1.12 million yuan artificial limb compensation case
Court: Beijing No. 2 Intermediate People’s Court
Lawyer: Lawyer Xu
Law Firm: Beijing Times Jiuhe Law FirmThe appellant (defendant in the original trial) Beijing XXX Machinery Equipment Co., Ltd. is domiciled in XXX, Changping District, Beijing.
The appellant (defendant in the original trial) Beijing Branch of China XXX Property Insurance Co., Ltd., has its domicile in XXX, Xicheng District, Beijing.
The appellee (plaintiff in the original trial) XXX was born on X, month, 198x.
The appellant Beijing XXX Machinery Equipment Co., Ltd. (hereinafter referred to as: Machinery Equipment Company) and the appellant China XXX Property Insurance Co., Ltd. Beijing Branch (hereinafter referred to as: XXX Company) were dissatisfied with the civil judgment of the Beijing Daxing District People's Court in a motor vehicle traffic accident liability dispute and appealed to this court. This court formed a collegial panel to hear this case in accordance with the law, and the trial has now concluded.
In October 2014, XXX filed a lawsuit in the court of first instance, saying: In October 2014, Zhao drove a heavy truck with a special structure from north to south. When he arrived at XXX, Daxing District, Beijing, he crushed me in the crosswalk, causing me injuries. After the accident, I was sent to the Beijing Emergency Rescue Center for treatment. After diagnosis, the injuries were: 1. Hemorrhagic shock; 2. Damage to the left upper limb; 3. Crushing injury to the right foot; 4. Skin laceration to the left external ear. I was admitted to the hospital for treatment on May 24, 2014. In September 2014, the Beijing XX Physical Evidence Identification Center conducted an appraisal. The appraisal opinion was: “1. The appraisee XXX suffered a fifth-level disability after the amputation of his left upper limb, and a tenth-level disability after the amputation of the 3-5 toes of his right foot. Comprehensive compensation is required. The index is 65%. 2. The period of missed work after the injury is 150 days, the nutrition period is 120 days, and the nursing period is 90 days. "It was later confirmed by the Traffic Detachment of the Daxing Branch of the Beijing Municipal Public Security Bureau: Zhao is primarily responsible and I am secondary responsible. After investigation, the vehicle Zhao drove was owned by a machinery and equipment company, and had compulsory traffic accident liability insurance from XXX Company. Insurance companies shall assume insurance liability within the limits of compulsory traffic accident liability insurance.
Here are the requirements: 1. Order the Machinery Equipment Company and XXX Company to pay me 56,587.84 yuan in medical expenses, 4,750 yuan in hospital food subsidy, 11,610 yuan in nursing expenses, 759,707 yuan in disability compensation, 1,223,852 yuan in disability equipment auxiliary expenses, 1,768 yuan in transportation expenses, 2,558 yuan in accommodation expenses, and 50,000 yuan in mental damage compensation. , the appraisal fee is 4,350 yuan, totaling 2,139,582.84 yuan; according to the traffic accident liability determination letter, the other party bears the main responsibility, and according to the 28-divided liability, the other party should compensate 1,735,866.27 yuan;
2. The litigation costs in this case shall be borne by the other party.
The machinery and equipment company argued that there was no objection to the determination of responsibility for the traffic accident. Zhao was an employee of our company and was acting on his job when the accident occurred. The vehicle involved in the accident was registered in the name of our company and was actually owned by our company. Our company was insured. The insurance company would compensate for XXX’s reasonable losses, and our company would be responsible for the shortfall.
The court of first instance found after trial that at 01:23 on May 24, 2014, when Zhao drove a heavy-duty special-structure truck (car number ×××) from north to south to XXX, Daxing District, Beijing, he crushed pedestrian XXX lying in the crosswalk, causing XXX to be injured. Zhao drove away from the scene after the accident. The accident was determined by the Traffic Detachment of the Daxing Branch of the Beijing Municipal Public Security Bureau, with Zhao as the primary liability and XXX as the secondary liability. During the trial of this case, after contacting the traffic control department, the traffic control department believed that based on the verification, Zhao continued to drive away from the scene without noticing that the accident had occurred, and could not determine that there was an escape behavior.
