The takeaway brother, the takeaway platform, the delivery company, and the insurance company were all sued in court

  The delivery boy was sued for more than 200,000 yuan for hitting and injuring others. Who will pay for the money?

  Our reporter Yang Zhaokui

  "Workers Daily" (February 25, 2022 06 edition)

  In order to deliver on time and deliver more orders, it has become the norm for takeaways to "fly" in the streets, and traffic accidents have also occurred from time to time.

So, who should pay the compensation after the delivery boy hits a passerby while delivering the meal?

  Recently, the Beijing No. 3 Intermediate People's Court held a dispute over the liability of a non-motor vehicle traffic accident caused by a delivery boy hitting a passerby and found that the delivery company, the employer of the delivery boy, was liable for compensation.

However, the lawyer pointed out that due to the gross negligence of the takeaway brother, the takeaway delivery company can claim compensation from the takeaway brother after making compensation.

  At 19:00 on December 2, 2019, when Sun Bing (pseudonym) was delivering food in Chaoyang District, Beijing, he hit Zhang, who was walking on the crosswalk, on an electric bicycle, causing Zhang to fall to the ground and injured.

The local traffic police department determined that Sun Bing was fully responsible for the accident.

  Since then, Zhang was diagnosed with an intertrochanteric fracture of the femur (right) by the hospital. He was hospitalized for 7 days and ordered to take a full month off after being discharged from the hospital.

It is reported that Zhang incurred a total of more than 47,000 yuan in medical expenses during his hospitalization.

  According to the provisions of Article 1179 of the Civil Code, those who infringe upon others and cause personal injury shall compensate for reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, and hospital meal allowances. and reduced income due to lost work.

If a disability is caused, the auxiliary device fee and disability compensation shall also be compensated; if the death is caused, the funeral expenses and the death compensation shall also be compensated.

  After Zhang was discharged from the hospital, it was identified by a judicial appraisal agency that Zhang suffered a right femoral intertrochanteric fracture due to trauma, leaving more than 25% loss of function of the right hip joint. 240 days, nursing period 120-150 days, nutrition period 120-150 days.

  Zhang claimed 31,600 yuan for 150-day nursing care, 118,158 yuan for disability compensation, 13,500 yuan for nutrition for 150 days, and 10,000 yuan for mental damages.

  As a result, Zhang sued Sun Bing, the food delivery platform, the delivery company, the insurance company, etc. to the court, demanding compensation for medical expenses and nursing expenses totaling about 240,000 yuan.

  In June 2021, the Chaoyang District People's Court in Beijing held that, according to Article 1191 of the Civil Code, if a staff member of the employer causes damage to others due to the performance of work tasks, the employer shall bear the tort liability.

After the employer assumes the tort liability, it can recover compensation from the staff who have intentional or gross negligence.

  The court held that in this case, Sun Bing was fully responsible for the accident, but Sun Bing injured someone while delivering the food, and the food delivery company was Sun Bing’s employer, so the food delivery company should bear the tort liability.

The takeaway delivery company insures the insurance company with employer liability insurance plus third-party liability insurance. This case meets the conditions for insurance compensation. For the reasonable losses caused by Zhang’s accident, the insurance company will first compensate within the scope of insurance responsibility, and the food delivery company will pay for the shortfall. compensation.

The food delivery platform is not at fault for the damage caused by the accident, and it is not Sun Bing's employer, so it is not liable for compensation in this case.

  Therefore, in the first instance, the court ruled that the insurance company should compensate Zhang for medical expenses and disability compensation of more than 150,000 yuan in total;

  The food delivery company refused to accept the first-instance judgment and appealed to the Beijing Third Intermediate People's Court.

The company believes that the insurance company has not fulfilled its obligation to inform the insurance policy regarding the stipulations in the insurance policy that "items and expenses other than death insurance benefits, disability insurance benefits, and medical expenses are all exclusions", so this clause has no effect, and the insurance company This part of the liability should not be exempted, therefore, the part of the compensation it undertakes should be borne by the insurance company.

  Recently, the Beijing No. 3 Intermediate People's Court held that the above clauses of the insurance company are an agreement on the scope of insurance compensation, not a clause that exempts the insurer from liability, and the takeaway delivery company, as a legal person engaged in the catering delivery business, is not required to enter into its business related clauses. The insurance contract should have certain professional knowledge and attention, so this appeal opinion is not supported.

Therefore, the court made a final judgment, dismissed the appeal and upheld the original judgment.

  However, Zhang Zhiyou, a lawyer from Beijing Fumao Law Firm, pointed out that in this case, Sun Bing injured others while driving an electric bicycle and took full responsibility for the accident, so it can be determined that he had gross negligence.

Therefore, after taking joint and several liability for compensation, the food delivery company has the right to claim compensation from Sun Bing.

  Lawyer Zhang reminded the delivery guy to obey the traffic rules and be courteous to pedestrians when delivering meals by bike.

At the same time, takeaway delivery companies should also standardize labor, strengthen management training and safety knowledge education for riders, assume corresponding responsibilities, and build more scientific and reasonable management methods and more perfect operation modes.

The takeaway platform should reasonably determine the evaluation factors such as the number of orders and on-time rate through methods such as "algorithmic selection", and appropriately relax the delivery time limit, so as not to allow the algorithm to force the takeaway brother to run wild.

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