Despite the fact that liability insurance of vehicle owners is a prerequisite for their use, the parties draw up an agreement. It is its existence that makes it possible to apply to the violator the norms of the Civil Code of the Russian Federation regarding liability for failure to comply with the terms of the agreement.
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We are talking about a forfeit, a fine and a penalty fee, as the main types of civil liability. All this does not cancel the existing administrative responsibility for evading registration of OSAGO or delay in the policy, period of use.
What it is
A penalty is a type of civil sanction for delay in fulfilling contractual obligations.
The legislation establishes mandatory pre-trial settlement of the conflict. This means that the insured person or the beneficiary, before filing a claim with the court for non-fulfillment of contractual obligations, must first write a statement about the occurrence of an insured event and a claim against the company obliged to compensate for the losses.
Regarding the application, no deadlines have been set, but a claim regarding the amount of compensation can be presented only until 01.06 of the current year.
After filing an application for the occurrence of an insurance incident and payment of compensation, the insurer has only 20 days to make a payment or give a reasoned refusal.
After the occurrence of an insurance incident, an application is written on the form. Within 2-3 days, the insurance company considers it, but the document must be submitted immediately, otherwise there will be grounds for refusing to transfer insurance payments.
After that, the special agent decides whether the incident is really an insured event.
Due to changes in insurance legislation, the insurer now has 10 days less to make a decision on the provision of insurance payments than was previously established.
The claim regarding the amount of guaranteed compensation is considered no later than 5 days from the moment of its creation and transfer. A reasoned refusal in this case will be considered the proper performance of obligations under the contract, unless the court decides otherwise.
The penalty acts as a type of liability of the insurer, which is applied in case of violation of the deadlines established for the consideration of claims and applications for payment.
The insured person or the person obliged to obtain the MTPL policy does not bear such contractual liability. Most often, violators of the insurance legislation are liable under the Code of Administrative Offenses. Sometimes they may be subject to penalties, which are a form of treaty sanctions.
Calculation of the penalty for OSAGO
Example 1 The insurer failed to meet the deadlines for payment of compensation. 20 working days have passed, but the beneficiary has not received the due amounts.
The penalty is charged in the amount of one percent of the sum insured, depending on the period of delay (FZ "On OSAGO").
For example, if it were necessary to list 120 thousand rubles, then the amount of the daily penalty will be 1200 rubles. But regardless of the period of delay, the penalty cannot be charged in excess of the sum insured.
Example 2 The insurer violated the deadlines for the return of the insurance premium. The penalty will be calculated in the amount of one percent of the bonus for each overdue day.
For example, the guaranteed premium is 4400 rubles. The penalty for each day will be charged in the amount of 44 rubles.
The compensation amount of the penalty cannot be higher than the sum insured. For example, if the insurer delays by 10 days, he will have to pay 440 rubles forfeit.
Legal basis
The application of the penalty became possible on the basis of the norms of the following regulations:
- Civil Code of the Russian Federation;
- Code of Administrative Offenses;
- FZ;
- "On Procurement of Goods, Works, Services by Certain Types of Legal Entities".
The Civil Code gives the very interpretation of the concept of a penalty and describes it as a specific type of liability for failure to comply with contractual terms. The Federal Law on OSAGO details the cases of charging a penalty and its size.
Arbitrage practice
When a car is under warranty, and the insurer offers to carry out repairs in a private workshop, it is better to receive monetary compensation and refuse services.
The insured person will only bear additional losses if maintenance is not carried out at specialized service stations.
Ordinary workshops cannot guarantee the full functioning of the car in the event of a breakdown. The personnel and technical equipment of service centers will be the key to long-term operation of the vehicle. This fact is confirmed by judicial practice.
Insurance payments for a warranty car will depend on the pricing policy of the official car dealer.
Some courts cannot reach a consensus on what is recoverable in the valuation process: the cost of skilled labor or the price of spare parts. But most take into account the prices of the entire repair as a whole at the rates indicated by official dealers.
New amendments to the OSAGO law establish a mandatory pre-trial procedure for settling a dispute with an insurer regarding the payment of compensation and new interest rates for penalties for delay in fulfilling obligations. The claim procedure will be used until the first day of July 2015.
