses necessary for obtaining insurance compensation are subject to compensation (for example, the costs of evacuating a car from the scene of an accident, storing a damaged vehicle, transporting an injured person to a medical institution, restoring a road sign and /or fencing, delivery of repair materials to the accident site, etc.). In this case, only damages in excess of size limit sum insured(). Previously, insurers often referred to the fact that only the costs of refurbishment () are subject to compensation, and all other expenses should be recovered from the culprit of the accident.
Along with the cost of repairs and spare parts, the Armed Forces of the Russian Federation also included the lost commodity value of the vehicle (). At the same time, the driver can demand its compensation even when he chose compensation for harm not in the form of an insurance payment, but in the form of an organization of restoration repairs damaged car.
OUR REFERENCE
Loss of car value- a decrease in its cost caused by a premature deterioration in the appearance of the vehicle and its performance as a result of a decrease in the strength and durability of individual parts, assemblies and assemblies, joints and protective coatings due to an accident and subsequent repair ().
Wear- a decrease in the value of property as a result of the loss of its physical properties (strength, appearance etc.) due to natural physical aging during its use.
When organizing and paying for the restoration of a vehicle by the insurer, an agreement must be reached between the insurance company, the victim and the service station on the timing of the repair and its cost. In the referral for repairs, the Court ordered insurance companies to indicate the agreed amount of the full cost of repairs, as well as estimated costs for spare parts, taking into account the wear of components to be replaced ().
If the service station did not start the repair in a timely manner or performs it so slowly that the completion of the repair by the deadline becomes clearly impossible, the victim has the right to change the method of compensation for damage and demand that he pay insurance compensation in the amount necessary to complete the restoration repair (). This clarification is very significant, since the OSAGO law does not directly provide for such a right of the insured.
The obligations of the insurer are considered to be duly fulfilled if the victim took the car out of repair, while signing the certificate of completion (). This means that the insured should submit his claims about the quality of the repair before he picks up his car. However, if, after receiving the repaired car, the policyholder discovers hidden flaws in it, he has the right to present claims to the insurance organization for their elimination (,).
IT'S IMPORTANT TO KNOW
If the service station did not repair the car on time, made repair work is of poor quality or violated other obligations, a claim in this regard must be addressed not to the station itself, but to the insurance company that issued the referral for repairs (,).
In addition, the Supreme Court of the Russian Federation additionally raised the issue of compensation for damage resulting from an accident if the driver of a car with a trailer is the culprit. Such damage, as the court emphasized, is considered caused by one vehicle (tractor), and therefore the maximum insurance payment cannot exceed the sum insured under one insurance contract, including if the owners of the tractor and trailer are different persons ( ). The absence of a mark on the operation of a vehicle with a trailer in the compulsory insurance policy cannot serve as a basis for the refusal of the insurance organization to make insurance payments. At the same time, the insurer in this case has the right of recourse to the insured ( , ).
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It can be said that the Supreme Court of the Russian Federation touched upon the most controversial and important issues of resolving disputes over "autocitizenship" today. But not all experts share an optimistic view of this document. So, Ilya Afanasiev emphasizes: “Although the said Resolution has a good basis for the development of positive judicial practice, but main question with the use of the Unified Methodology, it was left not just unanswered, but killed in the bud. "It should be noted, however, that the court always has the opportunity to verify the reliability of the evidence presented to it about the real cost of the details, therefore, some shortcomings of the Unified Methodology can be overcome in the trial.
In order to live comfortably, insurance companies often resort to the method of underestimating the true cost of damage resulting from an accident. Now the law "On the Protection of Consumer Rights" takes under its wing all those who are faced with an incorrect assessment of damage to a vehicle or a delay in payments for auto insurance. So, this law includes:
In addition, without paying the state fee, there is a right, which provides for the protection of the rights of OSAGO consumers, to file a claim at the place of residence, and not at the address of registration of the insurance company. Moreover, insurers have the opportunity to demand payment of a penalty.
