اثر خطاي زيان ديده بر رجوع نهاد تامين اجتماعي

IMPACT OF CONTRIBUTORY NEGLIGENCE ON THE RIGHT OF SUBROGATION OF SOCIAL SECURITY ORGANIZATION

In case of tort liability for personal injuries, on the basis of policy of recoupment (adopted by article 66 of the Iranian social security code), the social security benefits paid to the injured person or his/her personal representatives must be refunded by the tortfeasor: the right of the injured person transfers by way of subrogation to the social security organization. An important problem arises when the injured person himself has been the cause in part of his own misfortune and that his compensation according to the tort system has been reduced because of contributory negligence; the recovery of social security benefit to the extent of the liability of the tortfeasor could seriously reduce the damages to be paid. This is to give the priority to the plaintiff(Absolute theory). There are alternative solutions. Some of them leads to deprive social security organization of his right of subrogation. The author has chosen the opinion that the benefits should be recovered in proportion of the degree of the tortfeasors Liability. On the other hand, where the tortfeasor has been condemned to various kinds of damages(damages to property, physical damages, mental damages,...) the right of social security has a DOUBLE LIMIT: the benefits could be recovered only from the heads of damages which are compensated by the social security benefits and only to the proportion of the tortfeasors Liability. These rules applies equally in case of ordinary damages and Diya (blood money).