Therefore, many insurers have decided that the rule regarding mandatory filing of claims is used only with contracts that were concluded after the first of September.
The judiciary takes a different position. The judge of the Plenum of the Armed Forces of the Russian Federation explained that the procedure for filing claims is mandatory for all applications for insured events that occurred from September 1, 2014 to the last day of June 2015.
The interested person is obliged to submit an application for the occurrence of an insured event and then, in a pre-trial procedure, dispute the amount of the payment or the procedure for its provision.
How is the collection
With the insurer for non-compliance with the terms of the contract pays a penalty, a fine or a financial sanction.
The penalty is paid for violation of the terms for the provision of insurance payment or repair of the vehicle. The insurance limit has now been increased. The maximum sum insured under OSAGO is 400,000 rubles.
Penalty for delay in fulfilling obligations can be collected through the court or received in pre-trial settlement.
When the dispute persists after the pre-trial resolution of the case, the person concerned has the right to apply to the court with a claim for the recovery of a penalty.
The application must be supplemented with a calculation of the amount of the penalty fee. When collecting a penalty, the situation was ambiguous.
And all because of the different interpretation of the norms of the Law on OSAGO by arbitration and courts of general jurisdiction. Therefore, there can be at least two options for calculating the recovery of a penalty.
Example 1 The victim in the accident should have transferred 120 thousand rubles, but the insurer did not fulfill the obligations within the agreed time. Delay in payment - 30 days.
In this case, the formula for calculating the penalty for OSAGO will be as follows:
| SS | amount of guaranteed compensation |
| 8 | percentage per annum, CBR refinancing rate |
| DP | days of delay |
The penalty will be:
For example:
The financial sanction for violation of the deadline for sending a reasoned response is not a penalty and is paid separately in the amount of 0.5% of the sum insured according to the type of harm caused to each victim. For each day of delay, a fine is paid in the amount of 1/75 of the refinancing rate of the Central Bank of the Russian Federation.
Penalty for late payment
The penalty is the only sanction that applies to the insurer in case of delay in the performance of the main contractual obligations.
The penalty applies only to the insurer. The insured person or the beneficiary is brought to administrative responsibility for violation of the OSAGO Rules.
Table. The amount of the penalty and the grounds for its calculation ^
| Base | Amount of compensation | Limitation |
| The insurer violated the terms established for the transfer of insurance compensation | 1% of the amount of insurance compensation for each day of delay | The penalty cannot exceed the sum insured |
| The insurer violates the deadlines when returning part of the insurance premium | 1% of the insurance premium for each overdue day | The total amount of the penalty cannot be more than the amount of the bonus |
| The insurer has overdue the period established for sending a refusal to provide insurance compensation | 0.5% of the sum insured for a certain type of indemnity | The penalty cannot exceed the sum insured |
The penalty for each method of calculation will not exceed the amount of insurance or the amount of the premium guaranteed by the agreement. The amount of recovery also depends on the refinancing rate of the Central Bank of the Russian Federation and the delay period. The late payment penalty is always the highest.
This is due to the fact that it is the untimely transfer of funds to the beneficiary that is the most serious violation of contractual obligations by the insurer.
A penalty is a guarantee regarding the fulfillment of obligations by an insurance company. Insurers pay the largest penalties in case of delay in payment of monetary compensation in cases in which there are victims.
This is not surprising, because according to the new rules, the limit on the amount of insurance has become larger. It is now extremely unprofitable for the insurer not only to evade the payment of insurance compensation, but even to respond untimely to written requests from insured persons.
Video: How to make an insurance company pay for OSAGO
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In the event of an accident, the victim has the right to receive monetary compensation.
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At the same time, situations often arise when the insurance company pays monetary compensation not in full - the client will have the right to receive monetary compensation.
What it is
In accordance with the law, an insurance company is obliged to fulfill its obligations to citizens if an OSAGO insurance contract has been concluded.
But it is also important to remember that companies often avoid making such payments in order to save money. There are several different ways out of this kind of situation.
First of all, it is necessary to remind employees of the insurance company that the amount of interest for late payment is 1/75 of the refinancing rate of the Central Bank of the Russian Federation.
The recovery of a penalty under OSAGO is usually carried out through the courts - but only if the issue could not be settled out of court for some reason.