The motorist was under greater protection than before, when the consumer protection law did not apply to insurance cases. It is important that when applying to the courts to resolve a dispute between the insured and the insurer, the court collects a fine. Sanctions are envisaged in the case when the rights, under the law on consumer protection, of the owner of OSAGO were violated, while they were not satisfied on a voluntary basis by an authorized person.
It is interesting that in case of improper performance of duties, dissatisfaction with the claims of the plaintiff, the insurance company undertakes to pay a fine in the amount of half of the amount that was illegally withheld by the defendant. OSAGO protects the rights of consumers in such a way that a fine is collected even without the need for a corresponding application by the plaintiff.
If the insurance indemnity was not received by the insured within 30 days from the date of submission of all required documents, then the insurance company is waiting for the payment of a penalty. Previously, the court refused to satisfy the claim of those persons whose property was insured under OSAGO and became a participant in an accident, and the insurance body subsequently either paid less than it was due, or even refused compensation within a month.
Until recently, judges believed that the countdown of the penalty begins with the receipt of a court decision, according to which insurance compensation or part of the alleged Money. However, now the protection of consumer rights under OSAGO is carried out by two laws at once: the law “On Protection of Consumer Rights” and the law on OSAGO.
The most common violation of consumer rights by insurance companies is considered to be putting forward the conditions for the purchase of some services only with the obligatory purchase of others. That is, the insurer can conclude an auto-citizen agreement with a person who has purchased additional insurance services indicated by the insurer. Other documents may include voluntary insurance health or life insurance.
So, when buying OSAGO, consumer rights are respected, so voluntary insurance can be purchased only if the applicant wishes. If, however, it has been proven that the insured suffered losses due to the imposition of insurance services, then they must be compensated in full.
Be that as it may, it is very difficult to prove on your own the infringement of freedom of choice by the insurer, and therefore only legally savvy professional able to defend the interests of the injured party.
Consumer rights Protection
The development of the market providing the service naturally leads to the development of the insurance services market. For a long time, insurers and consumer protection advocates have been arguing about the correct application of the Consumer Protection Law to an insurance contract.
In the article, we will adhere to the point of view that the latter falls within the legal scope of this law, especially in the case of the provision of services of inadequate quality.
Insurance can be compulsory and voluntary. More and more people are thinking about life, health, and property insurance. Without going into the details of the insurance business, we propose to discuss the forms and methods of protecting consumers - users of insurance services, guaranteed by law, namely if the insurance company refuses to fulfill its obligations in the event of an insured event, stipulated by the agreement insurance.
Here is a list of legislative acts regulating the topic we are discussing:
Let's look at the nuances that must be observed when concluding an insurance contract. In this section, we will talk about voluntary insurance individual, because the mandatory ones - health insurance and OSAGO - are described in detail in the legislation and do not imply deviations from it, and, in more detail, we will discuss them in the third section of our article.
Prior to the conclusion of the contract, the insurer provides the policyholder with comprehensive and true information about its activities, legal form, legal address, etc. It is advisable to require a copy of his license, since the insurance business is a licensed type of activity.
We remember that according to our specialized law protecting consumers, the provision of information is an important link in the process of forming an informed choice of the consumer (insurant). The insurer may be held administratively liable for providing false information, moreover, the policyholder may challenge the validity of such an agreement through the court.
The contract is concluded in writing, otherwise the contract is considered invalid, is voluntary, bilateral, aimed at protecting the life, property and health of a person and paying a sum of money in the event of an insured event, formed from the paid insurance premiums.
The insurance contract determines the parties - the insurer and the policyholder, describes in detail the insured event, determines the amount of the sum insured and the expiration of the contract. The above provisions are considered essential in the insurance contract.
The contract is considered concluded from the moment the insurance policy is issued and the first payment is made. insurance premium the insured.
In this section, we will talk about the types of compulsory insurance in the Russian Federation.
Let's start with the most famous compulsory health insurance, provided by the state in order to guarantee the provision of medical care, if necessary, to all citizens of the country. Employers pay insurance premiums. Compulsory insurance is convenient because you can use the services of medical organizations throughout the country.
