How to assess moral damage in an accident: judicial practice

Compensation for moral damage in case of an accident in 2020

In our country, road accidents occur every day.
In addition, according to statistics, almost every driver with more than 3 years of driving experience has been involved in an accident at least once in his life. The consequences of this unpleasant situation can be very different: from the opening of a criminal case to the need to compensate for moral damage in an accident. In Russia, court cases related to monetary compensation for moral damages are quite difficult to win. The difficulties lie in the problems with determining a specific amount and proving its value. Despite this, it is quite possible to achieve compensation if you know how to do it correctly.

Determination of moral damage after an accident

It is rare that an accident occurs without any casualties. The fact is that even if no harm was caused to health, the fact itself still makes the victim worry. Moral damage is usually based on the unpleasant feelings a person suffered during an accident. In other words, moral harm is defined as the mental suffering of a victim who has been in an accident. In addition, the nervous experiences of relatives about a person close to them who, for example, became disabled after an accident, also belong to this definition.

In Art. 1100 of the Civil Code states that moral damage must be paid if its source was a car. Moreover, this rule applies even if the driver was not the culprit of the accident.

The amount of moral damage during an accident does not depend on property compensation. Therefore, in court they are considered separately, despite the fact that the claim itself is filed in the way that is convenient for the plaintiff: separately or together with all the claims.

In addition, the person responsible for the accident may, of his own free will, compensate for moral damages to the victim. In this case, it is recommended to record the transfer of money using a written receipt. If the culprit of the accident refuses to pay or the victim believes that he received an insufficient amount, each of them can go to court to resolve the dispute.

Nuances and features of compensation for moral harm in practice.

The procedure for compensation for moral damage is regulated by civil law, and therefore the Civil Code of the Russian Federation contains answers to all questions of interest in this area. The law establishes and stipulates cases when it is possible to obtain moral compensation for an injured citizen. We are interested in the damage caused to a vehicle during an accident. The norms of the Civil Code provide for compensation for moral damage on this basis, and the fault of the motorist, through whose fault everything happened, does not matter much.

Let's consider cases when receiving a compensation payment is self-evident:

Death of a participant in an accident (in this situation, relatives of the deceased have the right to receive payments);
Dismissal from the main place of work due to the fact that after the accident the person cannot continue to perform his job duties due to health problems;
The presence of injuries received during a road accident that cause unbearable suffering to the victim;
Obtaining problems with the general mental state of the victim that did not exist before the accident, which must be confirmed by a medical document.

In order to receive payment for moral damage, it is necessary to prove its existence. A person who does not have a legal education and the necessary skills in this industry should not independently resolve the issue of moral harm. It is more advisable to seek legal assistance from a qualified lawyer who, having familiarized himself with the situation as a whole, with the circumstances of the event and its consequences, will hold a consultation with you, announce the prospects for a possible successful resolution of the issue, and also help collect a sufficient evidence base, which will be enough to receive fair payments. from the harm doer.

Resolving the issue of compensation for moral damage after a road accident is impossible with an insurance agent, since this type of damage must be compensated by the culprit of the accident, and the insurance policy does not provide for the payment of funds as compensation for the moral experiences of the injured person.

So, you can address your claims for compensation for moral damage to the driver through whose fault the accident occurred. But it is unlikely that the car enthusiast will agree to immediately pay the amount you announced. Most likely, the problem will have to be resolved in court.

Grounds for collecting moral compensation from the culprit of an accident

The most common reasons for which it is possible to recover moral damages are:

death of a relative in an accident, compensation in this case is paid to the relatives of the victim,
dismissal from a permanent job due to the incapacity of the victim,
frustration due to damage caused to the only means of transportation,
During the accident, serious injuries were sustained that force the victim to endure severe pain,
mental disorders of the victim that arose after the accident.

Applicant and defendant during the recovery of moral damages

A claimant who is ready to file a claim for damages may be:

the victim himself,
guardians or parents of the victim, if the latter has not reached the age of majority,
family of the victim if he died as a result of the accident.

Now let’s figure out who cannot act as a defendant in court on this issue. According to current legislation, compensation for moral damage caused in an accident cannot be demanded from insurance companies (for example, under CASCO or OSAGO policies). The MTPL policy is compulsory insurance, but it can only provide compensation for material damage. Compensation for moral damages can only be demanded from the person responsible for the accident, i.e. individual.

Despite the fact that insurers cannot be sued for moral damages incurred in connection with an accident, it is still possible to file a claim against them. This happens when it comes to stress resulting from illegal actions or inactions of insurance companies.