The penalty is understood as non-payment of the sum insured in the event of an insured event, delay. There is a fairly extensive jurisprudence in this regard.
Before applying to the court for the purpose of obtaining compensation, it will be necessary to carefully read all the nuances.
Usually, doing business on your own in the absence of relevant experience causes certain difficulties. Therefore, it will be necessary to consult with a qualified specialist.
There are many different institutions that specialize directly in this kind of cases.
A preliminary consultation can significantly reduce the time required to resolve a difficult situation.
As prescribed by law
Today, there is a specialized regulatory document that regulates all the nuances associated with the registration of OSAGO, as well as receiving compensation, paying a penalty.
It is better to deal with all the nuances in advance. The fundamental normative document, on which it will be necessary to rely, is “On Compulsory Civil Liability Insurance”.
It reflects all, without exception, points affecting the issue of obtaining a penalty, compensation payment.
The main sections that you need to familiarize yourself with first of all in the event of an accident and the need to obtain compensation, penalties are:
| A complete list of the main concepts used in this regulatory document | |
| The question of compulsory insurance, reflected in the relevant legislative norms, is disclosed. | |
| Establishes the basic principles of compulsory insurance on the territory of the country | |
| The obligation of vehicle owners to carry out motor third party liability insurance is indicated | |
| Basic rules of motor third party liability insurance | |
| What is insurance risk, as well as the object of compulsory insurance | |
| What is the sum insured, specific amounts are indicated according to these values | |
| The procedure for regulating the basic insurance tariffs for compulsory insurance | |
| Indicates that the insured has the right to receive compensation in the event of a traffic accident | |
| How does the compensation process work? | |
| The procedure for recovering the amount of compensation | |
| Insurers, the main issues related to this concept | |
| The main features of operations carried out by insurers under the procedure of compulsory insurance of general civil liability | |
| What is a professional association of insurers |
The work of insurance companies should be carried out within the framework of the above regulatory document.
Therefore, in each case, everything is strictly individual. It is best to look at examples from judicial practice regarding this situation.
Example from jurisprudence
The main document that you need to rely on in this situation is.
It highlights the following important questions:
- it is not allowed to apply to disputable legal relations on the imposition of a fine of 50% on the insurance company when considering cases of OSAGO;
- in accordance with the Federal Law "On OSAGO", the penalty is subject to collection based on the amount of damage caused - it is on the basis of this resolution that the maximum amount of the penalty is established.
Also, the Supreme Court of the Russian Federation ruled that there was a significant difference between a fine of 50% under the ZoPP and various other types of forfeit.
According to the Civil Code, a penalty is a certain amount of money that one party must pay to the other for breach of an obligation.
As you know, there is no better way to stimulate your debtor than to apply monetary sanctions to him.
The penalty is an effective tool to compensate for your time and money costs, as well as a way to punish an unscrupulous insurer.
According to the law (clause 21, article 12 of the OSAGO Law), the insurance company is obliged, within 20 days from the date of submission of documents on the insured event, to pay insurance compensation ( at the same time in full!).
For violation of this period, a penalty (penalty) is charged every day in the amount of 1% of the amount of underpayment, which is due to the victim.
It is important to keep in mind that only the amount that the insurance company must pay as insurance compensation is taken as the basis for calculating the penalty. In our case, this is the cost of repair, loss of commodity value ( i.e. expenses that are inextricably linked with the occurrence of an insured event and the restoration of a violated right ).
If the payment was underestimated, and you submitted a claim for an additional payment by attaching your own assessment report, then the money paid for this report is not included in the calculation of the penalty, since it is not included in the insurance compensation ( because the occurrence of these expenses is not directly related to the insured event ). You collect money for the assessment in excess of the sum insured as losses incurred through the fault of the insurance company ( according to the rules of articles 15 and 393 of the Civil Code of the Russian Federation).
For example, you were paid an insurance indemnity in the amount of 100,000 rubles, but according to your estimate, the cost of restoring repairs is 150,000 rubles. Accordingly, in this case, you have the right to demand a penalty in the amount of 1% of the underpayment amount (50,000 rubles), multiplied by the number of days of delay.
