Statement of claim
on the recovery of a penalty for delay in insurance paymentunder a car insurance contract (casco)
January 01, 2016 at the address: Moscow, st. Butyrskaya, 6 there was a traffic accident (hereinafter referred to as an accident) involving a BMW 3 car, state registration plate AA777, driven by Boyko A.V. and my car Mazda CX5, state registration number XX777 under my control.
The Mazda CX5 car I own is insured under the comprehensive auto insurance program (casco) at the AlfaStrakhovanie insurance company, which is confirmed by the insurance policy.
On January 11, 2015, I applied to the insurance company AlfaStrakhovanie (hereinafter referred to as the defendant) with an application for payment of insurance compensation, attaching all the necessary documents. In turn, the insurance company allowed a delay in the payment of insurance compensation, which is confirmed by the insurance act recognizing the event as insurance (or payment order).
According to paragraph 5 of Art. 28 federal law dated 07.02.1992 N 2300-1 “On Protection of Consumer Rights” in case of violation of the established deadlines for performing work (provision of services) or new deadlines assigned by the consumer, the contractor pays the consumer for each day (hour, if the deadline is defined in hours) of delay a penalty (penalty) in the amount of three percent of the price of the performance of work (rendering of services), and if the price of performance of work (rendering of services) is not determined by the contract for the performance of work (rendering of services) - the total price of the order. An agreement on the performance of work (provision of services) between the consumer and the contractor may establish a higher amount of the penalty (penalty).
These actions of the insurer caused my moral feelings, in connection with which I believe that I also suffered moral damage, which is subject to compensation on the basis of Art. 15 of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On Protection of Consumer Rights” and the amount of which I estimate at 10,000 rubles.
According to Art. 309 of the Civil Code of the Russian Federation, obligations must be duly performed in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements.
In accordance with Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill obligations and a unilateral change in its conditions are not allowed, except as otherwise provided by law. A unilateral refusal to fulfill an obligation related to the performance by its parties of entrepreneurial activity, and a unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the nature of the obligation.
In accordance with the provisions of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm. By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor.
In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
According to paragraph 6 of Art. 13 of the Law of the Russian Federation “On Protection of Consumer Rights”, when the court satisfies the requirements of the consumer established by law, the court collects from the manufacturer (performer, 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.
Based on the foregoing, in accordance with Art. Art. 15, 309, 310, 929, 931, 1064 of the Civil Code of the Russian Federation; Art. Art. 3, 29 Code of Civil Procedure of the Russian Federation; Art. Art. 12, 14.1 FZ dated April 25, 2002 N 40-FZ; Art. Art. 9, 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, Art. Art. 13, 15, 17 of the Law of the Russian Federation “On Protection of Consumer Rights”
ASK:
Collect from the defendant in my favor:
- Penalty for delay in insurance payment under a motor insurance contract (casco)
- Compensation for moral damage
- A fine of 50% of the amount awarded to me.
Applications:
- Copy of the insurance contract
- A copy of the insurance act on the recognition of the event as an insured event (if any)
- Payment order for the transfer of insurance payment (if any)
- Calculation of claims.
- Copies of the statement of claim and the documents attached to it.
- Receipt of payment of state duty.
case No. 2-1209/2016
DECISION
name Russian Federation
February 18, 2016, the Oktyabrsky District Court of Rostov-on-Don, consisting of: presiding judge Agrba D.A.
under the secretary Gunchenko A.S.
