Recovering damages from the at-fault driver of a road traffic accident: how to recover the shortfall above the payout

Clients come to us with this issue when the car has been repaired at their own expense and the compulsory motor third party liability insurance payout covered only part of the costs, or when the harm is of a kind the insurer does not compensate by law. Usually the person has already received a letter or money from the insurer and sees that the result does not match the actual expenses. The next task is to work out to whom and in what procedure the remaining shortfall should be claimed.

The article covers what is included in the claim besides the cost of repairs, how the insurance procedure differs from the non-insurance one, who is liable — the driver, the owner or the employer, which documents to collect and how the pre-action and court stages proceed. The calculation of the shortfall, the types of claims and the enforcement of the judgment are dealt with separately. The material is aimed at a private client and an entrepreneur from Almaty who is facing this situation for the first time.

Recovering damages from the at-fault driver of a road traffic accident: when the insurance payout is not enough

Under a compulsory motor third party liability insurance contract, the insurance organisation is liable to the injured party within the limits of the insured sum and the terms of the contract. The payout is calculated under the rules of compulsory insurance and does not always match the car owner's actual repair costs or the loss of market value. Anything above what the insurer has paid is treated by law as the liability of the person who caused the harm.

Recovering damages from the at-fault driver of a road traffic accident is based on the general rules of tort liability: the person who caused the harm must restore the injured party's financial position in full. The shortfall between the insurance payout and the actual damage consists of the cost of restorative repairs at market prices, the loss of market value, the costs of towing, parking, expert examination and other documented expenses.

• an independent assessment report on the cost of restorative repairs at market prices
• report on the loss of the vehicle's market value
• documents on towing, parking and storage of the vehicle
• specialist's report on hidden damage identified after dismantling
• receipts and payment slips for expenses actually incurred
• documents on the payment made by the insurer under compulsory civil liability insurance of vehicle owners

What is included in recovery of damages from the person at fault in a road traffic accident besides repairs

If the insurance payment is not enough to fully compensate the harm, the difference can be recovered from the tortfeasor under the Civil Code of the Republic of Kazakhstan. Insurance compensation covers only part of the losses; the full extent of the harm is determined under the rules on obligations arising from causing harm. The injured party is entitled to claim from the person at fault what remains outside the insurer's payment. The claim is based on documents confirming the amount of each sum.

The basis is the cost of restorative repair taking into account the damage from the specific incident, and not only the insurer's calculation. Loss of market value is claimed: the reduction in the vehicle's market price due to repair work and traces of damage remains even after high-quality restoration. Expenses include towing and parking — moving the damaged vehicle from the scene of the incident and keeping it until inspection or repair. These sums are confirmed by contracts, acts and payment documents.

• cost of restorative repair taking into account the full extent of damage
• loss of the vehicle's market value after repair
• costs of towing and parking the damaged vehicle
• lost profit in a road traffic accident for an entrepreneur during downtime
• supporting documents: contracts, acts, payment documents, income calculations

Recovery of damages from the person at fault in a road traffic accident: comparison of the insurance and non-insurance procedure

A claim for compensation of harm after a road traffic accident falls into two parts. Within the insurance sum it is borne by the insurance organisation under compulsory civil liability insurance of vehicle owners. Above that sum the claim is addressed directly to the tortfeasor — the person at fault in the road traffic accident.

The difference between an insurance claim and a direct claim lies in the addressee and the set of documents. The insurer is approached with an application for payment and attached documents on the road traffic accident, the damaged property and the expenses. The person at fault is approached with a claim for compensation of the uncovered part of the damage or harm not covered by insurance.

• Application for insurance payment — addressee: insurance organisation under compulsory civil liability insurance of vehicle owners.
• Claim for compensation above the insurance sum — addressee: the person at fault in the road traffic accident.
• Documents on the road traffic accident: information on the participants, vehicles and circumstances of the incident.
• Documents on the harm: report on damage, calculation of restorative costs, loss of market value.
• Documents on expenses: confirmation of towing, storage, expert examinations, other forced costs.
• Correspondence and replies from the insurer — for comparing the covered and uncovered part of the harm.

The table shows the allocation of the claim between the insurer and the person who caused the harm; the specific list of documents depends on the circumstances of the road accident.