For example, delays in standard insurance claims.

In addition, there are other persons from whom damages cannot be recovered. This:

the owner of a car who has evidence that his car was stolen at the time of the accident,
a vehicle driver who is able to provide compelling evidence that the person trying to recover moral damages is considered to be the culprit of the accident or has violated other rules that led to these consequences. Such evidence may well be video footage from the recorder. In addition, there are usually many cameras installed on city streets. The results of their shooting can also be used. Witness testimony will also do.
a driver who hit a pedestrian crossing the road outside a pedestrian crossing. Moreover, in this case the plaintiff is completely denied, although judicial practice recognizes cases when it was still possible to recover half the amount from such a defendant.
the driver, in a case where the accident was rigged by the plaintiff in order to receive moral compensation.

Collection of compensation for moral damage

In order to recover compensation for moral damage in court, you must:
Determine who is the proper plaintiff and defendant in the case and which court to go to.
Formulate requirements, make calculations.
Form an evidence base.
File a claim.
Send materials to court.
Participate in the trial personally or through a representative.
Obtain a court decision and, possibly, a writ of execution.
Contact the bailiffs if the defendant does not want or cannot pay off the debt voluntarily.

Claimants may be:

the victim himself as a result of an accident:
relatives of the victim who died as a result of an accident;
parents (guardians) of the minor victim;
legal representatives of the incapacitated victim.

Also on the topic: How to save money on purchasing compulsory motor insurance?

The defendants are either the direct culprits of the accident, or the owners of the source of increased danger - in particular, if the accident was committed on official transport.

Evidence usually includes:

primary materials of the accident (diagram, protocol, certificate, etc.);
accident investigation materials (administrative investigation/criminal case);
medical documents;
documents confirming treatment, rehabilitation, costs;
conclusion on complete/temporary loss of ability to work;
death certificate (if the victim died), as well as documents confirming the status of the plaintiff (birth certificate, marriage certificate, certificate of family composition, etc.).

In terms of evidence, the main emphasis should have been on the circumstances of the accident and the consequences. From the point of view of the likelihood of recovery of the declared amount, medical documents play an important role: doctor’s certificates, expert opinions. Let us remind you once again that it is important to confirm your suffering, its severity and duration. Usually the problem is to prove the presence of moral suffering. Here you can use certificates about calling an ambulance, medical documents from a psychotherapist, psychologist. Witness testimony also helps: relatives, neighbors, colleagues, friends, etc. But you must make sure that they can come to court and give the necessary explanations.

Preparing a claim

The claim is prepared in the district court at the place of residence (location) of the defendant or plaintiff or at the place where the harm was caused.

Its approximate content:

Formal data: name of the court, information about the plaintiff and defendant, their representatives (if any).
The cost of the claim (the amount at which you assessed the moral damage).
Title of the document: “Statement of Claim for the Recovery of Compensation for Moral Damage.”
Main text:

statement of the circumstances of the accident;
a statement of the progress and result of the investigation, if any;
a statement of the progress and result of the trial, if the culprit was brought to administrative/criminal liability;
description of physical and (or) moral suffering (what exactly, when it was, what it was, how it is related to the accident, what is confirmed);
a description of the defendant’s behavior after the accident (did he try to make amends for the damage, if so, how exactly, and if not, did the plaintiff make attempts to negotiate compensation);
a statement of the grounds for the claim (here, as a rule, there is a mention of the articles of the Civil Code of the Russian Federation relating to moral damage, the necessary excerpts from the decisions of the Plenum of the Supreme Court are given - all this can be taken from the sample claims).

Statement of the request (what, from whom, in what amount you want to recover).
List of attachments to the claim.
Date of compilation and signature.

Also on the topic: How to get money back for a traffic police fine 2020

Download the statement of claim for compensation for moral damage in case of an accident (sample)

There is no need to pay state duty.

If the evidence you need cannot be obtained on your own, prepare a petition to the court to obtain it. A petition must also be prepared if you want to summon certain witnesses to court, but they cannot come without a subpoena.

Trial

This is usually the most difficult part, since the defendant will likely dispute both the damages and the extent of them. It is likely that he will be in court with a lawyer or advocate.

Your task is to prove:

claimed suffering;
amount of moral damage;
cause-and-effect relationship between the accident and the consequences.

Today, courts are quite willing to award compensation for moral damage without demanding anything extra from plaintiffs. But the declared amount of compensation is usually reduced.

If it is not possible to personally participate in the process, this can be done through a representative. The best option is to hire a lawyer. His fee can be included in the demands and recovered from the defendant.

