Loss of commodity value or TCB - a significant decrease in the value of the car, which is caused by premature deterioration of appearance and technical characteristics due to a decrease in the durability and strength of individual parts, assemblies or coatings as a result of a car accident and repair work.
Recently, courts and insurance companies have been waging ongoing disputes over the concept of TCB. Some believe that compensation should include damages caused by the loss of commodity value. Others are sure that there is no such thing as a TCB at all.
First you need to understand what includes the damage suffered by the owner of the vehicle. It consists of the costs of restoration work and losses that will follow when selling a car that has lost its marketable value (we talked about how to determine the amount of damage incurred according to the PCA table).
Therefore, the damage due to the loss of the TCB is quite real, as is the cost of repairs and spare parts (you will learn how to calculate the cost of repairs according to OSAGO, and we talked about how the cost of auto parts is calculated based on the PCA). After all, a decrease in the consumer value of a car is a violation of the rights of the owner of the vehicle. Payment of monetary compensation will help to restore this violation.
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Your actions in the insurance company
Back in 2005, by the Resolution of the Presidium of the Supreme Court, it was established that TCB for OSAGO should be paid. Therefore, the owner of the car injured in the accident has the right to demand compensation from the insurance company for additional losses. Experts advise you to contact a car lawyer for help. Although it is not difficult to receive compensation, the design has its own characteristics.
- First, an examination is carried out to determine the size of the TCB. It is necessary to make a comparison between the cost of a broken car, and a whole car of the same brand.
- Two copies of the TCB application are being prepared. One copy remains with the insurance company, the other with the applicant, it is marked with acceptance.
- If the insurer does not agree with the amount of payment, or refuses to compensate for the damage, they collect a package of documents. It includes data from expert opinions, the amount of TCB calculated by specialists and other papers. A lawsuit is filed, all funds spent on the trial are reimbursed by the insurance company.
Knowing that the court is on the side of the owner of the vehicle, sometimes you just need to show the insurer that the client knows his rights and intends to demand a TCB for OSAGO. Therefore, the issue of compensation can be resolved without a trial.
How is the loss of commodity value calculated independently and on calculators?
In the practice of calculating the TCF OSAGO, two methods are used.
The first is the calculation according to the method of the Ministry of Justice
It is considered the main method of calculation, as it is preferred by forensic experts. The bottom line is that the size of the TCB is determined as a percentage of the initial price of the vehicle. This calculation method is applied to new cars: not older than 3 years for domestic brands, and not older than 5 years for foreign-made vehicles. In this case, depreciation should not exceed 35%.
How do you consider the TCB of a car?
CTS is calculated by the formula:
C=S*∑ Ki/100,
- C is the lost part of the original price of the vehicle due to the traffic accident.
- S is the real value of the car before it had an accident.
- Ki is a coefficient determined by the expertise for each part requiring restoration.
According to the above calculation method reimbursement of TCB depends on how the experts assess the required restoration work. The coefficient responsible for damaged parts is subject to the following rules:
The help of experts and specialists is essential. Even knowing the TCB formula, the car owner cannot always make the correct calculation on his own.
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The second is the Halbgewax method
Although the calculation method proposed by the Ministry of Justice is considered the main one, experts sometimes use the Halbgewachs method. This the method is applied to cars with the same age restrictions for the vehicle as the first calculation method. The difference is that in the calculations, depreciation is replaced by the mileage of the car, the limit for which is 50 thousand kilometers for domestic cars and 100 thousand kilometers for foreign ones.
For this method, appropriate calculators are used.
Here is a list of indicators that are used for the calculation:
- the cost of a new car (CN) and its real price at the time of the accident (CR);
- the life of the vehicle;
- the price of new spare parts and materials (SM), as well as repairs (SR);
- the total cost of all restoration work (CO).
In order to determine whether it makes sense to claim TCB compensation under OSAGO, a simple formula is used:
CR/CN*100%.
If the calculation result exceeds 40%, then the calculations continue according to the formulas:
- A=SO/CR*100%.
- H=SR/CM*100%.
The designations A and B are defining for the coefficient K (there is a table of values for this).
