of June 24, 2004 No. 9
About court practice on cases on indemnification, caused by vehicles
Having discussed practice of application by courts of the legislation by hearing of cases on indemnification caused by vehicles, the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that the relation on indemnification caused by vehicles are regulated by the Civil code of the Republic of Belarus, the Presidential decree of the Republic of Belarus of August 25, 2006 No. 530 "About insurance activity", Chapter 13 of the Regulations on insurance activity approved by this Decree in the Republic of Belarus *, the Charter of the Belarusian bureau on transportation insurance approved by the Presidential decree of the Republic of Belarus of December 1, 1999 No. 701, and also other regulatory legal acts.
* Further - the Provision.
Rules of international treaties of the Republic of Belarus, in particular Art. 45 of the Convention on legal assistance and legal relations on civil, family and criminal cases of October 7, 2002 (it is concluded in Chisinau, became effective on April 27, 2004), and also the Agreement on compulsory insurance of passengers are applied to the relations on indemnification with participation of foreign citizens and legal entities in case of the international motor transportations of January 13, 1999.
2. Courts should mean that rules about payment of insurance indemnity extend to the relations on indemnification, caused by vehicles, arisen since July 1, 1999 (from the moment of introduction of this type of insurance). If the fact of causing such harm took place till July 1, 1999, then harm is compensated according to provisions of Chapter 58 of the Civil Code, at the same time in case of damnification of life and to health of the citizen rules of Art. 1149 of Final provisions of group of companies are considered.
3. Explain to courts that owing to obligatory civil liability insurance of owners of vehicles the harm done to life or health of physical persons, their property or property of legal entities as a result of the road accidents is compensated by the insurer in the form of insurance indemnity. In case of absence at the causer of harm of the agreement of obligatory civil liability insurance of owners of vehicles, damnification by the vehicle which left possession of the owner without his fault and also in other cases which are directly provided in the Charter of the Belarusian bureau on transportation insurance, calculations with the victim are perfromed by the Belarusian bureau on transportation insurance.
In case of presentation of the claim for compensation of the harm received owing to the road accident directly to his causer or the legal owner of the vehicle the court needs to find out availability of the agreement of compulsory insurance concerning the vehicle of the causer of harm and depending on established to discuss question of participation in case in quality of the defendant of the insurer who signed such agreement or the Belarusian bureau on transportation insurance.
4. Draw the attention of courts that the compulsory provision of the insurer liability under the agreement of obligatory civil liability insurance of owners of vehicles is the loss occurrence which admits the fact of damnification of life, to health and (or) property of the victim as a result of the road accident.
If the damnification fact owing to item 158 of the Provision does not belong to insured event, then the victim has the right to require indemnification based on the general rules established by group of companies.
5. Courts should mean that for the purposes of obligatory civil liability insurance of owners of vehicles the concept of the vehicle is this in item 149 of the Provision.
When harm is done because of the driver of other vehicle (for example, the animal-drawn vehicle, the bicycle) or the mechanism which is not relating to vehicles (agricultural harvesters, mowers, etc.) which civil responsibility of the owner is not subject to compulsory insurance it is compensated by the general rules established by group of companies.
6. Legal entities and physical persons, being owners or owning vehicles on the right of economic maintaining or operational management, according to the lease agreement, by proxy on vehicle control can be owners of vehicles which civil responsibility is subject to compulsory insurance (except for leases of the vehicle with crew (Art. 611 of group of companies), owing to the order of relevant organ about transfer of vehicles to them or on other basis, stipulated by the legislation or the agreement.
Person managing it owing to accomplishment of professional obligations of the driver either according to the order or with the consent of the legal owner is not vehicle owner. The insurance indemnity of the harm done in such cases because of person managing the vehicle is performed based on the insurance contract signed with person who is his legal owner.
7. Explain to courts that according to transactions of purchase and sale of the vehicles alienated by physical persons, the buyer acquires all rights and performs all duties of the legal owner including following from the relations on obligatory civil liability insurance of owners of vehicles, only after registration of the purchase and sale agreement of the vehicle according to the procedure, established by the legislation (item 1 of the Presidential decree of the Republic of Belarus of October 15, 2007 No. 504 "About some measures for streamlining of transactions on alienation of vehicles").
8. It is necessary to consider that if unfair actions of the insurer who specified to the insurer obviously false data or did not report to him about increase in insurance risk during validity of compulsory insurance allow underpay of insurance premium, then the corresponding debt and the penalty provided by item 156 of the Provision are subject to collection from the insurer based on executive text of the notary. Judicially these requirements can be considered only in the presence of dispute.
9. The agreement of obligatory civil liability insurance of the vehicle owner is effective during the term specified in the agreement. Early termination of the agreement is possible in case of approach of the circumstances specified in item 1 of Art. 848 of group of companies and item 173 of the Provision.
10. Courts should mean that the aggregate term of limitation period estimated from the date of the end of validity (Art. 856 of group of companies) extends to the requirements following from the agreement of obligatory civil liability insurance of owners of vehicles.
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