Who is liable to compensate for damage caused by the person at fault in a road accident: the driver, the owner, the employer

If the insurance payment is not enough to fully compensate for the harm, the difference can be recovered from the person who caused the harm under the Civil Code of the Republic of Kazakhstan. But the person who caused the harm and the driver behind the wheel are not always the same person. The proper defendant may be the driver himself, the owner of the car or the employer.

As a general rule, harm caused by a source of increased danger is compensated by its owner — the person using the car on a lawful basis: the owner, the lessee, the trustee, the person driving the car under a power of attorney. If the person behind the wheel was not the owner but a lawful possessor, that person will be liable, not the one named in the registration certificate.

• the driver, if he is the lawful owner of the car
• the owner or other lawful possessor under a power of attorney, lease or instruction
• the employer, if the trip is connected with employment duties
• the person to whom the vehicle was transferred under a contract and who actually uses it
• the insurer, within the limits of the insurance payment under compulsory insurance

Documents for recovering damages from the person at fault in a road traffic accident: what to collect before making a claim

To claim from the person at fault the amount exceeding the payment under compulsory third-party liability insurance, a set of documents for recovering damages from the person at fault in a road traffic accident is required. It must be collected before making a claim: the burden of proving the fact of harm, its extent and the causal link lies with the injured party. Without properly executed documents, the claim has no foundation.

The core document is a damage assessment report by an independent valuer: it records the extent of the damage, the types of repair work and the cost of restoration. Attached to the report are the vehicle documents confirming the right of possession, and documents on expenses — for towing, storage, diagnostics and repair. If part of the costs has been covered by the insurance payment, this is shown separately.

• Materials on the fact of the road traffic accident: the accident scene diagram, explanations of the participants, details of the drivers and vehicles.
• A damage assessment report prepared by an independent valuer, with a calculation of the cost of restorative repair.
• Vehicle documents: registration certificate, documents confirming the right of possession.
• Confirmation of expenses: towing, storage, diagnostics, repair, other costs.
• Correspondence with the insurer: application, notifications, replies, the insurance payment statement.
• Documents confirming the identity and status of the claimant.

The insurance payment covers only what is provided for under compulsory third-party liability insurance, and the court awards the difference against the tortfeasor under the general rules of the Civil Code — therefore the position is built not on a dispute with the insurer, but on proving the full extent of the harm.

Pre-trial procedure: negotiations and a claim for recovering damages from the person at fault in a road traffic accident

A claim for recovering damages from the person at fault in a road traffic accident is a written demand to pay the difference between the actual extent of the harm and the insurance compensation received. Under the Civil Code of the Republic of Kazakhstan, if the insurance payment is insufficient for full compensation of the harm, the difference is recovered from the tortfeasor. Pre-trial settlement begins with sending the person at fault a claim with a calculation of the amount and copies of supporting documents.

The claim states: to whom and from whom it is addressed, the circumstances of the road traffic accident with reference to documents from the competent authorities, details of the insurance payment, the calculation of the uncovered difference and the bank details for payment. Copies of the valuer's report, payment documents, the road traffic accident report and confirmation of ownership of the damaged property are attached.

• A reference to the insurance statement and the amount of compensation actually received.
• The calculation of the difference with the independent valuation report attached.
• A list of the attached documents indicating the number of pages.
• The method and address for sending a reply, a reasonable period for payment.
• A warning that the amount and court costs will be recovered through the court in the event of refusal.

Recovering damages from the person at fault in a road traffic accident through the court: jurisdiction and procedure

A claim for recovering damages from the person at fault in a road traffic accident is heard by the court under the jurisdiction rules of the Civil Procedure Code of the Republic of Kazakhstan. A pre-trial claim to the person at fault is not required by law, but it shows the court that an attempt was made to settle the dispute. As a general rule, the claim is filed at the place of residence of the defendant — an individual — or at the registered address of a legal entity. If there are several defendants in different localities, the claimant may choose the court at the place of residence or location of any of them.

The Civil Procedure Code of the Republic of Kazakhstan also provides for alternative jurisdiction in claims for compensation of harm, including at the place where it was caused; its conditions should be checked before filing so that the claim is not returned. This matters if the person at fault is registered in another region, while the evidence and witnesses are near the scene of the accident.