having considered in an open court session a civil case on the claim of FULL NAME against LLC "BIN-Insurance" for the recovery of a penalty, court costs,
u s t a n o v i l:
The plaintiff filed a lawsuit against LLC "BIN-Strakhovanie" for the recovery of a penalty for improper performance of obligations under the CASCO agreement, court costs, in support of the claim, referring to the fact that between LLC "BIN-Strakhovanie" and full name concluded an agreement No. 10.11. 2013 voluntary insurance means of ground transportation and civil liability motor vehicle owners (CASCO) vehicle no. 11/01/2014 at:<...>, <...>There was an accident involving the plaintiff's car. The plaintiff's vehicle sustained mechanical damage as a result of the accident. The plaintiff, having collected all the necessary documents, applied to LLC "BIN Insurance" with a statement for the payment of insurance compensation, according to the results of damage assessment by the insurance company, insurance compensation was accrued in the amount of 520,091 rubles. and transferred to the plaintiff's account. Disagreeing with the amount of insurance compensation paid, the plaintiff turned to independent experts of Germes LLC to determine the amount of the restoration repair of her car. According to the conclusion of the technical expertise, 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 a forensic auto-merchandising examination in the amount of 338020.91 rubles, which is confirmed by payment order No. dated November 10, 2015. By the decision of the Oktyabrsky District Court of Rostov-on-Don dated November 16, 2015 with LLC "BIN Insurance" in favor of the full name recovered the amount of a fine in the amount of 171,510.45 rubles, compensation for non-pecuniary damage in the amount of 5,000 rubles, as well as court costs. 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 21.12.2014 to 10.11.2015 in the amount of 69,615.00 rubles. and the cost of paying for the services of a representative of 30,000.00 rubles.
Claimant in judicial sitting failed to appear, about the place and time of the trial duly notified, to the hearing provided a statement on the hearing in her absence, so the court hears the case in the absence of the plaintiff according to Article. .
The representative of the plaintiff by proxy at the hearing supported the claims and asked them to be satisfied, giving explanations similar to the arguments of the claim.
The representative of the defendant LLC "BIN Insurance" did not appear at the hearing, the time and place of the case was duly notified, as evidenced by the receipt of appearance, therefore the case was considered in the absence of the defendant's representative in accordance with Art. .
The court, having heard the persons participating in the case, having studied the materials of the case, considers the stated requirements to be satisfied on the following grounds.
In accordance with the provisions of Art. and Art. the court recovers from the defendant in state revenue state duty in the amount of RUB.
I decided:
Claims FULL NAME to LLC "BIN-Strakhovanie" for the recovery of penalties, court costs - partially satisfied.
To recover from BIN Insurance LLC in favor of the full name a penalty for the period from 12/21/2014 to 11/10/2015 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.
Collect from OOO «BIN Insurance» in state revenue state duty in the amount of 3288.45 RUB.
The decision can be appealed on appeal to the Rostov Regional Court through the Oktyabrsky District Court of the city of Rostov-on-Don within a month from the date of making a reasoned decision.
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 rightJudicial practice on the application of the norm of Art. 10 Civil Code of the Russian Federation
Penalty reduction
Judicial practice on the application of the norm of Art. 333 of the Civil Code of the Russian Federation
Question: the insurance company refuses to pay under a voluntary insurance contract (CASCO). In court, their representative stated that they must pay penalties in accordance with Article 395 of the Civil Code of the Russian Federation (at the refinancing rate), referred to the Review of the judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013 "(approved by the Presidium of the Supreme Court of the Russian Federation on 05.02.2014 ) Is it so?
Answer: Let's take a closer look at this review.
Review of the judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013” (approved by the Presidium of the Supreme Court of the Russian Federation on February 5, 2014) (Extract)
Approved by the Presidium of the Supreme Court of the Russian Federation
February 5, 2014 EXPLANATION ON ISSUES ARISING IN JUDICIAL PRACTICE
Question 1. What responsibility is assigned to the insurer for violation of the terms of payment of insurance compensation under the contract of voluntary property insurance of citizens?
Answer. By virtue of paragraph 1 of Art. 929 Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a property insurance contract, the insurer undertakes to pay a fee (insurance premium) stipulated by the contract upon the occurrence insured event pay insurance compensation to the insured or beneficiary within the sum insured determined by the contract.
The laws of the Russian Federation dated February 7, 1992 N 2300-1 “On Protection of Consumer Rights” (hereinafter - Consumer Rights Protection Law) 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 N 20 “On the application by courts of legislation on voluntary insurance of property of citizens”).
Special laws governing legal relations under a contract of voluntary property insurance of citizens (Chapter 48 "Insurance" of the Civil Code of the Russian Federation and Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation"), the liability of the insurer for violation of the terms insurance compensation is not provided.