The final formula of this method is used to calculate the TCF itself and is the most important:
UTS=K/100*(CR+CO).
Many experts consider this method convenient, but without the help of experts, it is still impossible for a motorist to perform such a calculation. Moreover, in order to claim compensation for damage, you need an expert opinion.
Mandatory conditions for the possibility of payments
In what cases is it reimbursed? There is a list of restoration works in which the calculation of the TCB is mandatory:
- Repair of a distortion of the frame or body of the vehicle.
- Full or partial replacement of non-removable body parts.
- Repair of individual body parts, such as a plastic hood, fenders, trunk lid, door.
- Full or partial painting of the front surfaces of the body, bumpers. When painting small external parts (claddings, moldings, handles, linings, mirrors), TCF is not calculated.
- Replacement of parts supplied by the manufacturer painted (except if they are repainted).
- Disassembly of the vehicle interior, which degrades the quality of the original factory assembly.
In order to be eligible for the TCB payment, a number of conditions must be met:
- The period of operation of the vehicle should not exceed 5 years for foreign cars and 3 years for domestic cars.
- Vehicle depreciation should not exceed 30%.
- Compensation payments are made only for cars that have been in an accident for the first time.
- The owner of the vehicle must not be at fault for the accident.
- The amount of TCB for OSAGO cannot exceed the maximum prescribed insurance compensation (this includes basic payments).
- If the TCB is paid under CASCO, then the possibility of receiving compensation should be specified in the policy.
It is realistic to receive a payment if the car was repaired, but 3 years have not passed since then and a list of work performed, for example, an order, has been preserved. In this case, the calculation is more difficult.
If damaged or defective parts require replacement, no refund will be given. It is impossible to receive compensation for the loss of commodity value if light repairs are needed without restoring the structure of the car, if the surface of the body is damaged by corrosion or has defects that appeared before the accident.
Important! The legal right of a motorist to receive TCB payments is confirmed by law and court. Some firms respond to a request for compensation for damage to citizens that the TCB is a lost profit, while the Decree of the Presidium of the RF Armed Forces dated 10.08.2005 says that it is not. In addition, the Decree of the Plenum of the Armed Forces of the Russian Federation dated January 29, 2015 on compulsory insurance also confirms the right of car owners to compensation payments to TCB.
That's why, if all the conditions listed above are met, the payment of TCB under OSAGO must be made without fail. The maximum amount that can be received under OSAGO is 400 thousand rubles.
Having studied the information provided, we can conclude that it is far from always possible to receive TCB payments for OSAGO. But if all the required conditions are met, then this is quite realistic. When receiving an unreasonable refusal, there is always the opportunity to receive the due compensation through the court.
Solution in a civil case
In the name of the Russian Federation
The justice of the peace of the judicial section of the judicial district of the district court, with the secretary, with the participation of the plaintiff's representative - acting on the basis of a power of attorney, the defendant's representative by proxy, having considered in an open court session in the courtroom the materials of a civil case on a statement of claim to the Public Joint Stock Company "Rosgosstrakh" about recovery of insurance compensation for an insured event from the participation of a Nissan X-Trail car, g.n. P 157 BC 750, owned and operated by Skoda Octavia, m.n. owned and operated (CCC series insurance policy),
Installed:
The plaintiff filed a lawsuit against the defendant, arguing that at 14:35 a traffic accident occurred in the region under the following circumstances: the driver, driving a Nissan X-Trail, Mr. n. Р 157 ВС 750, did not comply with the speed limit, did not take measures to reduce speed, as a result of which it hit a Skoda Octavia car, m.n. , under management, applied to Rosgosstrakh LLC, where this case was recognized as an insurance case, and the amount of 56,700 rubles was paid to her. Disagreeing with the amount of damage, the plaintiff turned to SP According to the conclusion and the cost of restoring the car was, taking into account wear and tear, 92991 RUB. 52 kopecks, UTS - 24837 rubles. 93 kop. The cost of the evaluation work amounted to 11,000 rubles. Based on the results of the consideration of the claim, the defendant paid 44,291 rubles. 52 kop. The amount of 16,837 rubles was not reimbursed. 93 kopecks, as well as the costs of the examination - 11,000 rubles. He asks to recover from the defendant in his favor insurance compensation in the amount of 16837 RUB. 93 kopecks, expenses for the examination - 11,000 rubles, expenses for a representative - 15,000 rubles, compensation for moral damage - 10,000 rubles, a fine.
