More information about the penalty
When purchasing insurance, you and the company enter into an agreement, which becomes the basis of your cooperation. Each party agrees to comply with certain requirements. For example, in order for a driver to be entitled to receive compensation, he must promptly report the accident to the insurer. For its part, the company must make a payment or send your vehicle for repairs within a clearly defined time frame. According to the law, after accepting a claim from a driver, the insurer must consider the case within 20 days, making a payment to the victim or providing a justified refusal.
If the insurer does not comply with this, then the driver has the right to demand compensation for a penalty. Legally, this is enshrined in the Federal Law (Federal Law on OSAGO penalties No. 40). Additionally, this is supported by Law No. 4015-I, which substantiates such concepts as “legal penalty” and “penalty”, as well as Federal Law No. 223 on the rules and procedure for calculation. These laws are the basis for forming a claim against the insurance company.
Federal Law 40 - Article 16.1
Article 16.1. Peculiarities of consideration of disputes under compulsory insurance contracts
(introduced by Federal Law dated July 21, 2014 N 223-FZ)
1. Before filing a claim against the insurer containing a claim for insurance compensation, the victim is obliged to contact the insurer with a statement containing a claim for insurance compensation or direct compensation for losses, with documents attached to it provided for by the rules of compulsory insurance. (as amended by Federal Law No. 49-FZ dated March 28, 2017) If there are disagreements between the victim and the insurer regarding the latter’s fulfillment of its obligations under the compulsory insurance contract before a claim is filed against the insurer arising from non-fulfillment or improper fulfillment of its obligations under the compulsory insurance contract, disagreement of the victim with the amount of the insurance payment made by the insurer, non-compliance by the service station with the deadline for transferring the repaired vehicle to the victim, violation of other obligations to carry out restoration repairs of the vehicle, the victim sends a claim to the insurer with documents attached to it and justifying the claim of the victim, which is subject to consideration by the insurer within ten calendar days, excluding non-working holidays, from the date of receipt. During the specified period, the insurer is obliged to satisfy the demand expressed by the victim for the proper fulfillment of obligations under the compulsory insurance contract or send a reasoned refusal to satisfy such a demand. (as amended by Federal Laws dated June 23, 2016 N 214-FZ, dated March 28, 2017 N 49-FZ) 2. The rights and legitimate interests of individuals who are victims or policyholders related to the failure to fulfill or improper fulfillment of obligations by the insurer under the compulsory insurance contract, are subject to protection in accordance with the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” to the extent not regulated by this Federal Law. Proper fulfillment by the insurer of its obligations under the compulsory insurance contract is the making of an insurance payment or the delivery of a repaired vehicle in the manner and within the time limits established by this Federal Law. 3. If the court satisfies the demands of the injured individual to make an insurance payment, the court shall collect from the insurer for failure to voluntarily fulfill the requirements of the victim a fine in the amount of fifty percent of the difference between the total amount of the insurance payment determined by the court and the amount of the insurance payment made by the insurer voluntarily ok. 4. If the deadline for returning the insurance premium is not met in cases provided for by the rules of compulsory insurance, the insurer pays the insured - an individual a penalty (penalty) in the amount of one percent of the insurance premium under the compulsory insurance agreement for each day of delay, but not more than the amount of the insurance premium for such agreement. 5. The insurer is released from the obligation to pay a penalty (penalty), the amount of a financial sanction and (or) a fine if the insurer’s obligations were fulfilled in the manner and within the time limits established by this Federal Law, and also if the insurer proves that the violation of the deadlines occurred due to force majeure force or through the fault of the victim. 6. The total amount of the forfeit (penalty), the amount of financial sanction that is payable to the victim - an individual, cannot exceed the amount of the insurance amount for the type of harm caused, established by this Federal Law. 7. The insurer cannot be charged a penalty (fine), the amount of a financial sanction, or a fine not provided for by this Federal Law and related to the conclusion, amendment, execution and (or) termination of compulsory insurance contracts. 8. The insurer is responsible for the fulfillment of obligations under a compulsory insurance contract concluded by an insurance agent or insurance broker.
