Voluntary car insurance civil liability(CASCO) is carried out as an additional safety net in case of an accident, which can entail much more damage than the OSAGO policy can cover.
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Paragraph 5 of article 28, relating to the law protecting the rights of consumers, dated 02/07/92, which was amended on 07/13/15, agreed on the limit of the penalty that an insurance company must pay if it delays payments.
Such conditions should always be spelled out in the contract, so when concluding it, you need to carefully study the text of the document before signing it.
What it is
The penalty in connection with CASCO insurance contracts is provided in order to compensate as much as possible for those days of waiting that the insured (the injured party - the insured person) spends, hoping to receive the due payments.
As soon as an insured event occurs under CASCO, and the client has submitted an application for insurance, the company must immediately begin to calculate.
If a company violates the deadlines, then it violates the law not only in relation to the protection of consumer rights, but also in relation to the Civil Code of the Russian Federation -.
It can also be said that the consumer protection law itself in relation to the acquisition of CASCO and its operation will be applied exclusively on a general basis.
Legislatively, the product of compulsory auto insurance is protected by a special federal law, which is issued separately - only for OSAGO. But there are no special laws for voluntary insurance.
That is why all the norms, rules and obligations under CASCO are carried out on the basis of an agreement and are subject to settlement by those legislative acts that are valid for all consumers.
Such relationships will be protected by the following parts from the consumer rights law:
- talks about the rights to receive and provide the necessary information;
- highlights the responsibility that the violator of consumer rights will bear;
- discloses the procedure for compensation for harm;
- - moral harm to the consumer and its compensation;
- – exemption based on , .
However, Art. 395 of the Civil Code of the Russian Federation, which refers to a violation by the insurer monetary obligation to the client in the event of an insured event.
It is in this legal material that it is said about the interest that the insurer is obliged to pay in case he delays the accrual of the required insurance to the client's account.
Also on the basis of those relationships that imply a specific period for making payments, must be fulfilled on time.
But if they are not fulfilled on time, then a penalty is provided for each day for the party responsible for this.
Summing up, we can say that a CASCO penalty is a kind of fine for an insurance company that has not fulfilled its obligations to the client on time.
How is the collection
If for OSAGO separate law there is a clear deadline within which the insurance company must meet in order to fully pay off the insured, there is no such law for CASCO.
Moreover, there is also no other legal act that could clearly show the period of time allotted for payments by the insurer.
To understand the timeliness of such payments or to prove in court that the insurer has delayed them, first of all, you should pay attention to the terms of the contract.
Often, all terms are either prescribed in the text of the insurance contract, indicated in the Insurance Rules, which are issued to the client along with the policy, or are calculated separately when the insured applies for payment.
But it is possible to single out the general practice of insurance organizations, where specific deadlines are clearly outlined. These terms are set by the insurers themselves and prescribed in the contract. It is the contract that is the basis for the obligations that the insurer has assumed.
Deadlines put forward Insurance companies for making payments in respect of insured events under the CASCO product:
| Conditional level of the insurance company | Approximate number of clients served | Terms for payments under CASCO agreements | As is usually done in practice (recorded by experts) |
| Major insurers | The client base is calculated in millions of policyholders. | 14 days from the date of application. | They strictly follow their obligations, they rarely receive claims and pre-trial claims from clients. |
| Middle link among insurers | From 50,000 to 1 million policyholders. | Within a month. | Often they can delay payments. They are more willing to solve insured events with the provision of repairs, rather than cash compensation payments. |
| small insurance companies | From 5,000 to 50,000 clients. | From one week to demand. | From one week until the client starts to complain. |
| Practically little-known offices | From 5000 people as clients. | Timing is unstable. | They rarely pay insurance. Fraud detected. The office may suddenly close. |
If the insurance is used by the client as a repair of a damaged car, then the most popular insurers promise to fulfill their obligations in one to two weeks.
Only with a shortage of some spare parts, repairs can be delayed for a longer period - from a month to several months.
It should also be noted that the starting point of the deadline is not the day of the incident, but the day the insured submits a full package of documents for payments.
Penalties are collected from the insurer on the basis of filing a pre-trial claim, and then, if the insurer does not respond, you can file a lawsuit in court.
Calculation of the penalty for CASCO
Despite the fact that any insurance company does not advertise the calculation of fines and leaves it to the prerogative of its specialists, nevertheless, each client, if desired, can find out both the calculation formula and the procedure for calculating the penalty due to overdue payments by the insurer.
How is it calculated
Penalty percentages should be charged on the amount of insurance that should compensate for damage, but it was not carried out due to violations by the insurance company of its terms and obligations under the voluntary auto insurance agreement concluded with the client.
The moment from which the countdown of unfulfilled obligations by the insurer begins is either the day of refusal to pay (it must be officially issued in writing), or this is the day following the day of the end of the period attributable to the fulfillment of obligations by the insurer under the Insurance Rules.
Formula
It is customary for jurists to attribute damages to an obligation that must be strictly fulfilled by those responsible for this.