At the hearing, the representative of the plaintiff submitted an amended statement of claim, asked to recover from the defendant in favor of the plaintiff insurance compensation - 24,837 rubles. 93 kopecks, a penalty - 21,702 rubles. 84 kopecks, expert examination costs - 3,000 rubles, telegram costs - 359 rubles, power of attorney costs - 1,000 rubles, representative services - 15,000 rubles, non-pecuniary damage - 10,000 rubles.
At the hearing, the representative of the defendant, acting on the basis of a power of attorney, did not recognize the requirements, arguing that after the plaintiff applied for direct compensation for damage (), the defendant paid 56,700 rubles. the plaintiff appealed to the defendant with a claim, the results of consideration of which made an additional payment of insurance compensation in the amount of 44291 RUB. 52 kop. (additional payment of insurance compensation in the amount of 362991 rubles 52 kopecks, the cost of the examination is 8000 rubles). Thus, the damage determined on the basis of the pre-trial examination for the costs of the examination of the damage by the defendant was reimbursed. Regarding the payment of the TCB, as well as the costs of determining its size, it was refused. Since the defendant paid the entire amount, she asked to refuse the requirements. In case of satisfaction of the requirements, she asked to reduce the compensation for non-pecuniary damage and expenses for the representative.
After hearing the opinion of the participants, the court comes to the following.
Decided:
Claims against the Public Joint Stock Company "Rosgosstrakh" on the protection of consumer rights are partially satisfied.
Collect from the Public Joint Stock Company "Rosgosstrakh" in favor of a penalty - 362 rubles. 92 kopecks, compensation for non-pecuniary damage - 500 rubles, legal costs for paying the cost of the telegram - 2 rubles. 80 kopecks, powers of attorney - 7 rubles. 98 kopecks, representative services - 2000 rubles.
To collect from in favor of Chas Pik Assistance LLC the costs of paying for a forensic examination - 4464 rubles. 10 kop.
To collect from the Public Joint Stock Company "Rosgosstrakh" in favor of LLC "Hour Peak Assistance" the costs of paying for a forensic examination - 35 rubles. 90 kop.
Collect from the costs of paying a specialist - 2976 rubles. 076 kop.
To recover from the Public Joint Stock Company "Rosgosstrakh" in favor of a specialist the costs of paying for the services of a specialist - 23 rubles. 93 kop.
Collect from the Public Joint Stock Company "Rosgosstrakh" a state duty to the local budget - 700 rubles.
The persons participating in the case, their representatives, who were present at the court session, have the right to file a petition to the justice of the peace for drawing up a reasoned decision within three days from the date of the announcement of the operative part of the court decision, the persons participating in the case and their representatives who were not present at the court session, has the right to file a petition to the justice of the peace for drawing up a reasoned decision within fifteen days from the date of the announcement of the operative part of the court decision.
The decision can be appealed on appeal within a month from the date of the decision in final form to the district court through the justice of the peace judicial section of the judicial district of the district court.
Magistrate - signature.
Copy is right. World judge
Motivated decision made
World judge
Court:
Judicial precinct No. 61 of the judicial district of the Sovetsky District Court of the city of Ryazan (Ryazan Region)Judges of the case:
Krivtsova Tatyana Nikolaevna (judge)Litigation on:
Liability for causing harm, the bay of the apartmentJudicial practice on the application of the norm of Art. 1064 of the Civil Code of the Russian Federation
Let's imagine a situation: you bought a new car in a car dealership, operated it for some time, and one of your "happy" days had an accident. Know from now on your car has lost in value.
Loss of the commodity price of the car (UTS) is a decrease in its value due to repairs that were caused by an accident.
A car that has not been in an accident is valued higher in the secondary market than the same car, but which has been in an accident, for the following reasons:
- Body deformations, loss of rigidity.
