The FOS Expert Council’s guidelines issued at the meeting held on 28 June 2019
It is recommended that Financial Ombudsmen when determining approaches to consideration of consumers’ appeals should take into account the following.
1. On the issue of recovery from the insurance organization of expenses incurred by the consumer for expert examination for the purpose of sending a claim to the insurance organization and (or) filing an appeal to the Financial Ombudsman in connection with claims for payment of insurance indemnity.
Until 01.06.2019 the wording of Paragraph 1 of Article 16.1 of the Federal Law of 25.04.2002 No. 40-FZ “On Compulsory Civil Liability Insurance of Motor Vehicle Owners” (hereinafter Law No. 40-FZ) was in effect, according to which, if there are disagreements between the injured party and the insurer regarding the fulfilment by the latter of its obligations under the compulsory insurance contract before a claim is brought against the insurer arising from the non-fulfilment or improper fulfilment of its obligations under the CMTPL insurance contract, the injured party, when sending a claim to the insurer, was obliged to attach to the claim a substantiated statement of reasons for its failure to fulfil its obligations under the CMTPL insurance contract.
Effective from 01.06.2019, a new version of Paragraph 1 of Article 16.1 of Law No. 40-FZ entered into force, which stipulates that if there is a disagreement between an injured party, who is a consumer of financial services, and the insurer, prior to filing a claim, the said injured party must send a written complaint to the insurer, and the insurer must consider it in accordance with the procedure established by Federal Law No. 123-FZ “On the Financial Ombudsman” dated 04.06.2018 (hereinafter Law No. 123).
In accordance with Part 2 of Article 16 of Law No. 123-FZ, the standard electronic form of the application to the financial institution is approved by the FOS Council. At the same time, Law No. 123-FZ does not require mandatory attachment of documents substantiating the consumer’s claims.
Thus, in case of the consumer’s disagreement with the insurer’s actions, there is no need to conduct an independent expert examination for the purpose of filing an appeal to the insurance organization or to the Financial Ombudsman.
If the Financial Ombudsman, when considering the appeal, has questions that require an expert examination, he/she is entitled to organise it on the basis of Part 10 of Article 20 of Law No. 123-FZ.
Taking into account the above-mentioned, the consumer’s expenses on the cost of independent expert examination services, including those under Law No. 40-FZ, cannot be recognised as mandatory and, as a consequence, are not subject to reimbursement if they were incurred after 01.06.2019 (except for cases when the injured party’s independent expert examination was carried out independently on the basis of the provisions of Paragraph 2, Clause 13, Article 12, Clause 13 of Law No. 40-FZ due to the inaction of the insurance company to fulfil the relevant obligation).
The costs incurred before 01.06.2019 to pay for the services of an independent expert for the purpose of submitting an initial claim to the insurance company under CMTPL insurance contracts shall be recovered from the insurance company.
2. Regarding the recovery of a penalty from the insurance company for non-performance or improper (untimely, incomplete) performance by the insurance company of its obligation under the insurance contract within the established term.
Penalty for a breach of obligation is accrued from the moment of committing such a breach (for example, Paragraphs 77, 78 of the Resolution of the Russian Supreme Court Plenum of 26.12.2017 No. 58 “On Court Application of Legislation on Compulsory Civil Liability Insurance of Motor Vehicle Owners”).
Law No. 123-FZ does not exclude from the list of claims that a consumer is entitled to make, when applying to the Financial Ombudsman, a claim for the recovery of a penalty.
Thus, the claim for payment of a penalty in connection with the fulfilment of the obligation to pay insurance indemnity in violation of the term is subject to satisfaction in the absence of a dispute about the amount of insurance indemnity (in cases of fulfilment of obligations voluntarily, or by the Financial Ombudsman’s decision beyond the term established therein, or by a court decision).
Thus, it should be taken into account that, in accordance with Article 24(1) of Law No. 123-FZ, the financial institution’s compliance with an effective Financial Ombudsman’s decision is deemed to be a proper fulfilment of the financial institution’s obligations under the relevant contract with the consumer. A similar indication is contained in Paragraph 2 of Article 16.1 of Law No. 40-FZ.
Taking into account the provisions of Article 24 of Law No. 123-FZ and Article 16.1 of Law No. 40-FZ, a claim for payment of penalties in connection with the fulfilment of the obligation to pay insurance indemnity not in full shall be subject to recovery in case of the financial institution’s failure to execute the Financial Ombudsman’s decision on payment of insurance indemnity within the term established in such a decision.
