How to get money for the loss of the commodity value of a car. Uts car after an accident
A question that worries so many Russian car owners. It's no secret that problems with insurance companies arise no less often than traffic accidents on the streets.
Motorists are increasingly experiencing difficulties in obtaining compensation payments from insurance companies. Most of these problems are due to the loss commodity value car. The changes that have taken place in the OSAGO TC 2017 make it possible to successfully resolve these issues through the courts.
What knowledge do you need to arm yourself with in order to achieve a successful outcome in the fight against insurers? And how to get paid as soon as possible? First you need to have an idea of what "loss of commodity value" is.
Repairing a vehicle after an accident leads to a loss of its value. This is the so-called UTS. A car restored after a traffic accident always has a lower price than a car that has never been in an accident.
This is due to restoration work, which leads to a deterioration in the overall operational condition of the machine. These include the change of some parts or components of the car, damage to the paintwork and the restoration of individual parts.
As a result of an accident, not only parts are damaged, but the appearance of the car also deteriorates, which leads to a decrease in the cost of OSAGO by 20% below the market value. Despite the rich judicial practice when considering such cases in favor of the car owner, insurers regard these cases as their lost profit and refuse to cover the real loss of the owners Vehicle. Because of this, it is extremely difficult to argue with insurance companies, but the chances are still high.
How to behave in an insurance company
Every citizen has the right to compensation for losses associated with the loss of commodity value. Such grounds are provided by the Decree of the Presidium of the Supreme Court of the Russian Federation of August 10, 2005, which states that the TCB is real damage and is subject to recovery from the OSAGO insurer. After all, the value of the car really decreases due to an accident.
However, do not go with a statement about compensation payments to the insurance company when:
- Foreign vehicle older than 5 years.
- The machine of domestic production is older than 4 years.
- The vehicle is worn out by more than 35%.
- You are the cause of the accident.
- You have already been paid full compensation under OSAGO.
If the above conditions do not apply to you, then you can write an application for the payment of TCB reimbursement for OSAGO to the insurance company.
This must be done in duplicate. We keep the first, certified by an employee of the company. Then we wait for the written refusal of the insurer and turn to independent expert-appraiser. He inspects the machine itself, or all estimates and cost estimates relating to its repair, in order to correctly calculate the amount of the TCB. You need to understand that the services of an appraiser are paid (about 1-2 thousand rubles), but later this amount can also be collected through the court if the relevant payment documents are attached.
Next, a claim is drawn up, and an application is submitted to the court along with all certificates and reports. Russian judicial practice in such cases in 2017 shows that the car owner has a high chance of winning the case. Moreover, the court obliges insurers to pay not only the CTP required by OSAGO, but also all legal costs.
How is the OSAGO TCB calculated in 2017?
The size of the TCB directly depends on the age of the car and its value. In the Russian insurance market, two methods of calculating TCB are used. The main method is considered to be the methodology of the Ministry of Justice of the Russian Federation, which is used by forensic experts to calculate the loss of commodity value.
The loss of commodity value in 2017 must be compensated if:
- parts have been replaced;
- protective coatings are damaged;
- replaced the components of the car;
- was carried out;
- body parts have been replaced;
- a complete disassembly of the cabin was made, which led to a deterioration in the quality of the factory assembly.
An important clarification - the replaced parts must not have any defects that were previously received. TCB for OSAGO 2017 is not calculated for such cases.
Also, the loss of commodity value is not calculated and not paid if the damage is minimal or not related to insured event. IN judicial practice There have been cases in Russia when the courts collect payments from both the insurance company and the person responsible for the traffic accident.
In conclusion, I would like to give parting words to all motorists. It is necessary to be stubborn in your legal demands when it comes to tens or even hundreds of thousands of rubles. You need to know your rights and be able to use them correctly.
This is a conditional value that determines the fall in the price of a vehicle as a result of repairs after an accident.
In simple terms, it can be described as follows. Suppose, when buying a car for 1 million rubles, you are convinced that he was involved in an accident. Naturally, your actions are bargaining in order to reduce the cost, since some parts are no longer original, but have been replaced with cheaper ones, or simply repaired.
This is how the price of a car goes down. due to damage.
The amount by which the cost has changed and is called TCB, i.e. deterioration of the appearance and technical and operational qualities of the vehicle.
TCB for OSAGO
Specifically, TCB is not mentioned either in the Federal Law on OSAGO or in its auto insurance rules. As a result, each of the parties tries to find its advantages in it.
The insurer does not even hint at compensating for the difference in the cost of a car as a result of an accident, thereby not observing full terms contracts. By excluding compensation for TCB, he violates the objectives of the OSAGO Law, reducing by his actions the rights of the victim to compensation for the harm received.
The car owner and a competent lawyer return this lost difference through the court, thereby restoring justice. In 99% of cases, the insurer voluntarily does not pay this money, but as a result of going to court, he undertakes to pay it by collection method.
No matter how the insurers deny their participation in compensation for losses in connection with the loss of the commodity value of the car, you can get paid without any problems.
Compensation for the loss of the commodity value of the car under OSAGO
The departmental document of the Ministry of Transport of the Russian Federation sets out the procedure for calculating the restoration repair of cars not older than 5 years.
Although, in 2007, the Supreme Court of the Russian Federation upheld all decisions of lower courts obliging policyholders to compensate claimants who turned to them for damages resulting from TCB. The basis for this was clause 2 of article 12 of the Federal Law *On OSAGO*, which refers to the right of the insured to compensate for the damage received within the sum insured.
In turn, insurance companies have not accepted the decisions made by the Supreme Court and to this day do not recognize that TCB is a real value that should be paid special attention to. Thus, they continue to ignore the requirements of their customers to comply with their legal rights, forcing to seek justice through the courts.
