“The culprit of the accident is not included in the OSAGO policy,” the wording that victims hear in 90% of cases when insurers attempt to refuse to pay compensation on these grounds. This is a fairly common occurrence in our practice of protecting the rights of motorists. We inform you that such a refusal of insurance should be considered illegal and if it was not possible to agree in a pre-trial procedure, you can go to court with a claim to recover damages from an accident from the insurer.
To understand that from the position of the Law you will be right, it is enough to study the legal position of the highest courts of the Russian Federation on this issue. We will give a normative justification for this approach below, but first it should be said that when the contract is executed without restrictions, insurance is valid for any driver.
The culprit of the accident is not included in the OSAGO policy - the insurer always pays for the culprit
If you familiarize yourself with the content of clause 1 of the Federal Law “On OSAGO”, then we can conclude that the insured can insure the risk of liability of himself, the persons named in the contract and other persons who use the vehicle legally.
Who can be the legal owner of vehicles
- Tenants
- Persons: using the vehicle under a power of attorney and / or under a contract for gratuitous use
- owning a vehicle on the basis of an order from a state body to transfer the vehicle to this person
This list is not exhaustive. For example, you drive a car by proxy, i.e. you are its legal owner and at some point decided to transfer control to a relative, friend or fellow in the shop, in your presence and, of course, with your consent. There is nothing illegal in your actions in this case, however, do not forget to indicate this circumstance in the explanations regarding the accident or in the protocol on the case of the adm. offense. The only condition is that the person to whom control is transferred must have (at home, with him, etc.) a driver's license for the right to drive this vehicle (category).
And since such a transfer of control does not contradict the Law, then, as you probably already understood, the liability of the person to whom control is transferred is insured under the OSAGO agreement and applies to him in full. The insurance company will pay, but then recover from the culprit, more on that at the end of the article.
The insurance company will not pay for the person responsible for the accident in cases
We think you have figured out that the refusal of the insurance company to pay for the culprit of the accident due to the fact that “the culprit of the accident is not included in the OSAGO policy” does not apply by the Law to cases when insurers do not have to make an insurance payment (Article 6 of the Law). If there is an insurance dispute under OSAGO, it is important to remember the following: illegal possession of a vehicle is the illegal possession of it:
- without the purpose of theft (hijacking)
- cases of illegal seizure of the vehicle by decision of bailiffs, investigators, etc.
- you were playing football, you left your keys on the field, and some kid decided to ride without asking your permission
- the former second half took advantage of your trust and decided to hide from you the car you once donated, but still unregistered in her name.
- and in the same vein
All other grounds, along with those expressly provided in the Law, are considered legal grounds for owning a vehicle, and the insurer must pay for the culprit in any case, unless it can prove that the culprit of the accident illegally took possession and drove this vehicle, and this is extremely difficult in practice. .
If the culprit of the accident does not have insurance at all, the damage must be recovered from him, but even here you should know something about the ways to implement such a right, which we wrote about in this one. However, there is an exception here, when some victims still manage to receive compensation, read this.
What to expect for the culprit of the accident, not included in the OSAGO policy
The person was not included in the policy, and it so happened that he became the culprit of the accident. Well, this happens to every 10 driver, but such a citizen should understand that regardless of whether the insurance company pays the victim voluntarily or on the basis of a court decision, subsequently in 95% of cases it will file a recourse claim against the culprit (Article 14 of the OSAGO Federal Law and 76 of the Rules), since he was not included in the insurance. In essence, this means that you will pay for the repair of a damaged vehicle, but not immediately, but in a year or two, depending on how quickly the insurer resolves the issue with the victim and sues you.
If the owner and / or (the insured) notified the insurance company about the transfer of control to another person (the perpetrator of the accident), the insurer, after paying compensation to the victim, does not have the right to claim recourse to the perpetrators of the accident.
Therefore, if you get behind the wheel of a vehicle for which OSAGO applies with a limit on the number of drivers, and you are not among those allowed to drive, you bear the risk of causing damage to other vehicles (you will be responsible for your money) and paying adm. a fine in the amount of five hundred rubles for driving without an insurance policy (part 1 of article 12.37 of the Code of Administrative Offenses of the Russian Federation).
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Not only the owner can drive a car. The law requires the driver to have a license with an open category corresponding to the transport, and civil liability is insured. However, the last condition is not always fulfilled. As long as the car hasn't been in an accident, it doesn't really matter. But everything changes if a person was not included in the insurance and got into an accident while driving.