- Damage to the paintwork, extremely difficult to recover.
- Suspension damage.
- Application in the repair of auto parts already used before.
The size of the loss of the commodity price of the car I calculate the special expert appraisers, which are guided when calculating the costs of the necessary repairs, the price of auto parts, as well as the materials necessary for repairs, while taking into account the current price of a new car and a similar one, but which someone has already traveled.
For which cars is the UTS calculated?
UTS is calculated for the following categories of cars:
- for foreign cars whose age is not more than five years.
- for cars of Russian origin, the age does not exceed three years.
- depreciation of the technical means does not exceed forty percent.
TCF is inversely related to the age of the car. In this bundle, a rule works that says: a smaller age of the car corresponds to a larger value of the TCB and vice versa.
How to calculate UTS?
For a convenient and quick calculation of the TCB, use the online calculator.
Calculation of TCB very complex and time consuming. The official calculation, even if you suddenly make it, will be of a reference nature, and no one will be guided by it. There are two options for calculating.
First way
The calculation should be carried out according to the formula: General \u003d U elements + Ukarkas + Uokraski + Ukuzov
Wherein:
Then, a calculation is made for all components of the formula that were produced during the refurbishment.
The procedure for calculating the TCB during the repair of all removable body elements is carried out according to the formula:
m
Wel. \u003d K 2 ΣK 1 Qi
1
Formula values:
- K1- the coefficient of change in the value of the TCB and depends on the method and nature of the repair, as well as the complexity and duration.
- Qi- the price of auto parts at retail, requiring replacement during restoration
- K2- a coefficient that takes into account the change in the amount of TCB depending on the degree of wear of car parts.
- m- the number of removable elements of the car requiring repair.
Second way
The method takes into account only the total cost of repairs and it is calculated all superficially, formally, even in cases where one repair led to a greater loss of the TCB than another.
Calculation formula: UTS = (H÷100) (Р+С)
Formula values:
- H- the coefficient of the poppy value of the UTS, determined according to the special Halbgewax table
- R- the price of the car in the market, taking into account wear and tear.
- WITH- the total amount of necessary repairs.
How much money can you get for TTS?
The maximum amount of TCB is 120,000 rubles . If the amount is exceeded, then the culprit of the accident pays the rest.
What is the procedure for receiving money for TCB?
An important note: neither the insurance rules nor the law on compulsory auto insurance clearly oblige insurance companies to pay for TCB under OSAGO. But at the same time, they indicate the need to compensate for the damage that was caused to the insured person. Typically, companies refer to the OSAGO law in sub. "b" paragraph 2 of Art. 6 and refuse to pay TCB. It is worth noting that the TCB for CASCO is paid in any case, regardless of who is responsible for the accident.
Compensation for damage is the amount of money that is needed to repair the machine. In this regard, insurers do not calculate the decrease in the cost of the car and, of course, do not pay it voluntarily.
Although, as follows from the decision of the Supreme Court of Russia, insurers are required to compensate for this damage. At the same time, the court noted that the TCB is subject to compensation not only if the victim receives a real insurance payment, but if the car owner prefers car repairs to money.
The court also ruled that the damage caused to the cargo carried by the vehicle should be compensated.
According to the court, the damage that the culprit caused to third parties is also subject to compensation (for example, during the accident, the car was demolished by the lady's fence, which is located directly next to the accident site).
How to collect TCB from an insurance company?
If you want to collect TCB from the insurance company, you must follow these steps:
- file a claim with the insurance company with a request to reimburse you for the TCB.
- in case of a negative answer, contact independent expert appraisers who will calculate the value of the TCB.
- with the documents received, you can safely go to court demanding to recover from the insurance company in your favor the money that is due to you for the TCB.
The requirements of those victims who want to recover from the TCB insurance company is that the loss of the commodity value of the car is a real and objective damage subject to compensation by the insurer.
Recall in what cases, the victim has every right to demand from the insurance company compensation for the TCB from the damage caused to him:
- You shouldn't be at fault for the accident. Only in this case, you can count on the payment of compensation from the insurance company, which are obliged to compensate you for the damage caused by the accident.