The same applies to CASCO insurance. Violations of this type of obligations will be considered by law as illegal use of other people's money.
Delays in payment of insurance must always be compensated by insurers in the appropriate amount. And in order to calculate such a volume, you need a special formula, which is enshrined at the legislative level and is standard.
According to Article 395 of the Civil Code of the Russian Federation, the CASCO penalty will be calculated according to the following algorithm:
Insurance under the contract x refinancing rate x how many days delayed: 360 = amount due to the client (forfeit).
Example
For example, some insurance company owes 100 thousand rubles for insurance compensation. At the same time, she has already paid part of the insurance amount to the client in the amount of 250 thousand rubles.
According to the Insurance Rules, the last day when the insurer is obliged to transfer money to the policyholder's account is January 24, 2020. However, it is already February 24, and there were still no transfers.
With the right approach to calculations, the calculation algorithm will be as follows:
Statement of claim
Usually, statement of claim to settle issues on the obligations of insurance companies includes not only a request to oblige the insurance company to pay the claimant the due amounts, but also to charge a penalty for overdue days.
Very often, such statements of claim already contain in their text the approximate amount of the CASCO penalty in the form of a calculation.
A detailed statement of the essence of the case, an indication and references to legislative acts, as well as the most accurate data about the plaintiff and the defendant - all this will contribute to a quick and positive court decision - in favor of the plaintiff.
Therefore, without consulting a lawyer or lawyer when drawing up such a statement, it is impossible to do.
Who makes the decision to collect
Such decisions are made by the courts. However, the relationship can also be settled before going to court, through a pre-trial claim, which the client submits to the head of the insurance company.
The court will always require evidence in documentary form, which would confirm or help to establish the moment of violation of the obligation by the insurance company.
In case of compensation for damage by repair, the fulfilled obligations will be recognized as the end repair work and receipt by the client of the act of acceptance and transfer of works (services performed).
In the case when the damage is compensated in cash, the fulfillment of the obligation by the insurer is the transfer to the client's account of the amount due to him under the contract.
If such obligations are violated, then only the court can force the insurer to fulfill them. By a court decision, not only the company's fulfillment of its obligations is determined, but also the payment of compensation for the delay - a penalty.
The court will be based on the laws that protect the rights of the consumer, as well as on the articles of the Civil Code. At the same time, the conclusion of experts who calculate the timing and amount of payments will be one of the main documents that are studied by the judge.
Close attention is also paid to the obligations of the insured - whether he made insurance payments on time every month, whether the case is insured, whether there were any violations of the contract on his part, etc.
After determining the guilt of the insurance company, the court decides that the insurer not only fulfills its obligations under the contract, but also pays a fine in the form of a penalty - for example, 3% of the insurance for each overdue day.
Examples from judicial practice
Incorrect interpretation of local judicial instances over time led the Supreme Court of the Russian Federation to the need to revise the judicial practice in the regions of the country.
So it was published, which deals with explanations and clarifications of how the courts should interpret the legislative act on the protection of consumer rights, as well as Art. 395 of the Civil Code of the Russian Federation.
This document reveals the essence of the fact that insurers, be that as it may, are obliged to pay the insured a penalty for each overdue day when the company was unable to transfer insurance payments to the client's account on time.
Under the penalty legislative document understands the misuse of other people's money.
Suppose the court revealed the conclusion of an agreement between the insurer and the plaintiff of voluntary auto insurance in the amount of 1 million 81,100 rubles.
However, the beneficiary is not the owner of the car, but the bank where the car was purchased on credit. In the middle of the loan agreement, the client filed an application for an insured event - theft, against which the car was insured.
But the insurance company refused to pay out the insurance, responding to a pre-trial claim. As a result, the citizen filed a lawsuit in the court at the place of residence. It's been 2 weeks since the application was filed.
The amount of damage was determined by the amount of the balance of the client's debt to the bank under loan agreement.
The client has already paid half of the cost of the car in the amount of - RUB 595,150.45 And since the investigation by the police showed that the car was not found, the bank needs damages.
The court in the first instance and in the second (appellate) court satisfied the claim and established for payment:
1 81 100 - 595 150.45 \u003d 485 949.55 rubles.
It was from this amount that the court calculated the penalty (3%) for 14 days when the insurer did not fulfill its obligations:
485,949.55 x 14 x 3: 360 = 56,694.11 rubles
Thus, by court decision, the insurance company was obliged to pay the beneficiary - the bank
485,949.55 + 56,694.11 = 542,643.66 rubles
Pay
After the satisfaction of the lawsuit, the penalty for the delay must be paid by the insurer to the account of the beneficiary - the insured person.
The amounts must be transferred in the order established by the court decision for the insurance company. When filing a lawsuit, the applicant indicates his details.
However, the insurer has them even when the client submits an application or a pre-trial claim, where he asks the company to fulfill its obligations and pay insurance to the specified account.
If during judicial trial the insurer has already paid the due amounts on its own, then the court may recognize this fact and refuse the plaintiff. Such cases are not uncommon in judicial practice.