The nuances of reimbursement of the commodity value of the car
TCB reimbursement is carried out in several cases:
- domestic vehicle must be not older than 4 years from the date of sale;
- foreign-made vehicle must be not older than 5 years from the date of sale;
- for trucks and commercial vehicles TCB compensation possible if the operation of the vehicle at the time of the accident does not exceed two years.
- The vehicle should not have been involved in the accident., or at least not have damaged parts that are considered in this case.
- The amount of the TCB is determined by an independent expert assessment vehicle. The maximum coefficient will be assigned if the car needs to be completely repainted.
- The amount of TCB depends on the number of colors to be painted external body parts.
- The size of the TCB depends on the number of parts which are to be replaced.
- The basis for calculating the amount of recovery is the market value of the vehicle. There are frequent cases when, with a car costing 350 thousand rubles, the amount of the TCB was 200 thousand.
- Even if the insurer has paid compensation under CASCO for repairs at the dealer's station, he is obliged to pay and TCB.
- At the moment, there are several calculation systems payout amounts.
- In the Russian Federation, not a single insurer will pay out the TCB of its own free will so to speak voluntarily.
Calculation of the loss of commodity value for OSAGO
There are several different methods for calculating the loss of the commodity value of the vehicle. But they all take into account many factors:
- Release date TS,
- date of car accident,
- vehicle cost at the time of the accident
- repair cost TS,
- cost of work for recovery,
- cost of replaced and (or) repaired details.
Estimating the cost of refurbishment should begin with fixing the damage, mileage, and registration data of the vehicle. In the event that the repair has already been made, all the photo and video materials that were made by the representative of the insurer, another expert, the traffic police officer who registered the accident will serve as evidence.
Based on the data provided, the final conditions for the calculation will be determined. For example, for vehicles that are under warranty, the prices for parts and all work will be the same as those of the official dealer of this brand of car in this subject of the Russian Federation. For non-warranty vehicles, the cost will be based on regional stores selling original parts.
Based on the damage report, a list of parts to be replaced is compiled and their cost is calculated. Plus, the cost of the amount of work to fully restore the vehicle to its original state is added to this.
Recovery of the loss of the commodity value of the car under OSAGO
Every car owner should remember that if he got into an accident, Insurance Company is obliged to pay him TTS.
But there are a few strict conditions for this payment to be made.
- The car must be new(no more than 5 years foreign car and no more than 4 domestic).
- Vehicle depreciation should not exceed 35% at the time of the accident.
- The accident must be classified as an ordinary insured event and comply with all applicable regulations.
- The owner must not be responsible for the accident.
If all these conditions are present, then the insurance company is simply obliged to reimburse the TCB for the damaged vehicle, even if it is insured by the CASCO policy and repairs are made with the payment of bills by the insurance company.
How to get money for the loss of commodity value?
In order to receive a material difference from the insurance company as a result of TCB, the injured party is required to unilaterally carry out an independent review.
As a result of this, the expert must answer several questions.
- Full cost similar vehicle at the time of the accident.
- The total cost of this vehicle at the time of the accident.
- The total cost of the vehicle after the accident after the necessary repairs have been made.
When can I count on the payment of TCB under OSAGO?
You can always receive a payment for the TCB TS from the insurance company. To do this, it must meet the above criteria. The cost of the service of an auto expert according to the calculation of the TCB is from 1.5 to 3 thousand rubles. Below are examples of real payments to owners after an accident.
- Car Suzuki Sx - 4, year / in 2012. Front end damage.
- the cost of repairs is 296,988 rubles,
- the cost of the examination of the TCB is 2,500 rubles.
- TCB amounted to 39,560 rubles. - Car RAV - 4, year / in 2011. Damage to the rear of the car.
- the cost of repairs is 140,873 rubles.
- the cost of conducting an examination of the TCB is 2,000 rubles.
- TCB amounted to 16,070 rubles. - Lexus RX 270 car, year of manufacture 2013. Damage to the rear bumper and rim.
- the cost of repairs is 94,253 rubles.
- the cost of conducting an examination of the TCB is 1,500 rubles.
- TCB amounted to 6,300 rubles. - BMW X3 car, year of manufacture 2013. Full painting of the vehicle as a result of illegal actions.
- the cost of repairs is 244,000 rubles.
- the cost of conducting an examination of the TCB is 3,000 rubles.
- TCB amounted to 85,000 rubles.
Procedure for obtaining TCB
- Conducting a paid examination (then all the money spent on the examination and legal assistance will be claimed from the insurance company by the court).
- Examination sheet and application for reimbursement of TCB transferred to the insurance company responsible for the accident.
- After a while the answer will come, *according to such and such a law, you do not have the right, etc.*.
- Together with a competent lawyer faced in practice with such cases, an application is written to the court.
- All the necessary the documents:
- application-petition for the traffic police
- form of examination of the TCB
- Accident reports
- a letter with a negative response from the insurer. - Waiting for the process can take several months. That is why it is recommended to contact lawyers, because. not knowing the specifics of office work, you will need to spend a lot of time and nerves running around the meetings. Experience has shown that in the case of transferring the case to an experienced person, the process is accelerated by 2-3 times.
- The decision of the court will be 100% positive.
- You receive money spent on expertise and legal services.
That's the whole procedure for the actions necessary for reimbursement of TCB. In case you are waiting for the insurance payment of all Money, then it's useless. Saving the drowning is the work of the drowning themselves, this phrase is ideal for this situation.
"Taxes" (magazine), 2007, N 2
Courts, both arbitration and general jurisdiction, having considered claims for compensation for damages caused as a result of a road traffic accident (RTA), often decide on the recovery from the guilty party, inter alea, and the loss of the commercial value of the car affected by the accident.
The concept of "loss of commodity value" (LTV) is perceived by both judges and practicing lawyers as a matter of course, and the dispute in the courts is usually conducted in terms of its size, as well as the validity of its recovery under compulsory insurance. civil liability vehicle owners (OSAGO). In the latter case, disputes are being waged over what type of loss TCB refers to - real damage or lost profits?