After the accident, XXX paid an outpatient fee of 680 yuan at the Beijing Red Cross Emergency Rescue Center. His injuries were diagnosed by the Beijing Chaoyang Emergency Rescue Center as: 1. Hemorrhagic shock; 2. Damage to the left upper limb; 3. Crushing injury to the right foot; 4. Skin laceration of the left external ear, and in 2014 He was hospitalized in this hospital from May 24th to August 27th of the same year. The actual stay was 95 days, and the hospitalization fee was 50,670.51 yuan. The discharge doctor's instructions were: one month of full leave; one person needed to be accompanied during the period; appropriate physical function exercises; one person to accompany him during the hospitalization; regular outpatient review, and follow-up for discomfort. XXX paid outpatient fees of 4,079.19 yuan at Beijing Chaoyang Emergency Rescue Center, 844.24 yuan at Beijing Tongren Hospital, and 136.90 yuan at Beijing Puren Hospital. XXX paid RMB 1,050 for seven-day care from May 24 to May 30, 2015.
On September 12, 2014, the Beijing XX Physical Evidence Identification Center issued a judicial appraisal opinion. The appraisal opinion was that the amputation of the left upper limb of the appraisee XXX constituted a fifth-level disability, and the amputation of the 3-5 toes of the right foot constituted a tenth-level disability. The comprehensive compensation index was 65%; the period of missed work after the injury was 150 days, the nutrition period was 120 days, and the nursing period was 90 days. XXX paid the appraisal fee of 4,350 yuan.
XXX claimed to pay 500 yuan for assistive devices similar to wheelchairs and provide an invoice, but the mechanical equipment company and XXX company did not approve it.
XXX claimed that prosthetics needed to be installed, and submitted the invoice and "certificate" issued by XX Prosthetics and Orthotics (Beijing) Co., Ltd. (hereinafter referred to as: XX Company). The invoice states that the purchasing unit is XXX, the invoice date is October 10, 2014, and the amount is 62,300 yuan. The main content of the "Certificate" is: Regarding the diagnosis of XXX's disability assistive device (prosthesis), taking into account the patient's age, mobility and other related injuries, in order to try to make up for the impact of amputation on the patient's life, so that the patient can regain some of his ability to take care of himself after the limb is fitted, according to the special needs of the patient's injury, the prosthetic technician recommends that the patient install ordinary adaptive limbs. Upper arm prostheses and orthopedic shoes; the price of upper arm prostheses is 59,800 yuan; the price of orthopedic shoes (one pair of single and cotton) is 2,500 yuan; under normal circumstances, the service life of the main part of the prostheses is about 4 years, and the annual maintenance cost is about 5%-8% of the total price of the prostheses. The service life of orthopedic shoes is 1 year, and patients need to wear prostheses and orthopedic shoes for life. The Machinery Equipment Company and XXX Company do not recognize the above claims and related materials.