How it is paid for legal entities
Insurance of property belonging to a legal entity - an enterprise, organization or some institution, is also subject to the same rules as insurance of property of individuals. This also applies to auto insurance on a voluntary basis.
If an organization was delayed in paying insurance for an insured car on its balance sheet, then the procedure for going to court is exactly the same.
Initially, a pre-trial claim is filed with the insurance company, then, if the management does not answer or react in any way, you can already file a lawsuit in court.
Limitation period
All claims for voluntary car insurance have their own statute of limitations. By law, this period is 2 years. The definition of such a short period is associated with property insurance.
Because in comparison with insurance covering the costs of restoring health after an accident, the statute of limitations will be completely different - much longer.
Determination of the IC in civil cases of the Supreme Court of the Russian Federation of June 26, 2018 N 67-KG18-11 The court canceled the appeal ruling on the refusal of the claim for recovery insurance compensation, penalties, fines and compensation for non-pecuniary damage, and the case was referred for a new trial, since non-payment of the insurance compensation to the insured within twenty days is a failure to fulfill the obligation of the insurer in accordance with the procedure established by law and for the delay in its execution, a penalty is to be collected from him
Judicial Collegium for Civil Cases of the Supreme Court Russian Federation as part of
presiding Astashov S.V.,
judges Getman E.C. and Maryina A.N.
examined at the hearing a civil case on the claim Savchenko Yew.C. to OJSC "AlfaStrakhovanie" for the recovery of insurance compensation, forfeit, fine and compensation for non-pecuniary damage
on appeal representative Savchenko Yew.C. - Shalyupy E.V. against the decision of the Central District Court of Novosibirsk of April 11, 2017 and the appeal ruling of the Judicial Collegium for Civil Cases of the Novosibirsk Regional Court of July 6, 2017.
Having heard the report of the judge of the Supreme Court of the Russian Federation Getman E.S., explanations of the representative of AlfaStrakhovanie OJSC by proxy A.V. Rozhkov, who objected to the satisfaction of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:
Savchenko Yu.S. filed a lawsuit against AlfaStrakhovanie OJSC with a claim for the recovery of insurance compensation in the amount of 70,421.73 rubles, a penalty in the amount of 86,046.60 rubles, compensation for moral damage in the amount of 20,000 rubles, a fine in the amount of 50% of the amount awarded sums, expenses for the services of a representative in the amount of 15 000 RUB.
In support of the claims Savchenko Yew.C. She stated that her car was damaged in the accident. The insurance company of the tortfeasor recognized the case as insured and paid insurance compensation in the amount of 133,400 rubles. Disagreeing with the amount of insurance compensation, in order to determine the actual size of the losses to be compensated Savchenko Yew.C. turned to an independent expert, according to the report of which the cost of restoring the vehicle, taking into account wear and tear, amounted to 229,401 rubles, the cost of the appraiser's services amounted to 12,000 rubles. After filing a claim for additional payment of insurance compensation requirements Savchenko Yew.C. were satisfied by the insurance company in the amount of 40,679.27 rubles.
By the decision of the Central District Court of Novosibirsk of April 11, 2017, left unchanged by the appeal ruling of the Judicial Collegium for Civil Cases of the Novosibirsk Regional Court of July 6, 2017, the claims were denied.
Representative Savchenko Yu.S. - Shalyupa E.V. filed a cassation appeal, which asks for the transfer of the complaint with the case for consideration in the judicial session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation to cancel the adopted judicial decisions as illegal.
The definition of the judge of the Supreme Court of the Russian Federation Getman E.S. dated May 23, 2018, the cassation appeal with the case was submitted for consideration in the judicial session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.
After checking the case file, discussing the arguments set forth in the cassation appeal, objections to the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds provided for by law to satisfy the cassation appeal.
In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in cassation are significant violations of the norms of substantive law or norms of procedural law that influenced the outcome of the case and without the elimination of which it is impossible to restore and protect the violated rights, freedoms and legal interests, as well as protection of legally protected public interests.
Such violations of the law were committed during the consideration of this case by the courts of both instances.
As established by the courts and follows from the case file, February 22, 2016 at the address: Novosibirsk, st. Bogatkova, d. 92 there was a traffic accident involving four cars, as a result of which Savchenko Yu.S. car "Toyota Corolla" under the control of Sokolova S.V. received mechanical damage.
The driver of the car "Toyota Carina" Yurkevich A.O., whose civil liability is insured by AlfaStrakhovanie OJSC, was found to be the culprit of the accident.
March 9, 2016 Yu.S. Savchenko applied to the named insurance company with an application for payment of insurance compensation, attaching the necessary documents.
On March 24, 2016, the insurance company paid out insurance compensation in the amount of 133,400 rubles. (130,800 rubles in compensation for damage to the vehicle and 2,600 rubles for troubleshooting a car), determined by AvtoExpert LLC in an expert opinion dated March 22, 2016 N 969/16-L.
