Article 76 If a motor vehicle accident causes personal injury or property loss, the insurance company shall make compensation within the liability limit of compulsory motor vehicle third party liability insurance. The part exceeding the liability limit shall be liable for compensation in the following ways:
(a) traffic accidents between motor vehicles, the party at fault shall bear the responsibility; If both parties are at fault, they shall share the responsibility according to their respective fault proportions.
(two) the motor vehicle and non motor vehicle drivers and pedestrians have traffic accidents, and the motor vehicle party shall bear the responsibility; However, if there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and the motor vehicle drivers have taken necessary measures, the responsibility of the motor vehicle party shall be reduced.
The loss of traffic accidents is intentionally caused by non-motor vehicle drivers and pedestrians, and the motor vehicle side is not responsible.
The specific responsibility depends on how the court decides. In this case, you need appropriate compensation, but the responsibility will be reduced.
Related cases:
On May 9, 2004, a truck of a company in this city ran down Ms. Jin, who was crossing the road, on the way from north to south along Siping route. Ms. Hou Jin died on May 20, 2004 due to ineffective rescue treatment.
In the meantime, the traffic patrol detachment of Hongkou Public Security Bureau of Shanghai Public Security Bureau determined that Ms. Jin was mainly responsible for the accident because she did not take the crosswalk. Zhu, the defendant driver, took secondary responsibility for the accident because of improper avoidance. On June 9, 2004, Ms. Jin's family and the company's driver failed to reach a road traffic accident compensation agreement. On the same day, the traffic patrol detachment of Hongkou Public Security Bureau of Shanghai Public Security Bureau issued a mediation conclusion on road traffic accident damage compensation.
Ms. Jin's husband, son and parents took the company to court, demanding that the defendant compensate Ms. Jin for her death compensation of 297 yuan, 340 yuan and the deceased's parents' support 167 100 yuan, the deceased's son's support/88 yuan, 320 yuan and funeral expenses1kloc-0/080 yuan, and rescue and deal with the deceased. Later in the trial, four
The defendant argued that the deceased was mainly responsible for the traffic accident in this case and the compensation ratio should be determined according to the size of the fault. If he paid the death compensation for the four plaintiffs, he should not compensate the mental damages for the four plaintiffs. In addition, because Ms. Jin's parents are not people without labor and financial resources, the defendant does not agree to compensate the parents of the deceased for their support. The two sides reached an agreement on other compensation.
In response to the defendant's defense, the four plaintiffs provided the expert opinion of the forensic laboratory of the Public Security Bureau of liyang city, Jiangsu Province and the certificate of the local villagers' committee of Liuqian Village in Daitou Town. The appraisal opinion proved that the deceased's father had a history of heart disease for many years, and his heart function was Grade II (there were symptoms during heavy manual labor, and manual labor was slightly limited). The village Committee proved that he basically lost his ability to work and had no other source of income. At the same time, it provides the certificates issued by the urban police station of liyang city Public Security Bureau and the community neighborhood committee in the northern suburb of Licheng Town, proving that the deceased's mother was unemployed and had no financial resources.
Focus of controversy
The traffic patrol department determines that the defendant bears secondary responsibility, and whether the compensation ratio is compensated according to secondary responsibility.
Whether the alimony of Ms. Jin's parents should be paid.
The plaintiff demanded repeated compensation for death compensation and mental damage compensation.
court decision
The court answered three key questions in this case.
After trial, the court held that in traffic accidents between motor vehicles and pedestrians, the victims should be compensated as much as possible materially. The defendant's defense reason should determine the proportion of compensation according to the size of responsibility, which was not adopted by the court. According to the actual situation of this case, the defendant should bear 60% of the total compensation in this case.
With regard to the maintenance of the deceased's parents, according to the appraisal opinion of the Forensic Medicine Department of the Public Security Bureau of liyang city, Jiangsu Province, it is enough to conclude that his father's physical labor is slightly restricted and belongs to a certain ability to work, so the compensation amount is determined as 1.89 million yuan as appropriate. The maintenance of the deceased's mother was provided to the court because she had no job and no financial resources, and the court confirmed this.
The defendant compensated the four plaintiffs for mental distress 1 10,000 yuan because the family of the deceased suffered from a fatal traffic accident.
Lawyer's point of view:
The first-instance judgment of this case applied the provisions of the Road Traffic Safety Law and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, which were implemented on May 1 this year, and made a compensation judgment different from the original application of the Measures for Handling Road Traffic Accidents in the State Council, which reflected the legislative intention of giving special protection to pedestrians in traffic accidents involving people and vehicles.
1, on compensation ratio. Article 35 of the original Measures for Handling Road Traffic Accidents stipulates: "The person responsible for traffic accidents shall bear the corresponding liability for damages according to the responsibility for traffic accidents." This article establishes the basic principle of road traffic accident compensation in China, that is, the principle of compensation according to responsibility. The second item of Article 76 1 of the Road Traffic Safety Law, which came into effect on May 1 this year, applies the concept of fault in civil law to the part of motor vehicle and pedestrian traffic accidents that is beyond the responsibility of insurance companies, and establishes the principle of imputation of presumed fault. This is a major change in the traffic accident compensation principle. In this case, although Ms. Jin was mainly responsible for the traffic accident, the judge held that the liability for the accident and the liability for compensation were not the same thing. According to the provisions of Article 76 of the Road Traffic Safety Law, if a motor vehicle and a non-motor vehicle driver or pedestrian have a traffic accident, the motor vehicle party shall bear the responsibility; However, if there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and the motor vehicle drivers have taken necessary measures, the responsibility of the motor vehicle party shall be reduced. Because Ms. Jin, the deceased in this case, was at fault as a pedestrian's illegal behavior, and there was a causal relationship with the accident, her fault was considered when determining the compensation ratio, but the defendant's motor vehicle was still liable for 60% of the total compensation.
2. About compensation for mental damage. The compensation for mental damage is controversial in judicial practice, especially whether the compensation for mental damage should be paid if the death compensation has been paid in traffic accident compensation. According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Tort, compensation for mental damage includes the following ways: (1) If disability is caused, disability compensation shall be given; (2) If death is caused, it shall be death compensation. On this basis, some people think that in the case of death compensation for personal injury, if death compensation has been paid, mental damages should not be paid again. The defendant in this case holds this view and claims not to pay mental damage compensation. Huang Songyou, vice president of the Supreme People's Court, disagrees with this view. He believes that1May, 1994 12 The People's Republic of China (PRC) State Compensation Law passed at the Seventh Session of the Eighth National People's Congress made it clear for the first time that the connotation of death compensation is compensation for the loss of income of the victims. This is not a kind of spiritual comfort. If personal injury caused by infringement causes serious consequences, it shall pay spiritual damages. Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, which was officially implemented on May 1 this year, also stipulates that if the victim or the close relatives of the deceased suffer mental damage and the compensation obligee requests the people's court for compensation for mental damage, it shall be determined according to the Interpretation of the Supreme People's Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts. In the trial of this case, the judge fully considered the express provisions of the Supreme People's Court's judicial interpretation. After the defendant was awarded the death compensation of 178404 yuan, the defendant was also awarded the mental damages of 10000 yuan.
I suggest you try to make a settlement, so the compensation amount may be less than the court's judgment.