Calculation and collection of penalties for OSAGO. Recovery of a penalty from an insurance company under a hull insurance contract Penalty for delay in insurance compensation

case No. 2-1209/2016

DECISION

name of the 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 of voluntary insurance of land transport and civil liability of motor vehicle owners (CASCO) of car 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.

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

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:

Plaintiffs:

Respondents:

Other persons:

Judges of the case:

Litigation on:

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

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 of the 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, for the fee stipulated by the contract (insurance premium), upon the occurrence of an insured event, to pay insurance compensation to the insured or beneficiary within the limits of 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).

This measure of responsibility threatens the insurance company if it has violated the deadline for sending a reasoned refusal in the insurance payment under OSAGO.

The amount of the financial sanction - 0.05% for each day of delay from the maximum sum insured, provided for by the Federal Law on OSAGO for this type of damage. That is, from 500 thousand rubles for insurance payments for harm to life and health and from 400 thousand rubles for cases of compensation for damage to property. It turns out that for all clients of insurance companies, the financial sanction for the day of delay will be the same:

Financial sanction for the day of delay =
500,000 rubles * 0.05% = 250 rubles (life, health)
400,000 rubles * 0.05% = 200 rubles (property).

The total amount of the FS = 250 (200) rubles * the number of days of delay

The delay period for the FS is defined as follows:

• we take the day of filing an application for payment under OSAGO with a full package of documents to the insurance company, starting from it, we count 20 days according to the calendar. If during this period there were non-working holidays (New Year holidays, May holidays, March 8, February 23, etc.), we count the number of such days. We get the last day when the insurance company was supposed to either pay us money, or issue a referral for repairs, or give a reasoned refusal. From the next day, we will begin to accrue a financial sanction;
• We will finish accruing the FS on the day when the insurance company nevertheless sends a reasoned refusal. If there is no refusal at all, then the FS can be accrued until the day the court decision is made.

Note:
The twenty-day period for the insurance organization to make a decision on the application of the victim for insurance payment is calculated from the date of submission of documents, provided for in clause 3.10 of the Insurance Rules.
Clause 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of 01/29/2015

Calculation example:

On 06/01/2015 you applied to the insurance company with a full package of documents to receive a CMTPL payment in cash (the damage was caused to the vehicle). From 01.06.15 we will count 20 days according to the calendar. We will receive 06/20/2015. In this period there was 1 non-working holiday - Day of Russia on June 12. We count 1 more day, we get 06/21/2015. This is the last day for the insurance company to transfer the payment or issue a reasoned refusal. The insurance company sent a refusal only on 07/15/2015. Overdue period: 06/22/2015 - 07/15/2015, 24 days. Total financial sanction = 200 rubles * 24 days = 4800 rubles.

Penalty (penalty) for failure to comply with the term of insurance payment or compensation for harm in kind

We can ask for this penalty if, within the statutory 20 calendar days (minus non-working holidays), the insurance company did not make an insurance payment under OSAGO or did not issue a referral for repairs, in which the repair period is prescribed.

The amount of the penalty - 1% for each day of delay from the amount of insurance payment for this insured event. In this case, we take the “final” amount of the insurance payment, which will be established by the court based on the report of an independent appraiser or a forensic examination. If the insurance company nevertheless transferred something to you within 20 days, we deduct this amount from the “final” payment, and we accrue a penalty on the balance.

The delay period is considered in the same way as above for a financial sanction. That is, from the next day after the last day for payment until the date when the insurance company pays the entire amount required or the court makes a decision.

An example of the penalty calculation:
Applying to the insurance company for payment under OSAGO (payment in cash, damage to property) - 06/01/2015. Voluntarily and during the proceedings in court, the insurance company did not pay anything. According to the report of an independent appraiser, the amount of the insurance payment is 30,000 rubles, the court makes a decision on 30.08.2015. Overdue period(see detailed calculation above): 06/22/2015 - 08/30/2015, 70 days. Penalty = 30,000 rubles * 1% * 70 days = 300 rubles * 70 days = 21,000 rubles.

