Facts
Zhang Sanxin purchased a BMW car, and was rear-ended by Li Si the next day after picking up the car, and the traffic police determined that Li Si was fully responsible. The accident caused extensive damage to the rear bumper, sensors, and exhaust pipes of the BMW, resulting in a maintenance cost of nearly 100,000 yuan. The vehicle driven by Li Si was insured with compulsory traffic insurance and commercial insurance. The insurance company has already paid for the above repairs.
Zhang San believes that the new car he bought was seriously damaged before he could drive it, and there was a depreciation loss. Therefore, the insurance company is required to compensate within the scope of insurance, and if it is insufficient, the infringer Li Si shall compensate.
Li Si believes that he has already taken out compulsory traffic insurance and commercial insurance, and all the payments should be borne by the insurance company. The insurance company has not said that it will not be liable for depreciation losses.
During the trial of the case, Zhang San applied to the court for a judicial appraisal on the loss of vehicle depreciation, and the appraisal conclusion was that the repair of the damaged parts of the vehicle involved in the case met the requirements for use, but it was difficult to achieve the original assembly quality due to the influence of the maintenance process. Compared with the same type of accident-free vehicles in the second-hand car trading market, the market value of the car is significantly reduced, and the transaction ** is quite different. The car depreciated by 45,000 yuan after the accident.
Insurer perspectives
1. According to the provisions of the commercial insurance clause, the impairment loss caused by the reduction of the value of the vehicle after repair belongs to the commercial insurance liability exemption clause, so it will not be compensated.
2. The vehicle purchased by Zhang San is a car for personal use, not a commodity for sale, and has been repaired without depreciation loss. Moreover, the current laws and regulations do not clearly stipulate the compensation for the depreciation loss of the vehicle, and there is no need to compensate for the depreciation loss.
Court decision
According to the time of purchase, the degree and location of the vehicle, and the appraisal and assessment opinions, combined with the fact that some of the damaged parts of the vehicle have been replaced and repaired, and the loss has been partially compensated, it is decided to support the depreciation of Zhang San's vehicle by 25,000 yuan. The insurance company is ordered to pay the depreciation loss.
Lawyer's statement
The legal basis in favor of depreciation losses.
Vehicle depreciation loss refers to the fact that after an accident, the vehicle is restored to its appearance after professional maintenance and can continue to be used, but its safety, comfort, driving operability and other properties cannot be repaired to before the accident and the value of the vehicle is reduced, and the value of the vehicle after the accident is the difference between the value of the vehicle without an accident under normal use.
The current law and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents do not clearly state that the loss of vehicle depreciation is within the scope of tort compensation for road traffic accidents, but it is also not excluded from the scope of compensation for property losses. However, the Supreme People's Court's Reply to the Proposal on the Issue of Compensation for the Depreciation of Vehicles in Traffic Accidents clearly states that "it is cautious about the compensation for such losses and tends not to support it in principle." In a few special and extreme circumstances, appropriate compensation may also be considered, but it must be carefully considered and strictly grasped."
After the accident of the vehicle, it has been replaced with the old one after repair, and in principle, the depreciation loss of the vehicle is not supported. However, for vehicles for sale, new cars, and vehicles with a small driving mileage, and the performance cannot be restored after maintenance, and the actual loss of vehicles is lost, the depreciation loss can be supported as appropriate.
Whether there is a depreciation loss only at the time of the sale of the vehicle.
In this case, the insurance company argued that Zhang San's vehicle was for his own use, not a vehicle for sale or had not entered the second-hand market, so the depreciation loss did not occur.
In the author's opinion, once a traffic accident occurs, the fact that the car is damaged leads to the depreciation of its market value already objectively exists, and the damage has already occurred. If the claim for damages for depreciation can only be claimed at the time of the sale of the car, it is tantamount to forcing the victim to choose between giving up the car immediately and waiving the damages for the depreciation, which is extremely unfair to the victim. Therefore, compensation for depreciation losses should not be based on the premise that the victim will damage the car immediately.
Who bears the depreciation loss.
According to Article 1213 of the Civil Code and Article 76 of the Road Traffic Safety Law, if a motor vehicle causes property damage due to a traffic accident, the insurance company shall compensate within the scope of compulsory traffic insurance, and the insurance company shall compensate for the insufficient part within the scope of commercial insurance, and if it is still insufficient, the infringer shall compensate.
In practice, insurance contracts are mostly standard contracts, and depreciation losses are often included in the scope of exemption in insurance clauses. This requires the insurance company to make a clear explanation of the relevant clauses to the policyholder orally or in writing when entering into the contract, and to make a reminder sufficient to attract the attention of the policyholder on the insurance policy, insurance policy or other insurance certificates, otherwise the relevant clauses will not be effective. Insurance companies are not necessarily exempt from liability.
Contributed by: Yingke Shanghai Lingshan Capital Market Legal Service Team.
Note: This article and its content represent the views of the author only and are not regarded as formal legal advice or recommendations of Beijing Yingke (Shanghai) Law Firm. If you need ** or a citation, please indicate the source.