Delay in payment of OSAGO. Calculation and collection of penalties for OSAGO. Claim Forms

Forfeits under OSAGO are collected from the insurance company in 2 cases: - delay in insurance payment; - Violation of the deadline for sending for refurbishment. You can claim it in 2 ways:

Simultaneously with the recovery of the principal debt, indicating it in the statement of claim.

A separate statement of claim after the recovery of the principal debt.

The first way is preferable. Saves you time and money. The amount of the penalty for OSAGO

The size of the forfeit under OSAGO was determined by the Supreme Court of the Russian Federation in the decision of the plenum No. 2 of 01/29/2015, p. 55, p. 56: For non-compliance with the deadline for making an insurance payment or compensation for damages in kind, it is determined in the amount of 1 percent for each day of delay from the amount of insurance compensation payable to the victim in a specific insured event, minus the amounts paid by the insurance company in voluntary within the time limits established by Article 12 of the OSAGO Law (paragraph two of paragraph 21 of Article 12 of the OSAGO Law). The penalty for violating the deadline for issuing a referral for restoration repairs or for violating the deadline for performing such repairs is calculated at the rate of 1 percent for each day of delay from the amount of the insurance payment determined in accordance with Article 12 of the OSAGO Law. The penalty for delay in payment under OSAGO is calculated from the day following the day set for making a decision on the payment of insurance compensation, and until the day the insurer actually fulfills the obligation under the contract. As you can see, the maximum amount of the penalty under OSAGO 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 application of the victim for insurance payment or direct compensation for losses and the documents attached to it, provided for by the rules compulsory insurance, the insurer is obliged to make an insurance payment to the victim or issue him a referral for the repair of the vehicle, indicating the repair period, or send a reasoned refusal to the insurance payment to the victim. Calculation of the penalty for OSAGO The calculation of the penalty for OSAGO is made according to the formula:

S*1%*D=N, where:

S - The amount payable by the insurer (determined by the appraiser's report or court decision).
1% - the amount of the penalty for each day of delay.
D - Number of days overdue.
N - The amount of the penalty.

Let's see how to calculate the CMTPL penalty using the example of 2 calculations: 1 calculation - for the delay in insurance payment and 2 calculation - for failure to issue a referral for refurbishment Calculation No. 1. Delay in insurance payment for OSAGO. Suppose that the amount of damage from an accident according to an independent examination amounted to 178,000 rubles. The insurance company voluntarily paid 75,000 rubles within the established time limits. The difference in the insurance payment collected through the court is 103,000 rubles. It took us 74 days to pre-trial settlement, court with the insurance company, up to the collection of the insurance payment by court decision. Now let's combine our numbers with the formula

103,000 rubles x 1% x 74 days = 76,220 rubles, where:

- 103,000 rubles - the amount recovered by the court or payable based on the results of an independent assessment.
- 1% - the amount of the penalty for each day of delay
— 74 days - the number of days from the moment when the insurance company was supposed to make an insurance payment (within 20 calendar days from the date of filing complete package documents, the insurer must make an insurance payment).
- 76,220 rubles - the amount of the penalty to be recovered.

Calculation No. 2. Violation of the deadline for issuing a referral for refurbishment. Suppose that, according to the results of an independent examination, the damage from an accident amounted to 87,000 rubles. The OSAGO agreement provided that insurance payment carried out by sending for repair to the dealer station. The insurer overdue the referral for repairs by 21 days. We use the same formula and perform a calculation similar to Calculation No. 1

87,000 x 1% x 21 = 18,270 rubles, where:

- 87,000 rubles - the amount of damage based on the results independent evaluation.
- 1% - the amount of the penalty for each day of delay.
— 21 days - the number of days from the moment when the insurance company should have sent you for repairs (within 20 calendar days, from the date of submission of the full package of documents, the insurer must decide on sending you for repairs).
- 18,270 rubles - the amount of the penalty to be recovered.

And even if you know how to calculate the penalty for OSAGO, however, this does not mean that the entire amount of the penalty will be recovered in your favor. Court on the basis of Art. 333 of the Civil Code of the Russian Federation has the right to reduce the amount of the penalty. Quote from the decision Supreme Court RF. “The application of Article 333 of the Civil Code of the Russian Federation on the reduction of the penalty by the court is possible only in exceptional cases, when the penalty payable is clearly disproportionate to the consequences of the violated obligation. Reducing the penalty, is allowed only at the request of the defendant. The decision must indicate the reasons why the court believes that a reduction in its size is permissible. What needs to be done so that the court does not reduce the amount of the penalty We are often approached with a complaint - the court reduced the penalty in a lawsuit against an insurance company. So here it is so that the court "disgracefully" does not cut the amount of the penalty for OSAGO, it is necessary in the objection to the defendant's (insurance company's) application to reduce the amount of the penalty, in justification of the amount of the penalty, indicate the following, be sure to highlight the lines as in the text

"By virtue of para. 2 paragraph 21 of Art. 12 of the Law on OSAGO, clause 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 29, 2015 N 2 “On the application by the courts of legislation on compulsory insurance of civil liability of vehicle owners” in case of non-compliance with the deadline for making an insurance payment or compensation for damage in kind, the insurer for each the day of delay pays the victim a penalty (fine) in the amount of one percent of the amount of the insurance payment for the type of harm caused to each victim, payable to the victim in a specific insured event, minus the amounts paid by the insurance company on a voluntary basis.
By virtue of Article 333 Civil Code RF, if the penalty payable is clearly disproportionate to the consequences of the breach of obligation, the court has the right to reduce the penalty.