- The damage should not exceed 400 thousand rubles, in the event that it nevertheless exceeded the above limit, then you should not count on the TCB.
- Before you write an application for the issuance of money under the TCB, check the age of your car.
Judicial practice for collecting TCB
The claim for compensation for the loss of the commodity value of the car is legal, since you will definitely lose value if you sell a car that has already been in an accident.
When filling out an application to the insurance company with a claim for compensation for the harm caused to you, be sure to indicate the TCB, if you have every right to it.
In case of non-payment of TCB by the insurance company, feel free to send a claim to the court. The timing of the TCB payment will depend on the date of the court hearing.
As a rule, the court will be guided in making its decision by the decision of the Armed Forces of the Russian Federation, which states that the damage that arose as a result of an accident includes not only the price of car repairs and the price of auto parts, but also the loss of the commodity value of the car, which is a decrease in the price of the car by secondary market due to a deterioration in appearance, as well as its performance due to a decrease in the strength and durability of individual components, assemblies and machine parts, as well as protective coatings as a result of an accident and subsequent refurbishment.
The result of a car collision is numerous damage to property, health and life, damage of varying severity is caused. Under the OSAGO agreement, such damage is subject to compensation by the insurance company if the perpetrator of the accident has a valid policy. In such cases, the loss of the commodity value of the car under OSAGO is also compensated. How to get reimbursement of TCB under OSAGO? What documents are required for this and what application to submit? What to do if the insurer refuses to pay the required amount? Will the court help?
When is the TTC due?
The loss of the commodity value of the car is the result of damage to the vehicle as a result of an accident, a decrease in its performance, deterioration in appearance, etc. That is, any car owner insured under OSAGO and recognized as a victim in an accident has the right to payment. Loss is the difference between the market value of a car that has never been in an accident and the value of a car that has been in an accident. Prices for cars of the same make, model and model year should be compared.
TCB for OSAGO can be calculated both before and after repair work. The calculation date does not play a role in the final result. For a car damaged in an accident, which was painted (fully, partially) during restoration, TCF can only be calculated if this car had a factory coating before the accident and no more than 3 years have passed since its release (for the domestic auto industry) or more than 5 years (for foreign cars). Elements of such vehicles at the time of the accident should not be subject to corrosion.
How to calculate UTS?
The calculation of the size of the TCB of a car according to OSAGO is carried out either by the experts of the insurance company during the inspection of the vehicle, or by the experts of an independent expert organization, or by forensic experts. A car owner who does not have the proper qualifications on his own will not be able to carry out such a calculation without errors. In total, in Russian practice, there are 3 methods that experts use to determine the amount of loss of commodity value.
Central Bank methodology
In 2014, the Regulation of the Central Bank No. 432-P came into force, approving the Unified Methodology for calculating the cost of repairs under OSAGO. All insurers and independent experts from that year were required to calculate the amount of damage only in accordance with the proposed methodology. But it did not take into account the procedure for determining the value of the TCB for OSAGO, therefore, in 2015, the Draft Directive was published, which would make changes to the existing methodology, namely, would supplement it with Chapter 8 “On the procedure for determining the value of the TCB”.
Clause 8.2 states that the TCF is calculated only for vehicles for which it has been found that after an accident it is necessary to eliminate the skew of the body, repair its individual elements, paint the body, bumper or parts thereof. Clause 8.3 lists the cases in which the calculation is not carried out. These include wear of more than 40%, the age of cars is more than 5 years. Clauses 8.4 and 8.5 also contain a number of exceptions under which TCF cannot be calculated, including minor damage to the part, the presence of repainting of the body before the accident, etc.
The formulas for calculating the value themselves are given in clauses 8.6 and 8.10. The calculation was based on the cost of the vehicle at the time of damage and a number of coefficients. The methodology presented in the Draft differs from the commonly used methodology of the Ministry of Justice only by the size of the coefficients used for the calculation. As of 2018, the Central Bank’s methodology for calculating TCB has not come into force and Regulation No. 432-P still has 7 chapters. Both insurers and independent experts use the methodology of the Ministry of Justice.
