Article 16.1: Peculiarities of consideration of disputes under compulsory insurance contracts

More information about the penalty

When purchasing insurance, you and the company enter into an agreement, which becomes the basis of your cooperation. Each party agrees to comply with certain requirements. For example, in order for a driver to be entitled to receive compensation, he must promptly report the accident to the insurer. For its part, the company must make a payment or send your vehicle for repairs within a clearly defined time frame. According to the law, after accepting a claim from a driver, the insurer must consider the case within 20 days, making a payment to the victim or providing a justified refusal.

If the insurer does not comply with this, then the driver has the right to demand compensation for a penalty. Legally, this is enshrined in the Federal Law (Federal Law on OSAGO penalties No. 40). Additionally, this is supported by Law No. 4015-I, which substantiates such concepts as “legal penalty” and “penalty”, as well as Federal Law No. 223 on the rules and procedure for calculation. These laws are the basis for forming a claim against the insurance company.

Examples of penalty calculations

The amount of the penalty under compulsory motor liability insurance is calculated using the formula:

CH=RV*P*D, where:

• CH – amount of penalty;
• RV – the amount of insurance payment or the cost of repairs;
• P – the amount of the penalty depending on the reason for the penalty;
• D – number of days of delay.

Example. After conducting an assessment examination, the insurer determined the amount of restoration repairs to be 210,000 rubles. The company should have issued the victim a referral for repairs no later than 08/10/2018. As of August 20, 2018, no papers were provided to the policyholder. For this, there is a penalty of 1 percent for each day of delay. The amount of the penalty as of August 20, 2018 is 210,000*0.01*10=21,000 rubles.

If the insurer does not issue a reasoned refusal to an application for compensation for damage, then the penalty is calculated by adding up penalties for the delay in making a decision and untimely transfer of insurance compensation or failure to issue a repair order.

Example. On January 1, 2018, the company received a claim for compensation with a full set of documents. As of February 15, 2018, the policyholder has not received a response. An independent examination estimated the cost of restoration repairs at 165,000 rubles, the direction for which should have been issued no later than January 21, 2018. The insurance company had to inform about its decision (direction for repairs or refusal to compensate for losses) also before 01/21/2018. Thus, the amount of the penalty will be: (165000*0.01*25)+(400000*0.0005*25)=46250 rubles.

Circumstances for payment

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You can receive compensation for a penalty in three main cases:

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• the lines for sending a damaged vehicle to a service center for repairs were violated;
• failure to pay funds within the specified period or transfer only part, which is also an offense;
• for untimely written refusal to pay.

Also, in rare cases, drivers can demand compensation from the Russian Union of Automobile Insurers (RUA) if violations were discovered on its part. If the insurer sent the car for repairs on time, but it was done poorly or not done at all, then this increases the repair period due to the fault of the insurer, which becomes an additional reason to demand the recovery of a penalty under compulsory motor liability insurance.

Pre-trial demand for payment of penalties

If the insurer violated the points described above, you did not receive the amount of compensation or the repaired car on time, you can safely demand not only money under compulsory motor liability insurance, but also a penalty. First of all, of course, it is necessary to resolve the issue pre-trial. To do this, the driver must write a statement and submit it to the insurance company. At the same time, the paper indicates the method in which the victim wants to receive funds: in cash or by bank transfer, indicating the details. This is sufficient information for the policyholder. If agents ask for other documents, write a complaint about securing a penalty.

The submitted claim must also include the following:

• applicant's details (full name, residential address, contact details);
• name and address of the insurer;
• a detailed description of your situation;
• date of document execution,
• applicant's signature with transcript.

The insurer has only 5 days to review the application (excluding holidays and weekends). In most situations, the insurance company tries to avoid litigation. This is an expensive and exhausting process that does not have the best effect on the company’s reputation. The driver is only required to verify that the insurance company actually received the application. Send the documents by registered mail with a delivery report, or personally hand over the application to an authorized employee against signature.