Part one of Article 333 of the Civil Code of the Russian Federation providing for the possibility of establishing a balance between the measure of responsibility applied to the offender and the amount of actual damage caused as a result of the offense committed by him, does not assume that the court has absolute initiative in terms of reducing the penalty- based on the principle of exercising civil rights in one's own will and in one's own interest (clause 2 of article 1 of the Civil Code of the Russian Federation), the penalty may be reduced by the court if there is a corresponding declaration of will on the part of the defendant. Otherwise, the court, in the course of legal proceedings, would actually act from the position of one of the parties to the dispute (the defendant), making a decision on the implementation of the right for it and relieving it of the obligation to prove that the penalty is disproportionate 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 by 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 the obligatory indication of motives for which the court believes that a reduction in the amount of the penalty is admissible.

The provision of the first part of Article 333 of the Civil Code Russian Federation in the system of the current legal regulation according to the meaning attached to it by the established law enforcement practice, does not allow opportunity for the court to decide on reducing the amount of the penalty on the grounds of apparent disproportion consequences of breach of obligation without the defendants presenting evidence confirming such disproportion without giving them the opportunity to prepare and substantiate their arguments and without discussing this issue in court.

The defendant must provide evidence that the penalty is clearly disproportionate to the consequences of the breach of the obligation, in particular, that the possible amount of the creditor's losses that could have arisen as a result of the breach of the obligation is significantly lower than the penalty charged. The plaintiff, in order to refute such a statement, has the right to present arguments confirming the proportionality of the penalty to the consequences of the violation of the obligation.

Reducing the amount of the penalty should not lead to unreasonable release of the debtor from liability for the delay in fulfilling the obligation.

This position is enshrined in the Ruling of the Supreme Court of the Russian Federation of June 23, 2015 No. in case 78-GK15-11, Definition Constitutional Court RF dated January 15, 2015.
We believe that the Respondent did not provide evidence confirming that he had any exceptional circumstances that could reduce the amount of the accrued penalty, did not provide evidence that the penalty was disproportionate to the consequences of the breach of obligation.”

Although vehicle liability insurance is prerequisite when used, the parties constitute an agreement. It is its existence that makes it possible to apply to the violator the norms of the Civil Code of the Russian Federation regarding liability for failure to comply with the terms of the agreement.

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We are talking about a forfeit, a fine and a penalty fee, as the main types of civil liability. All this does not cancel the existing administrative responsibility for evading registration of OSAGO or delay in the policy, period of use.

What it is

A penalty is a type of civil sanction for delay in fulfilling contractual obligations.

The legislation establishes mandatory pre-trial settlement of the conflict. This means that the insured person or the beneficiary, before filing a claim with the court for non-fulfillment of contractual obligations, must first write a statement about the occurrence insured event and a claim against the company liable for damages.

Regarding the application, no deadlines have been set, but a claim regarding the amount of compensation can be presented only until 01.06 of the current year.

After filing an application for the occurrence of an insurance incident and payment of compensation, the insurer has only 20 days to make a payment or give a reasoned refusal.

After the occurrence of an insurance incident, an application is written on the form. Within 2-3 days, the insurance company considers it, but the document must be submitted immediately, otherwise there will be grounds for refusing to transfer insurance payments.

After that, the special agent decides whether the incident is really an insured event.

Due to changes in insurance legislation, the insurer now has 10 days less to make a decision on the provision of insurance payments than was previously established.

The claim regarding the amount of guaranteed compensation is considered no later than 5 days from the moment of its creation and transfer. A reasoned refusal in this case will be considered the proper performance of obligations under the contract, unless the court decides otherwise.

The penalty acts as a type of liability of the insurer, which is applied in case of violation of the deadlines established for the consideration of claims and applications for payment.

The insured person or the person obliged to obtain the MTPL policy does not bear such contractual liability. Most often, violators of the insurance legislation are liable under the Code of Administrative Offenses. Sometimes they may be subject to penalties, which are a form of treaty sanctions.

Calculation of the penalty for OSAGO

Example 1 The insurer failed to meet the deadlines for payment of compensation. 20 working days have passed, but the beneficiary has not received the due amounts.

