A new approach, allowing motorists to compensate for the cost of repairs without taking into account wear and tear of spare parts under compulsory motor liability insurance, began to be applied by the financial commissioner in April 2021. This opportunity was given to him by the decision of the Supreme Court, which became an event in the auto insurance market. The Russian Union of Auto Insurers believes that so far no new practice has developed: each case is considered individually. Insurance companies continue to challenge decisions in the courts that require them to pay for new parts. In what cases can a car be repaired with new spare parts, Izvestia looked into it.
In what cases is the victim’s car sent for repairs?
The answer to the question in the subtitle depends on the benefits of a particular insurance company. For most car insurers, repairing a damaged car is accompanied by significantly lower costs than paying monetary compensation. Moreover, taking into account the built relationships with numerous car services, which are also extremely interested in cooperation with insurance companies and therefore are ready to make serious preferences in relation to them.
Is it any wonder that the dilemma: repairs or payment under compulsory motor liability insurance is very often resolved by the auto insurer in favor of the first option. Especially if we are talking about a relatively new car. On the contrary, for an old car, payment instead of repairs under OSAGO often turns out to be more profitable for the insurance company.
A similar situation arises if we are talking about serious damage, which cannot be eliminated in a month. In this case, for each day the 30-day period is exceeded, a penalty of 0.5% is collected from the auto insurer. As a result, a very serious amount can accumulate, and therefore it is easier and more profitable to pay money instead of repairs under OSAGO.
In relation to the policyholder, the benefit of each of the possible options is also determined individually. Of particular importance is the professionalism of the car insurer’s employees who choose a service station to conclude a contract with. This becomes another argument in favor of the fact that the choice of an insurance company for further cooperation in the field of compulsory motor liability insurance should be approached very responsibly.
Do I need to sign the transfer acceptance certificate?
Yes need. Since you accepted the car from the service station, you need to sign a report, but with the obligatory indication of all the shortcomings that you found. Don't worry if you didn't see hidden damage - it is the insurer's prerogative to discover it when they inspect the car as a result of your claim.
Actions in case of poor quality repairs
Restoration repairs are not always carried out efficiently. In this case, the policyholder has no choice but to use one of the following methods to protect his own rights:
- sending a claim to the insurance company (but not the service station);
- filing a complaint with the RSA or the Central Bank;
- filing a statement of claim, supported by the results of an independent examination, to the judicial authorities.
An important legal nuance is the ability to file a claim not only for the correction of poorly performed work, but also on a number of additional grounds. These include the collection of penalties, legal costs incurred and compensation for moral damage received.
At the expense of the insurance company: what to do if the repairs were performed poorly
How to recover damages?
There was an accident in which Raisa Aidova's car was damaged*. A representative of the SOGAZ insurance group inspected the car and issued a referral for restoration repairs costing 65,352 rubles. due to insurance. After the repair, Aidova discovered deficiencies in the work, which were confirmed by the expert, IP Toroptsev. He did not calculate the volume and cost of repairs to eliminate the identified deficiencies. Aidova sent a claim to the insurer demanding that the defects be eliminated or the cost of repairs and expert expenses paid. In response, the society offered to provide the car for inspection. Instead, Aidova filed a lawsuit against SOGAZ JSC to recover 65,352 rubles. for the repairs made, a fine in the amount of 50% of the awarded amount for failure to comply with the voluntary order, as well as reimbursement of expenses for the services of an expert and representative.
CASE No. 77-КГ19-14
PLAINTIFF: Raisa Aidova*
RESPONDENT: JSC SOGAZ
ESSENCE OF THE DISPUTE: About recovery of the full cost of repairs, since they were carried out poorly
DECISION: The act of the regional court is cancelled, the case is sent to appeal for a new trial
The Sovetsky District Court of Lipetsk agreed with the expert’s conclusions that the repairs were performed poorly. Therefore, the court recovered its full cost in favor of Aidova, as well as a fine and other expenses - a total of 115,352 rubles. The Lipetsk Regional Court confirmed the legality of this decision.
The Supreme Court noted that the conclusion of IP Toroptsev contains conclusions about the shortcomings of only some of the work and parts, and not the entire repair of the car. At the same time, the expert did not determine the cost of eliminating the deficiencies. This means that there were no legal grounds for collecting in favor of Aidova the entire cost of repairing the car, including high-quality work performed, for which there are no claims. According to the Supreme Court, the decision of the lower courts led to unjust enrichment on the part of the policyholder, which violates the established Art. 15 of the Civil Code the principle of compensation for real damage. As a result, the Supreme Court overturned the regional court’s ruling and sent the case for a new appeal (No. 77-KG19-14). It has not yet been reviewed.
Who will prove the amount of losses?