Insurance options
A motorist's liability insurance contract can be concluded in two versions:
- All persons who have permission from the owner to drive this vehicle are entered. At the same time, the amount of the insurance premium for each will be different. The coefficient depends on the driving experience and the frequency of getting into an accident with the payment of compensation. If every driver is “clean” in this regard, then the overpayment will be minimal. The final coefficient is taken according to the largest value.
- The so-called "open" or general insurance. When registering, the surnames and other data of the drivers do not fit into the policy. The owner and any person driving this car with his permission is considered insured. This form of auto insurance costs a little more than usual, but it allows you to receive compensation from the insurance company even if the culprit in the accident was not included in the current OSAGO policy.
Compulsory insurance guarantees the owner of a car that has been injured in a road traffic accident the reimbursement of the funds spent on restoration. And not at the expense of the culprit (which may not be), but from the insurance company. But what to do and what consequences to expect if the culprit of the accident is not included in the OSAGO policy?
How the damage is compensated
For the owner of the injured car, innocent of the accident, nothing changes in such a situation. Damage has been caused to property by the actions of another person, which must be compensated by virtue of the rules of civil law. And the person insured according to all the rules has every right to demand compensation, and from the insurance company. The insurer has no right to refuse.
But, if the second driver has a choice if the culprit of the accident has an OSAGO policy, then if the culprit of the accident is not included in the insurance, it is possible to write an application for damages only to your own insurance company. She will pay for the repair or reimburse its cost in monetary terms, but only within the established limit. All amounts exceeding the maximum can be claimed directly from the culprit by presenting him with a civil claim.
For the other side, the situation is quite different. If the person responsible for the accident was not included in the OSAGO policy, then the insurance company will recover the amount paid to the victim. This is possible under two conditions:
- compensation has already been paid;
- The claim was submitted to the court in the form of a recourse claim.
A recourse, that is, a response claim for the return of funds paid under OSAGO, becomes possible precisely because the driver does not have insurance, and therefore the right to drive this vehicle. If there is a contractual relationship with the insurer, recourse is possible only in the event of an intentional accident.
Claims only recover insurance that has already been paid. The insurer cannot claim compensation for lost profits or moral damage. But such a claim may well be filed by the injured driver.
The injured driver is not included in OSAGO
The opposite situation is also possible, when the insurance policy does not include the name of a citizen who has had an accident, whose car was damaged through no fault of his own. This fact does not affect the obligation of the insurer of the violator of traffic rules to pay the necessary amount of compensation for damage. But the victim does not have a choice of whom to contact - the application is submitted to the insurance company of the guilty party.
Reimbursement of repair costs or payment of a sum of money is made in the usual manner. Since there is no fault of the victim in the accident, the insurance company has no reason to demand reimbursement from the uninsured driver. The insurer cannot refuse the claim for damages. If the culprit duly executed the OSAGO agreement, then the obligation must be fulfilled.
Liability is provided for the lack of insurance. This is an administrative offense punishable by a fine. Its size is small, only 800 r. Both the culprit of the accident and the driver who suffered in it will have to pay if there is no insurance. This is not about the absence of a paper form of the policy. A violation will be the absence in the unified information base of information about the existence of any valid OSAGO agreement.
Is it possible to resolve the issue without an insurance company?
It is possible to agree on the payment of monetary compensation by the person who caused the accident without contacting the insurance company. If the damage is not great and the drivers themselves were not injured, this is quite acceptable. In this case, it does not matter whether each party has insurance. When calculating right on the spot, the incident can be considered settled.
If the car owner who is guilty of the collision promises to pay later, then it is advisable to obtain a receipt indicating the term and amount. Otherwise, you can later say something like “it’s not my fault” and refuse to pay. When the culprit in an accident, not included in the OSAGO policy, does this, then you will have to seek compensation for damage through the courts.
Denis Frolov
The presence of OSAGO is not only a prerequisite for driving on the roads, but also an opportunity to protect yourself financially in case of trouble on the roads. The auto insurance program allows you to protect the driver from material costs in case of an accident. But the company will not pay the full amount of damages to every client.
The only clarification is that the insurer makes payments under OSAGO only to those victims of the accident who are innocent of the accident, and the one who caused it will have to repair their car and pay for the treatment. The insurer will pay for the most guilty damage, because the driver's liability to other road users is insured. But there is another side, if the culprit of the accident is not included in the OSAGO policy, then how can the victims receive insurance compensation?
What happens if the driver is not in the policy?