The penalty is charged in the amount of one percent of the sum insured, depending on the period of delay (FZ "On OSAGO").

For example, if it were necessary to list 120 thousand rubles, then the amount of the daily penalty will be 1200 rubles. But regardless of the period of delay, the penalty cannot be charged in excess of the sum insured.

Example 2 The insurer violated the deadlines for the return of the insurance premium. The penalty will be calculated in the amount of one percent of the bonus for each overdue day.

For example, the guaranteed premium is 4400 rubles. The penalty for each day will be charged in the amount of 44 rubles.

The compensation amount of the penalty cannot be higher than the sum insured. For example, if the insurer delays by 10 days, he will have to pay 440 rubles forfeit.

Legal basis

The application of the penalty became possible on the basis of the norms of the following regulations:

• Civil Code of the Russian Federation;
• Code of Administrative Offenses;
• FZ;
• "On Procurement of Goods, Works, Services by Certain Types of Legal Entities".

The Civil Code gives the very interpretation of the concept of a penalty and describes it as a specific type of liability for failure to comply with contractual terms. The Federal Law on OSAGO details the cases of charging a penalty and its size.

Arbitrage practice

When a car is under warranty, and the insurer offers to carry out repairs in a private workshop, it is better to receive monetary compensation and refuse services.

The insured person will only bear additional losses if maintenance is not carried out at specialized service stations.

Ordinary workshops cannot guarantee the full functioning of the car in the event of a breakdown. The personnel and technical equipment of service centers will be the key to long-term operation of the vehicle. This fact is confirmed by judicial practice.

Insurance payouts on a warranty vehicle will depend on pricing policy official car dealer.

Some courts cannot reach a consensus on what is recoverable in the valuation process: the cost of skilled labor or the price of spare parts. But most take into account the prices of the entire repair as a whole at the rates indicated by official dealers.

New amendments to the OSAGO law establish a mandatory pre-trial procedure for settling a dispute with an insurer regarding the payment of compensation and new interest rates for a penalty for delay in fulfilling obligations. The claim procedure will be used until the first day of July 2015.

Therefore, many insurers have decided that the rule regarding mandatory filing of claims is used only with contracts that were concluded after the first of September.

The judiciary takes a different position. The judge of the Plenum of the Armed Forces of the Russian Federation explained that the procedure for filing claims is mandatory for all applications for insured events that occurred from September 1, 2014 to the last day of June 2015.

The person concerned is obliged to submit an application for the occurrence of an insured event and then, before judicial order challenge the amount of the payment or the procedure for its provision.

How is the collection

With the insurer for non-compliance with the terms of the contract pays a penalty, a fine or financial sanction.

The penalty is paid for violation of the terms for the provision of insurance payment or repair of the vehicle. The insurance limit has now been increased. Maximum sum insured for OSAGO is 400,000 rubles.

Penalty for delay in fulfilling obligations can be collected through the court or received in pre-trial settlement.

When the dispute persists after the pre-trial resolution of the case, the person concerned has the right to apply to the court with a claim for the recovery of a penalty.

The application must be supplemented with a calculation of the amount of the penalty fee. When collecting a penalty, the situation was ambiguous.

And all because of the different interpretation of the norms of the Law on OSAGO by arbitration and courts of general jurisdiction. Therefore, there can be at least two options for calculating the recovery of a penalty.

Example 1 The victim in the accident should have transferred 120 thousand rubles, but the insurer did not fulfill the obligations within the agreed time. Delay in payment - 30 days.

In this case, the formula for calculating the penalty for OSAGO will be as follows:

SS	amount of guaranteed compensation
8	percentage per annum, CBR refinancing rate
DP	days of delay

The penalty will be:

For instance:

The financial sanction for violation of the deadline for sending a reasoned response is not a penalty and is paid separately in the amount of 0.5% of the sum insured according to the type of harm caused to each victim. For each day of delay, a fine is paid in the amount of 1/75 of the refinancing rate of the Central Bank of the Russian Federation.

Penalty for late payment

The penalty is the only sanction that applies to the insurer in case of delay in the performance of the main contractual obligations.

The penalty applies only to the insurer. The insured person or the beneficiary is brought to administrative responsibility for violation of the OSAGO Rules.

Table. The amount of the penalty and the grounds for its calculation ^

Base	Amount of compensation	Limitation
The insurer violated the terms established for the transfer of insurance compensation	1% of the amount of insurance compensation for each day of delay	The penalty cannot exceed the sum insured
The insurer violates the deadlines when returning part of the insurance premium	1% of the insurance premium for each overdue day	The total amount of the penalty cannot be more amounts bonus
The insurer has overdue the period established for sending a refusal to provide insurance compensation	0.5% of the sum insured for a certain type of indemnity	The penalty cannot exceed the sum insured

The penalty for each method of calculation will not exceed the amount of insurance or the amount of the premium guaranteed by the agreement. The amount of recovery also depends on the refinancing rate of the Central Bank of the Russian Federation and the delay period. The late payment penalty is always the highest.

