Should the plaintiff compensate for lost time when he reaches retirement age and suffers damage?

Plaintiff Wu Jingzhou, male,1born on September 28th, 944.

Defendant Dong, driver of Beijing PS7527.

Defendant Dong Desong, owner of Beijing PS7527.

Defendant: China People's Property Insurance Co., Ltd. Beijing Branch Financial Street Business Department.

Wu Jingzhou, the plaintiff, claimed that at 4: 00 pm on February 65438+2, 2002, I rode an electric tricycle to the Grain Management Institute and was knocked down by the Beijing PS7527 driven by the defendant Dong, which caused me injuries and damaged the electric tricycle. After the injury, I was sent to Fan Ji Hospital for treatment, and then transferred to Xiangcheng No.1 People's Hospital for treatment. The defendant only paid 1000 yuan, and nothing happened. It was found through trial that the defendant, Beijing PS7527, was insured for compulsory insurance in the financial street business department of China People's Property Insurance Co., Ltd., Beijing Branch, and requested the defendant to compensate for the increase of various expenses to 77,836.74 yuan, and the defendant should bear the legal costs.

Defendants Dong and Dong Desong argued that when the accident happened, we had rescued the plaintiff in time and paid several thousand yuan, of which 1600 yuan was issued by the plaintiff and demanded to be returned to us.

The defendant's sales department argued: 1. The cross-examination opinions on the authenticity and responsibility of the accident are the same as those of the first and second defendants. The name of the second defendant in the plaintiff's claim is wrong, and it should be Dong Desong, and the accident vehicle is insured by the respondent. 2. Ask the court to help verify the driver's valid driver's license. Driving without a license or vehicles allowed to drive do not fall within the scope of liability for compulsory insurance. 3. The defendant has paid the plaintiff the treatment fee of 10000 yuan, and the nutrition fee should be within 10000 yuan. The plaintiff has reached retirement age, so the lost time fee should not be compensated, and we will not compensate the appraisal fee, legal fees and indirect losses.

listen to

It was found through trial that at 4 o'clock in the afternoon of February, 2065438 12, the defendant Dong drove the Jing PS7527 owned by Dong Desong and injured the plaintiff Wu Jingzhou, who was riding an electric tricycle home from Xiangtan to Highway Grain Management Office in Xiangcheng. After the plaintiff was injured, he was hospitalized in Fan Ji Hospital and Xiangcheng First People's Hospital for 73 days respectively, and the treatment cost was 852.89 yuan. During the treatment period, the defendants Dong and Dong Desong have paid 1600 yuan, and the defendant's business department paid 1000 yuan. The accident was handled by the traffic police brigade of Xiangcheng Public Security Bureau of Henan Province, and it was found that the defendant Dong was mainly responsible and the plaintiff was secondary. After the plaintiff's treatment, the degree of physical injury was identified by judicial technology, which constituted a grade 10 disability. The defendant Dong Desong's Beijing PS7527 car was insured by the defendant's business department, and the insurance contract was still valid at the time of the accident. According to another investigation, plaintiff Wu Jingzhou was employed by Xiangcheng Horticultural Science and Technology Development Company as a doorman on September 28th, 20 10, with a monthly salary of 1000 yuan. Therefore, the plaintiff asked the three defendants to compensate for the treatment fee of 8,852.89 yuan, the lost time fee of 4,000 yuan, the nursing fee of 2 1000 yuan, the hospital food subsidy of 2 1900 yuan, the nutrition fee of 1800 yuan, the transportation fee of 22,665,438 yuan +0.5 yuan, the appraisal fee of 700 yuan, and the disability.

Referee

According to the above facts, Xiangcheng people's court in July 20 12.

In June of 5438+08, a civil judgment of (20 12) Xiang Min Zi Chu No.00350 was made according to law, and the judgment is as follows:

1. The defendant China People's Property Insurance Co., Ltd. Financial Street Business Department of Beijing Branch directly compensated the plaintiff Wu Jingzhou for the treatment fee of 8852.89 yuan, the hospital food subsidy of 2 190 yuan, the nutrition fee of 4,000 yuan, the lost time fee of 4,000 yuan and the nursing fee of 0/0950 yuan within ten days after this judgment came into effect. Disability compensation is 23,653.24 yuan, transportation fee 1 1,000 yuan, electric vehicle loss fee of 2,000 yuan, appraisal fee of 700 yuan, auxiliary fee (appliance) of 700 yuan, and spiritual consolation fee of 1 1,000 yuan, minus the payment of 65,846 yuan11,000 yuan made by the financial street business department of Beijing Branch of China People's Property Insurance Co., Ltd.

II. The plaintiff returned the plaintiff Dong and Dong Desong's treatment fee 1600 yuan.

3. Reject the plaintiff's other claims.

After the verdict was pronounced, none of the parties appealed, and the verdict has taken legal effect.

crosslight

The court's effective judgment holds that "citizens' right to life and health" is protected by law, and the original defendant and the defendant have no objection to the objective existence of the accident and the public security organ's responsibility for handling the accident. The plaintiff should get compensation for the physical and mental damage caused by the accident. Defendants Dong and Dong Desong asked the plaintiff to return the treatment fee of 65,438 yuan+0,600 yuan, which was in compliance with relevant laws and regulations and should be adopted.

The focus of the dispute in this case is whether the plaintiff has reached the legal retirement age and supports his request for lost time. Lost time refers to the compensation that the compensation obligor should pay to the compensation obligee for the work and labor income lost or reduced due to his inability to engage in normal work or labor during the period from injury to full recovery (that is, lost time). In practice, there are two views on whether the claim for compensation for lost time for people who have reached the legal retirement age should be supported: one view holds that the plaintiff has reached the legal retirement age of the country and is regarded as incapacitated, so his lost time should not be supported; Another view is that although the plaintiff has reached the national legal retirement age, it does not mean that he has completely lost his ability to work. According to the relevant laws and regulations, the lost time is the direct loss of the plaintiff's income. If the plaintiff has a formal job or unit within the scope of working ability, he should support the plaintiff's lost time expenses according to his actual reduced income.

Judge's comments

First of all, Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning Handling Personal Injury Compensation Cases stipulates: "The lost time fee shall be determined according to the lost time fee and income of the victim. If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years; If the victim can't prove his average income in the last three years, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year. " As can be seen from this article, the compensation for lost time in our country adopts the theory of loss of working ability, and the compensation is the actual loss caused by the victim's inability to work normally during medical treatment or recuperation due to infringement. Therefore, the prerequisite for time loss should be that the victim must have the ability to work and cause income loss.

Furthermore, there is no absolute relationship between working ability and age. Over the retirement age does not mean that people will inevitably lose their ability to work. In practice, it is an indisputable fact that a large number of people who have reached retirement age continue to work and get paid for their work, which is not prohibited by law. In terms of legal provisions, we have not ruled out that the actual working ability beyond the statutory retirement age will not be recognized. For example, the calculation period of disability compensation stipulated in Article 25 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Personal Injury Compensation Cases has been calculated until the age of 80. The calculation basis of disability compensation is actually the reduction of the victim's lost income.

To sum up, when determining whether people who have reached retirement age have the right to ask for payment of lost time, we must first determine whether they have actually worked and whether their income has decreased due to injury. In this case, although the plaintiff Wu Jingzhou has exceeded the retirement age stipulated by law, he has not lost his ability to work. Worked as a doorman in Xiangcheng Horticultural Science and Technology Development Company, with a monthly salary of 65,438+0,000 yuan. Because of the injury, he can't continue to be a doorman for four months, naturally not.