On July 5, 2016, Yu.S. Savchenko, disagreeing with the amount of the paid insurance indemnity, applied to AlfaStrakhovanie OJSC with a claim, in which she asked for an additional insurance indemnity in the amount of 199,721.50 rubles, attaching an expert opinion of SibAvtoASS LLC dated June 6, 2016 N 84344.
On July 8, 2016, the insurance company made an additional payment of insurance compensation in the amount of RUB 40,679.27. on the basis of the expert opinion of Priceconsult LLC dated July 6, 2016 N 780331.
The total amount of payment of insurance compensation amounted to 171,479.27 rubles. (130,800 rubles + 40,679.27 rubles).
According to the conclusion of the forensic merchandising examination dated February 21, 2017, conducted by LLC "Laboratory forensic examination", the amount of damage caused by damage to the car "Toyota Corolla", owned by Yu. good leftovers(240,705 rubles - 70,125 rubles).
In refusing to satisfy the claim, the courts of first and appeal instances proceeded from the fact that the company had paid insurance compensation for total amount RUB 171,479.27 within the time limits established by law for consideration of the application (20 days) and claims (5 days), in connection with which they came to the conclusion that there were no grounds for recovering from the company a penalty, compensation for non-pecuniary damage and court costs.
It is impossible to agree with the conclusions of the courts for the following reasons.
In accordance with Article 309 of the Civil Code of the Russian Federation, obligations must be properly 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 customs or other usually imposed requirements.
By virtue of paragraph 1 of Article 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty interest) is recognized as determined by law or contract sum of money, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in case of delay in performance. Upon a demand for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him.
Article 7 federal law dated April 25, 2002 N 40-FZ "On Compulsory Insurance of Civil Liability of Vehicle Owners" (hereinafter referred to as the OSAGO Law) sum insured, within which the insurer upon the occurrence of each insured event (regardless of their number during the term of the contract compulsory insurance) undertakes to compensate the victims for the harm caused, amounts to 400 thousand rubles in terms of compensation for damage caused to the property of each victim.
By virtue of paragraph 21 of Article 12 of the Law on OSAGO within 20 calendar days, except for non-working holidays, from the date of acceptance for consideration of the application of the victim for insurance payment or direct reimbursement of losses and 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 the repair of the vehicle with an indication of the repair period, or send the victim a reasoned refusal to pay the insurance payment. In case of non-observance of the term for making an insurance payment or indemnification in kind, the insurer for each day of delay shall pay to the victim a penalty (penalty) in the amount of one percent of the amount of insurance payment determined in accordance with this federal law according to the type of harm caused to each victim. The forfeit (fine) or the amount of the financial sanction provided for by the specified paragraph in case of non-compliance with the term for making the insurance payment or the term for sending the victim a reasoned refusal to pay the insurance payment shall be paid to the victim on the basis of an application filed by him for the payment of such a penalty (penalty) or the amount of such a financial sanction, which indicates the form payment (cash or non-cash), as well as Bank details for which such a penalty (fine) or the amount of such a financial sanction must be paid if the victim chooses non-cash form calculation, while the insurer is not entitled to require additional documents for their payment (paragraphs one, two and four).
In accordance with paragraph 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", which was in force at the time of the dispute, the penalty is calculated from the day following the day established to make a decision on the payment of insurance compensation, and until the day the insurer actually fulfills the obligation under the contract.
Similar clarifications are contained in paragraph two of clause 78 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 26, 2017 N 58 "On the application by courts of legislation on compulsory insurance of civil liability of vehicle owners."
According to paragraph 2 of Article 16.1 of the OSAGO Law, the proper fulfillment by the insurer of its obligations under a compulsory insurance contract is recognized as making an insurance payment or issuing a repaired vehicle in the manner and within the time limits established by this federal law.
By virtue of paragraph 5 of Article 16.1 of the OSAGO Law, the insurer is released from the obligation to pay a penalty (penalty), the amount of a financial sanction and (or) a fine, if the insurer's obligations were fulfilled in the manner and within the time limits established by the specified federal law, and also if the insurer proves that the violation of the terms occurred due to force majeure or through the fault of the victim.
From the content of the above norms of law and clarifications of the Plenum of the Supreme Court of the Russian Federation, it follows that failure to pay the required amount of insurance compensation to the insured within twenty days is a failure to fulfill the obligation of the insurer in the manner prescribed by law; for the delay in fulfilling the obligation to pay the insurance indemnity, the insurer is liable to collect a penalty, which is calculated from the day following the day when the insurer was supposed to pay the proper insurance indemnity, and until the day the obligation is actually fulfilled. At the same time, the additional payment of insurance compensation in the procedure for settling a claim filed in accordance with the requirements of Article 16 of the OSAGO Law does not relieve the insurer from liability for violation of the deadlines established by paragraph 21 of Article 12 of the OSAGO Law, and does not exclude the application of a civil law sanction in the form of a legal forfeit, since the proper term for the payment of the insurance indemnity corresponding to this insured event to the insurant is exactly twenty days.