This is due to the fact that it is the untimely transmission Money beneficiary is the most serious breach of contractual obligations by the insurer.

A penalty is a guarantee regarding the fulfillment of obligations by an insurance company. Insurers pay the largest penalties in case of delay in payment of monetary compensation in cases in which there are victims.

This is not surprising, because according to the new rules, the limit on the amount of insurance has become larger. It is now extremely unprofitable for the insurer not only to evade the payment of insurance compensation, but even to respond untimely to written requests from insured persons.

Video: How to make an insurance company pay for OSAGO

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According to the requirements of the law, the insurance company is obliged to consider the application received from citizens (or organizations) within the established time limits and make a decision - to make a payment or refuse for any objective reasons - otherwise, the insurer will be obliged to pay a penalty.

○ Grounds for payment of a penalty.

The insurance company pays the penalty under OSAGO in the following cases:

• At illegal refusal in making payments.
• When delaying the payment of insurance.
• In case of payment of insurance, but not in full.
• If the deadlines were violated repair work vehicle (provided that the IC has issued the appropriate referral to the person).

○ Terms of insurance payments and consideration of appeals.

When applying to the insurance company, the applicant must provide the list of documents established by law (they are contained in clause 3.10 of the “Regulations on the rules for compulsory insurance of civil liability of vehicle owners”) (the insured does not have the right to require additional documents) after which the insurer, within 20 days (excluding holidays and working days - that is, it turns out about 1 month) will have to:

• Issue a reasoned refusal to provide payment.
• Give consent and pay the required amount of money.
• Issue to the applicant a direction for the repair of the vehicle, indicating the timing of this repair.

• Art. 12 p. 21 of the Federal Law on OSAGO.
• Within 20 calendar days, with the exception of non-working holidays, and in the case provided for in paragraph 15.3 of this article, 30 calendar days, with the exception of non-working holidays, from the date of acceptance for consideration of the victim's application for insurance compensation 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 after inspection and (or) independent technical expertise of the damaged vehicle, give the injured person a referral for the repair of the vehicle, indicating the station Maintenance on which it will be repaired vehicle and which the insurer will pay for the restoration repair of the damaged vehicle, and the period of repair, or send a reasoned refusal to the victim in insurance compensation.

But in some cases this period can be extended:

• If the applicant has not provided a complete package of documents.
• In the event that the vehicle was not provided for inspection.
• If there is a need for an investigation - criminal or administrative.

○ Penalty calculation.

The provisions of the current legislation clearly define how the penalty for OSAGO is calculated:

1. If the deadline for making an insurance payment or the deadline for issuing a referral for repair of a vehicle to the victim is not observed, the insurer shall pay the victim a penalty (fine) for each day of delay in the amount of one percent of the amount determined in accordance with this federal law the amount of insurance compensation by type of harm caused to each victim (paragraph 21 of Art. 12 FZ On OSAGO). For example, if the claim for compensation is 200 thousand rubles, then the amount of the penalty will be 2 thousand rubles per day.
2. If the deadlines for repairing the vehicle were missed, then the penalty will be calculated based on several factors, including the cost of repairs and wear and tear.
3. The penalty is calculated until the day of its actual payment to the insured.
4. If the insurance company has paid the insurer, but not in full, the amount is calculated based on the remaining debt. For example, the total amount was 180 thousand rubles, but the insurance company paid the person only 100 thousand rubles, therefore, the penalty will be charged on the remaining 80 thousand.
5. If the insurance company motivated the refusal, but did not send it to the applicant, then the penalty will be 0.5% per day of the estimated amount and will be charged until the applicant receives it.

In addition, it is important to consider that the law establishes maximum amounts penalties amounting to 500 thousand rubles in case of need to compensate for harm to life and health, as well as 400 thousand rubles for property. And even if the delay is long, it will be impossible to go beyond the above amounts.

○ Pre-trial settlement for the payment of a penalty.

If the insurance company has missed the deadlines established by law, the insurer, first of all, needs to contact the insurance company with written claim on the payment of a penalty

It is possible to transfer a claim both during a personal visit and remotely - by sending it by mail - by registered mail with notification. In case of personal contact, it is recommended to make a claim in 2 copies - one of which is transferred to the employee of the IC, and on the second, put an incoming stamp and keep it with you.

The claim will need to include:

• Full name, address of residence, as well as contact telephone number of the applicant.
• The essence of the requirements.
• Bank details (where the insurance company will be able to transfer the penalty).
• Date of application and signature.

The submission of a claim is a prerequisite and, if this is not done, the court will not accept the claim, because. in this case, before contacting Judicial authority the applicant must use the pre-trial settlement method. If the insurance company refuses the applicant or does not give an answer, only after that it is possible to go to court.