On a note:
In order not to constantly increase the amount of the penalty and not to postpone the meeting, in the statement of claim, ask to recover it in the amount of ____ rubles for each day of delay for the period from ___.___._____ to the day the court decision is made. At the beginning of each meeting, you can simply report the amount of the penalty for today for the minutes or bring a written calculation.

Penalty (penalty) for violation of the deadline for issuing a referral for restoration repairs and / or violation of the deadline for performing repairs.

This penalty can be requested if the insurance company has delayed the issuance of a referral for repairs to the service station. The insurance company is obliged to issue such a referral within 20 days. The OSAGO Law also requires that the timing of repairs be clearly stated in the direction. The timing of the repair itself is not regulated by law. For violation of the terms of repair specified in the direction, it is the insurance company, and not the service station, that will be responsible to you.

The amount of the penalty - 1% of the amount of insurance payment for this insured event for each day of delay. The calculation is the same as for the previous penalty.

Important new rules:

On April 28, 2017, amendments to the Federal Law on OSAGO came into force, according to which, in paragraph 19 of Art. 12 a new penalty for violation of the term of the restoration repair. The default repair period is 30 working days from the date the car was delivered to the service station / handed over to the insurance company for subsequent transportation to the service station. Under your agreement with the insurance company, the repair period may be extended, but if it is violated, it will also be possible to demand a penalty. The amount of the penalty - 0.5% of the refund amount for each day of delay(but not more than the amount of compensation).

The law on amendments (No. 49-FZ of March 28, 2017) states that the version of the Federal Law on OSAGO approved by it applies to new contracts drawn up after the day this law comes into force (04/28/2017). This means that under old contracts, you continue to charge a penalty of 1% for violation of the terms of the repair, as indicated above.

Penalty (penalty) for non-compliance with the term for the return of the insurance premium

This penalty applies to those cases when, for certain reasons, you terminate the OSAGO contract ahead of schedule, and the insurance company returns to you part of the insurance premium for the unused period.

OSAGO Rules provide that part of the insurance premium in case of early termination of the OSAGO contract is returned to the insured - an individual in the following cases:

• death of the insured / owner of the vehicle;
• loss or destruction of the insured vehicle;
• liquidation of an insurance company;
• revocation of a license from an insurance company;
• change of vehicle owner.

Refund of unused insurance premium must be made within 14 calendar days from the date following the one when you applied to the insurance company with the relevant application (clause 1.16 of the regulation of the Bank of Russia No. 431-P dated 19.09.2014). If the insurance company violates this period, you can claim a penalty.

The amount of the penalty - 1% of the insurance premium under your OSAGO policy for each day of delay. The total amount of this penalty cannot be more than the size of the insurance premium itself under the policy.

The period of delay is considered as follows: we take the date of our application to the insurance company for early termination of the OSAGO contract. From the next day, we count 14 calendar days. If during this period the insurance company did not return the money to you, we will charge a penalty from the next day. The penalty drips up to the day the money is returned inclusive or up to the day the court decision is made.

Calculation example:
In connection with the death of the vehicle in an accident, they applied to the insurance company with a statement about the termination of the OSAGO contract on 06/01/2015. The cost of the OSAGO policy is 6600 rubles. From 06/02/2015, according to the calendar, we count 14 days - until 06/15/2015 inclusive, the insurance company must return part of the insurance premium. The insurance company returned the money on 07/15/2015. Overdue period: 06/16/2015 - 07/15/2015, 30 days. Penalty = 6600 rubles * 1% * 30 days = 66 rubles * 30 days = 1980 rubles.

Penalty for failure to voluntarily comply with the requirements of the victim

It is provided for by paragraph 3 of Article 16.1 of the Federal Law on OSAGO. Collected in favor of the victim - an individual. By analogy with fines under the Consumer Protection Law, half of the fine is collected in favor of the consumer protection society if it filed a claim in defense of the interests of the victim.