The formula for calculating the CMTPL penalty:
amount of insurance payment (unpaid part) * 0.01 * X (days of delay)
With an underpayment of 50,000 rubles and a delay of 50 days, the penalty will be = 50,000 * 0.01 * 50 = 25,000 rubles.
According to paragraph 23 of the Review of the Practice of the Supreme Court of the Russian Federation " consideration by courts of cases related to compulsory civil liability insurance of vehicle owners» dated 22.06.2016 the penalty should be calculated from the so-called 21st day
In simple words, if you submitted a package of documents to the insurance company on July 01, then the penalty is subject to calculation from July 22 (01.07-21.07 = 20 days, July 22 - the 21st day) until the day of additional payment of insurance compensation (actual fulfillment of the obligation).
And now the nuances that are important to know when collecting a penalty from the insurer.
The maximum amount of the penalty
According to Article 16.1 of the OSAGO Law, if the victim is an individual (citizen), the maximum amount of the penalty is limited to the amount of the maximum insurance amount provided for in Article 7 of the Law. At the moment, the maximum amount of payment for property damage is 400,000 rubles.
It follows from this that, whatever the delay period, you are not entitled to count on a penalty of more than 400,000 rubles.
Do not be greatly deceived and think that the insurer has one duty, and you have one right.
So the OSAGO Law provides for a number of obligations that the victim bears when applying to the insurance company.
For example, the law provides that the victim is obliged to provide the insurer with a car for inspection (clause 10, article 12 of the OSAGO Law). The insurer has the right to require you to fulfill this obligation.
In case of evasion of this duty, we can talk about the abuse of their rights.
The Plenum of the Supreme Court of the Russian Federation in paragraph 52 of Resolution No. 2 of 01/29/2015 "On the application by the courts of legislation on compulsory insurance of civil liability of vehicle owners" indicated the following:
*This is worth mentioning. If your car is not running and you cannot submit it for inspection, the insurer must send an expert to inspect your car at the address you specified within 5 days. If the insurer does not fulfill this obligation within the prescribed period, then there can be no talk of any abuse of rights on your part. The penalty is recoverable.
Reducing the penalty under Article 333 of the Civil Code of the Russian Federation
According to Article 333 of the Civil Code of the Russian Federation, the court has the right to reduce the amount of the penalty if it is clearly disproportionate to the consequences of the breach of obligation.
In simple words, this is when your requirements are formally legal, but in fact too large, with a relatively low amount of underpayment. At the same time, the courts reduce the penalty to the amount that, in their opinion, will contribute to the principles of reasonableness and justice.
An important detail. The court has the right to reduce the penalty only in exceptional cases, if the defendant is a commercial organization.
As a rule, it is very difficult for an ordinary person to navigate in court and understand what is happening. Paying attention to these legal subtleties is the task of a lawyer. Therefore, it is very difficult to recover the maximum amount of money without the help of an experienced lawyer. Judges do not forgive the weakness to which the townsfolk are prone when, out of inexperience, they themselves come to court.
Take a look at examples from our practice.
The Primorsky District Court of St. Petersburg, due to its frivolity and short-sightedness, refused the client to recover a penalty from the insurer. The plot of the case is classic: the client turned to the insurer for payment. The payout was low. Then he filed a claim, for which the insurer paid additional insurance compensation. We are going to court to demand damages.
As a result, the Supreme Court of the Russian Federation, in ruling No. 78-KG16-58, cancels the decision of the Primorsky District Court of St. Petersburg, sends the case for a new trial. The St. Petersburg City Court is considering this case again, satisfies the client's requirements.
Here is what the Supreme Court of the Russian Federation writes:
Also interesting is the case of G........... th I.I. v. PJSC SK Rosgosstrakh. It is interesting in that the court, in addition to the forfeit, also exacted a fine from the amount of the forfeit. With an underpayment of 227,302.56 rubles, the insurer ended up still owing the client 340,953.56 rubles ( forfeit 227,302.56 rubles, compensation for non-pecuniary damage 2,000 rubles, fine 111,651 rubles).
The plot of the case is similar: the additional payment of insurance compensation was made after a 20-day period.
If you have insured events for which the insurance company made a payment with a delay, please contact us!
We help to sue a penalty, a fine and moral damage from an unscrupulous company to the maximum.
