A common category of cases are cases of compensation for damage caused by a traffic accident, since each accident ends in causing damage to property or health and the moral and psychological state of the accident participants. In this article, we will highlight the issues of determining and recovering property damage, harm to health and moral damage caused as a result of a traffic accident.
According to the Department of Information and Analytical Support of the National Police of Ukraine, every fourth road accident in 2017 was recorded in Kiev – almost 27 000 cases.
In most cases, drivers who are involved in the accident, who have violated traffic rules and who are clearly responsible for the event, independently propose to settle the misunderstanding with the help of monetary compensation on the spot. However, in the future, if you need to establish the fact of an accident and bring a person to justice, a number of difficulties can arise. For example, it is difficult to establish the location of vehicles on the roadway before and after the collision, to find eyewitnesses to the incident. However, if the accident is insignificant and there are no casualties, and the amount of damage caused to cars does not exceed 10,000 hryvnia, the law allows drivers to jointly fill out the europrotocol with the road accident scheme, and then jointly submit documents to the insurance company of the driver-culprit of the accident. However, one should be cautious, because in a state of stress the driver can not estimate the amount of property damage, and subsequently identify signs of damage to internal organs.
There are cases when the culprit of an accident simply does not have the physical ability to make reparation on the spot, since he does not have enough money on him. In such a situation, it seems appropriate to draft the receipt of the culprit of the accident, according to which the latter undertakes to compensate the injured party in the future. The victim should be required to transfer some thing or documents on bail, which should be indicated in the receipt. In essence, this receipt is the same receipt for damages, but it will be refunded in the future (the date of such compensation is determined by the parties at their discretion). If, in the presence of a receipt, the damage has not been compensated, then in the court such a receipt will be assessed as a circumstance recognized by the parties and is not subject to proof.
If it was possible to compensate for the material damage on the spot – the victim should preferably write a receipt that he has no claims to the culprit of the accident. There were cases when the victim after a while wrote a statement to the police department that the culprit disappeared from the scene of the accident. Of course, the fact that the issue was resolved on the spot, was silent.
Keep in mind that to determine and recover damages to health it is necessary:
Within three days after the registration of administrative materials by patrol police officers, the victim must apply for an insurance event to the insurance company of the culprit or to the Motor Transport Insurance Bureau of Ukraine, in the event that the originator does not have a compulsory civil liability insurance policy for vehicle owners.
Documents confirming the amount of damage must be submitted to the insurance company of the culprit. In case of compensation or incomplete compensation for the damage caused, you can contact the lawyers of the Bragar Group lawyers who will professionally represent your interests in a dispute with insurance companies and will help you recover not only the insurance payment in full, but all legal costs incurred by you in the course of the trial.
Claims arising from the relationship of compensation for damage caused as a result of an accident are brought to court according to the general rule of jurisdiction, at the place of residence of the defendant. The plaintiff also has the right to file such a claim also at his or her registered place of residence or stay or at the place of injury.
You should be aware that the law provides for the responsibility for owning or using the vehicle, which is a source of increased danger. If the car gets into an accident, as a result of which some harm is done, then the owner of such a car will compensate for the damage. The damage caused by a source of increased danger is always unjustified and provides for the innocent responsibility of the owner of such source. Irrespective of the fault of a physical person, moral damages are compensated, including if there are health damages due to the source of increased danger (part 2, article 1667 of the Civil Code). That is, if a person at the time of driving has a driver’s license for driving a vehicle of the appropriate category and a registration document for him, given to him by the owner or other person who lawfully uses such a vehicle, then this person will be liable for the damage (p.2.2 of the Rules of the Road).
The amount of losses to be reimbursed to the victim is determined in accordance with the real value of the lost property at the time of consideration of the case or performance of work necessary to repair the damaged machine. As proof you need to provide: a certificate of the list of mechanical damages that were caused as a result of a traffic accident to the car and to conduct an assessment to determine the cost of repair repairs.
Recall that in the event of injury to the victim, in consequence of which he received moderate bodily harm, such an act of the guilty person falls under the classification as a crime. To determine the severity of bodily harm, namely of light or moderate severity, it is necessary to conduct a forensic medical examination at the request of the investigating authorities. Within the framework of a criminal trial, the victim also has the right to file a civil claim.
The procedure for determining damage caused by a source of increased danger is regulated by the rules of the Civil Code. In addition, the corresponding explanations are given in the Decree of the Supreme Court of Ukraine on March 27, 1992. According to the legal norms, in determining the amount of damage, the amount of property damage caused to the property or personal non-property rights of the victim is taken into account. Under the harm to be compensated, one understands the depreciation or diminution of the welfare of the victim as a result of a violation of his or her material rights or a reduction of non-material benefits (life, health, etc.).