Where to file a claim for compensation?

To compensate for moral damage caused to mental health in an accident, the plaintiff must provide a correctly collected package of documents:

to the city or district court located at the registration of the defendant,
if the victim feels unwell, it is allowed to submit an application according to the territorial affiliation of the plaintiff,
to the regional court, when along with moral liability comes criminal liability,
to the court at the location of the company, if the defendant is a legal entity.

Download*.docx Sample statement of claim for recovery of compensation for moral damage in an accident

Recovery procedure for victims

If direct damage caused to property or health can be covered by an insurance company, then only the court can decide on the recovery of moral damages. Accordingly, a separate claim is being filed for this purpose.

OSAGO insurance, which every driver should have, does not cover cases of moral damage. However, the same applies to CASCO insurance.

Each victim on the road is free to determine the amount in which the harm caused to the victim will be expressed. Another thing is that the numbers can be exorbitant.

Then the court has the right to determine for itself what amount of monetary compensation it will ultimately establish by its decision. After all, the Civil Code of the Russian Federation says that it must be adequate to the suffering suffered.

Expert commentary

Selivanov Vecheslav Andreevich

Lawyer, specialization civil law.

Ask a question

The court may focus on the severity of damage to health, the property status of the parties, the cost of car repairs, as well as other significant circumstances.

How to file a claim for damages?

When going to court, the plaintiff must express his intention to receive money for moral damages from the person responsible for the accident. To indicate his intentions, he files a lawsuit.

When a claim for compensation for moral damage is not drawn up according to the rules, the court will not accept it for consideration. This applies even when the errors are of a formal nature.

The statement of claim usually states:

the name of the judicial authority where the documents are submitted,
information about the defendant and plaintiff,
reasons for filing a claim,
the legislative framework in accordance with which the plaintiff acts,
claims against the defendant.

In general, the following documents are attached to the claim, which will be one of the main evidence of what happened. This:

plaintiff's passport,
a paid receipt (for such actions, a state fee is charged, except in cases where harm is caused to the only breadwinner in the family),
extract from the medical record,
report on the inspection of the scene of the incident.

Can you get compensation for damage to your well-being?

It is worth repeating that if a mild degree of harm to health is caused, it is still possible to recover monetary compensation for moral damage .

Indeed, in accordance with the principles of law, any harm must be compensated if it is proven. This applies to both property and non-property damage (in our case, this is human health). The degree of harm does not affect the victim’s ability to recover moral compensation from the guilty person.

Important! According to Art. 151 of the Civil Code of the Russian Federation, moral or physical suffering resulting from actions that violate the personal rights of a citizen are recognized as moral harm.

The category of moral damage and its recovery can be found in a number of articles of the Civil Code of the Russian Federation.

Article 151 – compensation for moral damage. It states that when determining the amount of compensation, the court should take into account both the guilt of the offender and the personality characteristics of the victim.
Paragraph 4 with the same title of Chapter 59 “Liabilities due to harm”.

Compensation for moral damage.

Advice: explanations of judicial practice can be used as justification and to strengthen your legal position in a statement of claim.

In addition, a fairly large array of useful information of a recommendatory nature is contained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 20, 1994. No. 10. Courts are guided by this act when considering cases of compensation for moral damage.

Determining the amount of compensation for moral damage in an accident

Determining the amount of compensation payments for moral damage from an accident is quite difficult. The fact is that the plaintiff usually tries to inflate the amount required to be paid, and in the interests of the defendant, on the contrary, to reduce it. But it is the court that determines the final amount of such debt.

But the plaintiff must indicate at the stage of filing the claim how much he wants to recover. How to correctly calculate the amount of material damage? The plaintiff, theoretically, can demand absolutely any amount from the culprit of the accident, since there is no limit established by law. But you must remember that your requests will need to be confirmed and proven. To do this, you will need to collect the following documents:

sick leave or other document proving the plaintiff’s incapacity for work and loss of associated funds,
a receipt confirming payment for the lawyer's services,
extract from the medical record,
checks confirming the completion of rehabilitation procedures,
receipts for medications prescribed by a doctor,
vouchers to a specialized sanatorium,
a document proving the plaintiff’s disability resulting from the accident,
certificate of presence of disabled dependents,
conclusion of forensic experts that the disease occurred as a result of an accident,
a medical certificate confirming that the patient’s condition worsened as a result of the accident, etc.

If the loss of ability to work is temporary, the victim may demand compensation for money for a given period of time. When it is clear that recovery is not possible, it is possible to compensate for the damage for a lifetime.