It is necessary to distinguish between a policy with an unlimited number of persons allowed to drive a specific vehicle, and an agreement where there is a “closed” list of drivers that did not include the name of the person who was driving at the time of the accident.
In the first case, the insurance covers everyone who may turn out to be a driver and the insurer will unconditionally pay compensation to all victims.
In the second situation, the insurance company may begin to play up, refusing to compensate for the damage. But if the culprit of the accident is not included in the OSAGO policy, then this should not mean anything to all other participants in the accident. The payment must be made to all victims of the accident within the current limits.
What to do to receive funds if there is no driver in OSAGO?
The main thing that motorists need to remember is that, according to paragraph 2 of Art. 6 of the Federal Law No. 40 on OSAGO, insurance compensation is paid even if the driver who caused the accident was not included in the auto insurance policy.
In order to receive funds, victims must contact the insurance company directly - sometimes a call to the company where their own insurance was purchased is enough. The Incident Reporting Form is standard and easy to report.
Since the insurance company is still obliged to compensate for the damage if the culprit of the accident is not included in the OSAGO policy, therefore, if necessary, you can easily defend your rights in court. Sometimes a written application with a claim to the insurer is enough to receive the compensation due. But it is necessary to prove that the refusal to pay is due precisely to the fact that the wrong driver was behind the wheel.
How to get a penalty for OSAGO, read.
Moreover, the insurer, of course, will pay the victims all the corresponding costs for recovery and treatment after the accident, but then they will recover these funds from the guilty person, regardless of the fact that he is not a client of this company. Simply put, insurers will file a lawsuit in court, demanding reimbursement of all the amounts that have gone to cover the damage. For this reason, the one who was driving will still be punished with a ruble.
The owner of the car, who entrusted it to an outsider not specified in the policy, will not incur any liability to other participants in the accident, however, he will be forced to pay a traffic police fine, and his person will become unreliable in the eyes of insurers, which will lead to an increase in the price of insurance.
The law of the Russian Federation establishes that every car owner must have an OSAGO policy. Thanks to him, in the event of an accident, most of the damage is compensated by the insurance company (Rosgosstrakh, for example), which issued it. However, sometimes there are situations that are not so easy to resolve. For example, what to do if the culprit of the accident is not included in the insurance, who will compensate for the damage? Who will compensate the injured party for damage if the party responsible for the accident does not have an insurance document?
First, it is worth figuring out what regulatory framework regulates auto civil liability insurance. The main law is the Federal Law N 40-FZ.
According to paragraph 2 of article 6 of this law, all car owners must have an OSAGO policy, and paragraph 2 of article 15 establishes the types of policies that can be issued at an insurance company:
- Limited by the number of persons. This document lists specific persons who are authorized to use this vehicle (V).
- Unlimited. A vehicle with this type of OSAGO policy can be used by all persons.
For each of the types, the Bank of the Russian Federation established a payment coefficient. In the first case, it is equal to 1, in the second - 1.8. Those wishing to issue an unlimited policy pay almost 2 times more.
The second type of insurance is most often issued by persons who use the services of hired drivers.
To find out which policy is issued by the car owner, it is enough to carefully read the document itself.
What is the difference between these types of policies:
- in a document designed for a limited number of persons, not only all citizens included in the insurance are listed, but there is also a mark in paragraph 3 opposite the corresponding line;
- in the policy for an unlimited number of drivers, there will be a checkmark opposite the corresponding field in paragraph 3.
It is enough to pay attention to point 3 in order to immediately understand which of the drivers the document is designed for.
Accidents can occur with car owners who have taken out insurance for a limited number of people. Therefore, it is not so easy to figure out what to do for both sides of the accident if the driver is not included in the insurance and got into an accident? It is in the insurance in which the citizens admitted to driving this vehicle are clearly indicated.
For the victim, the situation may develop in the following directions:
- If the perpetrator of the accident has an OSAGO policy, but he himself is not included in it, then you need to contact the insurance company. This is established by the above law, namely Article 14. She is obliged to compensate for the damage, and she will recover the lost amount from the perpetrator of the incident.
- If the culprit of the accident does not have an OSAGO policy at all, then you will have to collect compensation for the damage yourself from this citizen and no insurance company can help in this case.
The perpetrator, who is not included in the insurance for a limited number of persons, will be obliged to:
- compensate the injured party for an amount not covered by insurance;
- by way of recourse to compensate the losses of the insurance company.
Also, this citizen will be punished under Part 1 of Article 12.37 of the Code of Administrative Offenses of the Russian Federation.
