♢ Case index: Zhang Dahai, Peng Yihao, Ping An Finance and Insurance Beijing Branch Motor Vehicle Traffic Accident Liability Dispute Case [(2021) Beijing 0108 Minchu No. 46158]
♢ Referee’s summary: nucleic acid testing expenses incurred by family members in the hospital for taking care of Zhang Dahai are the necessary expenses incurred in the hospital in accordance with the epidemic prevention requirements of the new crown epidemic. This hospital will support it. This fee should be included in the death and disability compensation item.
Beijing Haidian District People's Court
Civil Affairs Judgment
(2021) Beijing 0108 Minchu No. 46158
Plaintiff: Zhang Dahai, male, born on February 14, 1969, Han nationality , an individual driver, living in Haidian District, Beijing.
Attorney for litigation : Wang Ailian, lawyer of Beijing Guohui Law Firm.
defendant: Peng Yihao, male, born on June 20, 2001, Han nationality, registered residence in Shangshui County, Henan Province.
defendant: Beijing Branch of China Ping An Property Insurance Co., Ltd., domicile, 15th Floor, No. 23, Financial Street, Xicheng District, Beijing.
person in charge: Cao Yang, general manager.
Attorney for litigation: Xu Lianli, lawyer of Beijing Zhenrong Law Firm. After this court filed the case of a motor vehicle traffic accident liability dispute involving the plaintiff Zhang Dahai, the defendant Peng Yihao, and the Beijing Branch of China Ping An Property Insurance Co., Ltd. (hereinafter referred to as Ping An Insurance Co., Ltd. ), after the case was filed, the ordinary procedure was applied in accordance with the law, and the judge Li Hongyu was tried alone, and the trial was held in a public trial. The plaintiff Zhang Dahai and his entrusted litigation agent Wang Ailian, and the defendant Ping An Insurance Company entrusted litigation agent Xu Lianli to participate in the litigation. The defendant Peng Yihao served the court summons without appearing in court to participate in the lawsuit. The trial of this case has now ended.
Zhang Dahai filed a lawsuit with this court: 1. Order the defendant to compensate the plaintiff for medical expenses of 124,203.41 yuan, hospitalization food subsidy 3,100 yuan, nutritional expenses of 3,000 yuan, nursing expenses of 12,030 yuan, loss of work fee of 58,800 yuan, disability compensation 241,371 yuan (including dependents living expenses 16,365 yuan), appraisal fee 5,450 yuan, transportation fee of 3,000 yuan, mental damage compensation 20,000 yuan, property loss fee of 1,360 yuan, totaling 472,314.41 yuan. After deducting the 18,000 yuan advance payment by the defendant, claiming 317,837.21 yuan. The above losses shall be compensated by the defendant Ping An Insurance Company within the limit of compulsory traffic insurance liability, and the insufficient part shall be borne by Ping An Insurance Company within the scope of commercial three-party insurance, and if it is still insufficient, Peng Yihao shall bear; 2. Litigation fees and announcement fees shall be borne by the defendant. Facts and reasons: At 22:35 on October 17, 2020, at the light mark No. T10019, Jushan Road, Haidian District, Beijing, Peng Yihao drove the Beijing X** ordinary two-wheeled motorcycle with Ping An Insurance Company to take out compulsory traffic insurance and 1 million yuan commercial three-part insurance from the north to the south. The front of the vehicle was in contact with me in the motor vehicle lane, causing me to be injured. The accident was determined by the traffic management department that Peng Yihao and I were equally responsible.
Ping An Insurance Company argued that our company has no objection to the facts and the determination of responsibility. The vehicle driven by Peng Yihao was insured with compulsory traffic insurance and 1 million yuan of commercial insurance without deductible. Our company has compensated the plaintiff 18,000 yuan for medical expenses within the compulsory motor vehicle insurance limit. Losses exceeding compulsory traffic insurance should be compensated at a rate of 50%. Zhang Dahai claimed that medical expenses not within the scope of medical insurance do not agree to compensation, the nursing fee standards are too high, the evidence of loss of work and property damage is insufficient, the mental damage compensation is too high, the appraisal fee does not fall within the scope of insurance compensation, and the transportation fee is too high.
