29/2010 IR ROD (SPECIAL) ( 541556)
(1ST LAW PUBLICATION)
Car accident. Capacity of a party. If the defendant died before
bringing the action, the action is inadmissible. Statutes of limitations. Distinction of
statutes of limitations for the claims of the injured party and the insured against the insurer. Treatment
plagiarism. Accumulation on behalf of the injured third party in the same document
the direct action against the person liable for compensation and the plagiarism
action against the insurer is inadmissible, as long as service has not been done
of the writ of the accumulated lawsuits against the injured insured, since the
the latter died before their exercise.
Number 29/2010
THE JUSTICE OF THE PEACE OF RHODES
(special process board)
Consisting of the Justice of the Peace of Rhodes Ioanna Kolilekas and the Secretary
Elizabeth Psari.
He met publicly in his audience in Rhodes on October 20, 2009 for
to try the case between:
The callers-plaintiffs: 1) S. K., resident of Rhodes and 2) Anonymous Company
of General Damage Insurance under the name "I. SA", based in Thessaloniki
and legally represented, who were represented by the power of attorney
their lawyer Lygia Diakostavrianou.
The defendants-respondents: 1) M. P., resident of Rhodes and 2) Anonymous
Insurance Company with the name "E. P.A.E.", based in Athens
and is legally represented, of which for the 1st defendant the summons-
the attorney of Stavros Triantafyllidis appeared as defendant
and stated that he died before the filing of the lawsuit, on 10/01/2007, and that
enter his heirs: 1)...4), of whom, the 2nd
appeared with the aforementioned attorney, while the others were represented
by the same lawyer, while the 2nd defendant-respondent was represented by
her attorney Ioannis Karamihalis.
The callers-plaintiffs with the date of 08-10-2008 and with no. 160/2008
their summons, with which they request the re-discussion of the lawsuit from 28-9-2007
filed under number 171/2007, which was determined at the trial
mentioned at the beginning of this and written on the board, they asked to
be accepted as stated in her application.
During the discussion of the case the attorneys of the parties
developed their claims and asked that what is stated be accepted
in their written proposals.
AFTER STUDYING THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
According to article 62 of the Civil Code, the person who is capable of being a party is the one who has the
capacity to be subject to rights and obligations. This ability,
in the case of a natural person, it begins to exist as soon as it is born
alive and ceases to exist upon his death (articles 34 and 35 AK). Moreover,
according to article 73 of the Civil Code, the court examines ex officio whether
the procedural condition according to article 62 is met, in view of the article
313 par. 1 item d' of the same Code, in which it can be pursued with
lawsuit or objection, the recognition of the non-existence of a court decision if issued
in a trial that had been conducted against a non-existent natural person, as it is
that which had passed away (see OlAP 27/1987 NoB 36.92, AP 1321/1989 ElDni
31,795). On the basis of these, the document of the action addressed against
non-existent person is invalid and the action is rejected as inadmissible,
because the possibility of being a party is procedural
condition for the issuance of a decision on the merits (AP 147/2006 of the D.S.A.,
AP 448/2005 reg. Law, AP 868/2001 promulgated Law, AP 631/2001 NoB 2002.695, AP
593/1999 ElDni 2000.69, AP P94/1997 ElDni 40.90, EfATH 1034/2003 ElDni
2006.551, EfDod 40/2005 reg. Law, Vathrokokoilis, KPolDik, article 62, no.
13, 14, 44, article 313 no. 9, article 639 no. 7).