It follows from the circumstances established by the courts that after the plaintiff's initial application for the payment of insurance compensation on March 9, 2016, the insurer did not properly fulfill its obligation within 20 days, since it did not pay the insurance compensation in full.
The missing part of the insurance indemnity was paid by the insurer voluntarily, but after the expiration of the period established by paragraph 21 of article 12 of the OSAGO Law, while the court did not see any grounds for collecting additional insurance payments in favor of the plaintiff, which, by virtue of paragraph 3 of Article 16.1 of the OSAGO Law, exempted the insurance company from paying a fine, but did not deprive the plaintiff of the right to recover a penalty and compensation for moral damage, given that the court did not establish the circumstances that the incomplete payment of insurance compensation occurred due to force majeure or through the fault of the victim.
The violations of the norms of law committed by the court of first instance and not eliminated by the court of second instance are significant, influenced the outcome of the case, without their elimination it is impossible to restore and protect the violated rights and legitimate interests of Yu.S. Savchenko.
In order to comply reasonable time(Article 6.1 of the Civil Procedure Code of the Russian Federation) The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considers it necessary to cancel the appeal ruling of the Judicial Collegium for Civil Cases of the Novosibirsk Regional Court dated July 6, 2017 in full and send the case for a new appeal hearing.
In a new consideration of the case, the court should take into account the above and resolve the dispute that has arisen in accordance with the requirements of the law.
Guided by articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:
cancel the appeal ruling of the Judicial Collegium for Civil Cases of the Novosibirsk Regional Court dated July 6, 2017, send the case for a new trial to the court of appeal.
Judges Getman E.S.
Maryin A.N. Document overview
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation drew attention to the fact that the OSAGO Law establishes a 20-day period for making insurance payments. For delay in fulfilling the obligation to pay insurance compensation, a penalty is collected. In this case, failure to pay the required amount of insurance compensation within 20 days is a failure to fulfill the obligation of the insurer. Additional payment of insurance indemnity in the procedure for settling a claim does not relieve him of liability for the delay and does not exclude the application of a sanction in the form of a legal penalty.
In a disputable case, the insurer did not properly fulfill its obligation within 20 days, as it did not pay the insurance indemnity in full. The missing part was paid to them voluntarily, but after a 20-day period. Therefore, the victim is entitled to recover the penalty.
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 of the Federal Law of 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 (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. Unilateral refusal to fulfill an obligation related to the fulfillment by its parties entrepreneurial activity, and a unilateral change in the terms of such an obligation are also allowed in cases where stipulated by the agreement unless otherwise follows from the law or the nature of the obligation.
In accordance with the provisions of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm. By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor.
In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
According to paragraph 6 of Art. 13 of the Law of the Russian Federation “On Protection of Consumer Rights”, when the court satisfies the requirements of the consumer established by law, the court collects from the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for non-compliance with the voluntary satisfaction of the requirements of the consumer, a fine in the amount of fifty percent of the 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.
What should I do if I have a loan debt due to late payment of life insurance?
Quite often, a situation arises when an insured event occurred on life insurance with a loan, and the insurance company made a payment with a delay or, in general, only in court. Meanwhile, no one canceled the obligation to pay the loan, since after the death of the borrower, relatives inherit not only property, but also debts, including those on the loan.
Due to late repayment of monthly loan payments, the bank begins to charge a penalty. As a result, the amount of debt increases. As a result, when the insurance company makes a payment, it may not be enough, since it is partially used to pay off the same penalty and penalty. In this case, a natural question arises, who should compensate for the losses incurred. In such a case, a certain arbitrage practice.
Is it possible to collect a penalty (penalty) from the insurance company for the delay in payment of mortgage insurance?
Yes, this is usually possible. When making a verdict, the court is guided, among other things, by the reason why the payment of mortgage insurance was delayed. Often it is due to the fact that the beneficiary did not bring all the documents on insured event. The insurer is obliged to pay compensation only after receiving all the documents in the case. The issue of judicial penalties for late insurance payment almost always arises in other categories of insurance disputes related to refusal to pay for various reasons.
Below we provide examples of several court decisions on this topic. Please note that judicial practice is extremely heterogeneous and highly dependent on the region and the particular judge:
The insurance company made the payment, but with a delay, for no apparent reason.
The insurance company paid, but with a delay due to the lack of a document.
Court decision no. The insurance company delayed the payment of the life insurance policy and because of this, a mortgage debt was formed
Dispute between the Energogarant insurance company and the daughter of the deceased borrower (court decision dated June 23, 2017, case No. 2-802/2017, Tver)
The essence of the dispute.The man took mortgage in AHML (represented by VTB-24 bank). Under the terms of the loan agreement, he also insured life in case of death at Energogarant. Some time later, the insurer died. The insurer recognized the case as insured and made the payment, but not within the terms specified in the contract, but with a delay. In fact, from the moment of death until the date of the insurance payment, monthly payments on the mortgage were not made, due to which there was a delay and a penalty.