During the trial of this case, XXX Company applied for an appraisal of whether XXX needs to wear a prosthesis on his right foot, and if so, the reasonable cost of wearing a prosthetic limb (left upper limb, right foot) for XXX. After random determination by the Beijing Higher People's Court, the court entrusted the Forensic Appraisal Center of Beijing XXXX Rescue Center to conduct the above appraisal. The center issued an "Instruction", the main content of which is: Our center's reviewed appraisal items currently only have the "Beijing Work Injury Assistive Device Configuration Items and Cost Limit Standards", and there is no relevant industry standard for assessing the reasonable cost of wearing prostheses. Standards and national standards. In this type of appraisal, under normal circumstances, if both parties can accept standards similar to those of the entrusted appraisal items, comparative appraisal can be carried out. However, after questioning the appraisal parties, XXX expressed that he did not agree to compare the "Beijing Work Injury Assistive Device Configuration Items and Cost Limit Standards" as a reasonable expense for appraisal; our center decided to return the appraisal case. It was later explained to both parties that after the Beijing Higher People's Court randomly determined again, the court entrusted the Beijing XX Scientific Evidence Appraisal Center to conduct the above appraisal. On July 7, 2015, the center issued a judicial appraisal opinion, in which the "Analysis and Explanation" stated that the appraisee, XXX, had the indications for installing a left upper limb prosthesis after the repair of the left supracondylar stump of the humerus. In view of the current lack of unified standards for the cost assessment of prosthetic limbs related to personal injury in China, and the influence of many factors such as the material of the prosthetic limb, the specific and reasonable cost estimate for the configuration of his left upper limb prosthetic limb was estimated for this appraisal. It is difficult to make an accurate estimate; the post-repair condition of the amputation stumps of the 3rd, 4th, and 5th necrotic toes of the appraised person XXX’s right foot has a certain impact on the walking weight of the right foot, and he has the indications for installing a right foot prosthesis. In view of the current lack of unified standards for the cost assessment of prosthetic limbs related to personal injury in China, and the influence of many factors such as the material of the prosthesis, it is difficult to accurately estimate the specific and reasonable cost of the prosthetic configuration of his left upper limb during this appraisal. The "Appraisal Opinion" part is: 1. The cost of the left upper limb prosthesis of the appraised person XXX: (1) First of all, respect the result of the agreement reached through court mediation between the parties; (2) Secondly, refer to the relevant certificates of the specialized hospital or specialized allocation agency and confirm it through court cross-examination; (3) Finally, refer to the provisions of "Beijing Work Injury Assistive Device Configuration Items and Cost Limit Standards". The appraised person is suitable for a cable-operated upper arm prosthesis, and the cost of the prosthesis is about 23,000 yuan. Whether it is appropriate for the court's reference; 2. The appraised person XXX has the indications for wearing a right foot prosthesis. The cost of the right foot prosthesis: (1) First, respect the results of the agreement reached through court mediation between the parties; (2) Secondly, refer to the relevant certificates from a specialized hospital or a specialized allocation agency and determine it through court cross-examination; (3) Finally, refer to the provisions of the "Beijing Work Injury Assistive Device Configuration Items and Cost Limit Standards". The appraised person is suitable for partial foot prostheses, and the cost of the prostheses is about 12,000 yuan. Whether it is appropriate is for reference in the court hearing. Company XXX did not submit a bill for the appraisal fee and stated that the fee did not require the court to handle it. After the court communicated with the appraisal agency, the staff of the appraisal agency replied that the three options in the above appraisal opinions are applicable in sequence.
It was further discovered that the vehicle driven by Zhao was registered under the name of a machinery and equipment company, and the vehicle had a road transport certificate. Zhao held an A2 driver's license and a road cargo transport driver qualification certificate. After the accident, the machinery and equipment company paid XXX 60,000 yuan in cash. The vehicle that caused the accident was insured with compulsory motor vehicle traffic accident liability insurance and third-party liability insurance with XXX Company. When the accident occurred, it was within the insurance period. The liability limit of the third-party liability insurance is 1 million yuan and does not include deductibles. Company XXX did not agree to bear the liability for compensation within the scope of commercial third party insurance, on the grounds that Zhao drove away and fled, which was not within the scope of the claim.
The court of first instance held that: Anyone who infringes upon a citizen's body and causes harm should bear corresponding civil liability for compensation. In this traffic accident, the traffic control department determined that Zhao was mainly responsible because the vehicle he drove was insured by XXX Company with compulsory motor vehicle traffic accident liability insurance, and the accident occurred during the insurance period. Therefore, XXX Company should first compensate XXX for its reasonable economic losses within the compulsory insurance liability limit. XXX Company claimed that Zhao had escaped and did not agree to pay the commercial third party insurance. Based on the existing evidence, it was inappropriate to determine that Zhao escaped after the accident. Therefore, the court did not accept this defense of XXX Company. For XXX's reasonable losses, XXX Company shall bear civil liability for compensation according to the liability proportion within the liability limit of commercial third party insurance for the portion that is still insufficient after compensation within the compulsory insurance coverage. If it is still insufficient, because Zhao was performing his duties at the time of the accident, his unit, the machinery and equipment company, should bear civil liability for compensation according to Zhao's liability for the traffic accident, and the portion already paid in advance can be deducted accordingly. The medical expenses claimed by XXX were calculated by the court as 56,410.84 yuan based on the bills submitted. As for the disability compensation claimed by XXX, the compensation should be calculated according to Beijing’s urban resident standards. The court believed that based on the evidence in this case, it could be determined that XXX’s income came from non-agricultural industries. Therefore, the court accepted the claim and the specific amount was 570,830 yuan. The court confirmed the 500 yuan for medical equipment required by XXX in the fee for assistive devices for disabilities; the replacement and maintenance costs for prosthetics and orthopedic shoes were calculated by the court based on the appraisal conclusion and with reference to relevant certificates from the specialized allocation agency, which was 1,127,249.18. As for the appraisal fee claimed by XXX, the court confirmed it to be 4,350 yuan based on the bill submitted by him. The mental damage solatium requested by XXX will be determined at the discretion of the court at 40,000 yuan. There is insufficient evidence for the property damage requested by XXX, and the court will not support it.