Forfeit or late payment interest is a form of civil sanction that is imposed on the insurer for the delay in fulfilling its contractual obligations. According to Russian law, pre-trial settlement of the dispute is mandatory. This means that before filing a lawsuit for the failure of the insurer to fulfill its obligations, the insured must send him an application and a claim with a request to make insurance payments.
With regard to the application, the law does not establish specific deadlines. It is only said that it must be filed immediately after the insurance incident. After receiving the claim, the insurer has 20 days to send a reasoned refusal to the policyholder or pay the sum insured.
Important! It must be understood that a motivated refusal is the proper performance by the insurer of his duties. But only until the moment when the court to which the insured applies decides otherwise, namely that the insurer is obliged to pay the sum insured.
Penalties for delay in insurance payment under OSAGO are calculated based on the rate of 0.05%, which is taken from the maximum sum insured for each overdue day. Since 500 thousand rubles are set as maximum payments. (compensation for damage to health and life) and 400 thousand rubles. (compensation for damage to property), then 0.05% is taken from these amounts.
Having made simple arithmetic operations, you can get the amount of the penalty for one day of delay for any client of the insurance company under OSAGO.
500000 × 0.05 \u003d 250 rubles.– penalties for 1 day of delay in case of harm to life and health.
400000 × 0.05 \u003d 200 rubles.- penalties for 1 day of delay in case of damage to property.
The penalty for all days of delay will be 250×n or 200×n, where n is the number of days overdue.
The number of days of delay is calculated as follows. First, a reference point is set - the moment from which the delay time begins to flow. To do this, 20 days are marked on the calendar, starting from the day the application and claim were submitted.
If there are holidays in this 20-day period, their number is added after the 20th day. As a result, the desired date is set, which is the last day for the insurer to voluntarily fulfill its obligations - payment of the sum insured, sending the car for repair (if required) or a reasoned refusal.
If no response has been received from the insurer before the starting point, the time for which he must pay penalties begins to flow. It continues until the moment when the insurance company nevertheless fulfills its obligations, or until the decision of the court that considered this dispute.
Penalties for late insurance payments under CASCO or OSAGO threaten only the insurance company, the insured person does not bear such responsibility.
To receive a penalty, you need to submit an application to the insurance company containing the calculation of the required amount. It is also necessary to indicate the method of payment - in cash or non-cash. In the latter case, the bank details of the victim will be required. The application must be written in 2 copies, one of which with the signature of the insurer should be kept for yourself. The insurer is not entitled to require any other documents.
Helpful advice! When considering a claim for payment of a penalty in court, the time of delay, and, consequently, the amount of the penalty, are variable values, that is, they constantly increase. In order not to change the amount of the penalty every time, it is advisable to indicate the time of delay in the statement of claim in the following wording: “from ____ to the day the court makes a decision.” And before each meeting, report the amount of the penalty for the current moment for the protocol.
Fine
In addition to penalties, the insurer may be subject to a fine for failure to comply with the legal requirements of the insured (clause 3, p. 16.1 of the Federal Law “On OSAGO”). Its size is 50% of the amount of insurance compensation - with the exception of those amounts that were paid by the insurer voluntarily within the 20-day period allotted by law. If the interests of the victim were represented in court by the OZPP (Consumer Protection Society), then the fine is divided equally between the OZPP and the victim.
The fine requires a binding court decision, while the insurer can pay interest voluntarily, and no court decision is required.
Fines for late payment of insurance compensation in kind
Compensation in kind is the repair of a damaged car. In order to fulfill its obligations in this part, the insurer must send the policyholder's car to a repair organization. Usually this is a station.
If there is no referral for repair or a reasoned refusal to do so after a 20-day period from the date of receipt of the application and claim, sanctions payments begin to accrue.
That is, penalties for late payment of insurance compensation in kind - this is a penalty for non-compliance with the deadlines for issuing a referral for repairs and / or violation of the repair deadline. The amount of the penalty for delay in this case is 1% of the amount of insurance payments for each day of delay.
In the direction for repair, the terms of repair should be prescribed. The responsibility for them to the policyholder lies with the insurer, and not the organization that carries out the repair. The duration of repair work is not regulated by law, it depends on the specific conditions in the service station.