Compulsory insurance for various transportations was introduced by the legislator in order to cover the safety and interests of passengers and ensure that the latter receive payments. The insurance contract is concluded between the carrier and the insurer and provides insurance for the entire route of the passenger's route, keep the ticket and insurance document: policy or check.
Mandatory social insurance citizens. A law-abiding employer pays a percentage of wages worker in social fund, which allocates funds for various social benefits: for children, pensioners, disabled people, large families etc. Thus, the state performs the function of caring for and supporting socially vulnerable segments of the population. A citizen is assigned an individual number, which is abbreviated as SNILS, on which information about the career and the amount of contributions made are available.
Continuing the list of types of compulsory insurance carried out by employers, we point out the compulsory life and health insurance for military and officials. Thus, the state creates comfortable service conditions for people whose lives may be in danger in the performance of official duties.
Another mandatory type of insurance is insurance of civil liability of the owner of an object of increased danger, for example, mines, mines, oil refineries, etc. in relation to workers engaged in labor activities in conditions that threaten their life and health.
The last type of insurance that we list is issued by car owners - compulsory motor third party liability insurance. An insured event occurs in the event of an accident on the road, so ensure that the insurance policy is always available in the car.
In the article we discussed legislative framework, protecting the interests and rights of consumers - users of insurance services, dwelled on the essential terms of the insurance contract and listed the mandatory types of insurance. We hope the information will be useful to you.
Supreme Court On June 28, 2012, he gave clarifications to the lower courts, which actually clarified the relationship between the insurance company and its clients and confirmed the extension of the Consumer Rights Protection Law to insurance (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 17 “On consideration by courts of civil cases on disputes on consumer protection ").
Clients of insurance companies have in their hands an effective lever of influence on an unscrupulous insurance company - the Law on Consumer Rights Protection (LOZPP). Recently, however, insurance companies, which now need to fulfill their obligations in good faith under the threat of significant material consequences, are trying to counteract the application of the Decree, expressing opinions that directly contradict the current legislation and law enforcement practice.
Therefore, representatives of policyholders and the Association for the Protection of Policyholders, based on a comprehensive analysis of legislation and law enforcement practice, report their position:
The activity of the insurance community is also noted, aimed at introducing amendments to various legislative acts that will exclude the application of the POZPP to insurance in principle (amending the Law on the Organization of Insurance Business, the Law on Consumer Rights Protection) or to its individual types (amending the Law on Compulsory Motor Third Party Liability Insurance - OSAGO). The Policyholder Protection Association notes that there are no and cannot be grounds for exclusion of insurance services from the POZPP, both from a legal and economic point of view. It is quite obvious that an insurance company client who purchases a complex financial service must be protected at least as well as, for example, an air conditioner buyer in another hot summer. Previously, this was not the case, and the buyer of an air conditioner was protected from violation of his rights by the seller and the manufacturer of the product, while the insured was not protected from the arbitrariness of the insurance company.
The Decree provided protection of consumer rights in those areas where they were not protected before, which created favorable conditions for violation of consumer rights by performers, in particular insurance companies. In the 5 months that have passed since the Supreme Court clarification, there have been significant positive changes: insurance companies are increasingly resorting to out-of-court settlement of disputes with their customers, many insurance companies have reviewed the practice of settling insurance claims and checked the validity of their denials of payments, which led to to reduce unreasonable refusals and underpayments.
Thus, the Decree of the Plenum of the Supreme Court of the Russian Federation No. 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" is assessed very positively by consumers of services, which are more than 140 million citizens of the Russian Federation, since anyone can become injured as a result of an accident and, accordingly, face with the receipt of insurance compensation from the insurance company that insured the liability of the person responsible for the accident.
Now I would like to believe that, despite the opposition of the insurance lobby, the Supreme Court will not change its position, legislators will not succumb to the influence of insurance companies and will not adopt legislative acts that will provide insurance companies with the right not to fulfill their obligations with impunity, and clients of insurance companies will take an active position and will fully benefit from much-needed and much-anticipated clarification from the Supreme Court.
President of the Association Tyurnikov N.S.
