Judicial practice on MTPL under compulsory motor liability insurance in 2021

An accident can happen to every car owner, regardless of his experience and knowledge of traffic rules. In the event of an accident, the injured party can demand full compensation from the insurance company.

According to the law, a citizen of the Russian Federation does not have the right to drive a vehicle without an appropriate insurance policy. In addition, such cars are not subject to state registration; if the law is violated, an administrative fine will be levied on the perpetrator. Compliance with insurance conditions is controlled by government agencies and legislative documents.

Despite this, litigation quite often arises with insurance companies (IC) regarding compensation for losses.

What laws does the court follow?

Current regulations on compulsory motor liability insurance:

1. Constitution of the Russian Federation.
2. Federal Law No. 40-FZ of 2002 on compulsory insurance of car owners.
3. Law No. 223-FZ of 2014, which spells out amendments to the previous law.
4. Law on the protection of consumer rights N 2300-1.
5. Regulations of the Central Bank of 2014 N 432-P on a unified methodology for calculating restoration repairs.
6. Rules of technical examination N 433-P, approved by the Central Bank in 2014.

General provisions

When taking out a policy, an agreement is signed between the policyholder and the car owner, which specifies possible insured events. It also spells out those situations when the insurance company disclaims all responsibility. Why then does there exist judicial practice on compulsory motor liability insurance?

The fact is that the court more often comes to the defense of the injured party and makes decisions without taking into account the terms of the contract. As a result, insurers pay compensation in full. In addition, the number of scammers who hire lawyers and receive compensation from the insurance company that is not due to them has increased. In this case, victims are left without money or receive a minimum amount.

Given this problem, the Supreme Court made a number of changes to the legislation. Now the trial is carried out only after the citizen personally submits an application to the relevant authority. The payment is made not to the intermediary, but to the injured person. This allowed us to minimize the number of fraudulent cases.

Most often, all disagreements between the insurance company and the policyholder are resolved by agreement, without the involvement of judicial authorities.

If payment under compulsory motor liability insurance is delayed for more than 20 days, the insurance company pays a penalty of 1%. If the insurance company violates the deadline for issuing a refusal, it will be assessed a fine of 0.05%. Penalties come into force 21 days after the client delivers the documents to the company.

Is it legal to collect the difference in wear and tear from the culprit?

In most of the cases under consideration, the demands of the victim to the culprit for payment of depreciation, unfortunately or fortunately, will be legal. After payment from the insurer, the victim may not have enough money for repairs, which is why claims arise against the person at fault for the accident. But why would you suddenly pay the culprit if his liability is insured under MTPL?!

The fact is that even if an accident is registered under the European protocol, when it would seem that the drivers have come to an agreement on the amount of damage, the victim may demand that the culprit pay extra. Judicial practice for collecting wear and tear in this case is different, but in theory, demands can be brought against the culprit quite legally.

After all, the European protocol is the settlement of an insured event within the framework of compulsory motor liability insurance within a certain limit. That is, drivers only agree on compensation for damage according to the rules of compulsory motor liability insurance.

The victim may not always see all the damage or correctly estimate the cost of the parts, so in the case of a European protocol, the culprit must also ensure that all damage is recorded and the cost of repairs is correctly estimated.

The payment from the insurer may not be enough for repairs, both because he calculated and paid everything incorrectly, and because by law he is not obliged to pay more.

What questions can you bring to court as a plaintiff under compulsory motor liability insurance?

1. The compensation awarded by the Insurance Company does not correspond to the losses incurred. If the amount of damage exceeds the assigned payment amount, an independent examination should be carried out and its results should be applied to the court.
2. The insurance company delays making a decision, does not pay the amount due on time, or only partially repays losses.
3. The insurer refused the claim; for example, it did not consider the accident an insured event. Illegal actions of the company are a violation of consumer rights.
4. The amount of damage is much higher than what is allowed under insurance. In this case, the difference is collected from the culprit of the incident in court.

In addition, policyholders go to court for other reasons:

• reimbursement of treatment costs;
• compensation for moral damage if it is proven that the victim suffered a neurological disease or psychological trauma;
• payment for notary and car lawyer services;
• refund of funds for examination and state duty;
• reimbursement of expenses incurred during the evacuation and storage of a damaged vehicle;
• other court-related costs.

If the victim does not submit an application to the Investigative Committee within the prescribed period, he can also appeal to the court. According to the law, the statute of limitations for claims for compensation due is 3 years. However, lawyers advise submitting documents as early as possible. Otherwise, the insurer may refuse to pay, citing violation of deadlines on the part of the plaintiff.