Furthermore, according to article 10§2 of Law 489/1976 or from §1 of the article
of this direct claim that the person who has from the insurance contract
damaged against the insurer, is time-barred after two years from
day of the accident. However, this provision refers to his relationships
injured third party and the insurer and not to the claims of the insured
against the insurer, the limitation period of which it now regulates, after
repeal of article 195 of Emp.N. from article 33§1 of Law 2496/1997, n
provision of article 10 of this law, in which "claims arising
from the insurance contract are time-barred, in damage insurances after
four (4) years and in personal insurance after five (5) years,
from the end of the year in which they were born". This provision, despite the
its letter refers to non-life insurance and personal insurance,
has a similar application, according to the opinion held in theory and jurisprudence and
in car liability insurance (see related: A. Argyriadis "Data
of insurance law" p. 80, AP. 728/1985 NoB 34, 563, AP. 258/2001
E.Emp.D. 2001, 523). According to the point of view which also holds in theory the
jurisprudence, the right of the insured to turn against his insurer
to cover him with insurance, he is born from the time the
insurance case, i.e. from the point in time in which
the injured third party will serve the injured insured with the relevant action
compensation that activates his liability, because since then the
insurance case (risk), even if it doesn't have one yet
specified by judicial diagnosis or extrajudicial determination of its amount
claim of the injured third party (see Ef. Lam. 215/2005 T.N.P. of the D.S.A.,
E.P.258/2001 E.Emp.D. 2001, 523, E.A.7172/2001 E.Syg. Court 2003, 16,
E.A.7854/2001 EllDni 43, 171, E.Patr.745/1999 Ah.Nom. 2000, 605,
E.A.2152/1990 D. 22, 128, Athan. G. Kritikou "Compensation from a traffic accident
automobile accidents", edition 1998, no. 1879, 1902 and 191 ff., Fleudas
"Civil Liability for Automobile Accidents" edition 1985, p. 228). Therefore,
from the end of the year in which it was served against him
insured action of the injured party begins and according to the provision of the article
10 of Law 2496/1997 statute of limitations of his claim from the insurance contract
first against his insurer. Moreover, according to the provisions of article 72 of
K. Pol. Dik. "lenders have the right to seek judicial protection,
exercising the rights of their debtor, as long as he does not exercise them,
unless they are associated with his person". Therefore, when, according to
above,
the direct claim of the injured third party against the insurer is time-barred,
while his longest claim has not yet expired
insured against the latter (release claim), may
satisfied the claim of the injured third party with his plagiarism lawsuit
of article 72 of the K.Pol.Dik., as long as the conditions for exercise are met
of this action, which are, as appears from the letter of the provision
of the aforementioned article, on the one hand, its genesis against the insurer
of the insured's claim and on the other hand the latter's inaction to exercise it
his claim (Athan. G. Kritikou "Compensation from traffic accidents
accidents" ibid., no. 1881, 1995, 2151). The assistance of the prerequisites
of them is closely and inextricably linked to the time point of service against him
insured action of the injured third party, since from this point in time
the insured's claim against his insurer is born, as has been said, and
parallel from the same point in time it is logically possible to understand that
begins the period of inactivity of the first to exercise the insurance
contract his rights, but inaction whose existence will ultimately be judged
at the time of the discussion of the collateral action, since at the time
this, as follows from the provisions of articles 216, 224, 269 thereof
K.Pol.Dik., the conditions for practicing plagiarism must be met
lawsuit (see in relation AP. 352/1992, 571/1991 D. 23, 767, Greek Civil Code 32 1227,
E.A.8740/1990 Greek Law 35, 134). Consequently, therefore, ultimately necessary
condition, so that the person, who was damaged, can practice plagiarism
the right of the injured insured against his insurer is
service of this (damaged third party's) action against the insured on
last (see E.P.258/2001 ibid., E.Patr.745/1999 ibid., E.A.2152/1990 D.
22, 128, Athan. G. Kritikou "Compensation from traffic accidents"
ibid., no. 1902). This plagiarism treatment, which is based on
between the injured insured and his insurer an insurance contract,
as a source, however, the tort of the insured, the injured third party may
combine it in the same document with the action for compensation against the debtor
to indemnify the insured, without actually exercising in this case
some legal influence in the exercise of the same document cumulatively
lateral treatment, in view of the above-mentioned time of its birth
right of the latter against his insurer, the point in time
of service of the writ of the above cumulative actions on the insured and
to the insurer, it is sufficient for the service of this writ to the former to have
made at the time of adjudication of the cumulative actions, at which time,
as it was said, the presence of the conditions for the exercise of the lateral movement is judged
lawsuit (see E.P.258/2001 ibid., E.A.7172/2001 ibid., E.Patr.745/1999 ibid.,
E.A.8981/1998 EllDni 42, 757, E.A.7774/1993 EllDni 36, 1592, E.A.7562/1993
HellDni 36, 1596, E.A.2152/1990 ibid., Athan. G. Kritikou "Compensation from
road traffic accidents" ibid., no. 1900, contrary to:
E.A.7854/2001 EllDni 43, 171, E.A.5618/2001 EllDni 44, 196, E.A.9395/2000
EllDni 42, 446, Mon.PTr.Thes. 11629/2004 Arm. 2005, 255, which,
citing a lack of assistance from the element of his inactivity
insured in the case of the accumulation of the aforementioned lawsuits, they reject
as illegal or unacceptable the cumulative plagiarism action, as well as
Ef. Lam. 215/2005 in T.N.P. of the D.S.A., which accepts the accumulation of
of these actions, but under the condition that the single document of these will have
served first to the insured and then to his insurer).
In this case, the plaintiffs exhibit with the present case from 28-9-
2007 and with no. cat. 171/2007 their lawsuit, which is brought up for discussion with
from 8-10-2008 and with no. cat. 160/2008 call, that on 7-2-2004 and
around 13:10, HM driving it with registration number …… I.X.E.
car, which belongs to the property of the first plaintiff and was
third party liability insured to the second claimant,
started on the Rhodes-Kamirou provincial road and in the direction of Rhodes
to Ialyssos. That at the same time the first defendant driving it
insured for damages caused to third parties by its circulation,
to the second of the defendants, an insurance company with registration number ..
