03 august 2023, 14:54

The court confirms the consumer’s right to be compensated under CMTPL insurance without taking into account depreciation

The gist of the case
A resident of the Leningrad region was involved in an accident, as a result of which her car was damaged. When she applied to the insurance company for a CMTPL insurance claim, she chose the monetary form of compensation in her application. The insurance company arranged an independent expert examination, which showed the cost of the restoration repair of the vehicle without depreciation to be 25,049 roubles 00 kopecks, with depreciation 18,063 roubles 81 kopecks.

Then, the insurance company, guided by the standards on the priority of restoration repair, sent the consumer a text message with a notification about the issuance of a referral to the service station, but the service station issued a statement of inability to carry out repairs. The financial institution made an insurance indemnity payment to the applicant in the amount of 18,063 roubles 81 kopecks, i.e. taking into account the depreciation.

After that, the consumer again applied to the insurer with a claim for additional payment of the insurance indemnity, compensation for moral harm and reimbursement of legal expenses.

The insurance company refused to satisfy these claims.

Position of the Financial Ombudsman
The financial institution failed to fulfil the obligation imposed on it under the law (clause 15.1 of Article 12 of Law No. 40-FZ) to provide restoration repair, and changed the method of reimbursement and made a monetary payment. The Financial Ombudsman has not found any circumstances by virtue of which the financial institution had the right to replace, without the applicant’s consent, the arrangement and payment for repair services with an insurance payment in accordance with paragraph 16.1 of Article 15 of Law No. 40-FZ.

Taking into account the provisions of paragraph 1 of Article 393 of the Russian Civil Code, according to which the debtor is obliged to reimburse the creditor for losses caused by the non-performance or improper performance of an obligation, and considering that the financial institution, having no right to replace without the applicant’s consent the insurance indemnity method, improperly performed the obligation to issue a referral for repair, the insurance indemnity in the amount of the cost of the restoration repair without taking into account depreciation is to be recovered from the financial institution.

A different interpretation would mean that the insured, being entitled to receive from the insurer an insurance indemnity in kind equivalent to the cost of restoration repairs without taking into account depreciation, due to the insurer’s breach of the obligation to issue a repair referral, receives insurance indemnity in monetary form in an amount less than the one she was entitled to expect.

The court’s position
The first instance court ruled that the financial institution had duly fulfilled its obligations to pay the insurance indemnity taking into account depreciation. The Leningrad Regional Court upheld the Financial Ombudsman’s appeal, overturned the court’s ruling, and left the Financial Ombudsman’s decision intact (2-1692/2022, Vsevolozhsk City Court of the Leningrad Region).

The court’s appeal ruling states that it follows from the established circumstances of the case that the vehicle was not repaired at the service station to which the insurer sent the insured. The culpability of the insured has not been established. At the same time, the court did not find that the circumstances specified in Article 12, paragraph 16.1 of the CMTPL Insurance Law entitle the insurer to change the type of insurance indemnity.

In such circumstances, the court’s judgement that the insurer was justified in paying the insurance compensation to the claimant in monetary form, taking into account the depreciation, and should not compensate for the losses caused by the refusal to arrange and pay for the repair of the vehicle in kind, contradicts the above provisions of the law.
 

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