Note! The MTPL law does not provide for monetary payments to those responsible for the accident. Before filing a claim, a citizen must notify the insurance company of his disagreement with the assigned amount of payments. Without this condition, the court will not consider the case. It is advisable to resolve all disagreements out of court.

Penalty under compulsory motor insurance in 2021: calculation and collection

By virtue of the provisions of paragraph 21 of Article 12 of the “Law on Compulsory Motor Liability Insurance” dated April 25, 2002 No. 40, the insurance company is obliged to pay insurance compensation within twenty days (20 days) after the provision of all documents and the completion of all significant actions by the victims (under compulsory insurance contracts for civil liability of owners vehicles concluded starting from September 1, 2014).

According to para. 2 clause 21 art. 12 of the Law “On Compulsory Motor Liability Insurance” 04/25/2002 N 40-FZ, in case of failure to comply with the deadline for making an insurance payment or compensation for damage caused in kind, the insurer for each day of delay shall pay the victim a penalty (penalty) in the amount of one percent of the amount of insurance determined in accordance with this Federal Law payments according to the type of harm caused to each victim.

Previously, payment of penalties under compulsory motor liability insurance was provided for in clause 2 of Art. 15 Federal Law No. 40, for each day of delay, the insurer paid the victim a penalty (penalty) in the amount of one seventy-fifth of the refinancing rate of the Central Bank of the Russian Federation, valid on the day when the insurer was supposed to fulfill this obligation, from the insured amount established by Article 7 of this Federal Law according to the type of compensation for harm to each victim.

According to the explanations contained in paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of legislation on compulsory insurance of civil liability of vehicle owners” dated January 29, 2015 No. 2, the penalty under compulsory motor liability insurance is calculated from the day following the day established for making a decision on payment of insurance compensation, and until the day the insurer actually fulfills its obligations under the contract.

The Review of Judicial Practice of the Armed Forces of the Russian Federation for the third quarter of 2012 dated December 26, 2012 provides an explanation of the collection of penalties provided for in Art. 13 Federal Law No. 40 of April 25, 2002 “On compulsory motor liability insurance: “if the court determines that the insurer has not paid the required amount of insurance compensation, then simultaneously with the satisfaction of the claim of the victim (the policyholder) for the collection of the underpaid (unpaid) part of the insurance compensation, a penalty is subject to collection provided for delay in fulfilling the terms of the insurance contract.

In the event of a dispute regarding insurance payments being resolved, if the court finds that the insurer refused insurance payment or did not pay the insurance compensation in full, the penalty under compulsory motor liability insurance is subject to accrual from the day when the insurer illegally refused to pay or paid the insurance compensation not in full "

- in case of illegal refusal to pay,

- delaying payment terms,

— payment of insurance compensation in incomplete amount,

- for improper fulfillment of obligations for the restoration repair of a damaged vehicle, including for violation of the terms of such repairs.

Collection of financial sanctions under compulsory motor liability insurance

In addition to the penalty under compulsory motor liability insurance, the insurance company is obliged to pay a financial sanction for failure to comply with the deadlines for a reasoned refusal to pay.

The financial sanction is calculated from the day following the day established for making a decision on payment of insurance compensation until the day a reasoned refusal is sent to the victim, and if it is not sent, until the day it is awarded by the court.

Thus, if the insurance company did not pay the insurance compensation within the established time frame and did not send a reasoned refusal, then, along with the collection of a penalty under the compulsory motor liability insurance, a financial sanction under the compulsory motor liability insurance is subject to collection.

Calculation of penalties and financial sanctions under compulsory motor liability insurance

— the calculation of the penalty is calculated based on the amount of underpayment;

— the calculation of the penalty is a fixed amount of 132 rubles per day.

The Supreme Court has repeatedly explained that in judicial practice the interpretation of Art. 7, 15 of the Federal Law “Law on Compulsory Motor Liability Insurance” allow us to conclude that the calculation of the penalty should be based on the maximum insured amount established by Article 7 of the Federal Law (that is, based on 120 thousand rubles).”