The plaintiff, when filing a claim for moral damages in an accident, must provide that the defendant, for his part, will use all possible evidence to reduce the amount requested by him or not pay for moral damages at all. To do this, he will need to prove that:

the plaintiff acted carelessly and unlawfully,
there was a traffic violation,
The defendant's financial position does not allow him to pay large sums.

What is meant by moral damage and how to assess it

Before asking the person responsible for the accident for compensation for moral damage, you need to decide what to include and how to correctly make the assessment.

Moral damage (harm) is a fairly broad concept. Art. 151 of the Civil Code of the Russian Federation defines it as physical and moral suffering, and for the purposes of compensation it requires a specific monetary value.

Based on judicial practice, moral damages in an accident typically include:

physical pain from injuries;
feelings about what happened;
suffering from the loss of a loved one;
forced restriction of rights and opportunities associated with loss of ability to work, decreased activity of a temporary or permanent nature.

This list is not exhaustive. If you believe that you have suffered physical and moral suffering of a different kind, you can specify them and prove their existence, you have the right to include all this in moral damage.

Please note: your treatment costs, damages in the form of lost profits, direct or indirect monetary losses - all this does not apply to moral damages. If this is the case, you have the right to file property claims, including compensation for moral damages.

It is clear that physical and moral suffering is extremely difficult to evaluate in monetary terms. Therefore, judicial practice is taken as a guide and the amount requested is that which has appeared in similar cases previously.

According to general rules:

the largest sums are awarded in the event of the death of a victim as a result of an accident;
the greater the severity of the harm to health and (or) the longer the treatment, the greater the amount.

In different regions, “prices” may vary, but only slightly. If there is no harm to health, the approximate guideline is 5-10 thousand rubles. For minor damage – 10-30 thousand rubles. For moderate damage – 30-100 thousand rubles. Severe harm is usually “estimated” in the range of 100-200 thousand rubles. In the event of the death of the victim, relatives claim compensation for moral damage. Here the amount depends on many factors, so it varies widely: 200-500 thousand rubles, sometimes up to 1 million rubles and more.

Compensation for moral damages in case of an accident does not have a fixed amount . But you need to think rationally:

The claimed damage and its assessment (amount) are subject to proof. You will need to prove (with documents, witness statements) that you really suffered physically and mentally. And you will definitely have to explain to the court why such and such an amount was declared and on what it is based. The request must be accompanied by a calculation.
When awarding certain compensation, the court takes into account all the circumstances of the accident and its consequences, the subsequent behavior of the parties, especially the culprit of the accident, his family and financial situation.
There is no need to take amounts out of thin air. Find out what payments have already been awarded by the court to which you plan to apply, what is the practice in your region and in Russia as a whole regarding similar requirements. You can focus on the largest amounts and be guided by the principle “ask for more and you will get what you need.”

Also on the topic: Rules for communicating with a traffic police inspector

Average compensation in Russia

Based on judicial practice, we can say that the court estimates the moral damage received by the victim during an accident at 40% of the amount requested in the claim. If we take the average figures for Russia that we were able to obtain in court, then:

minor harm to health is estimated at 1-20 thousand rubles,
loss of average severity - 20-50 thousand rubles,
severe harm to health will cost an amount usually not exceeding 100 thousand rubles,
Death during an accident is assessed on an individual basis.

Court verdict on compensation for moral damages

Based on the documents provided, the judicial authorities make their decision.

If such a conclusion does not suit one of the parties, it has the right to file an appeal. This is done no later than 10 days after the decision is made. An appeal is filed to higher judicial authorities by one of the parties or a lawyer involved in the process as a plaintiff or defendant.

If both parties are satisfied with the court's order, they must be prepared to comply with it. To do this, the judicial authorities transmit the writ of execution to the bailiffs or the bank of the insurance company.

After receiving the documents, the bailiffs open the corresponding paperwork, as a result of which the accounts in the bank whose services the debtor uses are blocked and the required amount is withdrawn from them. If there is not enough money in the defendant’s accounts, the debtor’s property is seized.

When none of the above methods failed to recover the required amount for moral damages in case of an accident from the defendant, it is deducted from the salary.

If the defendant has proven that he is poor, the possibility of obtaining a claim for moral damages is significantly reduced.

The court decision is mandatory for implementation in any region of the country by any commercial organizations or authorities.

When driving a car, remember that it is considered a high-risk vehicle. Try to do this carefully and avoid getting into an accident. If an accident occurs and you suffer moral damage, try to adequately assess your financial requirements.