In addition, it is necessary to apply to the Central Bank of the Russian Federation with a statement about the delay in payments by the insurance company. Application to the Central Bank, which exercises control over credit institutions and insurance companies, it is also possible to file in several ways. The first way is by registered mail with a notification and a description of the attachment. The complaint will need to include the following information:

• Full name, address of residence and contact number the applicant.
• The name of the insurance company and its details.
• Circumstances in connection with which the appeal occurred.
• Date of filing of the complaint and the signature of the complainant.

Copies of documents relating to the applicant and the insurance company will also need to be attached to the complaint.

The second way is through the Internet reception of the Central Bank of the Russian Federation. This method is the most convenient. You don't have to spend time sending emails. In addition, there is a special form on the website of the Central Bank - all that remains is to enter the necessary information into it:

• The name of the insurance company.
• Problem type.
• The essence of the complaint.
• Region of appeal.
• The date of the event.
• The address of the branch of the insurance company.
• The number of the contract and the date of its conclusion.
• Payout number.

In addition to the complaint, you will need to attach copies required documents by insurance. As a result of the application, Central bank will carry out the necessary verification and make a decision, of which he will notify the applicant.

One of the "carrots" provided by the legislator to the victims under the OSAGO agreement is a high penalty in case of violation by the insurer of its obligations. The size of the penalty exceeds those usually applied in equilateral civil relations and is more typical for relations with consumers. Let's figure out what an injured car owner who is faced with poor-quality insurance services can expect in this part.

What is a forfeit under OSAGO

The penalty is one of the legal ways to ensure the fulfillment of obligations by the party to the contract and is expressed in additional financial losses that an unscrupulous participant in the transaction may suffer. The penalty is established, as a rule, in case of delays in payment or payment in the form of interest on a certain amount and is paid in favor of the injured party. Typically, interest is calculated on the amount the obligation to pay is overdue.

The penalty is a way to secure obligations

The condition of the penalty is established by law or contract. With regard to OSAGO, the relevant provisions are determined by the Federal Law of April 25, 2002 No. 40-FZ and are duplicated in the Rules, approved. Regulation of the Central Bank of September 19, 2014 No. 431-P. Depending on the type of violated obligations, the right to a penalty arises from the victim or the insured. The penalty is calculated for each violated obligation.

The payment of a penalty under an OSAGO agreement is unconditional. The law establishes not the right of the victim (the insured) to demand the payment of interest, but the obligation of the insurer to pay a penalty. The parties are not entitled to change the amount of interest or provide for cases of release of the insurer from liability. On the other hand, it is prohibited to collect penalties, fines and penalties from the insurer on the grounds and in the manner other than those provided for by the OSAGO law.

The insurer does not pay a penalty and refuses to satisfy claims for a penalty in the following cases:

• conscientious performance of their obligations;
• delay due to compelling circumstances or due to the fault of the victim or the insured (for example, if the details for transferring the payment are not provided, etc.).

Other legal grounds there is no refusal to pay the penalty.

In what cases is the insurance company obliged to pay a penalty?

A penalty (financial sanction) for OSAGO is charged in case of delays in the performance of obligations allowed by the insurer in the following cases:

1. Violation of deadlines cash payment or issuing a referral for vehicle repair.
2. Violation of the terms of repair of the vehicle at the service station.
3. Violation of the deadlines for the return of the insurance premium.
4. Violation of the deadlines for sending a denial of payment.

The penalty for OSAGO is charged for several reasons

Late payment or issuance of a referral for repairs

OSAGO rules set a deadline for paying insurance compensation or issuing a referral for repairs:

• 20 calendar days, excluding non-working holidays, from the date of acceptance for consideration of the application of the victim for insurance compensation or direct compensation for losses and the documents attached to it;
• 30 calendar days, except for non-working holidays, with the written consent of the insurer for independent organization and repair of the injured.

The period may be extended if the victims fail to provide the damaged item for inspection. car accident for the time agreed for re-examination, but not more than 20 calendar days, except for non-working holidays.

The countdown starts from the next day after the submission of the full package of documents provided for by the OSAGO Rules for making a decision on the occurrence of an insured event. The victim is obliged to submit an application to the insurance company within 5 working days with the following documents attached:

• a copy of an identity document, certified or with the presentation of the original;
• bank data for which the calculation should be made;
• consent of the guardianship and guardianship authorities when paying to a minor;
• notification of an accident on the form issued at the conclusion of the OSAGO agreement (or printed out from the PCA website);
• traffic police documents (protocol, resolution or definition) except for cases of registration of an incident without the participation of the police.

Depending on the circumstances and type of damage (harm to health, damage to other property than a car, etc.), the victim provides other documents, the list of which is established by the OSAGO Rules. From 20.0.2017, the previously mandatory certificate of an accident is not provided due to its exclusion from the documents required to be drawn up in case of an accident.