Paragraph 5 of Art. 28 of the Law on the Protection of Consumer Rights provides for liability for violation of the terms for the provision of services to the consumer in the form of payment of a penalty charged for each day of delay in the amount of 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, the total price of the order.
In accordance with paragraph 1 of Art. 954 of the Civil Code of the Russian Federation, an insurance premium is understood as an insurance fee that the insured (beneficiary) is obliged to pay to the insurer in the manner and within the time limits established by the insurance contract.
The price of an insurance service is an insurance premium, for which an insurance service is purchased in the form of an obligation to pay insurance compensation upon the occurrence of an insured event. The payment of the insurance indemnity is not the price of the insurance service, therefore, the specified penalty cannot be charged on the amount of the insurance indemnity if its payment is delayed.
Violation of the terms of payment of insurance compensation within the sum insured represents a violation of the performance by the insurer of a monetary obligation to the insured, for which Art. 395 of the Civil Code of the Russian Federation provides for liability in the form of payment of interest accrued on the amount of insurance compensation payable.
Thus, in case of violation of the terms of payment of insurance compensation under the contract of voluntary insurance of property of citizens, only the interest provided for in Art. 395 of the Civil Code of the Russian Federation.
Bold indicates the elements that we will consider.
In the first paragraph, we are talking about the application of the law "On the Protection of Consumer Rights", and in the second about violation of the terms of payment insurance compensation.
The delay in the insurance payment is the delay in the provision of services.
Now, if it were written:
"Thus, in case of violation terms of payment of insurance compensation under a contract of voluntary property insurance of citizens may accrueonly interestprovided for in Art. 395 of the Civil Code of the Russian Federation",
then we can agree that 3% cannot be charged ..
But it is written:
“Thus, in case of violation of the terms of payment of insurance compensation under the contract of voluntary insurance of property of citizensfor the amount of insurance compensation may accrueonly interestprovided for in Art. 395 of the Civil Code of the Russian Federation.
Thus, the insurance company must pay both 3% of the insurance premium (the amount you paid for the policy) and the refinancing rate under Article 395 of the Civil Code of the Russian Federation from insurance compensation.
These conclusions are confirmed by the established judicial practice:
Samara District Court of Samara CASE No. 2-115/2013 (2-3823/2012;) ~ M-3577/2012
Supreme Court of the Russian Federation No. 46-KG13-7 DEFINITION Moscow January 28, 2014 (in the Samara case).
Forfeits under OSAGO are collected from the insurance company in 2 cases:
- delay in insurance payment;
- violation of the deadline for sending for refurbishment.
You can claim it in 2 ways:
- Simultaneously with the recovery of the principal debt, indicating it in the statement of claim.
- A separate statement of claim after the recovery of the principal debt.
The first way is preferable. Saves you time and money.
The amount of the penalty for OSAGO
The size of the forfeit under OSAGO was determined by the Supreme Court of the Russian Federation in the decision of the plenum No. 2 of 01/29/2015, p. 55, p. 56:
For failure to comply with the deadline for making an insurance payment or in-kind compensation for harm, it is determined in the amount of 1 percent for each day of delay from the amount of insurance compensation payable to the victim in a specific insured event, minus the amounts paid by the insurance company on a voluntary basis within the time limits established by Article 12 of the Law on OSAGO (paragraph two of paragraph 21 of Article 12 of the Law on OSAGO). The penalty for violating the deadline for issuing a referral for restoration repairs or for violating the deadline for performing such repairs is calculated at the rate of 1 percent for each day of delay from the amount of the insurance payment determined in accordance with Article 12 of the OSAGO Law.
The penalty for delay in payment under OSAGO is calculated from the day following the day set for making a decision on the payment of insurance compensation, and until the day the insurer actually fulfills the obligation under the contract.
As you can see, the maximum amount of the penalty under OSAGO is not established by law, it is collected as a percentage.
Within 20 calendar days, with the exception of non-working holidays, from the date of acceptance for consideration of the application of the victim 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 payment to the victim or issue him a referral for repairs vehicle indicating the period of repair, or send a reasoned refusal to the insurance payment to the victim.