The bank demanded that the daughter of the deceased pay the resulting difference in the amount of 29,967.70 rubles. Daughter, she is the plaintiff, in judicial order decided to recover this amount, considering that due to the actions of the insurance company, a delay arose.
Plaintiff's position.On January 30, the daughter filed an insurance claim under the policy mortgage insurance in Energogarant. On February 7, she provided all the necessary documents for payment. The beneficiary is VTB-24 bank, all documents were sent to the company on February 9. Some time later, the insurance company informed the daughter of the insured that it had decided to defer payment until a copy of the outpatient card was also provided. On April 13, the plaintiff filed a claim for late payment. Although, on April 4, the company transferred to the bank the amount credit debt on the date of death in the amount of 1717630 RUB.
The plaintiff seeks to pay:
The resulting debt to the mortgage due to delay on the part of the insurer - 29967.70 rubles.
Moral damage - 50,000 rubles.
Penalty according to the Consumer Rights Protection Law.
position of the insurance company.They do not agree with the claim, since at the time of the trial the daughter is not the heir (less than 6 months have passed since the date of the borrower's death). The fact that the bank demanded to pay in addition the resulting debt is a simple expression of will and was not obligatory to be fulfilled. VTB24 itself, as a beneficiary, did not demand to reimburse 29,967.70 rubles. There are no legal relations between IC Energogarant and the daughter. Based on this, it is impossible to apply the Law on "Protection of Consumer Rights"
The position of the court.The court decided:
According to the termsmortgage insurance the amount of payment to the bank (beneficiary) is calculated as the amount of credit debt as of the date of the written notification of the insurance company about the recognition of the event as an insured event.
The insurance rules set the following terms. The insurer makes a decision on payment or refusal within 15 working days from the receipt of all documents. Drafting an insurance policy. Then, within 2 working days, he must send a notification of recognition of the insured event. Further, the beneficiary himself (that is, the bank) within 7 working days reports the amount of the mortgage debt of the insured as of the date of receipt of the notification. After that, the insurance company is given 7 working days to pay out.
Based on the materials of the case, the court concluded that the insurance company violated the deadlines. Because of this, the payment that they sent to VTB24 was partially included in the payment of the penalty and interest. Consequently, the payment was not enough to pay off the entire debt. And the amount of 29,967.70 rubles, which the daughter paid at the request of the bank, must be recovered from the insurance company in favor of the plaintiff as incurred losses.
The court considers the dispute as a property legal relationship. In this case, compensation for non-pecuniary damage is not provided.
It is impossible to apply the norms of the Law "On Protection of Consumer Rights" in this dispute. Since at the time of the trial the plaintiff is not a party to the insurance contract.
Court decision no. The insurance company has overdue the term of payment for life insurance (collection of a penalty)
Dispute between the relatives of the insured and Rosgosstrakh (dated March 9, 2017, case No. 2-808/2017, Arkhangelsk)
The essence of the dispute. A man took out a mortgage from VTB24 bank. He issued a mortgage insurance policy, including life insurance in case of death in the Rosgosstrakh company. The insured has died. The heirs turned to the insurer for payment. The company made the payment, but according to the relatives, it was 45 days late. They are asking for compensation.
Plaintiff's position. The sum insured under the insurance contract was 1,456,000 rubles. The wife of the deceased applied to Rosgosstrakh with an application for payment of insurance compensation. Rosgosstrakh made a payment to the beneficiary bank VTB 24 in the amount of 492,062.91 rubles. The rest of the funds were transferred to the account of two heirs in equal shares. The insurance company violated set time payments for 45 days.
Requests:
- Collect from Rosgosstrakh a penalty in the amount of 246,341.46 rubles.
- Losses 4564.40 rubles.
- Penalty 50%.
- Moral damage 20,000 rubles.
defendant's position. We do not agree with the claim, the company did not violate the deadlines.
The position of the court. The claim is dismissed completely. Rationale:
- The sum insured is 1,456,000 rubles. insurance premium was paid in full.
- The insured died suddenly. The fact of occurrence of the insured event is not disputed by the parties. The heirs are his wife and mother.
- According to the terms of the insurance contract insurance payment produced within 14 working days. The specified period is calculated from the moment the insurer receives an application for a loss and documents confirming the reasons, nature and amount of losses incurred. For violation of the period established by the contract, the penalty is 0.1% of the amount payable for each day of delay.
- In case of an insured event at the risk of death, the beneficiary provides the following documents:
Insurance contract - application for the occurrence of an insured event
Letter from the Bank indicating the amount of debt under the loan agreement
Death certificate
An extract from the medical history with a post-mortem diagnosis.
- A request was sent to the Bank with a request to provide information about the debt under the loan agreement. The bank provided this data after a long time.
- The court proceeds from the fact that the certificate of debt on the loan is binding document for payment. She arrived a month after the request. Without this certificate, the insurer could not pay out. Therefore, it is from the date of receipt of this information that the period of 14 working days is to be calculated. The company met this deadline. There are no grounds for collecting a penalty.