If we turn to a detailed analysis of this concept from the standpoint of civil law, then it (analysis) immediately entails a whole train of questions for which there are no intelligible answers in the legislation. The answers that are found as a result of studying judicial practice are very contradictory and ambiguous.
This circumstance also draws attention. The loss of commodity value is almost always associated with damage resulting from damage to the vehicle. But after all, damage can also occur as a result of damage to other property, for example, an expensive piano, which, like all things not withdrawn from civil circulation, has a commodity value. If we follow the logic of reasoning about the TCB of a vehicle, then the piano, no matter how excellent it may be after a certain repair, will also lose its commodity value. Will the court collect it and how to determine it?
There are no answers to these questions yet, and those answers that logically follow from the basic principles of civil legislation and the concepts of civil law most often run counter to law enforcement practice.
On the legal definition of the concept of "loss of commodity value"
Article 15 of the Civil Code of the Russian Federation establishes only two types of losses: (1) real damage and (2) lost profits. At the same time, special attention should be paid to the fact that in the Civil Code of the Russian Federation and other normative acts of civil legislation, the concept of "real damage" is integral and is not divided into any types, categories and other structural units that make up this concept. To clarify this statement and comparison, the concept of "economic company" should be cited as an example, covering such concepts as " Joint-Stock Company", "limited liability company" and "additional liability company" and which, among other things, are defined as components of the concept of "business company" by law (clause 3, article 66 of the Civil Code of the Russian Federation).
TCB is considered damage caused to the property of the victim, compensated for him by paying money or collecting it by the courts in his favor. "The concept of "harm", "damage" is in contact with the concept of "loss". A loss is a harm (damage) expressed in money. Thus, a loss is a monetary assessment of property damage "<1>. "Losses in civil law means the monetary value of property losses (harm)"<2>.
<1> Civil law: In 4 volumes. T. IV. Law of Obligations / Resp. ed. d. y. n., prof. E.A. Sukhanov. M.: Wolters Kluver, 2006. S. 626.
<2>Civil law: In 4 volumes. T. I. General part / Resp. ed. d. y. n., prof. E.A. Sukhanov. M.: Volters Kluver, 2004. S. 601.
Thus, based on the basic principles of civil law<3>, TCB is nothing but a loss. The question immediately arises: what kind of loss is this - the loss of commodity value? And how legislative act is it established if the courts enforce it?
<3>There. S. 49.
According to Part 1 of Art. 11 of the Code of Civil Procedure Russian Federation(CPC RF): "The court is obliged to resolve civil cases on the basis of the Constitution of the Russian Federation, international treaties of the Russian Federation, federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation, regulatory legal acts federal bodies state power, constitutions (charters), laws, other regulatory legal acts of public authorities of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government". A norm of a similar content is found in part 1 of article 13 of the Arbitration Procedure Code of the Russian Federation (Arbitration Procedure Code of the Russian Federation).
The definition of the concept of "TCS" is contained in clause 6.1 of the Methodological Guidelines for determining the cost of vehicles, taking into account natural wear and tear and technical condition at the time of presentation (RD 37.009.015-98) (with Amendments No. 1, No. 2, No. 3): "Additional loss of commodity value (hereinafter referred to as CTS) can be characterized by premature deterioration of the marketable (external) appearance of a motor vehicle, caused by a decrease in the strength and durability of individual parts, components and assemblies, joints and protective coatings, due to the implementation of repair actions on its elements, use in repair of used or refurbished spare parts".
Upon acquaintance with the content of these definitions and the legal acts in which they are contained, two important points immediately catch the eye. First. These definitions in their content are technical, not legal, and can hardly be used in resolving issues related to the implementation of the rights, duties and freedoms of man and citizen. Second. The Ministry of Justice of Russia refused to register the Methodological Guidelines for determining the cost of vehicles, taking into account natural wear and tear and technical condition at the time of presentation (RD 37.009.015-98) (Letter of the Ministry of Justice of Russia dated November 27, 2002 N 07 / 11150-YUD).
Therefore, as follows from the above, the courts, when recovering losses incurred as a result of an accident, recover such a type of loss as TCB, which is not provided for by any legal normative act which the court is obliged to be guided by, and moreover, the courts decide on the collection of TCB in fact on the basis of legal acts that are not subject to application.
How and with what do the courts motivate their position, resolving cases on the recovery of what is not established by law, and at the same time on the basis of normative acts that are not subject to application? The courts, it seems to them, have found a simple and understandable way out for them: the courts "attribute" TCB to real damage or, sometimes, to lost profits.
Real damage or lost profit?
Insurance companies that paid insurance compensation for damage caused as a result of an accident, even before the entry into force federal law dated April 25, 2002 N 40-FZ "On compulsory insurance civil liability of vehicle owners" (Law on OSAGO), filed claims against the tortfeasors to recover from them the amount of insurance compensation, which they divided into two parts - the cost of refurbishment and compensation for the loss of commodity value (UTS). In support of the claims, insurance companies cited the argument that they reimbursed both the cost of the repair and the TCB, although often the insurance contract did not provide for the reimbursement of the TCB.
After the entry into force of the OSAGO Law, disputes about the obligation of insurance companies to pay continued, and the judicial practice was ambiguous. According to paragraph 60 of the Rules for compulsory insurance of civil liability of vehicle owners (approved by Decree of the Government of the Russian Federation of May 7, 2003 N 263), in case of damage to the property of the victim in accordance with these Rules, real damage is subject to compensation within the sum insured. Some courts have recovered the cost of the TCB, considering that the TCB is also real damage, while other courts have refused to recover it, considering the TCB as a lost profit<4>. The Presidium of the Supreme Arbitration Court of the Russian Federation, considering the case on the claim of Atomenergoremont against the insurance company RESO-Garantiya, on December 19, 2006, indicated in its Resolution that the TCB of the car relates to real damage and should be reimbursed within the limits of the sum insured under OSAGO. Supporters of attributing TCB to real damage refer to the clarification of the Presidium of the Supreme Court of the Russian Federation dated August 10, 2005, contained in the Review of Judicial Practice of the Supreme Court of the Russian Federation for the II quarter of 2005 (hereinafter referred to as the Review): "The loss of commodity value is a decrease in the cost of a vehicle caused by a premature deterioration in the commercial (external) appearance of the car and its performance as a result of a decrease in the strength and durability of individual parts, assemblies and assemblies, connections and protective coatings due to a traffic accident and subsequent repairs.