Penalty for delay in insurance payment under OSAGO
It happens that, for various reasons, the insured wishes to terminate the OSAGO contract ahead of schedule. In this case, under certain circumstances, he has the right to receive back part of the money paid for insurance. What are these circumstances?
The law provides for the following cases of early termination of the OSAGO contract, in which the insured or his heirs have the right to return part of their money.
- Death of the insured.
- Loss for one reason or another of the insured vehicle.
- Liquidation of the insurer or revocation of its license.
- Change of vehicle owner.
The following rules apply to the refundable part of the insurance premium. Payment must be made within 14 calendar days. The starting point is the day when the insurer received the application from the policyholder.
For violation of this period, the insured or his heirs have the right to demand a penalty. Its size is calculated based on 1% of the sum insured for each overdue day. In this case, the amount of the penalty cannot exceed the insurance premium itself.
As in other cases, penalties are charged until the day when the insurer fulfills its obligations (returns part of the sum insured), or a court decision on this dispute is made.
Important nuances for paying penalties for late insurance premiums
The total amount of penalties cannot exceed the maximum amount of insurance payments - 500 thousand rubles (compensation for harm to health) or 400 thousand rubles. (compensation for damage to property).
In the event that the insurer has committed several offenses, a penalty can be claimed for each violation. For example, for non-transfer of the sum insured and for non-submission of a reasoned refusal.
The court has the right to reduce the amount of the penalty only after receiving the relevant application of the defendant. And only as an exception, when the amount of the penalty is disproportionate to the degree of violation by the insurer of its obligations.
The fact that the insurance company satisfied the claim of the victim after his application to the court does not relieve the insurer from paying the fine.
If there are several victims in relation to whom the insurer has committed a violation, each victim can count on receiving a penalty.
The insurer may be exempted from paying a penalty in the following cases:
- if he, within the established time limits, in good faith fulfilled his obligations to pay the sum insured or a reasoned refusal;
- if the deadlines were not met due to force majeure or through the fault of the victim himself.
Important! The presence and validity of the grounds for exemption from the payment of a penalty must be proved in court by the insurer himself.
One of the "carrots" provided by the legislator to the victims under the OSAGO agreement is a high penalty in case of violation by the insurer of its obligations. The size of the penalty exceeds those usually applied in equilateral civil relations and is more typical for relations with consumers. Let's figure out what an injured car owner who is faced with poor-quality insurance services can expect in this part.
What is a forfeit under OSAGO
The penalty is one of the legal ways to ensure the fulfillment of obligations by the party to the contract and is expressed in additional financial losses that an unscrupulous participant in the transaction may suffer. The penalty is established, as a rule, in case of delays in payment or payment in the form of interest on a certain amount and is paid in favor of the injured party. Typically, interest is calculated on the amount the obligation to pay is overdue.
The penalty is a way to secure obligations
The condition of the penalty is established by law or contract. With regard to OSAGO, the relevant provisions are determined by the Federal Law of April 25, 2002 No. 40-FZ and are duplicated in the Rules, approved. Regulation of the Central Bank of September 19, 2014 No. 431-P. Depending on the type of violated obligations, the right to a penalty arises from the victim or the insured. The penalty is calculated for each violated obligation.
The payment of a penalty under an OSAGO agreement is unconditional. The law establishes not the right of the victim (the insured) to demand the payment of interest, but the obligation of the insurer to pay a penalty. The parties are not entitled to change the amount of interest or provide for cases of release of the insurer from liability. On the other hand, it is prohibited to collect penalties, fines and penalties from the insurer on the grounds and in the manner other than those provided for by the OSAGO law.
The insurer does not pay a penalty and refuses to satisfy claims for a penalty in the following cases:
- conscientious performance of their obligations;
- the occurrence of a delay due to insurmountable circumstances or through the fault of the victim or the insured (for example, if the details for transferring the payment are not provided, etc.).
There are no other legitimate grounds for refusing to pay a penalty.
In what cases is the insurance company obliged to pay a penalty?
A penalty (financial sanction) for OSAGO is charged in case of delays in the performance of obligations allowed by the insurer in the following cases:
- Violation of the terms of monetary payment or issuance of a referral for the repair of the vehicle.
- Violation of the terms of repair of the vehicle at the service station.