Full version of Federal Law No. 40-FZ - read or
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You can receive compensation for a penalty in three main cases:
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- How to get money instead of repairs under compulsory motor liability insurance: a detailed review
- the lines for sending a damaged vehicle to a service center for repairs were violated;
- failure to pay funds within the specified period or transfer only part, which is also an offense;
- for untimely written refusal to pay.
Also, in rare cases, drivers can demand compensation from the Russian Union of Automobile Insurers (RUA) if violations were discovered on its part. If the insurer sent the car for repairs on time, but it was done poorly or not done at all, then this increases the repair period due to the fault of the insurer, which becomes an additional reason to demand the recovery of a penalty under compulsory motor liability insurance.
Pre-trial demand for payment of penalties
If the insurer violated the points described above, you did not receive the amount of compensation or the repaired car on time, you can safely demand not only money under compulsory motor liability insurance, but also a penalty. First of all, of course, it is necessary to resolve the issue pre-trial. To do this, the driver must write a statement and submit it to the insurance company. At the same time, the paper indicates the method in which the victim wants to receive funds: in cash or by bank transfer, indicating the details. This is sufficient information for the policyholder. If agents ask for other documents, write a complaint about securing a penalty.
The submitted claim must also include the following:
- applicant's details (full name, residential address, contact details);
- name and address of the insurer;
- a detailed description of your situation;
- date of document execution,
- applicant's signature with transcript.
The insurer has only 5 days to review the application (excluding holidays and weekends). In most situations, the insurance company tries to avoid litigation. This is an expensive and exhausting process that does not have the best effect on the company’s reputation. The driver is only required to verify that the insurance company actually received the application. Send the documents by registered mail with a delivery report, or personally hand over the application to an authorized employee against signature.
If you initially plan to demand a penalty through the court, then in the application you only need to write about the demand for compensation for unpaid funds or car repairs. You can directly claim the penalty after sending the application through a lawsuit.
Contacting the Central Bank
This method is an alternative to filing a claim with the insurance company. The bank, for its part, is responsible for the activities of all financial companies, including various insurance companies. The bank allows you to resolve issues of non-payment of compensation, but in most cases such an appeal does not allow you to resolve the issue of a penny. If you decide to use the help of the Central Bank of the Russian Federation, you need to prepare a corresponding application, indicating:
- Applicant's full name and contact details;
- information about the insurer against whom you have a claim;
- description of the insurer’s violations, calculation of penalties;
- contract or policy data;
- your insurance case number.
Be sure to include a copy of the complaint. The application can be sent either by mail or via the Internet by filling out a form on the website of the Central Bank of the Russian Federation. As practice shows, complaints to the bank are processed quickly, in less than one week.
Court
If the insurance company has not taken action to pay after the application, then you can file a lawsuit. Be sure to support all documents that confirm that you are the victim in relations with the insurance company. As a rule, to consider the case, you will need a contract, a certificate from the State Traffic Inspectorate about the accident, an expert assessment of the amount of damage, as well as a document that confirms your appeal to the insurance company as part of the pre-trial proceedings.
A frequent practice is to reduce the amount of the penalty. Please note that, according to Article 333 of the Civil Code of the Russian Federation, the court can indeed reduce the amount of the penalty, but only when the defendant (insurance company) has filed an appropriate application and after providing relevant evidence that the required amount is not commensurate with the damage received. If the defendant did not submit an application, did not provide evidence of the disproportionality of the payment, and there were no discussions on this issue, then the court itself does not have the right to reduce the amount of the penalty under compulsory motor liability insurance. In fact, in such a situation, the court accepts one of the parties (the defendant), which is already a violation of the law.