It is widely known that insurance companies systematically do not pay extra to victims. Probably, the lower courts decided to punish them for this. However, civil law is aimed at compensating the losses of the victim, who should not unjustifiably enrich himself at the expense of the other party
Oleg Khmelevsky, lawyer, senior lawyer BGP Litigation BGP Litigation Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (major disputes - high market) group International litigation group Family and inheritance law group Bankruptcy (including disputes) group International arbitration group Tax consulting and disputes (Tax consulting) group Criminal law 11th place By number lawyers Profile,” said Dmitry Ryzhenkov, senior lawyer at ETERNA LAW. “In the event of payment of full insurance compensation, the insured will be subject to unjust enrichment in an amount corresponding to the cost of the replaced spare parts and work performed, for which there are no claims. This approach is consistent with established judicial practice and the logic of legislation, according to which, in the event of poor-quality work, the customer may demand compensation for his expenses to eliminate the deficiencies, but not the full cost for the work done,” explained Cliff Cliff, an adviser to the law firm, to Federal Rating. group Tax consulting and disputes (Tax consulting) group Private wealth management group Antimonopoly law (including disputes) group Intellectual property (including disputes) 10th place By number of lawyers 27th place By revenue per lawyer (more than 30 lawyers) 41st place By revenue Ilya Fedotov.
* – first and last names have been changed by the editors.
- Alina Mikhailova
How to get a cash payment?
The current legislation clearly regulates the list of situations when we are talking exclusively about monetary compensation. It includes:
- impossibility of restoring the car;
- death in an accident or causing serious harm to the victim;
- disability of the victim who needs a special car due to medical conditions;
- the amount of damage exceeds the maximum payment under compulsory motor liability insurance (RUB 400 thousand);
- mutual fault of both participants in the accident;
- existence of an agreement with the insurance company on the need for cash payment.
Transferring the vehicle to a service station
I propose to start the conversation with how to hand over a car to auto mechanics. So, the claim about the occurrence of an insured event was considered, the damage was assessed, and the insurance company issued the driver a referral to a service station. Let me remind you that restoration work is carried out at technical stations that have relevant agreements with the UK. The car owner has the right in advance, when purchasing a “citizen car”, to choose from the proposed list the service to which his vehicle will be sent in the event of an accident.
Chapter 6 of the Regulations of the Bank of Russia dated September 19, 2014 “On the rules of compulsory insurance of civil liability of vehicle owners” No. 431-P is devoted to the conditions for carrying out the work.
This is what is stated in the document:
- The service station must be located no more than an hour 50 km from the scene of the accident or the residence of the car owner (except for cases when the insurer undertakes transportation of the vehicle there and back);
- Cars under 2 years old must be repaired at service stations of official dealers.
Accordingly, if you did not take care of choosing a car repair shop in advance and you were given a referral in violation of the above requirements, you can refuse such services. Well, if everything is in order, then you can safely take the car to the service center.
So, the car arrived at the service station. What happens next? And then an act of acceptance and transfer of the car is drawn up. It should contain the following information:
- detailed information about the car;
- list and description of car damage received in an accident;
- date and purpose of contacting the service station;
- information about the workshop that accepts the car.
The document is signed by both parties and sealed with the seal of the technical station.
Answers on questions
Who chooses the form of insurance compensation?
The right to choose as of today is given to the insurance company. Nothing is known about legislators' plans to change this situation.
How long must the restoration work be completed?
Provisions No. 40-FZ clearly indicate the maximum duration of repairs under OSAGO, which is exactly 30 days.
What is the penalty for exceeding the standard repair period under compulsory motor liability insurance?
If the repair is not completed within 30 days, the insurance company is charged a penalty in the amount of 0.5% of the cost of the restoration repair.
Who should I file a claim with?
The first thing you need to know is that if you entered into an MTPL insurance contract not at the insurer’s office, but at an agent or broker, then the insurance organization is still responsible for a poorly repaired car (Clause 8, Article 16.1 of the Federal Law).
Secondly, it is important what documents you signed when you were issued a referral for repairs. The fact is that in such papers you could, with your signature, generally enter into an assignment agreement, assigning the right to demand payment to a car service center, or agree to additional conditions (clause 15.1 of Article 12 of the Federal Law on Compulsory Motor Liability Insurance):
- incomplete repairs in case of refusal of additional payment,
- consent to the use of used spare parts,
- refusal of a certain type of work.
An assignment agreement is when a car service buys from you the right to claim compensation from the insurance company for repairs on its own terms. If you signed such an agreement without reading it, you could agree to the same “special” repair conditions and may have nothing to show. With an assignment agreement, the service, not the insurer, is responsible for poor repairs of the car.
Therefore, if you discover when receiving a car from a service center that it was repaired poorly, then first of all you need to study all these documents.
When is it legal to extend this period?