In case of violation of the established terms of payment or sending for repairs, the insurance company is obliged to pay a penalty in the amount of 1.0% of the established amount of insurance compensation. In case of partial payment, disputing the amount of payment, the penalty is calculated from the underpaid part.

Rules for calculating the penalty

The penalty is calculated according to the formula:

Penalty \u003d C x KD x RN / 100, where

C - the amount payable (insurance payment, sum insured or the refundable part of the premium);

KD - the number of days of delay;

RN - the amount of the penalty.

Calculation examples.

On February 10, 2018, an accident occurred. The damaged car was evacuated from the scene of the accident to the victim's garage, as he could not move after the accident. The victim applied for payment on February 12, 2018 and provided all the necessary documents. Taking into account non-working holiday On 02/23/2018, payment must be made no later than 02/26/2018. The delay starts from 21 days, which is 02/27/2018. The referral for repairs was issued on 03/05/2018. The delay was 7 days. The cost of repairs was determined in the amount of 150,000 rubles. The size of the TCB was 10,000 rubles. For the services of a tow truck, the victim paid 5,000 rubles.

Penalty \u003d (150,000 + 10,000 + 5,000) x 7 x 1.0 / 100 \u003d 10,850 rubles.

In case of violation of the deadlines for refusal, the calculation of the amount of the financial sanction looks like this (the delay in sending the refusal was, for example, 10 days, compensation for damage to the car was denied, the event was issued with a call from the traffic police):

Fin. sanction \u003d 400,000 x 10 x 0.05 / 100 \u003d 2000 rubles.

The generalized requirement for the maximum amount of the penalty is established by clause 6 of Art. 16.1 of the Federal Law "On OSAGO". The total amount of the forfeit, the financial sanction that must be paid to the injured citizen is limited to the sum insured for the corresponding type of harm. In a relationship legal entities, whose vehicles and property are damaged as a result of an accident, the law does not contain restrictions on the maximum amount of the penalty and sanctions. At the same time, it should be remembered that in case of delay in payment or violation of the repair terms, the maximum amount of the penalty is limited to the unpaid compensation or the cost of the repair.

The amounts of forfeits for OSAGO are overstated

The amounts of the penalty introduced by the OSAGO Rules are clearly overstated and do not correspond to the severity of the consequences. The trial in the district court lasts two months. Appeal is preceded by a claim. The duration of the delay in payment in case of unlawful refusal, for example, at the time of the decision is 3-4 months at least. During this time, the penalty reaches its maximum size. Taking into account the prescribed fine, the victim receives as a result a payment exceeding 2.5 times the damage caused.

Based on this, the courts almost universally actively apply Art. 333 of the Civil Code on the correspondence of the amount of liability to the consequences that have occurred and significantly reduce the amount of the forfeit and fine (up to 10-20% of the calculated values). But in order to reduce the penalty, a corresponding statement by the defendant, the insurance company, is required. The court is not entitled, on its own initiative, to reduce the liability of the insurer (for example, the decision of the Voroshilovsky District Court of Rostov-on-Don dated May 29, 2017, the penalty was collected in maximum size 400,000 rubles).

The current version of the Federal Law "On OSAGO" stopped the vicious, according to insurers, judicial practice on the application of liability measures for violation of the terms of the OSAGO agreement. Initially, the law did not contain liability measures for the insurer. The Supreme Court in terms of forfeit and fine extended to property insurance the effect of the Law "On Protection of Consumer Rights" (clause 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17). The explanations of the Supreme Court for a long time were not accepted by the lower courts, which did not regard the victims as consumers under the OSAGO agreement. The Supreme Court finalized its position in paragraph 2 of the Decree of the Plenum of the Supreme Court of January 29, 2015 No. 2 (now no longer in force).

Legislation on the protection of consumer rights regulates the relationship between the consumer and the seller (manufacturer, performer). Relationships are established by contract. The party to the OSAGO agreement is the insured. The insurance company renders a service to him, indemnifying for him the damage. The victim is not a party to the contract and is not a consumer (direct settlement changes the payment procedure, but not the status of the persons involved, and at the time of the adoption of the SC Resolution, there was no direct reimbursement). The position of the Armed Forces was assessed by insurers as another legal artifact. Establishment special measures responsibility removes the relationship on OSAGO in this part from the scope of the Law "On Protection of Consumer Rights".

The procedure for the insured to collect a penalty

For the recovery of a penalty, a declarative procedure is provided. The victim submits a written request to the insurer, in which he cites:

• justification and calculation of the penalty;
• the form of payment of the penalty (cash, transfer);
• bank details for cashless payments.

The insurer is not entitled to claim any additional documents in support of the stated claims. All necessary documents are already available in the materials of the payment case. Consideration of the application is carried out within 10 calendar days, except for non-working holidays. In case of partial payment of a penalty or refusal to voluntarily meet the requirements, the victim has the right to apply to the court.