Calculation of the penalty for OSAGO
The calculation of the penalty for OSAGO is made according to the formula:
S*1%*D=N
S - The amount payable by the insurer (determined by the appraiser's report or court decision).
1% - the amount of the penalty for each day of delay.
D - Number of days overdue.
N - The amount of the penalty.
1 calculation - for delay in insurance payment and 2 calculation - for failure to issue a referral for refurbishment
Calculation No. 1. Delay in insurance payment for OSAGO.
Suppose that the amount of damage from an accident according to an independent examination amounted to 178,000 rubles. The insurance company voluntarily paid 75,000 rubles within the established time limits. The difference in the insurance payment collected through the court is 103,000 rubles.
It took us 74 days to pre-trial settlement, court with the insurance company, up to the collection of the insurance payment by court decision. Now let's combine our numbers with the formula
103,000 rubles x 1% x 74 days = 76,220 rubles
- 103,000 rubles - the amount recovered by the court or payable based on the results of an independent assessment.
- 1% - the amount of the penalty for each day of delay
— 74 days - the number of days from the moment when the insurance company was supposed to make an insurance payment (within 20 calendar days from the date of submission of the full package of documents, the insurer must make an insurance payment).
- 76,220 rubles - the amount of the penalty to be recovered.
Calculation No. 2. Violation of the deadline for issuing a referral for refurbishment.
Suppose that, according to the results of an independent examination, the damage from an accident amounted to 87,000 rubles. The OSAGO agreement provided that insurance payment carried out by sending for repair to the dealer station. The insurer overdue the referral for repairs by 21 days. We use the same formula and perform a calculation similar to Calculation No. 1
87,000 x 1% x 21 = 18,270 rubles
- 87,000 rubles - the amount of damage based on the results of an independent assessment.
- 1% - the amount of the penalty for each day of delay.
— 21 days - the number of days from the moment when the insurance company should have sent you for repairs (within 20 calendar days, from the date of submission of the full package of documents, the insurer must decide on sending you for repairs).
- 18,270 rubles - the amount of the penalty to be recovered.
Court on the basis of Art. 333 of the Civil Code of the Russian Federation has the right to reduce the amount of the penalty.
Quote from the decision of the Supreme Court of the Russian Federation.
“The application of Article 333 of the Civil Code of the Russian Federation on the reduction of the penalty by the court is possible only in exceptional cases, when the penalty payable is clearly disproportionate to the consequences of the violated obligation. Reducing the penalty, is allowed only at the request of the defendant. The decision must indicate the reasons why the court believes that a reduction in its size is permissible.
What needs to be done so that the court does not reduce the amount of the penalty
We are often approached with a complaint - The court reduced the penalty for a lawsuit against an insurance company.
So here it is so that the court "disgracefully" does not cut the amount of the penalty for OSAGO, in the objection to the defendant's (insurance company's) application to reduce the amount of the penalty, in justification of the amount of the penalty, indicate the following ...
"By virtue of para. 2 paragraph 21 of Art. 12 of the Law on OSAGO, clause 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 29, 2015 N 2 “On the application by the courts of legislation on compulsory insurance of civil liability of vehicle owners” in case of non-compliance with the deadline for making an insurance payment or compensation for damage in kind, the insurer for each the day of delay pays the victim a penalty (fine) in the amount of one percent of the amount of the insurance payment for the type of harm caused to each victim, payable to the victim in a specific insured event, minus the amounts paid by the insurance company on a voluntary basis.
By virtue of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the breach of obligation, the court has the right to reduce the penalty.
Part one of Article 333 of the Civil Code of the Russian Federation providing for the possibility of establishing a balance between the measure of responsibility applied to the offender and the amount of actual damage caused as a result of the offense committed by him, does not assume that the court has absolute initiative in terms of reducing the penalty- based on the principle of implementation civil rights in his own will and in his own interest (paragraph 2 of Article 1 of the Civil Code of the Russian Federation), the penalty may be reduced by the court if there is an appropriate expression of will on the part of the defendant. Otherwise, the court, in the course of legal proceedings, would actually act from the position of one of the parties to the dispute (the defendant), making a decision on the implementation of the right for it and relieving it of the obligation to prove that the penalty is disproportionate to the consequences of the violation of the obligation.