Methodology of the Ministry of Justice
The procedure for calculating the amount of damage and refurbishment was adopted by the Ministry of Justice in 2013. Initially, the Methodology of the Ministry of Justice was intended only for forensic experts, who, in the interests of the court, calculated the amount of damage caused to vehicles in traffic accidents. But in fact, this technique has been and is used by both insurance companies and independent experts. TCB is calculated according to the formula given in clause 7.2.1:
WITH- the price of the car at the time of the accident;
Cootsi - coefficient that is used for a specific element or part of the vehicle.
The coefficients are listed in Appendix 5 to the Methodology. So, when replacing the floor of the car interior, a coefficient of 3 is used, when replacing the rear wing - 0.5, etc. The document also contains a separate formula for determining the size of the coefficient when painting individual parts of the car (clause 7.2.6.1). The value of the TCB for OSAGO in 2018 depends entirely on the nature, type and amount of damage received by the vehicle.
Halbgewachs technique
Using this method, it is possible to calculate only the loss of the commodity value of a foreign car. She suggests that before starting the main calculation, find out its feasibility. To do this, you need to divide the market value of the car at the time of the accident by the cost of a brand new car and divide by 100%. If the result obtained is less than 40%, then the calculation will not make sense. If there is more, then use the formula and a special table to calculate. They can be found.
How to get TCB under OSAGO?
Since the loss of the presentation of the car under OSAGO was included by Decree of the Supreme Court No. 58 of 2017 in the amount of real damage, insurance companies are required to take this amount into account when paying compensation in the form of cash or when paying for repairs at a service station. If the TCB was not included in the total amount of insurance, then the insured, the victim or the owner of the car has the right to file a claim with the insurance company. In the event that she remains unanswered, it will be necessary to apply to the court with a statement.
Where to apply?
Compensation for the TCB is carried out only to a person who is recognized as an innocent participant in the accident. The owner of the car must apply for the payment of the lost value to the same insurance company to which he applied for the payment of insurance compensation. If insurance without TCB was received for direct reimbursement of losses from the insurer with whom the OSAGO agreement was concluded, then an application for obtaining TCB must be submitted there. In the event that insurance without TCB was obtained from the insurer of the person responsible for the accident, then TCB must also be requested there.
Required documents and application
The legislation does not provide an application form for claiming payment of TCB from an insurance company. In fact, such a document is a pre-trial claim against the insurer. If the insurance company did not include the loss in the value of the car in the amount of damages, then in the text of the claim it is necessary to refer to the explanations of the Supreme Court (clause 37 of the Decree of the Plenum No. 58) on classifying TCB as real damage. According to the established rules, an application for TCB under OSAGO must contain:
- Personal Information;
- Circumstances of occurrence of the insured event;
- The essence of the requirements;
- Justification of the requirements;
- Calculation of the penalty and requirements for its payment;
- List of applications.
The loss of the commodity value of the car under OSAGO 2018 can be paid upon submission of the same documents that are approved by the Regulation of the Central Bank No. 431-P in clause 3.10. The applicant must always present a passport, a notice of an accident, an OSAGO policy. If the accident was not registered according to the European protocol, then documents from the traffic police (decree, protocol) will be required. The applicant must have grounds for making claims. In this case, they may be the conclusion of an independent examination or personal calculations of the value using one of the existing methods.
In what cases is TTS not paid?
Both the methodological recommendations of the Ministry of Justice (clause 7.1.4) and the Regulations of the Central Bank provide for a number of exceptional cases when the loss of the commodity value of the machine cannot be compensated. TCB is not calculated if at the time of the accident:
- The car is over 5 years old;
- The age of a cargo vehicle, buses of domestic production exceeds 1 year;
- The age of cargo foreign cars that are used for commercial purposes exceeds 2 years;
- The age of buses of foreign brands used for the transportation of passengers on certain routes exceeds 3 years;
- Wear exceeds 35%.
In fact, such exceptions are illegal, since the RF Armed Forces classify the loss of commodity value as real damage. And the insurance company is obliged to compensate such damage to the innocent party in accordance with the norms of the law "On OSAGO" despite the amount of depreciation of the car or its year of manufacture. But insurers and even some courts either neglect such provisions of the law or misinterpret them.