When applying to the court, it should be remembered that the amount of the penalty is likely to be significantly reduced

When deciding whether to go to court, one should take into account the likely reduction in the amount of the penalty in accordance with Art. 333 GK. On the other hand, the penalty is calculated until the moment of actual payment, including by a court decision. The decision comes into force after a month, the transfer takes some time writ of execution bailiffs, an insurer or a bank, registration enforcement proceedings or payments. In the period for which the penalty must be paid, all this time is included.

Claims to the court for the recovery of a penalty can be considered both simultaneously with claims for payment of compensation, and separately. Proceedings are held in action order. With the amount of claims up to 50,000 rubles, the case is considered by a justice of the peace, more than 50,000 rubles. - district (city) court.

There is no fee for such disputes. Foreclosure cases are not difficult in most cases. You can draw up a statement of claim yourself using a sample with a list of main applications.

Fine and other compensation

In addition to the forfeit and penalty, the court collects a fine from the insurance company for failure to fulfill obligations under the OSAGO agreement. The penalty is calculated in the amount of 50% of the unpaid or underpaid amount of compensation. The penalty is not taken into account when determining the amount of the fine.

The following are also eligible for compensation:

• TCB if the insurer has not paid out voluntarily;
• the costs of conducting their own technical expertise, if its results are accepted by the court as the basis for determining the amount of payment;
• moral damage caused by non-fulfillment or improper fulfillment of obligations by the insurer (usually in the range of 1000–3000 rubles);
• expenses for a representative within reasonable limits (5,000–10,000 rubles);
• costs associated with the forwarding of claims and claims;
• other legal expenses.

Currently, insurers are much more responsible for their obligations. In many cases, disputes, including those relating to penalties, are resolved out of court.

The forfeit and the fine are not means of enriching the victim and are aimed at ensuring the timely and complete fulfillment of obligations by the insurer. Nevertheless, the victim must know the procedure and conditions for receiving the penalty payments due to him in order to fully protect his rights.

The legal relationship between the parties to the OSAGO agreement is no different from any other that arises between the parties to the transaction within the framework of civil relations. Therefore, they also have ways to ensure the fulfillment of contractual obligations (forfeit: penalties or penalties).

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This mechanism comes into effect in the event that one of the parties does not fulfill or does not properly fulfill the contractual obligations assumed by virtue of the conclusion of the transaction and the signing of the necessary documents. Since sometimes the amounts of the penalty are very impressive, this is a deterrent for the parties to the contract, thereby forcing them to fulfill all their obligations on time.

A penalty is one of the varieties of liability under a civil law contract, which is applied in the event that contractual obligations are not performed or not fully performed.

A penalty is a fairly common form of liability for one's actions or inaction under an agreement, as it has a number of advantages:

• the fact of the demand for repayment of the penalty follows from the violation of the norms and terms of the contract and does not require the collection of additional evidence;
• the amount of the penalty is determined in advance;
• is established for both parties to the contract, thereby stimulating not to violate the stipulated obligations.

There are two types of penalty:

• penalties - are defined by specific limits (often the amount of the fine is even clearly stated) and are paid once;
• fine - expressed as a percentage of the amount of the debt and can be collected repeatedly.

The current version of the OSAGO law clearly defines the cases in which the insurer is financially liable to its customers for non-compliance with the terms of the contract.

The law establishes two cases for the payment of a penalty:

1. violation of the terms of payment of compensation for insurance or referral for car repairs;
2. violation of the terms for the return of the insurance premium, if such is provided for by the OSAGO agreement.

In our country, all issues that arise in the course of the activities of insurance companies to provide services to the population are regulated and resolved on the basis of the following regulatory legal acts:

• Civil Code of the Russian Federation (in particular, the concept of a penalty and everything connected with it is defined here);
• law on insurance business in the Russian Federation (under the number 4015-I) - regulates the procedure and basics of insurance activities in our country;
• the law on OSAGO (number 40) - determines not only everything related specifically to OSAGO, but also establishes the procedure and amount of the penalty in the event of a question about its collection;
• law number 223, which in 2019 introduced significant amendments and changes to the rules for the collection and calculation of penalties for OSAGO, which are also valid in the current 2019.

After contacting the insurance company insurance agent there is 20 days to calculate the amount of compensation and make a full settlement with the applicant or provide a reasoned refusal to pay. If 20 day the term has expired, and the insurer has not made a decision and has not made a calculation, then the person who applied for payments has the right to demand, in addition to the insurance money, the payment of a penalty.

The same rules apply if instead of monetary compensation The victim agreed to repair the car. It is the insurer who is fully responsible for the quality and terms of repair work under insurance. If the victim, taking the car after repair, noticed some major flaws or revealed flaws in the work, then he is obliged to inform the insurer about this and has the right not to pick up the vehicle from the car repair shop. Naturally, it will take more time to eliminate errors, which will already exceed the deadlines stipulated by law.