Based on the meaning of this legal norm, as well as the principle of exercising civil rights by one's own will and in one's own interest (Article 1 of the Civil Code of the Russian Federation) the amount of the penalty can be reduced by the court on the basis of Article 333 of the Civil Code of the Russian Federation only if there is a corresponding application from the defendant in exceptional cases with the obligatory indication of motives for which the court believes that a reduction in the amount of the penalty is admissible.
The provision of the first part of Article 333 of the Civil Code of the Russian Federation in the system of the current legal regulation according to the meaning attached to it by the established law enforcement practice, does not allow opportunity for the court to decide on reducing the amount of the penalty on the grounds of apparent disproportion consequences of breach of obligation without the defendants presenting evidence confirming such disproportion without giving them the opportunity to prepare and substantiate their arguments and without discussing this issue in court.
The defendant must provide evidence that the penalty is clearly disproportionate to the consequences of the breach of the obligation, in particular, that the possible amount of the creditor's losses that could have arisen as a result of the breach of the obligation is significantly lower than the penalty charged. The plaintiff, in order to refute such a statement, has the right to present arguments confirming the proportionality of the penalty to the consequences of the violation of the obligation.
Reducing the amount of the penalty should not lead to unreasonable release of the debtor from liability for the delay in fulfilling the obligation.
This position is enshrined in the Ruling of the Supreme Court of the Russian Federation of June 23, 2015 No. in case 78-GK15-11, Ruling of the Constitutional Court of the Russian Federation of January 15, 2015.
We believe that the Respondent did not provide evidence confirming that he had any exceptional circumstances that could reduce the amount of the accrued penalty, did not provide evidence that the penalty was disproportionate to the consequences of the breach of obligation.”
Forfeit under OSAGO judicial practice
NOTE!
The court is NOT RIGHT reduce the amount of the penalty yourself! Only at the request of the defendant.
Even if the court reduces the amount of the penalty, it will be a small amount, and in the event of an appeal to a higher authority, you will defend your money.
Below is a court decision in which the plaintiff did not draw the attention of the court to the practice of the Supreme Court of the Russian Federation under Art. 333 of the Civil Code of the Russian Federation. as a result of UD reduced the penalty for OSAGO by 40%.
Of the declared 40,000 rubles, only 25,000 rubles were recovered.
The Casco penalty is one of the measures of civil liability of the insurer, in connection with non-fulfillment or improper (untimely) fulfillment by him of the obligations assumed under the contract of voluntary insurance of vehicles. Despite the positive trend in the court practice of collecting a penalty for Casco in favor of the insured, a number of questions still remain open.
It is worth noting the ambiguous approach of the courts to the issues of collecting a penalty for Casco. In particular, it was noted that the collection of a penalty was made directly dependent on the collection of interest for the use of other people's in cash where the application of one financial sanction to the insurer excluded another.
Not so long ago, the courts proceeded from the fact that in the event of a violation by the insurer of the terms of the insurance payment for Casco, the consumer, at his request, could only be charged interest on the amount of insurance compensation for the use of other people's money. However, since the beginning of 2015, a fundamentally different position of the courts has taken shape in resolving the issue of collecting a penalty for Casco.
Important! The courts consider it possible to collect a penalty from insurers who have violated the terms for the settlement of losses.
At the same time, the norms of legislation on the protection of consumer rights are fully applied to the legal relations under consideration in terms of the amount of the penalty and the grounds for its collection. True, it is still worth allowing a small amendment to the rules of voluntary insurance, which stipulate the terms for settling the relationship between the insurer and the insured in connection with the insured event.
In connection with what you can get a penalty for Casco
In most insurance companies, the payment of insurance compensation in connection with an insured event is supposed to be in the form of sending a damaged vehicle for repair. In extremely rare cases, compensation in cash is allowed. It is this circumstance that is the factor that deters policyholders: the most frequently encountered questions are when you can go to court, what payment you should expect, how long the trial will take, what amount of the penalty and other penalties for Casco will be collected by the court, etc. .