Accordingly, the court of first instance relied on Article 6, Article 16, and Article 22 of the Tort Liability Law of the People's Republic of China and Article 76, Paragraph 1 of the Road Traffic Safety Law of the People's Republic of China. stipulates that the judgment in December 2015 is as follows: 1. Within ten days after the judgment takes effect, the Beijing Branch of China XXX Property Insurance Co., Ltd. shall compensate XXX for medical expenses and hospital meals within the scope of compulsory motor vehicle traffic accident liability insurance. Subsidies and nutrition fees total 10,000 yuan, lost work fees, nursing fees, disability compensation (including the living expenses of dependent Li Yixiu), disability assistive device fees, transportation fees, and mental damage consolation benefits total 110,000 yuan, and the total of the above is 120,000 yuan;
2. Within ten days after the judgment takes effect, the Beijing Branch of China XXX Property Insurance Co., Ltd. will compensate XXX for medical expenses, hospitalization food subsidies, nutrition expenses, lost work expenses, nursing expenses, disability compensation (including the living expenses of dependent Li Yixiu), disability assistive device expenses, and transportation expenses within the scope of commercial third party insurance, totaling 1 million yuan;
3. Within ten days after the judgment takes effect, Beijing XXX Machinery Equipment Co., Ltd., in addition to the compensation already made, will compensate XXX for medical expenses, hospitalization food subsidy, nutrition expenses, lost work expenses, nursing expenses, disability compensation (including the living expenses of dependent Li Yixiu), disability assistive device expenses, and transportation expenses, totaling two hundred and two thousand three hundred and ninety-nine yuan and ninety-seven cents;
4. Reject XXX’s other claims.
After the verdict, both the Machinery Equipment Company and XXX Company were dissatisfied and appealed. The reasons for the appeal of the Machinery Equipment Company were: the facts found in the original judgment were unclear, the evidence was insufficient, the legal basis was insufficient, and the handling was unfair. 1. The proportion of liability our company bears in commercial third party insurance is too high. 2. The original judgment had insufficient basis for determining whether XXX needed to wear a prosthetic limb, and insufficient basis for determining the cost and maintenance costs of prosthetic limbs and orthopedic shoes. 3. XXX’s mother does not meet the criteria for being a dependent. 4. There was insufficient evidence for the original judgment to calculate XXX’s disability compensation in accordance with the standards for urban residents in Beijing. The reason for XXX Company’s appeal was that the original judgment was wrong in determining the facts and applying the law for the commercial insurance part of the compensation. Our company believed that the driver responsible for the accident was a hit-and-run act. According to the insurance contract of commercial third party insurance, it was an exemption clause and should not be compensated. Therefore, they both requested the court of second instance to change the judgment in accordance with the law. Party XXX believes that the traffic accident liability document has determined that the driver drove away without noticing, rather than escaping. Therefore, the insurance company should compensate under the commercial third party insurance. The cost of installing prostheses and other expenses were also appraised by the relevant departments entrusted by the court and complied with the legal provisions. They now agree with the original judgment.