CASCO is a type of voluntary insurance. And if the presence of an OSAGO policy is mandatory for all vehicle owners, then the acquisition of a CASCO policy is only the desire of the car owner.
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This area of legal relations has received its thorough legislative regulation.
The basis for the acquisition is the prisoner. It specifies the basic conditions and rules of insurance.
Before signing this agreement, you must carefully read all of its terms.
It is also necessary to pay attention to the amount of the penalty and the procedure for its payment.
What it is
The current legislation states that the insurance company is obliged to immediately start making settlements after receiving the client's application for insurance compensation.
At the same time, the insurer must comply with the deadlines provided for consideration of the application and payment of the insurance indemnity.
In accordance with the current legal regulation, each insurer independently sets the deadlines provided for the consideration of applications for CASCO. Accordingly, they are prescribed in contracts concluded with customers.
If the insurer has not considered the submitted application and has not paid the amount of insurance compensation, the client may demand payment of a penalty.
In fact, this is a certain amount of money in the form of a fine, which is paid for non-compliance with the terms specified in the contract and for the failure of the insurer to fulfill its obligations.
To find out the amount and procedure for paying a penalty, you need to carefully read the terms of the contract: it is they who regulate such issues.
But in addition to the contract, this sphere of legal relations has also received its regulation at the legislative level.
In particular, certain norms are contained not only in Civil Code RF. The CASCO penalty is also regulated under the consumer protection law, as insurance companies provide services to the general public.
But still the main legislative act regulating this sphere of legal relations is the Civil Code of the Russian Federation.
The basis for the calculation of penalties in the form of a penalty is. At the same time, the legislation states that in case of failure to fulfill contractual obligations, a penalty is charged for each day of delay.
collection
If the procedure and rules for implementation have received their clear legislative regulation, the same cannot be said about CASCO.
This is a voluntary type of insurance, and each company independently determines the list and procedure for providing its services.
That is why, in order to determine the procedure and rules for calculating the amount of the penalty, you must first pay attention to the terms of the contract. Basically, all insurance companies prescribe these conditions in their contracts.
If there is no clause on this issue in the agreement, then it is necessary to review the rules for making payments established in a particular insurance company.
As a rule, they are provided to the client directly upon presentation of documents and an application for insurance compensation. They can also be read on the official website of the insurer.
Each insurer sets the terms for consideration of applications and payment of insurance compensation.
On average, these periods are:
The possibility of recovering a penalty arises only after the expiration of the periods specified in the contract or in the insurance rules.
In practice, very often there are cases when the insurance company refuses to pay. In this case, the insured person may also demand the recovery of a penalty.
At the same time, it must also be remembered that the applicant may demand payment of a penalty if they have been presented with all the necessary documents.
And the period begins to be calculated from the moment of presentation of documents, and not from the moment of occurrence of the insured event.
Calculation of the penalty for CASCO
And how is the penalty for CASCO calculated, and what are the rules for calculating it?
Formula
In fact, the relationship associated with voluntary insurance CASCO, arise on the basis of the contract. Accordingly, in this case we are talking about a breach of contractual obligations.
To make a calculation, you must first find out the amount that the insurance company must pay. As a rule, all applicants calculate based on the amount that they indicated in the application.
Only then can you proceed directly to the implementation of the calculation. It can be produced according to the standard formula, which is set in.
According to this article, the calculation of the amount of the penalty can be carried out according to the following formula:
Penalty \u003d SV x SRF xZD / 360,
This is a general formula that is used to calculate the amount of the penalty for all insurance companies. It can be safely applied during the preparation of a statement of claim in order to recover the amount of debt.
Example
To understand more clearly the mechanism and rules for the implementation of the calculation, you need to consider the above formula with an example.
For example, Ivanov entered into a CASCO insurance contract with a certain insurance company. An insured event occurred, and Ivanov duly presented all the necessary documents to receive insurance compensation.
But the insurance company did not respond to Ivanov's statement and did not transfer the funds he required.
In this case, suppose that the final date of transfer Money this is February 20, and the amount of insurance compensation required by Ivanov is 100,000 rubles.
Suppose that 30 days have passed since the end of the period for transferring funds.
In this case, the calculation of the amount of insurance compensation will be carried out according to the following formula:
100,000 rubles * 10% * 30/360 = 833 rubles.
That is how much the penalty for late payment of CASCO for 30 days of delay will be.
Statement of claim
Many are also interested in the question of how the penalty is collected. In particular, it can be recovered in court.
Of course, the applicant can also submit a written claim to the insurance company with a request to collect not only the penalty, but also the amount of insurance compensation.
The statement of claim must be drawn up and presented to the court, taking into account all the requirements of procedural legislation.
First of all, it is necessary to choose the right court, which should consider the submitted statement of claim. current legal regulation states that the action is brought to the court at the location of the defendant.
In this case, it must be presented to the court at the location of the main office of the insurance company.
It is also necessary to remember that a statement of claim is a procedural document that must be drawn up in accordance with certain legislative requirements.