<4>See also: Dedikov S. Questions and answers // Financial newspaper. Regional release. 2005. No. 49.
From the foregoing, it follows that the loss of commodity value relates to real damage along with the cost of repairs and spare parts of the car, since a decrease in its consumer value violates the rights of the owner of the vehicle. This violated right can be restored by paying monetary compensation. The owner has the right to make claims for the recovery of such compensation, since his rights are violated by the very fact of the traffic accident.<5>.
<5>Bulletin of the Supreme Court of the Russian Federation. 2005. No. 12.
From the content of this explanation, the question inevitably arises: what does it mean "the loss of commodity value refers to real damage"? Real damage, as follows from Art. 15 of the Civil Code of the Russian Federation, is an independent type of loss. But TCB, in essence, is also an independent type of loss, as shown above. It is hardly logical, justified and reasonable to attribute one independent type of loss to another independent type. In this case, this is the same as attributing real damage to lost profits and vice versa. The assignment of one independent type of loss to another independent type and their simultaneous recovery means nothing more than the recovery of actually the same damage twice, which is incompatible with civil law.
Let us turn to the essence of the concept of "loss of commodity value", i.e. loss of value of goods - a product intended for sale. But a car that has been damaged in an accident is not intended, as a rule, for sale, but is used for the daily needs of a citizen or organization.
Damage received by the car in an accident is corrected in the process of restoration repair, the cost of which covers the actual damage caused to the owner of the car as a result of its damage. Whatever the amount of compensation for the loss of commodity value, it still will not ensure that the car is brought to the state in which it was before the accident. If we proceed from the provision contained in the Review, that "a decrease in its (car. - N.M.) consumer value violates the rights of the owner of the vehicle," then UTS really manifests itself only in one case - when selling a car, which can not to be - the car can be stolen, sold for a symbolic price for spare parts due to its dilapidation, donated, completely destroyed in another accident. An event that may not occur cannot be used as a basis for recovering real damages. In this regard, the position of A. Konshina seems convincing, who, referring to the essence of the TCB, writes that this is a “category that exists under certain conditions (when selling), and under certain conditions it does not (if the vehicle is not sold), cannot be real damage , since it is a conditional value"<6>.
<6>Konshina A. Problems of compensation of commodity value in the payment of insurance claims // Insurance Review. 2006. June.
If we follow the logic of the application of the TCB, which is contained in the Review, then it would be possible to put into circulation a number of "losses" that would also be "attributed" to real damage. For example, recover compensation for "reduced life", also attributing this loss to real damage. After all, it can be argued that as a result of an accident, the life of the vehicle has become shorter. It would be possible to introduce such a concept as "loss of a unique species", with subsequent recovery for its loss, also referring it to real damage. At present, it is quite common to see cars on the body of which images of various animals, birds, fantastic animals, landscapes, etc. are painted. (airbrush drawings). The price of such images sometimes reaches almost half the cost of the car. Suppose that a car was damaged in an accident, on the front fenders and hood of which such drawings were applied by a famous artist. The fenders and hood were replaced with high quality work, the insurance company fully paid for the cost of restoration repairs (the drawings were not insured). The owner of the damaged car files a lawsuit against the tortfeasor for compensation for the cost of the drawings, which, according to the victim, is much higher than the cost of their production, since, according to the victim, the drawings are of great artistic value, being made by a famous artist, they are one of a kind and he could sell the car for more than estimated cost of the car itself before the accident, including the cost of making the drawings, due to the presence of such unique drawings on the car. He can present witnesses who would be willing to buy a car at a premium price just because of the drawings made on it by a famous artist. And what should the court do on the basis of "premature deterioration of the salable (external) appearance of the car," as stated in the Review? This type of loss, such as "loss of a unique type", is close to TCB. Will the court classify it as real damage and will it recover at all? Suppose the court attributed this loss to real damage and recovered the cost of these drawings, taking into account their artistic value, and the owner of the car refused to sell it. What real damage was then compensated and what will be the compensation collected for the "loss of a unique look", or, more simply, for the loss of drawings on a car?
Regarding the recovery of TCB, the position of a member of the State Duma Committee on credit organizations And financial markets A.V. Shevelev, which he outlined in an interview with the newspaper "Legal and Legal Work in Insurance". Specifically, he said: "In new edition the title of Art. 6 Federal law and concept insurance risk with compulsory insurance. Due to differences in the definition of the concept of "loss of commodity value" (including in the methodological plan), the insurer is not liable for compensation for losses caused by the loss of the commodity value of property, as well as compensation for damage caused to property belonging to the person who caused the harm "<7>. However, no such changes have been made to the Law so far.
<7>In the interests of increasing the efficiency of the insurance system // Legal and legal work in insurance. 2005. N 4.
What type of damages do the courts classify as TCB? Federal court of Arbitration of the Northwestern District in case N A13-8607 / 04-20 did not consider it possible to attribute the TCB to real damage.
The Federal Arbitration Court of the Moscow District took an opposite position on this issue, having considered case No. KG-A40 / 3127-06.