- Violation of the deadlines for the return of the insurance premium.
- Violation of the deadlines for sending a denial of payment.
The penalty for OSAGO is charged for several reasons Late payment or issuance of a referral for repairs
OSAGO rules set a deadline for paying insurance compensation or issuing a referral for repairs:
- 20 calendar days, excluding non-working holidays, from the date of acceptance for consideration of the victim's application for insurance compensation or direct compensation for losses and the documents attached to it;
- 30 calendar days, except for non-working holidays, with the written consent of the insurer for independent organization and repair of the injured.
The period may be extended if the injured party does not provide the car damaged in an accident for inspection for the time agreed for a re-examination, but not more than 20 calendar days, with the exception of non-working holidays.
The countdown starts from the next day after the submission of the full package of documents provided for by the OSAGO Rules for making a decision on the occurrence of an insured event. The victim is obliged to submit an application to the insurance company within 5 working days with the following documents attached:
- a copy of an identity document, certified or with the presentation of the original;
- bank data for which the calculation should be made;
- consent of the guardianship and guardianship authorities when paying to a minor;
- notification of an accident on the form issued at the conclusion of the OSAGO agreement (or printed out from the PCA website);
- traffic police documents (protocol, resolution or definition) except for cases of registration of an incident without the participation of the police.
Depending on the circumstances and type of damage (harm to health, damage to property other than a car, etc.), the victim provides other documents, the list of which is established by the OSAGO Rules. From 20.0.2017, the previously mandatory certificate of an accident is not provided due to its exclusion from the documents required to be drawn up in case of an accident.
In case of violation of the established terms of payment or sending for repairs, the insurance company is obliged to pay a penalty in the amount of 1.0% of the established amount of insurance compensation. In case of partial payment, disputing the amount of payment, the penalty is calculated from the underpaid part.
Rules for calculating the penalty
The penalty is calculated according to the formula:
Penalty \u003d C x KD x RN / 100, where
C - the amount payable (insurance payment, sum insured or the refundable part of the premium);
KD - the number of days of delay;
RN - the amount of the penalty.
Calculation examples.
On February 10, 2018, an accident occurred. The damaged car was evacuated from the scene of the accident to the victim's garage, as he could not move after the accident. The victim applied for payment on February 12, 2018 and provided all the necessary documents. Taking into account the non-working holiday on February 23, 2018, the payment must be made no later than February 26, 2018. The delay begins on the 21st day, which is February 27, 2018. The referral for repairs was issued on March 5, 2018. The delay was 7 days. The cost of repairs was determined in the amount of 150,000 rubles. The size of the TCB was 10,000 rubles. For the services of a tow truck, the victim paid 5,000 rubles.
Penalty \u003d (150,000 + 10,000 + 5,000) x 7 x 1.0 / 100 \u003d 10,850 rubles.
In case of violation of the terms of refusal, the calculation of the amount of the financial sanction looks like this (the delay in sending the refusal was, for example, 10 days, compensation for damage to the car was denied, the event was issued with a call from the traffic police):
Fin. sanction \u003d 400,000 x 10 x 0.05 / 100 \u003d 2000 rubles.
The generalized requirement for the maximum amount of the penalty is established by clause 6 of Art. 16.1 of the Federal Law "On OSAGO". The total amount of the forfeit, the financial sanction that must be paid to the injured citizen is limited to the sum insured for the corresponding type of harm. In relation to legal entities whose vehicles and property are damaged as a result of an accident, the law does not contain restrictions on the maximum amount of the penalty and sanctions. At the same time, it should be remembered that in case of delay in payment or violation of the repair terms, the maximum amount of the penalty is limited to the unpaid compensation or the cost of the repair.
The amounts of forfeits for OSAGO are overstated The amounts of the penalty introduced by the OSAGO Rules are clearly overstated and do not correspond to the severity of the consequences. The trial in the district court lasts two months. Appeal is preceded by a claim. The duration of the delay in payment in case of unlawful refusal, for example, at the time of the decision is 3-4 months at least. During this time, the penalty reaches its maximum size. Taking into account the prescribed fine, the victim receives as a result a payment exceeding 2.5 times the damage caused.