In particular, it must contain the following information:
- data of the parties (full name of the plaintiff, his address, passport data, name of the defendant, address, TIN, etc.);
- the name of the court in which the statement of claim is presented;
- the plaintiff's claim;
- circumstances that prove the correctness of the plaintiff;
- a reference to the legal acts regulating this area of legal relations, as well as an indication of the relevant clauses of the contract.
In addition, along with the statement of claim, documents must be presented that prove the correctness of the plaintiff. You also need to pay state duty and attach the payment receipt to the statement of claim.
Only if the above requirements are met, the court will accept the statement of claim for consideration and schedule a hearing.
If the plaintiff made certain mistakes or the plaintiff did not comply with the above requirements during the preparation of the statement of claim, the court will decide on its return.
After correcting the mistakes made, the plaintiff can again present it.
Many people prefer to use the services of qualified and experienced professionals who can draw up a legally competent statement of claim.
If the statement of claim was filed on behalf of the representative of the plaintiff, then in this case it is also necessary to provide a power of attorney, which will indicate the powers related to the filing of a claim and the implementation of representation in court.
Of course, the plaintiff can also draw up the text of the statement of claim on his own. In this case, you can find a sample of it on the Internet. Below is an example of a claim.
Who makes the decision to collect
Most of these cases are dealt with in courts. But in practice it is also possible pre-trial settlement the dispute that has arisen. In this case, the insured person must send a corresponding application to the insurance company.
If a refusal is received from the insurer, then in this case you can write a statement of claim to the court and start a lawsuit.
As mentioned above, the statement of claim must be drawn up in accordance with all legal requirements. Only in this case the court will accept it for consideration.
If the court decides to consider the statement of claim, then a court session is scheduled: the parties are duly notified about this.
As a rule, consideration of cases of this nature takes several months: the courts appoint several court sessions for a full consideration of the case.
But sometimes this process can take longer. For example, dissatisfied court decision the party to the dispute may appeal to a higher court.
The recovery of the amount of the penalty is possible only if the court satisfied the claim of the insured person, and the court decision entered into legal force.
Examples from judicial practice
There are quite a lot of court cases on the recovery of the amount of the penalty under the CASCO insurance contract.
Basically, the courts decide in favor of the insured persons, unless, of course, they present the relevant documents proving the validity of the claims.
But very often the courts treat the same topics differently. legislative norms making conflicting decisions in cases with similar circumstances.
Given this fact, the Supreme Court of the Russian Federation adopted an appropriate ruling, which summarizes the practice of judges in such cases.
In particular, the Supreme Court of the Russian Federation pointed out that insurers are always obliged to pay the amount of the penalty if for some reason they did not pay the insurance compensation.
Of course, a penalty can only be claimed if the insured person has presented a complete package required documents. In addition, the insurance company is obliged to pay a penalty for each day of delay.
In practice, very often there are cases when the vehicle was purchased at the expense of borrowed funds.
In such a situation, the bank, and not the owner of the car, acts as the beneficiary under the insurance contract.
If a dispute arises regarding the payment of insurance compensation and the amount of the penalty, then in this case the bank must also act as a party to the proceedings.
Pay
The payment of the amount of the penalty can be carried out both voluntarily and involuntarily.
If the insurer refused to pay the penalty on a voluntary basis, and the plaintiff filed a statement of claim with the court in order to recover the amount of the debt, then in this case the plaintiff may demand payment only after the final court decision has been made.
At the same time, it is also necessary to take into account the fact that the decision of the court of first instance comes into force after the expiration of one month from the date of its adoption. But it can also be appealed to a higher court.
In this case, payment can be demanded only after the final decision on the case has been made. Of course, we can talk about payment if the decision was made in favor of the insured person.
In practice, all insurance companies prefer to pay the amount of the debt immediately after the entry into force of the court decision.
But if the insurer has not fulfilled its obligations, then the plaintiff can file an application with the court and ask performance list for the purpose of presenting it to the bailiffs.
In this case, it will initiate enforcement proceedings, and the amount of the debt will be collected by force.
For legal entities
In practice, very often there are cases when the insured person under the CASCO contract is not individual, and the company.
After all, enterprises are also subjects of civil legal relations, they can have their own vehicles and act as policyholders under a CASCO insurance contract.
Accordingly, for legal entities There may also be issues related to the payment of the amount of the penalty.
In fact, in this case, the procedure for claiming and paying a penalty is practically no different from the process for claiming payment for individuals.
The only feature is a statement of claim drawn up on behalf of a legal entity.
In particular, the statement of claim is drawn up and signed by the head of the company. Together with him, the constituent documents of the enterprise must also be presented, which indicate that the head has the right to sign statements of claim.
This is probably the only feature of the procedure for collecting the amount of the penalty for legal entities.
Limitation period
Both for all claims, and for claims related to the recovery of the amount of the penalty, the limitation period applies.
This is the period during which the insured person can file a claim and demand payment of a penalty.