Of particular interest is the Decree of the Federal Arbitration Court of the Moscow District in case No. KG-A40 / 6720-03, adopted on September 11, 2003. Voskresensk-Lada Open Joint-Stock Company (OJSC) filed a lawsuit with the Moscow Arbitration Court against FSUE Moskovskaya Railway"for the recovery of 24,633 rubles, including 11,135 rubles. 50 kopecks - the cost of restoration work, 8317 rubles. 85 kopecks - compensation for the loss of commodity value and 5,000 rubles - the costs of the examination (taking into account the clarification of claims) The claim was satisfied by the decision of June 9, 2003. Disagreeing with the decision regarding the recovery of the amount of loss of commodity value, the defendant filed a cassation appeal with the Federal Arbitration Court of the Moscow District, which raises the question of its cancellation in this part as taken in violation of the norms The court, refusing to satisfy the cassation appeal, connected the reimbursement of the TCB with the cost of the cars for which they were sold, in other words, it actually attributed the TCB not to real damage, but to lost profits.
The presence of polar opposite positions of the courts regarding the penalties for TCB is primarily due to the absence of the very concept of "TCB" in the legislation, the definition of its content and the conditions and procedure for its application.
A consistent and reasonable position regarding the legitimacy of recovering TCB is that TCB should not be used in civil law relations at all and be recovered as such, since this type of loss is not provided for by law. When considering the issue of compensation for damage caused to any property, and not just a vehicle, only two losses can be recovered - real damage and lost profits, which are directly provided for in the law. In this case, both losses must be proven by providing evidence admissible in accordance with the Code of Civil Procedure of the Russian Federation or the Arbitration Procedure Code of the Russian Federation.
Classics of civil law on compensation for damages
Given the high level of development of Russian civil law before 1917, the position of its classics regarding the composition of losses caused to a person, as well as the grounds, conditions and procedure for their compensation is of considerable practical interest.
So, K.P. Pobedonostsev distinguished only two types of losses - positive damage, which corresponds to real damage according to modern civil law, and lost profit, i.e. lost profits under modern law<8>.
<8>Pobedonostsev K.P. Course of civil law: In three volumes. Volume 3 / Ed. V.A. Tomsinov. M.: Publishing house "Zertsalo", 2003. S. 545 - 546.
G.F. Shershenevich, who wrote only about compensation for real damage, without mentioning a single word of TCB<9>.
<9>Shershenevich G.F. Textbook of Russian civil law. Volume 2. M .: Statut Publishing House, 2005. S. 204 - 205, 210 - 212.
The concept of "UTS" is absent in the works of another outstanding Russian civilist - K.D. Kavelina<10>.
<10>Kavelin K.D. Selected works on civil law. M.: JSC "Center YurInfoR", 2003. S. 596, 602 - 603.
In the works of D.D. Grimm also does not mention TTS or any category that could be attributed one way or another to TTS.<11>.
<11>Grimm D.D. Lectures on the dogma of Roman law. M.: Publishing house "Zertsalo", 2003. S. 312 - 314.
There is no mention of CTS or a category close or similar to it, and in the works of D.I. Meyer<12>.
<12>Meyer D.I. Russian civil law. Part 1. M.: Statute, 1997. S. 216 - 218.
A logical, reasoned and convincing analysis of the concept of loss, the grounds and forms of its compensation is given in the works of M.M. Agarkov, who also did not single out such a category as "UTS", or anything even remotely similar to it<13>.
<13>Agarkov M.M. Selected works on civil law. In 2 volumes. Volume II. M.: JSC "Center YurInfoR", 2002. S. 319 - 320.
Thus, when studying the issue of compensation for losses, the Russian classics of civil law believed that there were only two types of losses - positive damage to property (damnum emergens) (i.e. real damage according to modern civil law) and lost profits (lucrum cessans). There is no mention of any other types of losses, including TCB, in their works.
In such fundamental research, as "Civil Law" (in 4 volumes), prepared under the editorship and with the direct participation of the famous Russian civil lawyer, Doctor of Law, Professor E.A. Sukhanov and published by the Walters Kluver publishing house, there is also no mention of TCB. With regard to losses and their compensation, this work says the following: "In civil law, harm means any derogation of personal or property benefit ... In civil law, losses mean the monetary value of property losses (harm)"<14>.
<14>Civil law: in 4 volumes. Volume I. General part / Resp. ed. d. y. n., prof. E.A. Sukhanov. M.: Wolters Kluver, 2004. S. 601 - 602.
How about abroad?
Consider the issue of recovery of TCB on the example of two countries - the United States and France. It may be the subject of an extensive separate study, but within the framework of this article it is possible to highlight only the main points.
USA. The practice of collecting TCB in the United States is very interesting and instructive. In the work of insurance companies and in judicial practice, the expression "Loss in market value" (loss of market value) is used, but another expression is more often used - "diminished value", or abbreviated "D / V" (reduced value). The practice of its reimbursement is far from unambiguous and very contradictory, therefore, there is currently a heated debate with the participation of insurance companies regarding the legality and grounds for its collection.
Unlike Russian courts, American courts and insurance companies believe that the fact of an accident in itself is far from always a basis for compensating for a reduced cost. They believe that restorative repairs can be done at such a level that the car, after its thorough diagnostics and other checks after repair, will be in the technical condition in which it was before it was damaged (they know how to repair!).
The issue of recovering compensation for reduced value is far from new. As early as 1923, the Illinois Court of Appeals in Haussler v. Indemnity Co. of America concluded that the jury should not have awarded an award for the reduced value of the car in addition to the cost of repairing its damage. Only a few state courts have ever recognized that the reduced value should be treated as a loss covered by the insurance contract.
Supreme Court On October 17, 2003, the State of Texas made a decision according to which he entered the ranks of the supreme and appellate courts of the states of South Carolina, Florida, Delaware, Maine, Missouri and Wisconsin, expressing by this decision his position that insurance companies are not obliged to compensate the insurers for the loss of the market value of the damaged car. The decision overturned the decision of the Ninth Circuit Court of Appeals in American Manufacturers Mutual Insurance Company vs. Gary Schaefer, who found a Texas driver entitled to compensation from his insurer for a reduction in the value of a car.