…. He drove his own car and was driving in the opposite direction
of traffic on the above road, heading from Ialyssos to Rhodes, he violated
the continuous double dividing line that existed on the axis of the road surface
and furthermore without activating his left turn signal
attempted to make a left turn with the consequence that
collided violently with the front right part of his vehicle at
front part of the plaintiff's vehicle, then the vehicle of the 1st
defendant deviated from his course due to the collision, retreated and
collided with the moving on the same country road with direction
from Ialyssos to Rhodes with registration number ……. two wheeled motorcycle,
causing this culpable and negligent behavior on the one hand
serious material damage to both vehicles (1st plaintiff and 1st defendant)
and on the other hand the slight injury to him (the 1st defendant). That,
subsequently the second plaintiff paid the first plaintiff for her
restoration of the material damages caused to her vehicle in the amount of
6,744 euros and the latter assigned her with the private from 7-4-2004
assignment agreement all its rights against those involved in
compensation arising from the disputed accident. Furthermore, because the from
the provision of article 10§1 of Law 489/1976 their direct claim against it
second of the defendant insurance company has been time-barred, the plaintiffs
practice plagiarism against her and on behalf of the first of the defendants
and its lender, the rights from the insurance contract thereof and
they request by supporting their claim in the grounds of unfairness
enrichment provisions: a) to compel the second of the defendants to pay
to the latter: 1) the total amount of 4,700 euros with the legal interest from
following the service of the lawsuit until full payment and 2) the amount of
6,744 euros with the legal interest from the day after its payment on the 1st
plaintiff, i.e. from 8-4-2004 otherwise from the day after the service of the above
assignment contract to the defendants, i.e. from 13-12-2004, otherwise from
following the service of the legal action until full payment and b) to
compel the first defendant to pay the first plaintiff to
her compensation and for her monetary satisfaction due to moral damage, the
a total amount of 4,700 euros with the legal interest from the next day of service
of the action until its full payment and to the second plaintiff the amount of
6,744 euros with the legal interest from the day after its payment on the 1st
plaintiff, i.e. from 8-4-2004 otherwise from the day after the service of the above
assignment contract to the defendants, i.e. from 13-12-2004, otherwise from
following the service of the legal action until their full payment, to
declare this decision temporarily enforceable and impose a penalty
the defendants their legal costs.
The aforementioned and accumulated in the same document (main and
plagiarism) lawsuits competent in terms of content and place and admissible are brought
in this court, to be tried in this case special
procedure of articles 666, 667 and 670 to 676 of the K.Pol.Dik. (articles: 14§
1s.a`, 40A, 31§3, 219§§! and 2 and 681A of the K.Pol.Dik.).
At the beginning of the discussion in the audience his attorney
of the first respondent stated that the latter died on 10-1-2007 ie
before bringing legal action. As evidenced by the no.
prot. 468/16-9-2008 exact photocopy of the registry no. 2/2007
death certificate of the Lixiarch of the municipality of Ialyssos Rhodes, which he presented
in Court the attorney for the first respondent, the latter
has passed away on 10-1-2007, i.e. before the exercise in question
lawsuit. Therefore, since the alleged defendant has disappeared as a natural person
person prior to the initiation of the action in question and was thus deprived of it
capacity to be subject to rights and obligations and consequential
of the capacity to be a party, this action as a procedural act is
rejected as inadmissible, as far as he is concerned, according to what was at the beginning of it
present are mentioned. Subsequently, the action brought against
of the 2nd defendant's plagiarism lawsuit, as it does not apply in this case
required by law (Article 72 of the Civil Code), for its admissibility
plagiarism, element of the inaction of the first defendant since,
in view of what is detailed in the previous major consideration, the ec
part of the injured third party accumulation in the same document of the direct action
against the person liable for compensation and the defamatory action against him
his insurer is unacceptable, as long as it has not been served
writ of the accumulated lawsuits against the injured insured, since the
the latter died before their exercise. Court costs will
be imposed at the expense of the plaintiffs (176 Civil Code).
FOR THOSE REASONS
He jointly litigates with the parties present the accumulated claims in the same document
main and collateral treatment.
He rejects them.
It imposes on the plaintiffs the court costs, which it determines in
one hundred and fifty (150) euros.
Judged, decided and published in his audience at Rhodes on the 26th
April 2010 in an extraordinary and public meeting with the parties absent
and attorneys-at-law.
The Justice of the Peace The Secretary
LET.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)