The statement of claim can be submitted on the Internet. The document states:
- name of the court and insurance company with address;
- your complete details;
- why you are filing this claim;
- regulations that serve as the basis for meeting your requirements;
- indication of the exact amount of the penalty with the given calculation.
Through an application, the plaintiff (driver) can and should ask the court for assistance in obtaining the relevant documents in the case that are in the insurance company. We recommend that you use the help of lawyers to ensure that you receive the requested amount.
In court proceedings you will need the following documents:
- Copies of documents for the car: PTS.
- COP.
- OSAGO policy.
- Passport (copy).
- Conclusion of the appraisal examination.
- Violation protocol.
What needs to be done to prevent the court from reducing the amount of the penalty
People often come to us with complaints - the court has reduced the penalty for a claim against the insurance company .
So, so that the court does not “disgracefully” cut the amount of the penalty under compulsory motor liability insurance, you need to, in an objection to the defendant’s (insurance company) application to reduce the amount of the penalty, indicate the following in justification for the amount of the penalty...
“By virtue of abc. 2 clause 21 art. 12 of the Law on Compulsory Motor Liability Insurance, paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 29, 2015 No. 2 “On the application by courts of the legislation on compulsory insurance of civil liability of vehicle owners” 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 the day of delay pays the victim a penalty in the amount of one percent of the amount of the insurance payment according to the type of harm caused to each victim, payable to the victim for a specific insured event, minus the amounts paid by the insurance company on a voluntary basis.
By virtue of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty.
Part one of Article 333 of the Civil Code of the Russian Federation , which provides for the possibility of the court establishing a balance between the measure of responsibility applied to the violator and the amount of actual damage caused as a result of the offense committed by him, does not imply that the court has an absolute initiative in terms of reducing the penalty - based on the principle of exercising civil rights in of his own will and in his own interest (clause 2 of Article 1 of the Civil Code of the Russian Federation), the penalty can be reduced by the court if there is a corresponding expression of will on the part of the defendant. Otherwise, the court, when carrying out legal proceedings, would actually act from the position of one of the parties to the dispute (the defendant), making a decision for it on the implementation of the right and relieving it of the obligation to prove the disproportion of the penalty to the consequences of the violation of the obligation .
Based on the meaning of this legal norm, as well as the principle of exercising civil rights of one’s own will and in one’s own interest (Article 1 of the Civil Code of the Russian Federation), the amount of the penalty can be reduced by the court on the basis of Article 333 of the Civil Code of the Russian Federation only if there is a corresponding application from the defendant in exceptional cases with a mandatory indication of the reasons why the court believes that reducing the amount of the penalty is acceptable.
The provision of part one of Article 333 of the Civil Code of the Russian Federation in the system of current legal regulation, in the sense given to it by established law enforcement practice, does not allow the court to decide the issue of reducing the amount of the penalty on the basis of obvious disproportionality to the consequences of breach of obligation without the defendants presenting evidence confirming such disproportionality , without providing they have the opportunity to prepare and substantiate their arguments without discussing this issue in court.
The defendant must provide evidence that the penalty is clearly disproportionate to the consequences of the violation of the obligation, in particular, that the possible amount of losses to the creditor that could arise as a result of the violation of the obligation is significantly lower than the accrued penalty. To refute such a statement, the plaintiff has the right to present arguments confirming the proportionality of the penalty to the consequences of breach of obligation.
A reduction in the amount of the penalty should not lead to an unjustified release of the debtor from liability for delay in fulfilling the obligation.
This position is enshrined in the Ruling of the Supreme Court of the Russian Federation dated June 23, 2015. in case 78-GK15-11, Ruling of the Constitutional Court of the Russian Federation of January 15, 2015.
We believe that the Defendant did not provide evidence confirming the presence of any exceptional circumstances that would allow him to reduce the amount of the accrued penalty, and did not provide evidence that the penalty was disproportionate to the consequences of the violation of the obligation.”