After the trial, this court found that during the trial of the original court, after contacting the traffic control department, the traffic control department believed that based on the verification, the driver Zhao continued to drive away from the scene without realizing that the accident had occurred, and it could not be determined that there was an escape behavior. During the trial, the appellants Machinery Equipment Company and XXX Company did not provide new evidence to substantiate their appeal claims. The remaining facts in this case were no different from those found by the original court.
The above facts are supported by evidence such as traffic accident certificates, hospitalization medical records, medical bills, diagnosis certificates, unit certificates, medical device invoices, certificates and invoices from XX Company, 2 appraisal opinions, appraisal fee bills, proof of residence, receipts, insurance policies, investment forms, and the court statements of both parties.
This court believes that: the focus of the dispute between the two parties in this case is whether the original judgment’s liability determination and handling of the compensation requested by XXX party is appropriate.
Chinese law stipulates that parties have the responsibility to provide evidence to prove the facts on which their claims are based. If there is no evidence or the evidence is insufficient to prove the party's claim, the party with the burden of proof shall bear the adverse consequences. It also stipulates that if the infringed party is also at fault for the damage, the liability of the tortfeasor can be reduced. In this case, the public security and traffic management department determined that the truck driver Zhao was the primary liability and XXX was the secondary liability for the traffic accident between the two parties. During the trial, both parties recognized that Zhao was performing his duties as the driver responsible for the accident, so the machinery and equipment company should bear the liability for compensation. Since the vehicle responsible for the accident was insured by XXX Company with compulsory motor vehicle traffic accident liability insurance and commercial third-party insurance, and the accident occurred during the insurance period, XXX Company should first compensate for XXX’s reasonable economic losses within the limit of compulsory insurance liability. For the part that is still insufficient after compensation within the scope of compulsory insurance, XXX Company shall bear civil liability for compensation within the liability limit of commercial third party insurance according to the liability ratio. If it is still insufficient, the machinery and equipment company should bear civil liability for compensation according to traffic accident liability. The court of first instance handled the matter appropriately in accordance with legal provisions and liability principles.
Focusing on the key issues in dispute between the two parties in this case, this court discussed as follows: First, the appellant Machinery Equipment Company appealed and believed that the proportion of liability borne by the company in the commercial third-party insurance was too high and the original judgment did not provide enough basis for determining whether XXX needed to wear a prosthetic limb and the cost of prosthetic limbs and orthopedic shoes and maintenance costs. Based on the fact that XXX was injured in the accident and was identified as disabled by relevant agencies, and the driver responsible for the accident bore the main responsibility, the original court's determination of this section was appropriate in accordance with relevant legal provisions and should be upheld. Second, regarding the appeal by the appellant XXX Company that the driver involved in the accident committed a hit-and-run act, and according to the insurance contract of commercial third party insurance, it is an exemption clause and should not be compensated. During the trial, the court of first instance also contacted the traffic control department and responded that based on the verification, Zhao continued to drive away from the scene without noticing that the accident had occurred, and it could not be determined that there was an escape act. Therefore, the appeal ground of the appellant XXX Company is insufficient. The court of first instance comprehensively considered the liability for the accident and the current situation of the victim, which supported XXX’s reasonable losses, reflected the principle of caring for the victim, and reflected the original legislative intent of the law. Therefore, the determination and handling made based on the facts, evidence and legal provisions of this case were not inappropriate, and this court should uphold it. As analyzed above, the appeals of the Machinery Equipment Company and XXX Company are untenable, and this court will not support their appeals.
Here, this court needs to further point out that the accident dispute between the mechanical equipment company and XXX is something that neither party wants to happen. While this court expresses its understanding to the victim’s family, it also hopes that both parties can understand and accommodate each other, have more understanding and tolerance, and jointly eliminate misunderstandings and contradictions between each other, so as to promote social harmony and stability. In summary, the original judgment was not improper and should be upheld. The appeal requests of the Machinery Equipment Company and XXX Company are untenable and should be rejected. Accordingly, in accordance with the provisions of Article 170, Paragraph 1, Item (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was upheld.
This judgment is final.
May 20, 2016
Because the judgment involves the privacy of personal information, all names in the article are pseudonyms.