• a copy of the statement of claim for the defendant and third parties;
• a document confirming the identity of the claimant, or the registration certificate of a legal entity;
• documents relating to the traffic accident: the protocol, the order, the accident scene diagram;
• an independent assessment report on the amount of damage;
• the insurer's documents on payment under compulsory third party liability insurance or on refusal;
• the receipt for payment of the state duty and the representative's power of attorney.

The amount of damages recoverable from the person at fault in a traffic accident: how the court calculates the difference

If the insurance payment is not enough to fully compensate for the harm, the difference can be recovered from the person who caused the harm under the Civil Code of the Republic of Kazakhstan. The amount of damages recoverable from the person at fault in a traffic accident is based on the actual cost of repairing the car, not on the insured sum. The court establishes what expenses the injured party incurred and whether they are confirmed by documents.

The key evidence is the valuer's report on the market value of the repair work. If the parties dispute the pre-trial report, the court orders a forensic examination — it is carried out by the Centre for Forensic Examinations of the Ministry of Justice of the Republic of Kazakhstan or by a licensed forensic expert. Wear and tear on parts is taken into account only where it is justified and does not deprive the injured party of full compensation. Expenses are confirmed by work orders, receipts and completed work certificates.

• the valuer's report on the cost of repair work
• the forensic examination report ordered by the court
• the inspection report and the protocol on an administrative offence
• work orders, receipts and certificates of completed repair work
• documents on the insurance payment and its amount
• calculation of loss of commercial value and other confirmed expenses

Recovering damages from the person at fault in a traffic accident: types of claims and their specifics

The types of claims for recovering damages from the person at fault in a traffic accident differ in what has to be proved. Under an obligation arising from causing harm, compensation covers property losses not covered by the insurance payment under compulsory third party liability insurance, and personal non-property rights where they have been infringed. Each claim is considered separately: one is confirmed by the insurer's documents, while another requires a separate expert examination.

Loss of commercial value is the difference between the market price of the car before the accident and after the repair work, caused by traces of bodywork intervention. It is proved by a specialist's report taking into account the age, mileage and nature of the damage.

• Repair: inspection report, report on the cost of repair, work order, receipts for parts.
• Loss of commercial value: valuation report before and after repair, title documents for the car.
• Associated expenses: contracts, receipts, waybills, confirmation that the expenses were unavoidable.
• Lost profit: income statements, contracts that were not performed because of the downtime.
• Moral harm: only if health was harmed in the traffic accident; it is not awarded for damage to the car.

The list is not exhaustive: the composition of claims depends on the circumstances of the specific case.

Enforcement of the judgment: how to recover damages from the person at fault in a road traffic accident

If the insurance payment is not enough to fully compensate for the harm, the difference can be recovered from the tortfeasor under the Civil Code of the Republic of Kazakhstan. Once the court judgment enters into force, a writ of execution is issued, which is submitted to a court enforcement officer at the place of residence or location of the debtor or their property.

The procedure depends on the enforcement officer. A private court enforcement officer acts under the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Court Enforcement Officers": accepts the document, initiates proceedings, and notifies the debtor of the voluntary period. If the debt is not repaid, measures of compulsory enforcement are applied.

• Submission of the writ of execution to the court enforcement officer
• Initiation of enforcement proceedings and notification of the debtor
• Requests to the Legal Cadastre, road police, banks and tax authorities
• Seizure of identified property and funds in accounts
• Deduction from the debtor's wages and other income
• Restriction on the debtor's departure from Kazakhstan until the debt is repaid

Mistakes an entrepreneur makes when recovering damages from the person at fault in a road accident

An entrepreneur whose car was damaged in a road accident often loses the right to the difference between the actual damage and the payout under compulsory third-party motor liability insurance because of mistakes made at an early stage. Understating the claim in the assessment — including only visible damage, without hidden defects, the market cost of repairs and loss of commercial value — sets a ceiling on the claim, and the difference above the payout is then hard to prove.

Lost profit from using the car in business (haulage, delivery, business trips) is confirmed by waybills, contracts, acts and correspondence. Without documents, the court refuses to award it. The wrong defendant: the difference above the compulsory third-party motor liability insurance limit is recovered from the person who caused the harm, not from the insurance company. A refusal also follows from the absence of supporting documents — a calculation, a valuation report, payment documents for the repairs. The general limitation period is three years (Article 178 of the Civil Code of the Republic of Kazakhstan), counted from the date when the injured party learned of the violation of their right.