If a citizen who does not have a policy became the culprit of the accident, then he will not deal with the insurance company, but money can be recovered from him for the damage caused under article 1064 of the Civil Code of the Russian Federation.
The party at fault in the traffic accident can in any case be made to compensate for the damage caused.
If a vehicle is involved in a traffic accident, for which a policy is issued for an unlimited number of persons, then it is much easier for the injured party to resolve issues with the insurance company than in the situation described above.
What to do in this case:
- Call the traffic police.
- Monitor the drafting of the protocol and study it personally so that there are no further disagreements with the State traffic inspectorate.
- Conduct an independent vehicle damage assessment. This process must be notified to both the culprit of the accident and his insurance company. Most often, insurers do not come to the scene of an accident for an independent assessment, but this item is still important to complete so that there are no bureaucratic problems in the future.
- With the collected documents (the results of the assessment and a copy of the protocol from the employees of the State traffic inspectorate), you need to contact the insurers and draw up an application for compensation.
- Waiting for payment from the insurance company.
If the health (including a minor passenger) was harmed, then it is necessary to document this and obtain appropriate certificates from the medical service.
If the insurance company responsible for the accident refuses to compensate for the damage, which also sometimes happens in insurance practice, then you need to go to court.
When performing the presence of the culprit of the accident is mandatory. If it is carried out without his participation or without warning about it, then the examination is declared invalid.
Evidence that the injured participant attempted to resolve the damages problem without judicial intervention will be a notice of delivery of a letter sent to the person responsible for the accident, which contains the amount of damages. Only 10 days after notification of receipt of the letter by the perpetrator of the accident, the injured party can apply to the court.
Copies of what documents need to be prepared by the injured party for further submission to the court:
- Information about the accident from the State traffic inspectorate.
- Act of technical expertise.
- Notices of peer review (subject to the above requirement).
- A document that confirms the right to own the vehicle.
- Receipts or checks confirming the costs associated with the accident.
The claim to the culprit of the accident must be drawn up in 2 copies: one must be kept.
To the amount of compensation for damage, you can add both the cost of repairing the vehicle, and various related costs such as paying for a tow truck, parking, or even moral damage caused as a result of an accident.
In any case, it should be borne in mind that it is better to try to resolve the issue without judicial intervention. Even if the driver is not included in the insurance and has made an accident, then there is every chance that he will go “to the world”.
If the culprit of the accident is not included in the OSAGO policy, judicial practice confirms that it is better to resolve the issue without a trial. Few people have the desire to pay for the services of lawyers and state fees.
In order not to get into such situations, which it is not yet known how they can end, it is better to always draw up an OSAGO policy and not violate the rules for its use.
In addition to the situation when it turns out that the perpetrator of the accident is not yet included in the insurance, the insurance company may recover compensation from the driver in cases where the perpetrator of the accident:
- was drunk/under the influence of drugs;
- caused the accident intentionally;
- without obtaining the permission of an employee of the State traffic inspectorate;
- did not submit documents to the insurance company within 5 days after the incident;
- after 15 days from the moment of the incident, the repair of the vehicle began;
- drove a route vehicle with an invalid diagnostic card.
Nevertheless, punishment can be avoided by preventing the violation.
You can do this in one of the following ways:
- Add a person to the policy. To do this, you will have to contact the office of the insurance company and provide a certain package of documents.
- Draw up a contract for the use of a vehicle free of charge. In this case, the person who has entered into an agreement with the motorist can use the vehicle for 10 days. After this time, you will either have to contact the insurance company or pay a fine. Although if you draw up a new contract every 10 days, then there will be no problems with the law.
- If the vehicle was handed over to a person not included in the OSAGO policy, then immediately (or the next day) you need to report this to the insurance company.
What should the injured party do? How to compensate for the damage caused if the culprit of the accident is not included in the policy?
It was said above that in this case it is necessary to be guided by Article 1064 of the Civil Code of the Russian Federation, but what if the victim considers the amount reimbursed insufficient? Then you should apply to the court for a solution to this issue.
In order for the court to have a greater chance of a successful outcome, it is necessary:
- obtain personal data of the perpetrator of the incident. They can be provided either by himself or by the traffic police;
- according to the expert's assessment, form the full amount of damage caused to the injured party as a result of the accident;
- apply in writing to the culprit, indicating the required amount of damages. If he is voluntarily ready to pay money, then he will not have to go to court;
- apply to the court. This must be done at the place of registration of the culprit.
If the amount of compensation is not more than 50,000, then the issue will be decided in the magistrate's court, if the amount is higher, then in the district court.