Based on this, the courts almost universally actively apply Art. 333 of the Civil Code on the correspondence of the amount of liability to the consequences that have occurred and significantly reduce the amount of the forfeit and fine (up to 10–20% of the calculated values). But in order to reduce the penalty, a corresponding statement by the defendant, the insurance company, is required. The court is not entitled, on its own initiative, to reduce the liability of the insurer (for example, the decision of the Voroshilovsky District Court of Rostov-on-Don dated May 29, 2017, the penalty was collected in the maximum amount of 400,000 rubles).
The current version of the Federal Law "On OSAGO" has stopped the vicious, according to insurers, judicial practice on the application of liability measures for violation of the terms of the OSAGO agreement. Initially, the law did not contain liability measures for the insurer. In terms of forfeit and fine, the Supreme Court extended the effect of the Law “On Protection of Consumer Rights” to property insurance (clause 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17). The explanations of the Supreme Court for a long time were not accepted by the lower courts, which did not regard the victims as consumers under the OSAGO agreement. The Supreme Court finalized its position in paragraph 2 of the Decree of the Plenum of the Supreme Court of January 29, 2015 No. 2 (now no longer in force).
Legislation on the protection of consumer rights regulates the relationship between the consumer and the seller (manufacturer, performer). Relationships are established by contract. The party to the OSAGO agreement is the insured. The insurance company renders a service to him, indemnifying for him the damage. The victim is not a party to the contract and is not a consumer (direct settlement changes the payment procedure, but not the status of the persons involved, and at the time of the adoption of the SC Resolution, there was no direct reimbursement). The position of the Armed Forces was assessed by insurers as another legal artifact. Establishment of special measures of responsibility removes the relationship on OSAGO in this part from the scope of the Law "On Protection of Consumer Rights".
The procedure for the insured to collect a penalty
For the recovery of a penalty, a declarative procedure is provided. The victim submits a written request to the insurer, in which he cites:
- justification and calculation of the penalty;
- the form of payment of the penalty (cash, transfer);
- bank details for cashless payments.
The insurer is not entitled to require any additional documents to substantiate the stated claims. All necessary documents are already available in the materials of the payment case. Consideration of the application is carried out within 10 calendar days, except for non-working holidays. In case of partial payment of a penalty or refusal to voluntarily meet the requirements, the victim has the right to apply to the court.
When applying to the court, it should be remembered that the amount of the penalty is likely to be significantly reduced When deciding whether to go to court, one should take into account the likely reduction in the amount of the penalty in accordance with Art. 333 GK. On the other hand, the penalty is calculated until the moment of actual payment, including by a court decision. The decision enters into force after a month, it takes some time to transfer the writ of execution to the bailiffs, the insurer or the bank, the execution of enforcement proceedings or payments. In the period for which the penalty must be paid, all this time is included.
Claims to the court for the recovery of a penalty can be considered both simultaneously with claims for payment of compensation, and separately. Proceedings are carried out in a lawsuit. With the amount of claims up to 50,000 rubles, the case is considered by a justice of the peace, more than 50,000 rubles. - district (city) court.
There is no fee for such disputes. Foreclosure cases are not difficult in most cases. You can draw up a statement of claim yourself using a sample with a list of main applications.
Fine and other compensation
In addition to the forfeit and penalty, the court collects a fine from the insurance company for failure to fulfill obligations under the OSAGO agreement. The penalty is calculated in the amount of 50% of the unpaid or underpaid amount of compensation. The penalty is not taken into account when determining the amount of the fine.
The following are also eligible for compensation:
- TCB if the insurer has not paid out voluntarily;
- the costs of conducting their own technical expertise, if its results are accepted by the court as the basis for determining the amount of payment;
- moral damage caused by non-fulfillment or improper fulfillment of obligations by the insurer (usually in the range of 1000–3000 rubles);
- expenses for a representative within reasonable limits (5,000–10,000 rubles);
- costs associated with the forwarding of claims and claims;
- other legal expenses.
Currently, insurers are much more responsible for their obligations. In many cases, disputes, including those relating to penalties, are resolved out of court.
The forfeit and the fine are not means of enriching the victim and are aimed at ensuring the timely and complete fulfillment of obligations by the insurer. Nevertheless, the victim must know the procedure and conditions for receiving the penalty payments due to him in order to fully protect his rights.