The insurer cannot be attracted to the payment of a penalty only if it has fully fulfilled its obligations imposed on it by the law of the Russian Federation and directly concluded by the OSAGO agreement.

Also, the penalty will not be paid if the deadlines were violated not through the fault of the insurer, but due to insurmountable circumstances or through the fault of the victim himself.

OSAGO Law No. 40

This regulatory legal act (clause 21 of article 12) establishes two options for a penalty:

1. In the case when the insurer was obliged to pay compensation, but he did not do it - 1% for each day from the end of the established period for calculation up to the transfer of funds in favor of the victim.
2. If the company refused to pay insurance and its refusal is legal and motivated, but the decision on this was not sent to the applicant's address - 0,5% from the estimated sum insured for each day of delay up to the notification of the decision.

For example, if an applicant applied for insurance in the amount of 200,000 rubles on September 1, and today is September 25 and no answer has been received, then it's time to think about collecting a penalty. In this case, the penalty is calculated starting from September 21.

The amount of the penalty is calculated from the first day after the end of the period established for settlement with the client and until the day when the payments were nevertheless made or the insurance indemnity was refused. Everything Insurance companies to calculate the amount of the penalty, they use the same formula, which you can also resort to if you want to know: how much the insurer "owed" you.

It looks like this:

• The amount of the penalty = days of delay * 1/75 of the refinancing rate on the last day of the statutory period for the payment of insurance * insurance amount / 100.
• The law also establishes the maximum allowable amount of forfeit for OSAGO in 2019. So, if harm is caused to the property of a citizen, then - 400,000 rubles, if life or health - 500,000 rubles.
• To independently calculate the amount of the penalty, you can use both the above formula and the Internet calculator (mc-pravo.ru/raschet-po-osago).

For example, the insurer must pay you 120,000 rubles. He was obliged to do this before 05/01/2016, but the payment was not made until 05/20/2016. Therefore, there has been a violation of the terms, and, therefore, a penalty can be demanded.

Since the size of the refinancing rate as of April 30, 2016 was 8.25%, the amount of the penalty for 20 days is;

120,000 rubles / 75 * 8.25 / 100 * 20 days = 2,640 rubles.

This is the amount you can count on in the event of a delay in payment.

The law states that if it is necessary to recover a penalty under a civil law contract, it is necessary to go through the procedure pre-trial settlement controversial situation and only in the case when the parties cannot reach a consensus - apply to the court. This means that the policyholder or any other person whose interests and rights are violated, before incurring claim the court must write a statement to the insurer company stating that an insured event has occurred and that they need to compensate you for all losses incurred.

As soon as the letter has been sent to the addressee and registered in the correspondence acceptance log, the insurer has 20 days to review this document and make insurance payments or send a reasoned refusal to compensate.

If, within the period specified by law, insurance accruals to your account did not happen, then you should send a claim to the insurer, in which you indicate the amount of insurance and the calculated amount of the fine (penalty) for failure to comply with the terms of the contract. Send such correspondence only with delivery to the addressee in person, always with return notification of receipt.

If you yourself came to the office of the insurer, then when submitting a claim, keep a copy of it for yourself, where the receiver is obliged to put down the date and time of receipt of your application, as well as his signature. The insurer has 5 days to consider this document (including holidays), after which you can proceed to the next step.

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The next step is to go to court with a claim against the insurer to recover the amount of insurance and the amount of the penalty. A sample application for the payment of a penalty can be found on the Internet or you can go to court, where they will provide it to you.

We draw your attention to the fact that there must be two claims:

• on the recovery of the amount of insurance;
• for recovery of damages for breach of contract.

Despite the fact that there are two claims, they are considered in one trial, as they are inextricably linked.

Your claim must contain the following information:

1. standard information in the upper right corner of the application: name of the court, information about the defendant and the applicant;
2. the following sets out all the known circumstances about the accident that occurred, for which insurance is collected;
3. the amount of damage based on expert assessment;
4. indicate the calculation of the penalty and its size;
5. list any costs you incurred as a result of filing a lawsuit
6. information about when you filed claims and when you received a response (if any);
7. your requirements;
8. the list of documents that you attach to the application;
9. date, signature and initials of the applicant.

TO binding documents that the applicant needs to attach to the text of his claim include:

• decision on an administrative incident (RTA);
• certificate from the place of the accident;
• act of independent assessment of damage;
• copies of applications and claims that were sent to the insurer, as well as responses, if they were received;
• a certified extract from the medical record of the institution where the victim was treated (if the harm was caused to health);
• copies of the documentation for the car that has been in an accident.

From the practice of the judiciary

In the event that the repair of a car damaged in an accident can be carried out within the framework of warranty service, then it is best to resort to obtaining monetary compensation and refuse the offer at unknown service stations.

The court has developed statistics according to which the repair offered under the OSAGO agreement often entails only large losses and the need to go to court to resolve the issue.