In 2015, the Supreme Court of the Russian Federation clarified about the calculation of penalties under compulsory motor liability insurance in the Review of judicial practice of the Supreme Court of the Russian Federation No. 1 dated March 04, 2015 (Review approved by the Presidium of the Armed Forces of the Russian Federation on March 04, 2015) question No. 2: “Based on what amount is the calculation of the penalty subject to payment by the insurer for failure to fulfill the obligation to make an insurance payment: a specific amount of damage or the maximum amount of the insured amount established by Article 7 of the Federal Law “On Compulsory Motor Liability Insurance” dated April 25, 2002 No. 40?

Answer. Article 7 of the Law on Compulsory Motor Liability Insurance determines the exact amounts of insurance amounts within which the insurer, upon the occurrence of each insured event, undertakes to compensate the victims for the harm caused.”

Thus, by virtue of the instructions made in paragraph 2 of Art. 13 of the Law “On Compulsory Motor Liability Insurance”, the amount of the penalty (penalty) is calculated based on the established Art. 7 of the Law “On Compulsory Motor Liability Insurance” with the maximum insurance amount by type of compensation for damage to each victim.”

The amount of the penalty according to the new edition of the Law “On Compulsory Motor Liability Insurance” for contracts concluded after 09/01/2014 is determined in the amount of 1 percent for each day of delay of the amount of insurance compensation payable to the victim for a specific insured event, minus the amounts paid by the insurance company in a voluntary in accordance with the deadlines established by Article 12 of the Law on Compulsory Motor Liability Insurance (paragraph two of paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance).

A legal analysis of the above rules in their entirety allows us to conclude that the calculation of the penalty under compulsory motor liability insurance in the case under consideration should be based on the amount of insurance compensation payable to the victim, minus the amounts paid by the insurance company.

Thus, in the new version of the Law “On Compulsory Motor Liability Insurance” the amount of the penalty for compulsory motor liability insurance is 1 percent per day - of the amount of underpayment of insurance compensation.

Calculation of the penalty for compulsory motor liability insurance: amount of underpayment * 0.01 * number of days of delay = amount of the penalty.

Thus, for contracts concluded before 01.09.2014, the amount of the penalty under compulsory motor liability insurance is determined based on the amount insured - 132 rubles per day, for contracts concluded after 01.09.2014, the calculation is made - 1 percent of the amount of underpayment of insurance compensation.

Amount of financial sanction

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The deadline established by law begins to count from the day the insurer accepts for consideration an application from the insured for direct compensation for losses (insurance payment) and a package of necessary documents determined by the rules of OSAGO. If the insurer has not performed the above actions within 20 days, the insured has a basis in addition to the insurance payments, and also demand that the insurer pay a penalty (according to the old rules, in force until September 1, 2014, the insurer was given 30 days by law to make a decision and take legal actions).

It often happens when the documents do not provide sufficient evidence of compensation or the applicant, after notifying the insurer, did not submit the necessary documents.

In this case, the insurance company is no longer obliged to pay the fine.

If the insurance company did not pay the penalty or did not comply with the deadline for issuing the refusal, then the car owner may file a claim for payment of a fine.

Who makes the decision on payments The final decision on the collection of a penalty can be made by:

• court;
• organization during pre-trial proceedings.

• life and health - 500 thousand rubles.

Another limitation is that the amount of the penalty cannot exceed the insured amount under the contract.

An application for MTPL penalties is submitted to the company as part of pre-trial proceedings.

To receive payment, the client must contact the company with a corresponding application.

After the accident, the car suffered damage in the amount of 150 thousand rubles.

The full set of documents for payment of compensation was transferred to the company on September 1.

As of September 30, the payment had not been received. The total delay period is 10 days.

For each day of delay, the company must pay 1.5 thousand.

Legal relations related to compulsory civil liability insurance of vehicle owners, like any other, have their own methods of regulation.

After this time, the victim has the right to demand payment of a penalty;

• To correctly calculate the amount of the penalty, it is necessary to correctly and very carefully calculate the timing;
• A pre-trial settlement is a prerequisite for resolving disputes regarding penalties.

Thus, it is worth remembering that if a MTPL agreement is concluded with an unscrupulous insurer, the car owner is protected by the legislation of the Russian Federation.

The government has provided all possible ways to resolve conflicts and created the most comfortable conditions directed against illegal actions of companies refusing to fulfill their obligations.

This means that the defendant is obliged not only to indicate, but also to prove that the payment is disproportionate to the consequences of the violation of obligations.

In the absence of evidence, the court cannot satisfy the insurance company's objection.

• The amount of the penalty may be reduced, but only with the obligatory indication of the reasons for such a decision.
• A reduction in the amount does not lead to release from liability for untimely fulfillment of an obligation.