How to calculate
Let's move on to the most interesting issue - the calculation of penalties under compulsory motor liability insurance. The amount may vary significantly, but there are minimum and maximum amount limits. The penalty is calculated using the following formula:
C*Х*D, where:
C - the amount of payment to the victim, which is announced by the appraiser after inspecting the damage;
X - the amount of the penalty for each overdue day - for payment is 1%, for delayed repairs - 0.5%, for no refusal - 0.05%;
D - the number of days by which the insurer was late in payment.
Additionally, the amount of the penalty includes related expenses that the driver incurred during a traffic accident. This includes expenses for:
- emergency commissioner;
- evacuation and parking of a broken car;
- transporting the victim to the hospital;
- repair of road signs and other objects damaged in the accident.
Accordingly, if you do not trust the appraiser from the insurance company, you can contact an independent expert. The delay begins on the day following the 20-day period given by the insurance company to consider your application. If the penalty is collected through a lawsuit, then the last day is considered the date of filing the claim. Subsequently, it is replaced with a later one, since the defendant can pay the amount during the trial. If the insurer has not made payment even after the trial, an additional claim should be filed, where the period of penalty will include the time spent on the trial.
The total amount of compensation for the penalty cannot exceed the amount of the insurance payment; accordingly, the maximum amount of the penalty under compulsory motor liability insurance will be up to 400,000 rubles for damage to the car and up to 500,000 for damage to health. Even if, because of the interest, you calculate a penalty of 650,000, but only the car is damaged, then the court will order the maximum payment for this case - 400,000. If the penalty is collected on part of the unpaid amount, then the formula takes into account only that part of the funds which have not yet been paid to the victim. Under MTPL you can receive the maximum amounts:
- if the car is damaged – 400 OSAGO + 400 for penalties = 800 thousand rubles;
- if there is harm to health – 500 OSAGO + 500 for a penalty = 1 million rubles.
However, you can additionally recover funds for fines, moral damages and legal costs. If the court satisfies your demands, the insurer will be obliged to pay more than the established 800 thousand and 1 million.
The restrictions described above apply only to individuals. Legal entities can receive an unlimited amount as compensation for penalties.
Penalty amount according to compulsory motor liability insurance
The amount of the penalty under compulsory motor liability insurance was determined by the Supreme Court of the Russian Federation in resolution of the plenum No. 2 of January 29, 2015, clause 55, clause 56:
For failure to comply with the deadline for making an insurance payment or compensation for damage caused in kind, it 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 voluntarily within the time limits 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). The penalty for violating the deadline for issuing directions for restoration repairs or for violating the deadline for completing such repairs is calculated at the rate of 1 percent for each day of delay of the amount of the insurance payment determined in accordance with Article 12 of the Law on Compulsory Motor Liability Insurance.
The penalty for late payment under compulsory motor liability insurance is calculated from the day following the day established for making a decision on payment of insurance compensation until the day the insurer actually fulfills the obligation under the contract.
As you can see, the maximum amount of the penalty under compulsory motor liability insurance is not established by law; it is collected as a percentage.
Within 20 calendar days , with the exception of non-working holidays, from the date of acceptance for consideration of the victim’s application for insurance payment or direct compensation for losses and the documents attached to it, provided for by the rules of compulsory insurance, the insurer is obliged to make an insurance payment to the victim or issue him a referral for vehicle repair funds indicating the repair period, or send the victim a reasoned refusal of insurance payment .
Several calculation examples
Now you know how the penalty for compulsory motor liability insurance is calculated. Let's look at a few examples.
Option one - the insurance company set the amount of damage at 170 thousand rubles. By the end of the 20-day period, 78 thousand had been paid. The penalty period is 80 days. You can file a claim or claim for non-payment of remaining funds using the formula:
(170-78) * 1% * 80 = 73,600 rubles.
The second option is delay in repairs. Let’s assume that the workshop missed the deadline, and therefore the car did not have time to repair. In this example, we take the cost of the entire repair - 220 thousand, a percentage of 0.5 and the number of days, for example, 44. Then we calculate the penalties:
220 * 0.5% * 44 = 48,400 rubles.