The large American company The Insurance Services Office (ISO), which provides consulting and other services to insurance companies, develops forms for them insurance policy, has developed a form of insurance policy that specifically excludes the reduced cost reimbursement box. Back in 2001, this form of policy was adopted for use by insurance companies in 38 states.
In the United States, there are also heated discussions and controversies regarding the correlation of such categories as "inherent diminishing value", "decrease in value due to repair" (repair-related diminished value) and "decrease in value due to insurance" (insurance-related diminished value).
The large American insurance company State Farm Mutual Automobile Insurance Company, which has been insuring cars since 1922 and is considered the No. An accident does not mean that its market value automatically falls. This company also believes that a properly repaired vehicle does not automatically lose market value simply because it got into an accident. In many cases, highly skilled craftsmen can restore the vehicle to its pre-accident condition and value. In the company's view, extended and collision insurance should only be limited to reimbursement for the cost of refurbishment if the vehicle can be repaired. The company itself does not pay such compensation, with the exception of several states in which the courts take the opposite position. If such requirements are imposed on the company in these states, then according to the insurance rules of the company, the presentation of convincing evidence is required. The Company believes that if insurance companies are forced to reimburse the estimated cost, then this will only lead to an increase in the amount of insurance premiums they collect from policyholders.
Thus, in the United States, the practice of recovering damages resulting from damage to cars in an accident clearly and definitely highlights the following trend: in the vast majority of cases, reduced cost, or, in relation to Russian practice, TCB, as such, is not reimbursed, but only actual damage is reimbursed by paying the cost of restoration repairs.
France. The procedure and conditions for compensation for losses caused to a person as a result of damage to his car are regulated in sufficient detail, and in addition, there is extensive experience in the implementation of reasonable compensation.
Compensation for damages as a result of an accident is regulated by the Civil Code (le Code civil), the Insurance Code (le Code des assurances), the Traffic Code (le Code de la route) and other legislative acts.
In the process of compensation for damages from an accident, the concept of "valeur venale" (market value) is used and, in addition to it, synonymous concepts such as "valeur marchande" (market value), "prix de marche" (market price) or else "valeur de realization" (realization cost). However, the concept of "market value" is used in the field of compensation for damages from road accidents under other circumstances and on other grounds compared to the use of TCB in Russia.
Compensation for damage from an accident is carried out in France by insurance companies. IN case of an accident drivers fill out, as a rule, a "car collision protocol" in the prescribed form (le constat amiable), the reverse side of which is an application to the insurance company (each driver submits his copy of the protocol to his insurance company). Having received the report, the insurance company appoints an auto expert to establish the damage and evaluate it. It should be noted that the legal status and activities of auto experts in France are regulated in detail. Legal status experts was established by the Law of December 11, 1972 N 72.1097 with subsequent amendments, and professional activity was regulated in more detail by Decree of December 27, 1991 N 91.1315. In addition, the qualification of an auto expert is determined by Art. Art. L.326-1 - L.326-12 of the Road Code. In accordance with French law, an examination can only be carried out by a certified expert in the field of the device and operation of cars - a person who has deep professional knowledge in the field of the device and operation of vehicles, a diploma in the specialty "device and operation of vehicles", issued by the national educational institution and listed on a national list of experts maintained by the Ministry of Transport and updated annually. Examination can only be carried out by persons included in the national list of experts<15>.
<15>It should be noted that in Russia "auto-examination" is often carried out not by auto experts with documented knowledge and authority, but by appraisers who have nothing but a license for appraisal activities.
The amount of compensation for the production of restoration repairs does not exceed the market value of the car. It is interesting to note that, under French law, the victim in certain cases (for example, when the car is a source of income for him) is entitled to compensation for the period during which he worked, because the car was under repair (the law uses the term " unemployment" (le chomage)).
After the expert determines the cost of repairs, the victim agrees on repairs with a car repair shop. He can pay the cost of the repair himself and, after submitting an invoice for the repair to the insurance company, receive a refund from the insurance company or the insurance company pays for the repair directly if it has an agreement with the car repair shop. As a rule, the insurance company pays for repairs directly, but only what it is obligated to pay.
Thus, under French law, only the cost of restoring a car damaged in an accident is reimbursed, or, if it is beyond repair, paid sum of money required to purchase secondary market a car of the same brand and in a condition corresponding to that in which the damaged car was immediately before the accident, i.e. only real damages are recoverable. Any loss similar to or close to the Russian TCB will not be determined or recovered. An insurance company in France either pays for the repair of a damaged car directly, or reimburses the victim for documented expenses (within the sum insured). No other amounts are calculated or paid to the victim.
Instead of an afterword
I would like to hope that the legislator will finally pay due attention to the problem of the existence of "loss of commodity value" and fill the legal vacuum in the legislation, which will make it possible to drastically reduce the number of unnecessary and useless disputes regarding the legitimacy and validity of attributing it to one or another type of loss and subsequent recovery . In addition, this will make it possible to determine and recover damages resulting from an accident on the basis of meaningful legislative acts, and not "methodological guidelines". As the analysis of foreign practice shows, this is possible.
N.V. Morozov
member of the Presidium
Moscow Bar Association
Chaadaev, Kheifets & Partners
The loss of commodity value is as real damage as a broken bumper or headlight. Therefore, the culprit of the accident or the insurance company are obliged to compensate the victim for this loss. However, for some unknown reason, even the courts forget about it. It is up to the Supreme Court to deal with such cases.
A certain O. Arepyeva had an accident. A. Voskanyan was found guilty of the accident. The lady contacted her insurance company for direct compensation. The insurer paid her 232.5 thousand rubles.
However, she considered this amount to be greatly underestimated and turned to an independent expert. He calculated that the restoration repair, taking into account wear and tear, would cost 450 thousand. Moreover, the loss of commodity value, according to his calculations, amounted to 77 thousand rubles.