Important! Like any service, an insurance payment, regardless of its form, must be made within a specific time frame.
Conventionally, they can be divided into two groups: the terms associated with the issuance of a referral for repairs and, in fact, the terms of the repair of the damaged vehicle itself. If the first group is clearly spelled out, then the duration of the second is determined by analogy with the Law of the Russian Federation "On the Protection of Consumer Rights" is no more than 45 days.
Important! It is the violation of one of the terms for the provision of services that entails the insured's right to receive a penalty for Casco.
Calculation of the penalty for Casco
Guided by the same Law of the Russian Federation "On Protection of Consumer Rights", the amount of the penalty for Casco can be determined as 3 percent of the cost of the service for each day of delay. The courts approach the determination of the cost of services with noticeable unanimity. An insurance service from the standpoint of current legislation is nothing more than a financial service provided by an insurance organization (insurer), the paramount importance of which is to protect the interests of policyholders in the event of the occurrence of certain events recognized as an insured event.
The price of the insurance service is defined as the insurance premium paid by the insured, at the price of which the Casco insurance policy is purchased. Here it is worth noting in advance that the payment of insurance compensation, no matter how much you would like it, is not the price of insurance services - this is a kind of monetary equivalent of the result of the provision of this service by the insurer. And that is why the amount of insurance compensation in the event of a delay in its payment, the penalty for Casco is not charged. True, one should not lose sight of the fact that the amount of the insurance payment, in case of violation of the terms of its implementation, may be charged interest for the use of other people's money.
Important! When calculating the penalty, the main thing is not to lose sight of the fact that the amount of the amount to be collected is limited.
The amount of the penalty by the consumer cannot exceed the total cost of the service, i.e. the amount of insurance premium paid. Thus, if when buying a Casco policy, 80 thousand rubles were paid to the cash desk of an insurance company, then when calculating the penalty, this will be the maximum that you should focus on.
How interest is calculated
Since the insurance indemnity under the CASCO agreement is a monetary obligation, the violation of the terms of its payment according to the concluded agreement within the specified sum insured is a violation by the insurer in terms of fulfilling its monetary obligations to the person who insured his liability. In this regard, based on the provisions of Art. 395 of the Civil Code of the Russian Federation, for failure to fulfill the obligation assumed to not pay the due insurance compensation on time, liability is provided, which is expressed in the form of payment of interest on the amount of the debt. The amount of such interest is determined based on the key rate of the Bank of the Russian Federation established for the given period. In the event that the interest rate for improper performance by the insurer of its obligation is established by the contract, then it is applied for calculation.
Important! When calculating the amount of interest for the use of other people's funds, it is necessary to apply the key rate established at the time of filing the claim with the court.
Interest for the use of other people's funds must be collected from the insurer from the moment:
- refusal of the insurer to pay insurance compensation;
- payments are not in full;
- expiration of the term for payment of insurance compensation.
Thus, if an obligation provides for a moment (period of time) when it must be fulfilled, then its failure to fulfill it entitles the person who has insured his liability under CASCO to demand payment of interest for the use of other people's money on the basis of Art. 395 of the Civil Code of the Russian Federation and guided by paragraph 43, paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 No. 20 “On the application by courts of legislation on voluntary insurance of property of citizens”.
Calculation example
The amount of interest for the use of other people's funds to be recovered from the insurer is determined based on the key rate of the Bank of Russia on the day the claim is filed with the court and the days of delay in payments. The key rate of the Bank of Russia at the time of filing the claim was set in accordance with the Information of the Bank of Russia dated March 24, 2017 “The Bank of Russia decided to reduce the key rate to 9.75% per annum” and has been 9.75% per annum since March 27, 2017.
For example, an insurance company failed to fulfill its obligation to pay insurance compensation in the amount of 200,000 rubles. The day when this insurance indemnity should have been paid is January 30, 2017. Thus, the interest calculation period is taken from 01/30/2017 to March 2017 inclusive and will be 61 days.