Please note that the amount of the penalty under OSAGO in the case of repairs cannot exceed the cost of eliminating car breakdowns. Accordingly, even if the number of days is 200, the maximum amount will be 120 thousand.
The third option is that the insurer did not send a written refusal of the insurance payment on time. This is also considered a violation, since the driver was waiting for a decision and did not repair the car. In this case, the insured amount is used (for example, 80 thousand), the number of days is 60 and the percentage is 0.05%:
80 * 0.05% * 60 = 2,400 rubles.
As you can see, you are allowed to receive a small refund due to an unsent refusal. Naturally, during a lawsuit, you can also demand compensation for legal costs.
How is the amount of the penalty calculated?
The articles of the Federal Law on compulsory motor liability insurance clearly stipulate the general methodology for calculating the amount of the penalty under compulsory motor liability insurance, unless the contract specifies special conditions.
- The amount of the penalty for payment to the victim of an accident, in case of violation of the deadline for payment of compensation, is 1 percent, from which date we will look at an example, the amount of insurance for the victim of an accident was 180 thousand rubles, then the amount per day will be 1800 rubles and multiply this amount by the number of days delay, let's say 30, the amount of the penalty will be 54 thousand rubles.
- The amount of the penalty for failure to comply with repair deadlines, as well as delivery of a referral to a service station, is calculated based on the amount for restorative repairs, taking into account the degree of wear and tear of the vehicle.
- The amount of the penalty is accrued from the moment of actual violation of the deadline, until the actual day of payment to the victim, counting from 21 days after submitting documents for payment of compensation.
- If the amount of restoration compensation was not paid in full, then the penalty is charged for the amount underpaid by the insurer. For example, the cost of the damage caused is 200 thousand rubles, only half of the amount of 100 thousand has been paid, the amount of the penalty for one day will be 1 thousand, if compensation is paid on the 28th day, after submitting the documents, the penalty will be 8 thousand rubles.
- In case of untimely payment of monetary compensation for the restoration of health, a penalty is calculated at the rate of 1 percent of the insurance payment for the restoration of the health of the victim or victims per day, multiplied by the number of days of delay.
- Article 16.1 of the Federal Law limits the maximum amount of penalties, penalties, for an individual. The amount of the maximum penalty cannot exceed 400 thousand, in the case of restoration repairs. The amount of the maximum penalty for late payment of funds for health restoration cannot exceed the amount of insurance compensation, Article 7 of the Federal Law. The maximum amount of compensation for health restoration is 500 thousand.
- In cases where the refusal to pay compensation had legal grounds, but the client was not notified about this within 20 working days from the date of filing the application for payment of funds, a penalty is charged in the amount of 0.5% of the amount of compensation for restoration, for each overdue day.
ATTENTION !!! In addition, the amount of the penalty is provided when the insurance company delays the return of the insurance premium. The accrual is in the amount of 1 percent of the amount of the insurance premium paid when concluding an insurance contract, which corresponds to the requirements of Article 16.1, paragraph 4 of Federal Law No. 40.
The maximum amount of the penalty cannot be greater than the amount of the insurance premium.
In order to have an idea of what amounts we are talking about, each car owner can, using an online calculator, calculate the amount that the insurer is obliged to pay to the policyholder. If you enter sufficiently truthful information, you get an amount equal to the actual amount of the penalty.
When they can refuse
Inexperienced motorists without the support of lawyers often make simple mistakes, which become the reason for the denial of the claim. You may be refused in the following cases:
- the driver did not complete the claim procedure;
- documents supporting your claim have not been submitted;
- a force majeure event, for example, there was a fire in the company that destroyed all documents, which led to a delay;
- incompetence of the plaintiff - ignoring contact with the insurer, incorrectly indicating the bank account for payment of compensation, or other.
If the MTPL insurance payment is refused, no penalty will be paid.