Arepyeva applied for a surcharge to the culprit of the accident and to her insurer. However, no response was received from them. Then she filed a lawsuit, demanding 167.5 thousand rubles from the insurer, as well as a fine of 84 thousand rubles. From the tortfeasor, that is, the culprit of the accident, she asked to recover damages in the amount of 127 thousand rubles.
The court of first instance, at the request of Voskanyan, appointed an additional auto-technical examination. According to the expert's conclusion, the cost of restoration repairs, taking into account wear and tear, amounted to 218 thousand rubles. And the probable loss of commodity value amounted to 43 thousand rubles. Such a calculation did not suit Arepieva, and at her request an additional examination was appointed. In accordance with the conclusion, the cost of repairs amounted to 221 thousand rubles.
The court decided that the amount paid by the insurer exceeded the cost of the restoration repair. At the same time, since the expert only assumes the possible amount of loss of commodity value, and there is no other evidence to clearly establish it, then there are no grounds for its compensation. Therefore, the court dismissed the claim, considering that the insurance company fulfilled all its obligations. The Court of Appeal agreed with these conclusions and justifications. But the Supreme Court looked at this story differently.
According to paragraph 1 of Article 15 of the Civil Code, a citizen may demand full compensation for the harm caused to him. According to paragraph 1 of Article 1064 of the Civil Code, the one who caused it must compensate for the damage. In accordance with the clarifications of the decision of the Plenum of the Supreme Court, the real damage resulting from an accident, along with the cost of repairs and spare parts, also includes the lost commodity value. It represents a decrease in the cost of the machine, caused by a premature deterioration in the appearance and its performance as a result of a decrease in the strength and durability of individual parts, assemblies, joints and protective coatings due to an accident. That is, the loss of commodity value refers to real damage along with the cost of repairs and spare parts, since a decrease in consumer value violates the rights of the car owner.
The loss of commodity value refers to the real damage, since it reduces the use value
Claims for damages cannot be denied on the grounds that their exact amount cannot be determined, the Supreme Court maintains. In this case, their size must be established by the court, taking into account all the circumstances.
The SC also recalled that if new materials were used to repair the damage, the costs are included in the actual damage, even if the value of the property increased after such repairs.
The Supreme Court also pointed out that the rules operating under OSAGO insurance do not apply to compensation for harm from the tortfeasor. In other words, if under OSAGO the car owner considers damage according to a single methodology, taking into account wear and tear, then when recovering damage from the tortfeasor, wear is not required to be taken into account. Otherwise, the victim would be deprived of the right to full compensation for damages.
Therefore, the victim can demand the full cost of new parts, components and assemblies from the tortfeasor, the Supreme Court established.
That is, the lower courts forgot about the decision of the Plenum of the Supreme Court, published back in 2015. In addition, for some reason, they did not consider at all that part of the claim that concerns claims from the culprit of the accident. Although the victim has every right to demand compensation for damage from him.
Therefore, the Supreme Court decided to reverse the decision of the Court of Appeal and send the case for a new trial, taking into account all of the above.
A question regarding the payment of insurance compensation for the loss of commodity value (UTS) of a car in Lately is causing more and more controversy. This is due to the increase in the number of claims that victims put forward to the insurance company, applying for compensation as a result of TCB.
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
It is important for car owners to know that TCB does not occur in all situations.
Its presence depends on such parameters as:
- official age of the car;
- operational wear of the car;
- degree and type of damage;
- amount of restoration work.
As of the beginning of 2019, experts most often calculated this indicator based on the methodology of the Ministry of Justice, which determines that such damage can occur in cars that have not crossed the 5-year milestone, and which are no more 35% .
Any damage that results in a decrease in the value of the machine after it has been restored has a certain value. Its value depends on the category of repair work and the part being repaired. If it is a major accident, the size of the TCB may be more than 10% the total cost of the vehicle.
The procedure for reimbursement of TCB under OSAGO in 2019 is regulated by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated January 29, 2015. It fixes the obligation to cover this kind of damage by the insurer.
The insured may also exercise his right to TCB indemnity by settling the loss by repairing the damaged vehicle.
Insurance companies often try to evade TCB payments, but as a result of claims made by the client or litigation, they compensate for the damage.
Legal basis
In July 2007, under the number GKPI07-658, the decision of the Supreme Court of Russia was published, according to which the loss of the commodity value of the car leads to a decrease in its actual price. It is classified as real damage that makes the performance of the machine worse, as a result of which this indicator should be taken into account together with the cost of restoring the car when determining the amount of the insurance payment.
Under losses in Civil Code RF means expenses, loss of property or damage to it, as well as income that was not received as lost profits.
Article 6 of the law on OSAGO provides a list of cases that are excluded from the list of insurance risks, including TCB. The Supreme Court recognized this fact as one that reduces the rights of the injured party to compensation for the damage received.
The insurance company is obliged to provide, at the request of the insured, an expert report or an inspection report, and this simplifies the calculation of the TCB
OSAGO rules establish standard conditions for concluding a contract. They explain how insurance payments are determined, how an independent examination is carried out. The form of insurance payment, if there is the consent of the injured person, can be replaced with a natural one, namely the organization of repair work.
OSAGO rules determine that the main task of an independent examination is to determine the cost of repair and restoration work without determining the cost of the TCB.
Regarding the amount of insurance payment, the rules say about compensation for real damage and other expenses that were incurred by the injured party (spare parts, payment for service stations, transportation costs for the vehicle and auxiliary materials, etc.).
Formation of TCB for OSAGO in 2019
How to count
There are many techniques to calculate the loss of marketable value of a machine, but there are a few that are most commonly used by experts. These include the methodology of the Ministry of Justice of Russia, which is considered official, as well as the methodology of the governing document.