However, it should be noted that a sufficient number of them currently contain an outdated formula for calculating this value, where the size of the refinancing rate of the Central Bank of the Russian Federation is used as a variable or their outdated values ​​are set as a limit on the maximum amount of payments, etc.

In this regard, before the calculation, we recommend that you carefully study the formula proposed in the calculator and the names of the requested parameters for the calculation and check the received data manually, since the formulas for calculating the penalty under compulsory motor liability insurance are quite simple. Collection of penalties under MTPL: claim procedure and statute of limitations The settlement of a dispute arising from an MTPL agreement provides for a mandatory claim procedure (Clause 1, Article 16.1 of the MTPL law). In this case, the claim can be filed by the victim within the following deadlines (clause

What should you know before going to court?

An insured event occurs when an insurance company client is involved in an accident. According to the new rules, the victim must present to the insurer within 5 days documents confirming his rights to compensation. You can contact your insurance company or the insurance company of the person responsible for the incident.

If an individual was injured in an accident, he should ask for help in a court of general jurisdiction; entrepreneurs should file claims with arbitration authorities.

List of documents for submission to the Investigative Committee:

• application addressed to the head of the insurance company;
• policyholder's identity card;
• passport of the damaged car;
• accident report signed by traffic police officers;
• inspection report of the damaged vehicle;
• checks for other cash expenses.

You can contact your insurer if only 2 cars were damaged in the accident, no significant harm was caused to health, and both car owners have an MTPL policy. In all other cases, you need to submit an application to the insurance company that issued the policy to the person responsible for the accident.

The plaintiff in court must present documents proving the illegal actions of the Investigative Committee. First of all, you should attach the insurer's response, which states the reason for the refusal. You also need an act of acceptance and transfer of documents to the insurance company, which indicates the date of application. An independent expert’s decision is necessary in order to prove the underestimation of the amount of payment by the insured. Other evidence may be required, for example, witness statements or video recording.

What experts can be involved?

Damage assessment is usually carried out by the insurance company itself. As a rule, an expert technician with special training and certification is involved for this purpose. In other cases, it issues a referral for an independent examination.

If the insurer has not assessed the damage, the client has the right to contact another authority and inspect the damaged car on his own.

Advice: It is advisable to contact a car service yourself to determine the wear and tear of the vehicle, since the monetary payment depends on the results of the examination.

Often the amount of damage determined by the insurance company and the independent expert does not coincide. This is grounds for going to court. It may happen that the amount of depreciation of the car exceeds the maximum established in the MTPL policy. The difference is usually recovered from the person at fault.

What precedes a trial?

Since the adoption of amendments to compulsory motor liability insurance in 2014, a judicial dispute resolution scheme has been in effect with a mandatory pre-trial settlement stage. An application can be filed with the court only if the insurer refuses to satisfy the client’s demands or does not do so in full. Depending on the circumstances and characteristics of a particular case, the claim is filed:

• to the Arbitration Court (when considering claims from individual entrepreneurs and legal entities);
• court of general jurisdiction (when one of the parties is an individual).

Pre-trial proceedings precede the filing of any claim by the policyholder when it becomes clear that the company refuses to voluntarily satisfy the claims of the applicant.

The basis for proceedings in court is the disagreement of one of the parties to the insurance relationship with the position of the defendant, or the calling of the violator to liability. After accepting the appeal for consideration, the Investigative Committee is obliged to submit an official response based on the results of the inspection within five days. If there is no response or refusal to satisfy the demands, the motorist has the right to go to court. In order for the court to accept the application and initiate the process, a copy of the pre-trial claim, as well as a document confirming the insurer’s attempt to resolve the issue before the trial, is attached to the main package of documentation.

Position of the Supreme Court

In 2021, the Supreme Court on compulsory motor liability insurance issued a review of disputes regarding motor vehicle civil liability. The most significant positions were highlighted:

1. The insurer has the right to make direct compensation for losses if the car was damaged in an accident from a direct collision with another vehicle that has insurance.
2. All claims from individual entrepreneurs carrying out economic activities on the vehicle are considered through arbitration.
3. If disputes arise between the organization that made direct payments to the victim and the company that insured the culprit of the accident, all disagreements must be resolved pre-trial.
4. If an application for compensation, penalties and fines is submitted simultaneously, the pre-trial conflict is considered resolved if at least compensation has been paid.
5. If the driver drove the vehicle under a power of attorney or a rental agreement, he is not entitled to payment.