The amount of the fine - 50% of the amount of insurance compensation established by the court for this insured event. When determining the amount of the fine, those amounts that were paid voluntarily by the insurance company within 20 days are not taken into account. Accrued financial sanctions, penalties, compensation for moral damage are also not taken into account.

An example of calculating a fine for OSAGO:
The final amount of the insurance payment for this insured event in court is 50,000 rubles. Within 20 days, the insurance company transferred 10,000 rubles. The interests of the victim in the case are represented by the OZPP. Total fine \u003d (50,000 rubles - 10,000 rubles) * 50% \u003d 40,000 rubles * 50% \u003d 20,000 rubles. Of these, 10,000 rubles are collected in favor of the victim, 10,000 rubles - in favor of the OZPP.

Important nuances

• the total amount of the penalty, financial sanction in favor of the injured individual cannot exceed the maximum amount of the insurance amount for the corresponding type of harm (500 thousand rubles for damage to health, 400 thousand rubles for damage to property);
• if the insurance company has committed several violations (did not transfer the payment, did not send a reasoned refusal, etc.), then a penalty and a financial sanction can be requested for each violation;
• reduce the forfeit, financial sanction, fine on the basis of Article 333 of the Civil Code of the Russian Federation, the court can only at the request of the defendant and only in exceptional cases, when they are clearly disproportionate to the consequences of the breach of obligation;
• forfeit, financial sanction, fine are applied to the recovery of compensation payments from the RSA;
• if, after the victim applied to the court, the insurance company satisfied his requirements, this does not exempt her from paying a fine;
• forfeits, financial sanctions, fines may be collected in favor of each victim in respect of whom the insurance company has committed a corresponding violation.

How to get a forfeit, financial sanction, fine

Submit a written application (claim) to the insurance company for the payment of forfeit (fine), financial sanctions. In the application, provide the calculation of the penalty and FS. Specify the method of receiving money - in cash or by bank transfer (in this case, write your full bank details). Print the claim in 2 copies, sign. Hand over to the insurance company against signature on your copy of the claim. The insurance company is not entitled to require any other documents from you to consider this claim.

If the issue is not resolved positively, you can apply for the recovery of a penalty and a financial sanction to the court. A fine is awarded only by a court decision.

When can a court release an insurance company from a penalty or a financial sanction?

• if the insurance company has fulfilled its obligations in accordance with the procedure and terms established by law;
• if the deadlines were violated as a result of force majeure;
• if the deadlines were violated as a result of the guilty actions / inaction of the victim.

All grounds for exemption from forfeits, fines, financial sanctions must be proved in court by the insurance company itself.

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:

1. Simultaneously with the recovery of the principal debt, indicating it in the statement of claim.
2. 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 non-compliance with the deadline for making an insurance payment or compensation for harm in kind, 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 pay the insurance payment to the victim or issue him a referral for the repair of the vehicle indicating the repair period , 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 stipulated that the insurance payment is made by sending the dealer to the dealer for repairs. 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 exercising civil rights in one's own will and in one's own interest (clause 2 of article 1 of the Civil Code of the Russian Federation), the penalty may be reduced by the court if there is a corresponding declaration 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 position of the first part of Article 333 of the Civil Code of the Russian Federation in the system of current legal regulation in the sense given 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.

A reduction in 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.

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 АА777, 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 the 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 became the cause of 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 essence 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:

1. Penalty for delay in insurance payment under a motor insurance contract (casco)
2. Compensation for moral damage
3. A fine of 50% of the amount awarded to me.

Applications:

1. Copy of the insurance contract
2. A copy of the insurance act on the recognition of the event as an insured event (if any)
3. Payment order for the transfer of insurance payment (if any)
4. Calculation of claims.
5. Copies of the statement of claim and the documents attached to it.
6. Receipt of payment of state duty.