After trial, the facts determined by this court are as follows: At 22:35 on October 17, 2020, at the light mark No. T10019, Jushan Road, Haidian District, Beijing, Peng Yihao drove the Beijing X** ordinary two-wheeled motorcycle with Ping An Insurance Company's compulsory traffic insurance and 1 million yuan commercial three-part insurance from north to south. The front of the vehicle contacted Zhang Dahai, a pedestrian in the motor vehicle lane, causing Zhang Dahai and Peng Yihao to be injured and the motorcycle was damaged.The accident was determined by the traffic management department that Zhang Dahai and Peng Yihao were equally responsible. After the
accident, Zhang Dahai went to the Aerospace Center Hospital for treatment and was hospitalized in the hospital from October 18 to November 6, 2020 for a total of 19 days. Discharge diagnosis: medium-sized open craniocerebral injury, traumatic epidural hematoma, cerebral contusion and laceration, traumatic subdural hemorrhage, skull fracture, , intracranial gas accumulation, cerebrospinal fluid leakage, calculator pneumonia , scalp contusion, gout, left acromioclavicular dislocation , rib fracture.
Zhang Dahai continued to be hospitalized in the Aerospace Center Hospital from November 6, 2020 to November 18, 2020, for a total of 12 days. Discharge diagnosis: left acromioclavicular dislocation, cervical disc herniation, brain contusion and laceration, traumatic subdural hemorrhage, skull fracture, accumulated pneumonia, scalp contusion, rib fracture, gout, and hearing loss in the left ear.
Beijing Zhongheng Judicial Appraisal Institute issued an appraisal opinion on May 10, 2021. The appraisal opinion: 1. The softening foci of the right frontotemporal lobe of the person being identified, and it has mild intelligence disorders (light). The mild restriction of the activity ability related to daily life is Level 10 disability ; the left shoulder joint movement disorder is 15% (comprehensive compensation index). 2. The examined person Zhang Dahai lost work period 180 days, nursing period 60 days, and nutrition period 60 days.
Ping An Insurance Company does not agree with the appraisal opinion and does not apply for a re-appraisal.
Zhang Dahai's medical expenses totaled 124,203.41 yuan, of which Zhang Dahai paid 106,203.41 yuan by himself, and Ping An Insurance Company compensated 18,000 yuan within the compensation limit for compulsory motor vehicle insurance medical expenses.
Zhang Dahai paid the appraisal fee of 5,450 yuan on his own.
Zhang Dahai claimed 31 days of hospitalization food subsidy for 100 yuan per day and 60 days of nutrition for 50 yuan per day.
Zhang Dahai claimed that the transportation costs incurred due to review and identification, and provided some transportation costs documents.
Zhang Dahai claimed a 60-day nursing fee, and provided a nursing fee invoice of 2,430 yuan from October 21, 2020 to November 3, 2020, saying that the family will take care of the other 48 days, and the claim is based on 200 yuan per day.
Zhang Dahai claimed 6 months of lost work fee at 9,800 yuan per month, and provided written testimony from witnesses Chen Zhongcai and Zhang Lei. The main content: Zhang Dahai has been raising cars in Beijing since 2004 and pulled rubble and stone, with a monthly income of 9,800 yuan. After the traffic accident on October 17, 2020, Zhang Dahai has not been to the transportation again.
Zhang Dahai claims disability compensation according to the 2021 standard for the per capita disposable income of residents in Beijing.
Zhang Dahai claims the living expenses of Zhang Zhenglu and Zhu Fengqin according to the 2021 Beijing residents' consumption expenditure standards. He provides: Maoji Town, Tongbai County issued a certificate to the Laozhuang Village Village Committee, which is: Zhang Zhenglu (born on August 15, 1942) and Zhu Fengqin (born on December 10, 1945) have a total of 4 children. The couple is old and weak, has no ability to work, has no source of income, and relies on support for their children.
Zhang Dahai claimed property damage expenses, saying that it included 500 yuan in clothing loss expenses and 860 yuan in nucleic acid testing expenses for family members to take care of in the hospital. He provided 860 yuan in nucleic acid testing expense documents, and did not provide evidence of the damage to the clothes in the accident.
This court believes that according to the provisions of of the Civil Procedure Law of my country, the parties have the right to defend and cross-examine the evidence submitted by the other party. The defendant Peng Yihao in this case was legally summoned by this court and refused to appear in court to respond without a legitimate reason, which is deemed that he had waived the right to defend and cross-examination.
The traffic management department determined that Zhang Dahai and Peng Yihao were equally responsible. The vehicle driven by Peng Yihao was insured with compulsory traffic insurance at Ping An Insurance Company, so Ping An Insurance Company should bear the compensation liability first within the limit of compulsory traffic insurance. Regarding Zhang Dahai's losses exceeding compulsory traffic insurance, this court will refer to his or her fault with Peng Yihao and determine that Peng Yihao bears 50% of the responsibility at its discretion.Because the vehicle driven by Peng Yihao was insured by Ping An Insurance Company of 1 million yuan and excluded commercial three-part insurance, Ping An Insurance Company should also compensate according to the insurance contract within the limit of commercial three-part insurance. Peng Yihao shall bear the liability for compensation for Zhang Dahai's losses beyond the insurance coverage.