If you initially plan to demand a penalty through the court, then in the application you only need to write about the demand for compensation for unpaid funds or car repairs. You can directly claim the penalty after sending the application through a lawsuit.

Contacting the Central Bank

This method is an alternative to filing a claim with the insurance company. The bank, for its part, is responsible for the activities of all financial companies, including various insurance companies. The bank allows you to resolve issues of non-payment of compensation, but in most cases such an appeal does not allow you to resolve the issue of a penny. If you decide to use the help of the Central Bank of the Russian Federation, you need to prepare a corresponding application, indicating:

• Applicant's full name and contact details;
• information about the insurer against whom you have a claim;
• description of the insurer’s violations, calculation of penalties;
• contract or policy data;
• your insurance case number.

Be sure to include a copy of the complaint. The application can be sent either by mail or via the Internet by filling out a form on the website of the Central Bank of the Russian Federation. As practice shows, complaints to the bank are processed quickly, in less than one week.

Court

If the insurance company has not taken action to pay after the application, then you can file a lawsuit. Be sure to support all documents that confirm that you are the victim in relations with the insurance company. As a rule, to consider the case, you will need a contract, a certificate from the State Traffic Inspectorate about the accident, an expert assessment of the amount of damage, as well as a document that confirms your appeal to the insurance company as part of the pre-trial proceedings.

A frequent practice is to reduce the amount of the penalty. Please note that, according to Article 333 of the Civil Code of the Russian Federation, the court can indeed reduce the amount of the penalty, but only when the defendant (insurance company) has filed an appropriate application and after providing relevant evidence that the required amount is not commensurate with the damage received. If the defendant did not submit an application, did not provide evidence of the disproportionality of the payment, and there were no discussions on this issue, then the court itself does not have the right to reduce the amount of the penalty under compulsory motor liability insurance. In fact, in such a situation, the court accepts one of the parties (the defendant), which is already a violation of the law.

The statement of claim can be submitted on the Internet. The document states:

• name of the court and insurance company with address;
• your complete details;
• why you are filing this claim;
• regulations that serve as the basis for meeting your requirements;
• indication of the exact amount of the penalty with the given calculation.

Through an application, the plaintiff (driver) can and should ask the court for assistance in obtaining the relevant documents in the case that are in the insurance company. We recommend that you use the help of lawyers to ensure that you receive the requested amount.

In court proceedings you will need the following documents:

• Copies of documents for the car: PTS.
• COP.
• OSAGO policy.

Calculation rules

The amount of the penalty is determined as a percentage of the unpaid amount of insurance compensation (cost of restoration repairs). From September 1, 2014 the following rates apply:

The penalty is accrued daily throughout the entire period of delay. At the same time, the amount of the penalty under compulsory motor liability insurance cannot exceed the insured amount for the type of damage caused.

If the deadlines for transferring part of the premium are not met, the maximum amount of the penalty cannot be greater than the amount to be returned.

The countdown of the delay begins on the day following the last permissible date for making an insurance payment or issuing a referral for repairs. In order to correctly determine the amount of the penalty, you should take into account some nuances.

• The penalty must be paid for the entire period of non-payment or delay, including the day of issuing a referral for repairs or making an insurance payment. Holidays and non-working days must be excluded from the calculation of days of delay.
• If the insurer partially compensated for the damage, then the penalty is calculated for the unpaid amount.

In addition to compensation for injury to health or damage to cars of third parties, the penalty applies to compensation for the following expenses of the insured:

• services of a tow truck that transported the car from the scene of the accident;
• transporting the victim to a medical facility;
• damage to traffic lights or road signs.