There is only one case when the above 30 working days can be extended with the consent of the car owner who was injured in the accident. This is a situation where you have given consent - and in writing, either to increase the period of repairs, or to delay the start of its course.
For example, the insurance company has issued a referral, but the car service center complains that spare parts or parts for your car model take a very long time. In this case, you can agree with the insurer that you will put the car in for repair only when the components to restore the car arrive. Or you may not be aware at all that the period has not even begun yet, because this agreement was simply slipped to you, or on the very letter that you signed, there were clauses about consent to delay the repairs, which you simply ignored and signed.
But here lies a slightly different, very common practice. We read about it further.
Filing a claim with an insurance company under MTPL
The reason for filing such a claim is that exceeds by 10% compared to what was calculated by the insurance company. You can see the sample:
First, the dispute is resolved out of court. The claim is sent to the insurance company, which must review it within 10 days. If the insurer does not agree to make an additional payment, it provides a written refusal with justification of the reasons. After this you can go to court.
Further actions
If the insurance company decides to review the claim, they will set a date for the vehicle to be re-inspected. During the procedure, the owner, a representative of the insurer and the car service center that performed the repair are usually present. The assessment is carried out within 5 days after receiving the requirements.
The claim itself is considered no more than 10 working days from the date of its receipt. The answer to the requirements could be:
- issuing a referral for repeated repairs;
- payment of funds;
- refusal to satisfy demands.
Replacing repairs with payment of compensation is possible if such an agreement is reached between the applicant and the insurance company or if the repair work cannot be repeated.
Procedure for payment of penalties
Having calculated the penalty, the car owner or citizen who suffered harm to health must submit a special application to the insurance company for the payment of penalties and sanctions. That is, a separate document is submitted in addition to the main application for insurance payment .
The application for a penalty is written in free form. It states:
- Information from the insurance company;
- Citizen data;
- Basis and calculation of penalties;
- Method of payment of penalties (from the cash register or by transfer);
- Bank details if there will be a wire transfer to the victim’s account.
The law does not provide for a clear deadline for the payment of penalties for the insurer. And, as practice shows, insurance companies rarely pay these amounts voluntarily. Therefore, such a monetary issue is resolved in court.
Warranty repair and its features
The Law “On the Protection of Consumer Rights” is the main guideline for people who received poor-quality service after paying in full for it. If a person received a service that was not of the quality that was previously agreed upon, he has every right not only to be indignant, but to demand compensation for losses and even moral compensation, especially in case of inconvenience. Warranty repairs are usually provided free of charge and a person may require special treatment. For example, service is often carried out throughout the main queue, etc. Let's take a closer look at some of the features of warranty repairs.
How long can repairs take under warranty?
When submitting your vehicle for warranty repairs, many are interested in the duration of this procedure. It depends on the complexity of the breakdown, but there are still deadlines that are regulated by Russian law:
- According to the terms of a special agreement. The maximum period in this case should be no more than 45 days. Moreover, this even applies to situations when the car service center where warranty service is performed does not have the necessary spare parts.
- If an agreement has not been drawn up, which indicates the terms agreed upon by the parties. The work will be carried out immediately and will be completed in the shortest possible time from an objective point of view. Delaying work is considered an additional violation and is punished accordingly.
If the repair lasts longer than 45 days, the client has the right to receive a penalty in the amount of 1% of the cost of the car for each day of delay. By the way, after repair, the warranty is extended for the period until the person used his vehicle, since it was at a service station.
Frequent mistakes of car owners when receiving
After the service informs you that the restoration work has been completed, you can take the car home. However, the car owner must pay special attention to the acceptance of the repaired car. Since in case of poor-quality repairs, it will be possible to eliminate the defects only if all the paperwork is completed correctly.
Here are some simple rules:
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- carefully inspect the car, if the visible defects are minor, then the acceptance certificate can be signed, but be sure to reflect what exactly has not been corrected;
- do not believe the words of the workshop employees if they ask you to sign a report without comments that they will eliminate the deficiencies later, because in this case the client automatically agrees with the quality of the work performed, which means that the insurance company will not be able to make a claim against the workshop, such a report cannot even be challenged in court;
- if during the inspection of the car serious deficiencies are revealed, then it is better not to sign the report, but to call representatives of the insurance company so that they can resolve the issue of eliminating the errors on the spot;
- if the defects did not arise upon receipt of the car, but during operation, then the issue of the safety of using such a car may need to be resolved, therefore it is necessary to invite an independent expert in cases where the engine overheats greatly while driving, fuel consumption is too high or suspicious noises appear .
The controversial situation is resolved through a claim procedure. However, in the latter case, longer proceedings are possible. It will be taken into account whether the warranty period has passed after the repair, whether the owner of the car changed parts again during the period of operation, did not have an accident after restoration, and other factors.