Whatever methodology is used, it makes no sense to carry out the calculation if the level of wear of the machine exceeds 40% , and the age is more 5 years. This is due to the fact that the cost of the TCB is directly proportional to the value of the car at the time the accident occurred.
The most complex calculation procedure is considered to be the calculation according to the methodology of the guiding document (MRD). It is almost impossible to do it yourself, since only people with a mathematical mindset can do it. In addition, the calculation made independently will have only a reference character and will not be accepted by any official structures.
The calculation begins by applying the following formula:
Ygen.= Ycar.+Yel.+Yen.+Ybody
In turn, each component of the formula is calculated separately, for example, to calculate Yel. it is possible by the formula:
m
Yel.=K2 ΣK1 Qi
1
The simplest method for calculating the TCF of a machine is the Halbgewax method. This method is widely used in Europe, but in Russia it is less popular, since its viability is questioned. This is due to the fact that the calculation takes into account the total cost of repairs and does this without determining the type of repair that led to a larger TCB.
The formula that is used to calculate:
UTS = (K÷100)х(ЦP+CO)
What to Consider
There are a number of aspects that policyholders should consider when seeking reimbursement for TCB:
- almost all insurance companies try to avoid paying TCB and do not take such a step voluntarily, they prefer to resolve this issue in court;
- if the car has previously been involved in an accident, then the TCB is not reimbursed by the insurance company. The exception is cases when other parts that were not involved in the last episode were damaged in previous accidents;
- the amount that can be returned depends on the number of parts that need to be repainted or repaired;
- the calculation of the TCB will be made taking into account the market value of the machine;
- which methodology will be used in calculating the TCF, decides the expert who is hired to carry out the assessment.
Given the above, we can conclude that the more expensive the car, the higher the level of compensation.
Reimbursement
It is important to understand that the legislation and OSAGO rules do not oblige the insurer to repay the TCB, so insurance companies are in no hurry to calculate the amount of damages under the TCB.
In this matter, the Supreme Court stands up for the protection of car owners, which, by its decision of 10.08.2005, establishes that the UTS is the same damage, since the owner of the car will not be able to sell it at the same price that it was before the accident. It is believed that the rights of the owner of the car were violated by the person who initiated the accident, and therefore her insurance must pay for the TCB.
To qualify for compensation, you need to seek the services of an appraiser who will help establish the current market value. Once an opinion is received, the victim can file a claim to recover payment from the company responsible for the accident.
TCB is not always calculated and paid.
Insurance refusal is justified:
- if the driver who applies for the payment is at fault for the accident;
- payment for this insured event has already been made;
- age of the car no more 5 years.
There are companies in the service market that offer customers the opportunity 100% receipt from the insurance TCB. It is important to remember that the responsibility for resolving this issue lies entirely with the one who applied to such a structure.
If a person knows that his situation falls under the above points, he must understand that no intermediary company will be able to positively resolve his issue.
In practice, there are rarely cases when a significant amount is paid
Necessary actions
If the insurer refuses to attribute the TCB to real damage and, accordingly, pay compensation to the car owner if he has legal grounds for this, he has every right to defend his rights in court.
For this you need:
- Write an application for payment of TCB to the insurance company. It must be prepared in 2 copies, one of them after registration responsible person, the insurer keeps.
- Expect a written reasoned refusal from the insurer.
- Contact an independent appraiser to whom the car is provided for inspection if it has not yet been repaired. Otherwise, the expert is provided with a full package of documents on the repair work carried out: estimates, invoices, etc., which will help calculate the size of the TCB.
- Prepare a claim and submit an application to the court, attaching all supporting documents.
detailed instructions
The legislation does not define who should pay for the TCB of the car. This fact is abused by insurance companies. To avoid this, you need to know how the TCB is reimbursed for OSAGO in 2019.
The first step to be taken is the issuance of a request for examination. The basis for its implementation is Decree of the Government of the Russian Federation No. 238, which determines the procedure for conducting an examination of vehicles of any type. The purpose of this step is to identify technical damage and determine the cost of damage.
In practice, the procedure is as follows: the driver informs the insurer about the accident. During 5 business days the company sets the time for the examination.
If this does not happen, the driver must apply for an examination. In order not to delay the process, such an application can be submitted simultaneously with the documents on the accident.
The owner of the car can personally organize an independent examination. This may be due to his disagreement regarding the choice of the company, time or place of the examination.
The next step is the examination. It is important to remember that all oral comments by the expert must be recorded in writing. The insurance company will take note only of the data that will be indicated in the act.
The act consists of two parts: the first shows the results of the inspection of the car, the second - the recalculation made, taking into account the payment.
The act indicates the model of the car, its state numbers, VIN of the motor, information about the owner, damage that was received as a result of an accident. Particular attention is required to fill in the “hidden damage” column, since they may be missed by the expert as a result of an exclusively external examination. Given this, you should ask the service station staff to fix any damage that was not initially obvious.
After the act is ready, the driver must familiarize himself with its contents and put his signature under the conclusions of the expert. If a person believes that the examination was not carried out at the proper level, he must fix this in the act.
The last step involves contacting the insurance company with an act of car inspection with a requirement to reimburse the car's TCB. In the event of a refusal by the insurance company, the only way to restore justice is to contact.
Compensation cases
Compensation for TCB is carried out within the framework of current legislation. The driver is entitled to such compensation, since the insurance company must compensate for all types of losses incurred, including lost profits. And TCB leads to losses on the part of the client in the event of the sale of a car that has been in an accident.
Many drivers do not have complete information about the payment of compensation for the TCB, and insurance companies prefer to keep silent about it, paying only for the cost of damage to the car.
When can a driver claim payment?
- if the car is new, or produced no more 3 years old back for domestically produced cars and 5 years for foreign cars;
- if the car has received superficial damage, it will not be possible to apply for compensation (only those damages that are higher than the first level of complexity are taken into account);
- to receive a TCB refund, the driver must be the injured party, and the guilty party must be recorded in the accident report.