How to calculate

Let's move on to the most interesting issue - the calculation of penalties under compulsory motor liability insurance. The amount may vary significantly, but there are minimum and maximum amount limits. The penalty is calculated using the following formula:

C*Х*D, where:

C - the amount of payment to the victim, which is announced by the appraiser after inspecting the damage;

X - the amount of the penalty for each overdue day - for payment is 1%, for delayed repairs - 0.5%, for no refusal - 0.05%;

D - the number of days by which the insurer was late in payment.

Additionally, the amount of the penalty includes related expenses that the driver incurred during a traffic accident. This includes expenses for:

• emergency commissioner;
• evacuation and parking of a broken car;
• transporting the victim to the hospital;
• repair of road signs and other objects damaged in the accident.

Accordingly, if you do not trust the appraiser from the insurance company, you can contact an independent expert. The delay begins on the day following the 20-day period given by the insurance company to consider your application. If the penalty is collected through a lawsuit, then the last day is considered the date of filing the claim. Subsequently, it is replaced with a later one, since the defendant can pay the amount during the trial. If the insurer has not made payment even after the trial, an additional claim should be filed, where the period of penalty will include the time spent on the trial.

The total amount of compensation for the penalty cannot exceed the amount of the insurance payment; accordingly, the maximum amount of the penalty under compulsory motor liability insurance will be up to 400,000 rubles for damage to the car and up to 500,000 for damage to health. Even if, because of the interest, you calculate a penalty of 650,000, but only the car is damaged, then the court will order the maximum payment for this case - 400,000. If the penalty is collected on part of the unpaid amount, then the formula takes into account only that part of the funds which have not yet been paid to the victim. Under MTPL you can receive the maximum amounts:

• if the car is damaged – 400 OSAGO + 400 for penalties = 800 thousand rubles;
• if there is harm to health – 500 OSAGO + 500 for a penalty = 1 million rubles.

However, you can additionally recover funds for fines, moral damages and legal costs. If the court satisfies your demands, the insurer will be obliged to pay more than the established 800 thousand and 1 million.

The restrictions described above apply only to individuals. Legal entities can receive an unlimited amount as compensation for penalties.

Article 16.1: Peculiarities of consideration of disputes under compulsory insurance contracts

Article 16.1 of Chapter 2 of the law on compulsory motor liability insurance FZ-40

1Before filing a claim against the insurer containing a claim for insurance compensation, the victim is obliged to contact the insurer with an application containing a claim for insurance compensation or direct compensation for losses, with documents attached to it, provided for by the rules of compulsory insurance.

PDDAZBUKA.RU: Important! From January 1, 2021, Federal Law No. 223-FZ dated July 21, 2014, paragraph two of paragraph 1 of Article 16.1 is declared invalid.

If there are disagreements between the victim and the insurer regarding the latter’s fulfillment of his obligations under the compulsory insurance contract before a claim is filed against the insurer arising from non-fulfillment or improper fulfillment of his obligations under the compulsory insurance contract, the victim’s disagreement with the amount of the insurance payment made by the insurer, or the service station’s failure to comply with the transfer deadline to the victim of a repaired vehicle, violation of other obligations to carry out restoration repairs of the vehicle, the victim sends a claim to the insurer with documents attached to it and substantiating the claim of the victim, which is subject to consideration by the insurer within ten calendar days, with the exception of non-working holidays, from the date of receipt. During the specified period, the insurer is obliged to satisfy the demand expressed by the victim for the proper fulfillment of obligations under the compulsory insurance contract or send a reasoned refusal to satisfy such a demand.

2The rights and legitimate interests of individuals who are victims or policyholders related to the failure or improper fulfillment by the insurer of obligations under the compulsory insurance contract are subject to protection in accordance with the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” in part, not regulated by this Federal Law. Proper fulfillment by the insurer of its obligations under the compulsory insurance contract is the making of an insurance payment or the delivery of a repaired vehicle in the manner and within the time limits established by this Federal Law.

3If the court satisfies the demands of the injured individual to make an insurance payment, the court shall collect from the insurer for failure to voluntarily fulfill the demands of the victim a fine in the amount of fifty percent of the difference between the total amount of the insurance payment determined by the court and the amount of the insurance payment made by the insurer voluntarily.

