The FOS Expert Council’s guidelines issued at the meeting held on 26 May 2022
It is recommended that Financial Ombudsmen when determining approaches to consideration of consumers’ appeals should take into account the following.
1. Concerning the procedure of insurance indemnity by insurers in case they indicate the impossibility of repairing a motor vehicle due to the imposed economic sanctions.
If there are no grounds for changing the form of indemnity from in-kind to monetary one, in case of non-performance (or improper performance) of the insurer’s obligation to issue a referral for repair, the amount of insurance indemnity shall be calculated as the cost of restoration repair of the injured party’s vehicle without taking into account the depreciation of the replaced parts, units and assemblies.
If the insurance indemnity in monetary form is provided by the insurer in the manner prescribed by Paragraph 6 of Clause 15.2 of Article 12 of Federal Law No. 40-FZ (the insurer has no contracts with car service stations that meet the requirements established by the compulsory insurance rules for the arrangement of restoration repairs in respect of a particular injured party) or in the manner prescribed by Paragraph 2 of Clause 3.1 of Article 15 of Federal Law No. 40-FZ (the insurer has no way to arrange for the restoration repair of the damaged vehicle of the injured party at the car service station specified by the insurer at the conclusion of the compulsory insurance contract), the amount of the insurance indemnity shall be calculated as the cost of the restoration repair of the injured party’s vehicle, taking into account the depreciation of the replaced parts, units and assemblies.
As proof of the inability to carry out repairs, insurers have the right to submit letters from car service stations refusing to carry out repairs. However, such refusal must be expressly stated in relation to a specific vehicle.
The refusal of a car service station to carry out repair work for reasons related to the current market situation, but without linking such refusal to a specific vehicle of the injured party, cannot be regarded as evidence of the car service station’s non-compliance with the requirements for the arrangement of repairs established by Federal Law No. 40-FZ.
2. On the question of the recovery of payments from insurers under CMTPL insurance contracts in connection with their failure to fulfil their obligation to arrange for the restoration repair of a damaged vehicle (qualification of the sums recovered as insurance indemnity or as losses).
A monetary payment corresponding to the cost of the restoration repair and subject to recovery in the event of the insurer’s failure (improper fulfilment) of its obligation to arrange for the restoration repair of the vehicle should be qualified as insurance indemnity.
3. Regarding the application of Paragraph 3.5 of the Unified Methodology for Determining the Amount of Costs of Restoration Repair in respect of a Damaged Vehicle approved by the Regulation of the Bank of Russia No. 432-P dated 19.09.2014.
When determining the amount of permissible error between the results of calculations of the cost of restoration repair of a motor vehicle performed by different specialists in disputes related to payment of insurance indemnity under contracts of compulsory civil liability insurance of motor vehicle owners, in which the road traffic accident took place before 20.09.2021, to be guided by Clause 3.5 of the Unified Methodology for Determining the Amount of Costs of Restoration Repair of a Damaged Vehicle proceeding from the fact that the margin of such an error is calculated as the ratio of the difference between the results of the primary and repeated (including those arranged by the Financial Ombudsman) expert examinations to the result of the primary examination, i.e. to the amount of the insurance payment made by the insurer.