The debt of the insurer to the person who insured his liability under CASCO for the use of other people's funds is calculated by the formula: multiply the amount of the unpaid principal debt of 200,000 rubles by 9.75% per annum (key rate) and multiply by 61 (the number of days of delay in payment) and divide for 360 (days a year): 200,000 x 9.75 x 61: 36,000 = 3,304 rubles 17 kopecks.
In total, for the period from 01/31/2017 to March 2017, the insurer is obliged to pay interest on the use of other people's funds in the amount of 3,304 rubles 17 kopecks.
Who makes the decision on collection?
The decision to collect insurance compensation and interest for the use of other people's money is made only by the judicial authority on the basis of the filed statement of claim. The court in its actions will be guided by the norms of the law governing civil law relations. At the same time, close attention will be paid to the study of the evidence provided by the plaintiff (expert opinion, the occurrence of an insured event, the obligations of the insured himself, the correctness of the calculation of the amounts recovered).
Important! The court in its decision, when satisfying the claims, will oblige the insurer to pay not only insurance compensation, but also a fine in the form of a penalty.
Statement of claim
Payment procedure
After the court has made a decision and awarded the due payments to the insured, it is necessary to wait for the decision to come into force. After thirty days, the applicant should contact the court office and receive a writ of execution, which should be submitted to the bailiff service. After the bailiffs initiate a case for the recovery of funds from the insurance company, the amount indicated in the writ of execution will be transferred to the plaintiff's account.
Payments for legal entities
Payments for legal entities upon the occurrence of an insured event are made according to the same rules as for individuals, since property insurance is carried out in the same manner and on the same grounds as for an ordinary citizen. At the same time, it is worth mentioning that payments for insured property, including a car owned by a company, must first be claimed from the insurance company in pre-trial proceedings, and only after the refusal or insufficiency of the specified payment, entity may file a lawsuit in court. The statement of claim must be accompanied by the necessary package of documents containing the evidence base for the occurrence of the insured event and the grounds for payment of insurance compensation.
You can use the prepared general form and fill it out. The template is available for download and viewing.
Limitation period
The general statute of limitations for cases arising from civil legal relations is three years. At the same time, the law in Art. 966 of the Civil Code of the Russian Federation establishes a special limitation period for claims that the insured person is entitled to present under a property insurance contract, as a CASCO contract.
Important! The limitation period begins to be calculated from the moment when the person demanding compensation and who did not receive it, or who did not receive it in full, learned about the violated right.
Separately, it is worth noting that the statute of limitations for subrogation is three years, as it affects the relationship between the insurer and the perpetrator of the accident. Consequently, the insurer has the right to recover from the perpetrator in full the amount that he paid to the victim as part of the compensation for property damage, within three years after the fulfillment of the obligation.
Examples from judicial practice
Due to the incorrect interpretation of the law by some courts when deciding on the payment of a penalty or the collection of interest from the insurance company for the use of other people's funds, the Ruling of the Supreme Court of the Russian Federation dated 09/01/2015 No. 11-KG15-25 clarified the application of the norms of Art. 395 of the Civil Code of the Russian Federation and Art. 28 of the Law “On Protection of Consumer Rights”. main essence this definition is an indication that in case of non-payment of insurance compensation, the insurance company is obliged to pay a penalty for each day overdue. In this case, the penalty implies the use of other people's money, and therefore, the calculation of this penalty occurs according to the rules established by Art. 395 of the Civil Code of the Russian Federation.
Important! Some courts, when satisfying claims for payment of a penalty to the applicant, apply the Law “On Protection of Consumer Rights”, others are guided by the norms of the law governing civil law relations.
So, in the Appellate ruling of the Moscow City Court dated December 24, 2013, case No. 11-42045, the court determined that the insurance compensation is a monetary obligation, and thus, the insurer will be liable if this obligation is not fulfilled in accordance with Art. 395 of the Civil Code of the Russian Federation.
No matter how the circumstances develop, a well-written statement of claim for the recovery of property damage and interest for the use of other people's money will make it possible to satisfy the applicant's requirements. In order to defend your rights in a lawsuit, you need to seek the help of a professional lawyer who will take into account all the subtleties of the case on this issue.
ATTENTION! Due to recent changes in legislation, the information in the article could be outdated! Our lawyer will advise you free of charge.