Refusal to pay TTC
On legal grounds, the insurance company may refuse to compensate for the loss of commodity value if the application is submitted by the perpetrator of the accident or another person who is not entitled to such a claim; if the insurance already paid is equal to the limit established by law (400 thousand rubles); if the vehicle was repaired on its own and was not provided for inspection by the insurance company, etc. Thus, TCB reimbursement may not be made by the insurer for the same legitimate reasons as the entire insurance payment.
In the event that the insurance company does not respond to the claim of the car owner within 10 days or ignores it altogether, the latter has only one option to recover the money that belongs to him by right. To do this, you need to apply to the court with a statement of claim. The claim must be accompanied by all documents that would prove the validity of the claims of the injured driver, as well as a written refusal from the insurance company.
Arbitrage practice
The history of court decisions on the loss of the commodity value of a car can be considered ambiguous, since some judges interpret the rules of substantive law correctly, while others, for whatever reason, cannot objectively assess the situation described in the statement of claim. But in the latter case, the Court of Appeal may take the side of the plaintiff or the defendant. Thus, one of the Perm courts of appeal took the side of the defendant, which was the Alfastrakhovanie company.
Example of a court decision
According to Decree No. 17AP-14654 / 2018-AK, the court of first instance, along with other requirements, ordered to recover from the insurer in favor of the plaintiff the amount of 8,626 rubles as a loss of the commodity value of a car that had an accident on 10/22/2014. But the arbitration court, when making its decision, did not take into account the fact that the limitation period had been missed. The appellate court found out that the application for reimbursement of the TCB was submitted to the insurer only on 10/17/2017, and the statement of claim on 05/08/2018, that is, more than 3 years after the incident. This circumstance led to the impossibility to reliably determine the amount of losses, including in the form of loss of commodity value. Therefore, the appeal was upheld and the decision of the first court overturned.
According to RSA for 9 months. In 2018, unscrupulous car lawyers who bought the right of claim from the victims received more than 23 billion rubles from insurance companies. money collected through the court. A small part of this amount related to actual insurance expenses, while the rest amounted to financial sanctions, etc. But not all auto-lawyers managed to get satisfaction on the statement of claim.
Example of a court decision
Thus, the Irkutsk court considered case No. A19-14595/2018. The lawsuit against the Angara insurance company was filed by an individual entrepreneur who received such a right under an assignment agreement concluded after the insurer paid compensation without taking into account the TCB. From the materials of the case, it was known that the traffic accident occurred on 01/12/2016, and the claim was filed by a car lawyer on 04/20/2018. The assignment agreement was concluded on 03/29/2017 on the day of receipt of the act of an independent examination on the amount of loss of commodity value, which amounted to 12,903 rubles. The court found out that the plaintiff did not comply with the rules of pre-trial settlement of the dispute, that is, the insurer was not notified of the examination, he was not sent a claim for payment of the lost value of the car, etc. The court came to the conclusion that the conduct of an independent examination in itself does not give rise to the obligations of the insurance company to pay such compensation. The claim for compensation for the TCB of the vehicle was denied for lack of grounds.
Art. 65 of the Arbitration Procedure Code of the Russian Federation indicates that each person participating in the trial is obliged to have evidence and substantiation of his claims. Otherwise, by virtue of Article 71 of the same code, the court recognizes the claim as unfounded and refuses to satisfy it. In case No. A19-14595/2018, discussed in the example above, failure to comply with the provisions of federal law and the procedure for resolving disputes led to the refusal of the court to recover the loss of the value of the car. After that, the plaintiff's rights to receive compensation for legal (representative) and court (state duty) expenses disappeared, and the grounds for receiving a penalty for the untimely fulfillment of their obligations by the insurance company also disappeared.
Conclusion
Thus, according to the rules of insurance, the loss of the car's value should be included in the total damage and paid out on the same basis as regular OSAGO insurance, including in the form of payment for repair work. If the insurer paid compensation without taking into account the lost value, then the injured driver must apply to him with a pre-trial claim. If it is not satisfied, only the court will be able to resolve the dispute that has arisen.