Now Zhang Dahai claims the reasons for medical expenses, hospitalization food allowances, nutrition expenses, nursing expenses, disability compensation (including living expenses of dependents Zhang Zhenglu and Zhu Fengqin), and appraisal expenses, and this court supports it. Zhang Dahai advocated that the deadline for lost work is appropriate, but the standards are too high. The witness testimony provided by Zhang Dahai is not enough to confirm his income status and loss of work. For the lost work fee standards, this court refers to the personal income tax tax threshold for . The transportation costs claimed by Zhang Dahai are too high, and this court will make a judgment at its discretion. The mental damage compensation claimed by Zhang Dahai is too high. This court determines the discretionary judgment based on the degree of fault between him and Peng Yihao and the consequences of Zhang Dahai's damage. The nucleic acid testing costs incurred by family members taking care of Zhang Dahai in the hospital are necessary expenses incurred in the hospital in accordance with the epidemic prevention requirements of the new crown epidemic. This hospital will support it. This fee should be included in the death and disability compensation project. Zhang Dahai claimed that clothing loss costs and did not provide evidence, and this court did not support it.
After verification, Zhang Dahai's losses were: medical expenses of 124,203.41 yuan, hospital food subsidy of 3,100 yuan, nutrition expenses of 3,000 yuan, nursing expenses of 12,030 yuan, disability compensation (including living expenses of dependents Zhang Zhenglu and Zhu Fengqin) 241,371 yuan, loss of work fee of 30,000 yuan, appraisal fee of 5,450 yuan, transportation fee of 300 yuan, nucleic acid testing fee of 860 yuan, and mental damage compensation of 7,500 yuan.
Ping An Insurance Company's compensation expenses will be included in the compensation amount first and then deducted from the total compensation amount.
Peng Yihao was legally summoned by this court and refused to respond to the lawsuit without a legitimate reason. This court made a judgment in absentia according to law.
To sum up, in accordance with Article 76 of the " Road Traffic Safety Law of the People's Republic of China", Article 16, Article 22, Article 24, Article 48 of the " Supreme People's Court on the Application of Laws in the Trial of Damage Compensation Cases in Road Traffic Accidents" Interpretation of Article 14, paragraph 1, Article 16, Article 147 of the Civil Procedure Law of the People's Republic of China, and Article 1 of the "Several Provisions of the Supreme People's Court on the Application of the Time Effectiveness of the Civil Code of the People's Republic of China", the judgment is as follows:
1. Beijing Branch of China Ping An Property Insurance Co., Ltd. shall be subject to compulsory traffic insurance within seven days after the entry into force of this judgment Within the amount, Zhang Dahai's medical expenses are compensated 18,000 yuan, nursing expenses, disability compensation (including living expenses for dependents Zhang Zhenglu and Zhu Fengqin), loss of work, transportation expenses, nucleic acid testing expenses, and mental damage compensation; within the limit of commercial three-part insurance, Zhang Dahai's medical expenses, hospitalization food subsidy, nutrition expenses, nursing expenses, disability compensation (including living expenses for dependents Zhang Zhenglu and Zhu Fengqin), loss of work, transportation expenses, nucleic acid testing expenses are compensated 112,182.21 RMB; deducting 18,000 yuan paid by the Beijing Branch of China Ping An Property Insurance Co., Ltd., the total above is 292,182.21 yuan;
2. Peng Yihao compensates Zhang Dahai's appraisal fee of 2,725 yuan within seven days after this judgment takes effect;
3. Dismiss Zhang Dahai's other litigation requests.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the debt interest for the delayed performance shall be doubled in accordance with Article 260 of the Civil Procedure Law of the People's Republic of China.
case acceptance fee is 6,068 yuan (Zhang Dahai has paid in advance), Zhang Dahai will bear 438 yuan, and have been paid; Peng Yihao will bear 5,630 yuan, and will be paid within seven days after this judgment takes effect.
announcement fee is 260 yuan (Zhang Dahai has paid in advance), borne by Peng Yihao and will be paid within seven days after this judgment takes effect.
If you are dissatisfied with this judgment, you may submit an appeal to this court within fifteen days from the date of delivery of the judgment, and submit a copy according to the number of the other party, and appeal to Beijing No. 1 Intermediate People's Court .
Judge Li Hongyu
June 17, 2022
Clerk Wang Zhiwei
Source: China Judgment Document Network
Source: China Judgment Document Network
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