4If the deadline for returning the insurance premium is not met in cases provided for by the rules of compulsory insurance, the insurer pays the insured individual a penalty in the amount of one percent of the insurance premium under the compulsory insurance contract for each day of delay, but not more than the amount of the insurance premium under such contract.

5 The insurer is released from the obligation to pay a penalty (penalty), the amount of a financial sanction and (or) a fine if the insurer’s obligations were fulfilled in the manner and within the time limits established by this Federal Law, and also if the insurer proves that the violation of the deadlines occurred due to force majeure or due to the fault of the victim.

6The total amount of the penalty (penalty), the amount of financial sanction that is payable to the victim - an individual, cannot exceed the amount of the insurance amount by type of harm caused, established by this Federal Law.

7The insurer cannot be charged a penalty (fine), the amount of a financial sanction, or a fine not provided for by this Federal Law and related to the conclusion, amendment, execution and (or) termination of compulsory insurance contracts.

8 The insurer is responsible for the fulfillment of obligations under a compulsory insurance contract concluded by an insurance agent or insurance broker.

Next article Art. 17 Federal Law No. 40 Previous article Art. 16 Federal Law No. 40

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Several calculation examples

Now you know how the penalty for compulsory motor liability insurance is calculated. Let's look at a few examples.

Option one - the insurance company set the amount of damage at 170 thousand rubles. By the end of the 20-day period, 78 thousand had been paid. The penalty period is 80 days. You can file a claim or claim for non-payment of remaining funds using the formula:

(170-78) * 1% * 80 = 73,600 rubles.

The second option is delay in repairs. Let’s assume that the workshop missed the deadline, and therefore the car did not have time to repair. In this example, we take the cost of the entire repair - 220 thousand, a percentage of 0.5 and the number of days, for example, 44. Then we calculate the penalties:

220 * 0.5% * 44 = 48,400 rubles.

Please note that the amount of the penalty under OSAGO in the case of repairs cannot exceed the cost of eliminating car breakdowns. Accordingly, even if the number of days is 200, the maximum amount will be 120 thousand.

The third option is that the insurer did not send a written refusal of the insurance payment on time. This is also considered a violation, since the driver was waiting for a decision and did not repair the car. In this case, the insured amount is used (for example, 80 thousand), the number of days is 60 and the percentage is 0.05%:

80 * 0.05% * 60 = 2,400 rubles.

As you can see, you are allowed to receive a small refund due to an unsent refusal. Naturally, during a lawsuit, you can also demand compensation for legal costs.

Penalty under OSAGO for repairs

The above describes the algorithm of actions when claiming a penalty for an insurance payment from MTPL. But what about repairs if the obligations to restore the vehicle under the insurance contract are violated?

The percentage of penalties under compulsory motor liability insurance in this case is the same - 1%. Delay is considered to be a delay in the issuance of a document for mandatory repairs, as well as delays in the repair itself. The formula for calculating the MTPL penalty is the same: 1% of the insurance premium for each day of delay.

Despite the fact that instead of a monetary payment we are talking about repairs, to calculate the penalty under the MTPL agreement, the amount of monetary compensation is still calculated. The penalties required from the insurance company are calculated on its basis. The calculation is made by independent experts who determine the amount of damage after an accident.

When they can refuse

Inexperienced motorists without the support of lawyers often make simple mistakes, which become the reason for the denial of the claim. You may be refused in the following cases:

• the driver did not complete the claim procedure;
• documents supporting your claim have not been submitted;
• a force majeure event, for example, there was a fire in the company that destroyed all documents, which led to a delay;
• incompetence of the plaintiff - ignoring contact with the insurer, incorrectly indicating the bank account for payment of compensation, or other.

If the MTPL insurance payment is refused, no penalty will be paid.