Core

When the defendant is liable for all the plaintiff's non-pecuniary damage, the court assesses how much the fair monetary compensation for the damage it has identified would amount to, considering all the circumstances of the case and taking into account the criteria from Article 179 of the OZ. If the determined fair monetary compensation exceeds the claim, the court fully approves the claim (awards compensation only in the amount of the claim). The same applies if the amounts are the same. If the fair monetary compensation is less than the claim, the court partially approves the claim and rejects it in the unsubstantiated part (first paragraph of Article 2 ZPP). When liability is shared, the court reduces the compensation by the proportion corresponding to the injured party's responsibility for the damage, in the amount it would have awarded to the injured party under the assumption of the full liability of the defendant in the situations just described.

In the first case, which essentially coincides with the one under consideration, the court, after assessing that the injured party would be entitled to a higher compensation than claimed, reduces the fair (and not lower, claimed) compensation by the proportion of the injured party's liability, and can then award it at most up to the amount of the claim. The principle of disposition is thus not violated, as case law has already stated.

In measuring the compensation for non-pecuniary damage in the established 30% basis of liability of the defendant's insurer, the court is not proportionally bound to the claim, but can only award compensation within the claim.

VSRS Decision II Ips 28/2022, dated 15. 06. 2022, published on the website of the Supreme Court of the RS (link).

Read more here