ATA/785/1997•Restitution of undue social insurance benefits and default interest
ATA/785/1997Tribunal de Justiça / Câmara Administrativa23 de dez. de 1997Confirmed
Extraído pela Omnilex
The insured received a lump-sum payment of CHF 125,000 from the insurer although he knew that his entitlement was limited to a monthly disability pension. The court held that he was not in good faith and therefore had to restitute the undue benefit. It also held that moratory interest was justified in the circumstances, since social insurance default interest is only granted exceptionally; a 5% rate was accepted by reference to Art. 73 CO.
Art. 67 OLAA; restitution of undue insurance benefits and default interest in social insurance law. An insured person who receives a payment that is manifestly incompatible with a known entitlement to a monthly pension cannot invoke good faith to resist restitution. Restitution is therefore due where the recipient knew or must have known that the amount was not owed. Default interest in social insurance is not automatic; it is payable only if special circumstances justify it (consid. 101 V 118). Where the insured retains a substantial undue sum and thereby benefits from its use, moratory interest may be awarded, and a 5% rate corresponding to Art. 73 CO can be upheld (consid. 113 V 50).
Descripteurs
ASSURANCE SOCIALE; ACCIDENT; AA; RESTITUTION DE LA PRESTATION; INDU; RENTE D'INVALIDITE; INTERET MORATOIRE; PRINCIPE DE LA BONNE FOI; INTERET(FRUIT CIVIL); COMPENSATION DE CREANCES; ASSU
Normes
OLAA.67
Résumé
N'est pas de bonne foi l'assuré qui reçoit de son assurance un montant indu de CHF 125'000.- alors qu'il savait avoir droit à une rente mensuelle. Le principe de la restitution de l'indu doit donc être admis. Des intérêts moratoires ne sont dus en assurance sociale que si des circonstances particulières le justifient (ATF 101 V 118). Tel est le cas en l'espèce, le recourant ayant reçu une somme d'argent qui lui aurait permis de rembourser l'assurance un intérêt de 5 % correspondant au taux légal de l'art.73 CO est justifié (ATF 113 V 50).
Extraído pela Omnilex
Whether the insured had to restitute the undue payment despite invoking good faith.
Yes. The insured was not acting in good faith because he knew he was entitled only to a monthly pension, so restitution of the undue amount was required.
Good faith cannot be relied on when the recipient knows the payment is not owed. The monthly pension entitlement made the lump-sum receipt evidently incorrect.
Whether moratory interest on the restitution claim was owed in social insurance matters.
Yes, in the specific circumstances. Default interest was justified because the insured had received a substantial sum that could have been used to reimburse the insurer; a 5% rate corresponding to Art. 73 CO was appropriate.
In social insurance, default interest is payable only where special circumstances justify it. Those circumstances existed here, so interest was awarded.
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