T. Shikhaliyev's employee under a labor contract V. Shiraliyev (driver-carrier) committed a traffic accident with guilt and the Branch of the State Social Protection Fund which was the victim brought a sue.
Based on Articles 1097 and 1099 of the Civil Code, the SSPF filed a lawsuit against the employer T. Shikhaliyev. Defendant T. Shikhaliyev stated in his counterclaim that at the time of the accident, the driver was the person who legally owned the car with a notarized power of attorney. For this reason, according to Article 1108 of the Civil Code, driver V.Shiraliyev carries the responsibility.
The Sabail District Court considered that Article 1108 of the Civil Code should be applied to the present dispute, in which case the driver should be held liable for the violation of civil law as the legal owner of the high-risk source.
During the examination conducted by the Baku Court of Appeal, it was found that there were two different positions on the issue. According to two different approaches:
1) If the injured person is in an employment relationship, Article 1099 of the Azerbaijani Civil Code must be applied. Because even if the damage was caused by an activity that poses a high risk to others as a result of a civil wrong, the employer or the task giver must be liable if the wrongdoer party operates under an employment contract or civil-legal contract on behalf of a legal or natural person.
2) Even if the wrongdoer is in employment relations, Azerbaijani Article 1108 of the Civil Code must be applied. The obligation to compensate the damage falls on the person who legally owns the source of high risk. It means, the obligation to compensate for the damage caused by the activities of the sources specified in Article 1108 of the Civil Code should be borne by the legal owner (driver) and not by the employer, even in the presence of an employment contract.
The Plenum of the Constitutional Court notes that, first of all, the existence of labor relations should be clarified and the issue should be resolved as follows:
I. The employer shall be liable under Article 1099 of the Civil Code for damage caused by a person driving a vehicle in connection with the performance of labor (service) duties under an employment or civil law contract. If the employee is at fault for the damage, the employer who compensated the damage shall have the right to recourse against the employee in accordance with Article 1114 of the Civil Code;
II. According to Article 1108 of the Civil Code, natural or legal persons owning a high-risk source with the right of ownership or other legal bases, shall be liable for damage caused as a result of the activity of a high-risk source (vehicle, mechanism, etc.).
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