Being involved in an accident is always unpleasant. You can not only seriously damage the vehicle, but also suffer in an accident yourself. But it's good that there is OSAGO - a mandatory insurance policy for a motorist, his transport and civil liability to other road users. After all, it can be used to receive compensation, which will cover both repairs and treatment.
However, do not forget that OSAGO policy is a document with a lot of features. One of them is linking the policy to a specific driver. The OSAGO policy always contains a list of citizens to which it applies. So what to do if a person who is not included in the policy is to blame for the accident? And what about the culprit? We will talk about this in our article.
Types of policies
In order to better explain how to act if the culprit of the accident is not included in the OSAGO policy, we first consider the policy itself and those who may be registered in it. There are only two types of policies:
- Unlimited. Absolutely any citizen can use such a policy - the main thing is that he has the right to drive any vehicle. Thus, in case of an accident, no additional paperwork is required– the driver will be covered by insurance in any case. Such policies are often issued by legal entities or citizens who have one car for the whole family;
- With a limited circle of people. A very peculiar, but at the same time more popular policy, which is issued by the majority of ordinary motorists who rarely leave their vehicle. For such a policy, only those citizens who are registered in it are considered insured. In this case, the insurance premium for such a policy is calculated for each driver separately.
As you can see, the differences between the policies are obvious. The first option is especially convenient. Firstly, it is not necessary to constantly supplement the policy, and secondly, the situation when the culprit of the accident is not included in the OSAGO policy simply does not arise, since any driver is insured. In this regard, such problems can arise only with the second type of policy.
How to collect money?
It is noteworthy that on your own you practically do not have to do anything. Even if the culprit of the accident is not included in the OSAGO policy, this will not affect you in any way. Remember, the absence of the culprit of the accident in the list of insured persons and the absence of a policy at all are two completely different things, since the car, in fact, will still be insured. You will not have to collect the data of the perpetrator, nor to demand money through him through the court.
So, after all the documents for the accident are ready, the victim will simply need to follow the standard procedure and demand compensation. We remind you what is 500,000 in compensation for the treatment of the victim and another 400,000 for the repair of the vehicle. Any amounts above these figures will have to be separately demanded from the culprit of the accident. At the same time, the insurance company will not be able to refuse you, since the policy, even if the culprit of the accident is not included in it, will still be a valid document that imposes certain obligations on the insurer.
Consequences for the perpetrator of the accident
It does not make sense to consider the method of receiving money for the victims - the procedure will be completely standard, since the insurer will be limited by laws, and the issuance of compensation will be his direct responsibility. Much more interesting are the consequences for the perpetrator of the accident. On the one hand, it was he who caused the losses of the insurance company, but on the other hand, he does not relate to it in any way, since he did not conclude an insurance contract.
However, the legislation quite clearly defines all the actions that will need to be taken by both the insurance organization and the culprit of the accident. The insurance organization, having paid all the required money to the victim in the accident, must use its own in relation to the guilty. Recourse is one way to collect debt., and it applies if the required amount was paid for the debtor by a third party, which in our case is the insurer. Thus, the debt of the culprit of the accident remains, but he will pay it to the insurance organization, and not to the victim.
Read about what to do if the insurance company filed a lawsuit against the culprit of the accident.
Consider an example. Two drivers Ivanov and Petrov got into an accident. Ivanov was identified as the culprit, but he was not included in the policy. In this case, Petrov, in the standard manner, applies to the Avtostrakh company to receive compensation. And he receives it, since the payment will be the direct responsibility of the insurer. However, as soon as Avtostrakh pays the full amount of compensation, the right of recourse passes to it, and it can demand money already from Ivanov, since he violated the rules for using the OSAGO policy.
If the essence of regression as a whole is quite simple, then the process itself can raise many questions and difficulties. The fact is that Not all insurance companies are honest about getting debts. And the perpetrators of the accident are also not far behind, trying to hide from responsibility. That's why Most of the time, claims go through the courts. In this regard, it is worth giving a couple of tips to those who are not lucky enough to become a defendant in a claim for recovery by way of recourse:
- Calculate the cost of the claim yourself. Don't be fooled! Require all receipts, checks, receipts and other documents fixing the losses of the insurer. His duty by law is to note the spending of every penny. If you notice that the amount is not true, then feel free to file a motion to reduce the amount of the claim;
- Ask the victim of the accident to come to the meeting. It is possible that he will be able to help you in some way. It is not uncommon for the victim to receive one compensation, and a completely different figure was put in the documents;