According to Part 1, Article 1195 of the Civil Code, in connection with injury or other damage to health, an individual has the right to compensation for his earnings (income) lost by him “as a result of loss or reduction of professional or general ability to work”, as well as compensation for ” associated with the need for enhanced nutrition, sanatorium treatment, purchase of drugs, prosthetics, extraneous care, etc. “.
Taking into account the above provisions of the Civil Code of Ukraine, the fact that the property of the victim has been damaged by a source of increased danger, if the person (the victim) does not consist in contractual legal relations with the person who caused the harm, and / or if the infliction of this kind of harm is not related to the performance of these obligations by the contract, occurrence of non-contractual, tort liability.
It arises from the fact of causing harm and ceases due execution at the time of compensation to the injured person in full by the person who caused the harm. The parties to the tort obligation are classically the victim (the creditor) and the person who caused the harm (the debtor).
The scope of compulsory insurance includes civil liability of owners of land vehicles according to the special Law of Ukraine of July 1, 2004 “On compulsory insurance of civil liability of owners of land vehicles”.
The law determines the purpose of compulsory insurance of civil liability for the provision of compensation for harm caused to life, health and / or property of victims as a result of an accident, as well as protection of property interests of policyholders. The object of compulsory insurance of civil liability is property interests that do not contradict the legislation of Ukraine, related to compensation by the person whose civil liability is insured, harm caused to life, health, property of the victims as a result of the operation of the secured vehicle.
A conflict of obligations is an initial, basic obligation in which the general principle of full compensation for damage operates, the cause of its occurrence is damage. In return, insurance indemnity is payment made by the insurer in accordance with the terms of the contract, solely within the insured amount and in the event that the event resulting in harm is qualified as an insurance event.
Failure to receive insurance compensation under the contract (or its receipt, if the insurance compensation is not sufficient for full coverage of damage) does not necessarily terminate the tort obligation, and the person who caused the damage remains indebted.
In this case, the victim is not a party to the contract of insurance of civil liability of owners of land vehicles, but is vested with rights under the contract: in his favor, the insurer is obliged to fulfill the obligation to implement insurance compensation. In accordance with Article 1194 of the Civil Code of Ukraine, a person who insured his civil liability, in the event of insufficiency of insurance payment (insurance compensation) for full compensation of the damage caused to him, is obliged to pay the difference between the actual amount of damage and the insurance payment (insurance compensation).
Taking into account the victim’s right to compensation for damage at the expense of the person who caused the harm, it is absolute and can not be terminated or limited by an agreement to which the victim was not a party, although this contract is concluded in favor of third parties. The law grants the victim the right to receive insurance compensation, but does not oblige him to receive it. Refusal of the victim from the right to receive insurance compensation under the contract does not terminate his right to compensation for harm in tort obligations.
Thus, the victim as a creditor has the right of claim in both types of obligations – tort and contractual. He freely, at his discretion, chooses a way of exercising his right: a) by applying the claim exclusively to the person who caused the harm, to recover this damage; b) by applying to the insurer, from whom the person who caused the damage insured his civil liability, with the demand for payment of insurance compensation; c) by applying to the insurer and, in the future, to the person who caused the harm, if there are grounds provided for by Article 1192 of the Civil Code of Ukraine.
When referring to the insurer, one must take into account the size of the franchise, that is, the amount of damage that will not be covered by the insurance payment.
The victim has the right to waive his right to claim to the insurer and receive full compensation for damage from the person who inflicted it, within the tort liability, regardless of whether the civil liability of the person who caused the harm is insured. In this case, the person who caused harm and whose civil liability is insured, after satisfying the claim of the victim, is not deprived of the right to protect his property interest under the insurance contract and to apply to his insurer under the contract with the corresponding demand for reimbursement of the funds paid to the victim in size and volume according to the obligations of the insurer as a party to the contract of compulsory insurance of civil liability.
If the victim appealed to the court with demands for recovery from the perpetrator of the damage, and the culprit denies referring to the fact that he had to apply to his insurer, then this statement does not comply with the law, since in this case the victim independently chooses to contact him to the person who caused harm or to the insurer. In practice, in the case of commencement of proceedings in a civil case on the claimant’s claims for compensation for harm, the culprit can declare about replacing himself with the proper defendant – his insurance company and in most cases such a petition will be granted.