First of all, you need to understand what it means term TCB (loss of commodity value). UTS - a decrease in the value of a vehicle that occurs as a result of an accident. A car that has never been in an accident costs much more than a similar car, but only broken and restored.
This is explained by the fact that as a result of replacing individual elements or components of the vehicle, its performance decreases, the paintwork suffers, and those parts that have been replaced partially lose their strength. In a word, UTS is a real decrease in the consumer value of a car.
IMPORTANT! Today, despite the huge judicial practice of conducting such cases in favor of the car owner, employees of insurance companies tend to consider TCB for OSAGO, as well as TCB for CASCO, as a lost benefit, and do not attribute it to real damage.
And the current legislation (Federal Law of the Russian Federation No. 40 dated April 25, 2002 “On Compulsory Motor Third Party Liability Insurance for Automobiles and Other Vehicles”) obliges insurers to pay only real damages (how to calculate damages under OSAGO is disclosed in detail). For this reason, it is not easy to argue with insurance agents. Difficult, but not hopeless.
How to act in an insurance company?
Before contacting the insurance company with an application for reimbursement of TCB, you should remember that Payments are not made if:
- the age of the foreign-made vehicle is more than five years;
- the age of the domestic car is over four years old;
- the total depreciation of the machine is more than 35%;
- the applicant is responsible for the accident;
- the statutory amount of payments under OSAGO has already been made.
The penultimate condition is applicable only for payments for the loss of commodity value under OSAGO. If we talk about compensation under CASCO, it is made for any damage to the car, regardless of who is responsible for the accident. With the exception of this paragraph, the system of compensation for damage after an accident is the same for all types of insurance.
In all other cases, you can safely go to the insurance company and apply for compensation for the TCB of the vehicle. It is possible that the insurance car owner will hear a refusal and a kind offer to go to court. You don't have to turn down this offer. The payout process looks like this:
And only after a refusal has been received from the insurance company and all the necessary documents have been collected, you can file a claim.
As practice shows, cases like this are usually successful., since the court, taking into account the decision of the Supreme Court on attributing the loss of commodity value to real losses (Decree No. 2 of January 29, 2015 of the Plenum of the Supreme Court of the Russian Federation “On the use by courts of laws on compulsory motor third party insurance of motor vehicle owners”), takes the side of the owner cars and forces insurers not only to reimburse the amount of damage, but also to pay for legal costs.
How is the calculation made?
- Halbgewachs method. This method is considered only for the amount of payment of the TCB for foreign cars under OSAGO, the age of which is not more than 5 years. In addition, depreciation should not exceed 35%. When calculating, experts use several basic characteristics (the cost of a new car at release, the cost of a used car, age in months, the total amount of money spent on repairs, the cost of spare parts and materials). This technique is very popular among European expert agencies.
- The method of the Ministry of Justice can be used when considering the TCB of both domestic and foreign vehicles no older than five years and less than 35% depreciation (it is written in detail about self-calculation of depreciation according to OSAGO).
IMPORTANT! In order for the payment of the loss of the commodity value of the car under OSAGO to be possible, you need to remember about its age and that the amount of compensation does not exceed 400 thousand rubles.
Calculation of the loss of the commodity value of the vehicle:
The main conditions for the possibility of payments and in what cases is the reimbursement?
When counting on receiving payments for the loss of commodity value under OSAGO, you need to remember that for this several mandatory conditions must be met:
- The participant in the accident who applies for damages must not be the culprit of the accident. Only if this condition is met, the insurance company takes responsibility for the guilty party.
- The maximum amount of damage should not exceed 400 thousand rubles. In addition, if this amount has already been paid to the injured party, then you should not count on reimbursement of TCB under OSAGO.
- When applying to an insurance company with an application for damages, do not forget about such characteristics as the age and depreciation of the car. In case of non-compliance with the established requirements, the insurer has the legal right to refuse.
- Payments for motor insurance are subject only to insured events.
- If the car has already been in an accident, then only those parts and assemblies that were damaged for the first time are taken into account when calculating compensation. How to calculate the cost of spare parts, described in detail