In the case of contacting the insurer and receiving insurance compensation in the amount, fully compensates the damage caused, the tort obligation between the victim and the person who caused the harm completely ceases.
With restitution of property damage, everything is simple: the insurer issuing the vehicle insurance policy compensates property damage in the amount provided for in the insurance contract. But the conditions under which the victim has the right to claim compensation for the moral damage caused during an accident are more complex and have their own specific nuances.
According to the explanations of the Plenum of the Supreme Court of Ukraine, moral damage should be understood as loss of non-property due to moral or physical suffering, or other negative phenomena caused to a natural or legal person by illegal acts or omissions of other persons. According to the current legislation, moral harm can be, in particular: in humiliation of honor, dignity, prestige or business reputation, moral feelings in connection with health damage, violation of property rights (including intellectual property rights), rights granted to consumers, other civil rights, in connection with the illegal stay under investigation and trial, in violation of normal life ties due to the impossibility of continuing active social life, violation of relations with surrounding people, with the onset other negative consequences.
Compensation for non-pecuniary damage can be claimed only in court, as this is not the responsibility of insurance companies. According to Part 1 of Article 23 of the Civil Code of Ukraine, a person has the right to compensation for moral damage caused by violation of his rights.
As a rule, as a result of the unlawful actions of a person who is guilty of an accident, harm can be caused, namely:
Compensation for moral damage in an accident, to be more exact, the amount of compensation for moral damage can be justified by the relevant documents, testimony of witnesses, by other possible means. For example, when drawing up an inspection report of the scene of the incident, inform traffic police and witnesses about your condition. In practice, there are cases of experts providing reports on the determination of the amount of moral damage on the basis of expert research. We draw attention to the fact that the current instruction on the procedure for conducting expert examinations does not establish an exhaustive list of types of expert studies. On the contrary, it is stipulated that in order to better meet the needs of investigative and judicial practice in solving issues requiring the use of scientific, technical or other specialized knowledge, expert institutions organize other kinds of examinations (except forensic and forensic psychiatric), in including those that are in the stage of scientific development.
Responsibility for moral damage caused to an individual or legal entity by unlawful decisions, actions or omissions rests with the person who inflicted it, as a general rule, in the presence of his guilt.
In part 2 of Art. 1167 Civil Code of Ukraine provides for special cases of compensation for moral harm, when, unlike the general rules, moral damage is compensated regardless of the person who caused it, among which – and the case of compensation for moral damage caused by injury, other health damage due to the source of increased danger. That is, it is the person who owns the vehicle, mechanism, other object on the relevant legal basis (ownership, other proprietary right, contract of contract, lease, etc.), the use, storage or maintenance of which creates an increased danger will be responsible for the moral damage.
Is not a subject and is not liable to the injured for harm caused by a source of increased danger, a person driving a vehicle in connection with the performance of his labor (official) duties on the basis of an employment contract (contract) with a person who, on the relevant legal basis (ownership , other proprietary right, contract of contract, lease, etc.) owns the vehicle. So, the analysis of the specified norms of law gives the basis for a conclusion that the harm caused as a result of the traffic accident through the fault of the driver who ruled the vehicle belonging to the employer on the relevant legal basis is compensated by the owner of this source of increased danger, and not directly by the guilty driver .
Determining the amount of fair compensation for losses of non-property character it is necessary to proceed from the severity of the induced moral and psychological experiences, their depth and duration, a feeling of spiritual pain; especially large amount of damage caused to health. It is necessary for the person injured during an accident to know that the amount of compensation for moral damage generally depends directly on the extent of the damage caused to property.
According to the court practice, established in the city of Kiev courts satisfy compensation for moral harm within the limits of 2000-10000 UAH. As a rule, the proof of moral suffering is the conclusion of a psychologist and conducting psychological research and referring to a general rule – moral harm is compensated regardless of the fault of an individual if it is caused by a source of increased danger.
During the trial, the amount claimed by the plaintiff (the victim) is justified, the amount of compensation for moral damage. The victim has the right to demand any compensation, but the court is guided by the degree of proof of the moral suffering suffered, the amount of compensation for the suffering caused and, what is especially important, the judge’s internal conviction, which is known to be a subjective factor that is based on the requirements of reasonableness and justice.
The lawyers of Bragar Group will represent your interests in a dispute with the culprit of an accident that caused damage or by his employer, help identify and recover material damage, harm to health and, importantly, moral damage, as well as all legal expenses incurred by you during the trial for example, the cost of production of all necessary expertise, etc.).