170/2007 PPR RHODES (512105)
(1ST LAW PUBLICATION)
Tort. Accident while renting a pleasure boat. General insurance
responsibility. The third party, who was damaged and has a claim for compensation against him
insured, cannot be turned directly against the insurer, except
laterally. Personal reservation. It is executed from the time in which the
decision ordering it becomes final. Incidents of falling into the sea
hovering with a parachute that was attached by straps to a speedboat and
injury due to the negligence of the owner of the boat and the
added. Perjury. Referral of the case to the Prosecutor.
DECISION NUMBER: 170/2007
THE MULTIMEMBER COURT OF FIRST INSTANCE OF RHODES
REGULAR PROCEDURE
CONSOLIDATED by Judges Vasilios Papanikolas, President of First Instance,
Apostolos Baysoulegas, First Judge, Petros Karagounidis, First Judge-Reporter and
by the Secretary Fotini Karagiannis.
HE MEETED in public in his audience on February 1, 2007 to judge
the, filing no. 1040/25-11-2004, action for compensation
due to tort between:
OF THE PLAINTIFF: … ……, a resident of Germany, represented by him
representative of the lawyer Nikolaos Skourtou, who filed motions.
OF THE DEFENDANTS: 1) ...., a resident of Rhodes and 2) the general public limited company
insurance "……. …….", based in Athens and legally represented,
of which the 1st appeared after the proxy of lawyer Savvas
Papageorgiou, who filed motions and the 2nd, appeared on his behalf
representative of the lawyer Ioannis Karamihalis, who filed motions.
The present DISCUSSION was originally set for 1-19-2006 and after
adjournment for the present trial.
DURING THE DISCUSSION of the case in the audience the attorneys of
parties requested to accept what is mentioned in the minutes and on
their written proposals.
after studying the case file
thought in accordance with the law
According to the provision of article 914 of the Civil Code, whoever damages another illegally and
at fault has an obligation to compensate him. Based on this provision
required, therefore, for the existence of the tort and the corresponding
obligation of the perpetrator to compensate the victim, except for its occurrence
damage, a) this damage was caused by the offender illegally, at the same time
and culpably, i.e. by fraud or negligence (art. 330 Civil Code), b) the illegal
behavior of the culprit is due to his act or omission and c) to
there is an appropriate (causal) connection between the damaging act or
omission and the subsequent damage, which occurs when, according to
lessons of common experience and logic, this behavior in time and
under the circumstances that took place, she was capable, in the usual and normal way
course of things, to bring about the injurious effect, which and
actually brought about in this particular case, without affecting the evolution
of the causal path its predisposition or special characteristics
sufferer (see Ap. Georgiadis, Criminal Law, General Part, 1999, p. 146).
And the damage caused by the perpetrator is illegal when it is insulted
by his conduct (act or omission) right of the victim
protected by law, and the culpable omission of the perpetrator gives rise to the
compensation his obligation, when he was obliged in practice by law
or legal action or good faith according to the prevailing social perception and
especially when he himself created a certain dangerous situation, in which case he has
obligation to take any measure indicated by the circumstances to
protection of third parties from causing them any damage before and
after the creation of the dangerous situation (see AP 5/2001 HellDni 42.671,
AP 906/2001 HellDni 44.122, EfPir 664/2002 Law). Therefore, in order to
the victim is entitled to compensation due to his positive and monetary loss
satisfaction due to moral damage suffered, from an accident during the rental
pleasure boat, as long as fault contributed to the occurrence of the accident
either of the operational manager of the business in question or of those added
from him (art. 922 of the Civil Code) in the sense of the provision of article 914 of the Civil Code, i.e.
of the culpable damaging act or omission, such as their content
analyzed above (see AP 69/2007 Law) Such fault, moreover,
in the case of marine recreational businesses that are active
among other things and in the implementation of sea parachute, it is also founded by
non-compliance with the provisions of no. 3131/1-03-99 of the Minister's decision
of Merchant Shipping on the approval of the General Port Regulation with no. 20
"Speedboats (high-speed) boats and other marine recreational vehicles" by
provided by the Port Authority with a license to hire out the means it specifies
the regulation in question, among which the provisions of articles 7 §§ 6 and
14, 22 and 23 thereof, which specify both the general obligations of
above regarding the security of their activities, as well as
their more specific obligations regarding sea operations
parachute. Moreover, in the sense of the provision of article 922 of the Civil Code
the adder is the one who willingly accepts his services
added, who is permanently or temporarily employed in processing a case
and generally in the service of professional, financial or social
interests of the contributor and is usually subject to control or simply to
general instructions and orders or under the supervision of the contributor. Is not
the existence of a juridical relationship between the parties is necessary, but the extension
it can also be based on a real event or done opportunistically for
a single specific act. The defendant is objectively liable to
compensation of the third party, who was damaged by a tort committed by him
additionally and being in an internal causal relationship with its execution
pending processing of the applicant's case. (see 1570/2006 Law, Ap.
Georgiadis, Criminal Law, General part, ed.1999, p. 630). Finally, the general
liability insurance (third party accident insurance) usually refers to all
the risks of civil liability to be compensated by law, with the exception of
car liability, in respect of which Law 489/1976 applies. That is, it covers
general liability insurance for mainly professional or business risks
etc. In accordance with the regulation in force based on the general provisions (art.
189 et seq. of the Civil Code, as they were in force before they were repealed by Article 33 § 2 of the Law.
2496/1997, which, however, governs only the existing ones, at the time of its inception
of its validity, insurance contracts - see related article 32 § 4 thereof), h
liability insurance creates a contractual relationship and attendant rights and
obligations only between the insurer on the one hand and the policyholder or his
insured party. The third party, who was damaged and has a claim for compensation
against the insured, cannot be turned directly against the insurer, unless
only sidewise (see related A. Argyriadis, Insurance Law Details,
1976 edition, pp. 104 ff., K. Roka, Private Insurance Law, 1974 edition,
p. 6, Z Skouludi, Private Insurance Law, 1995 edition, p. 361). S
in this case, however, it should be exposed in a manner specified in
document of the relevant lawsuit or the inaction of the debtor in exercising it
of his claim against the liable insurer, otherwise the action is indeterminate
to this end, since one of the conditions of the collateral action is the
culpable or culpable inactivity of the debtor in any way (see EfPier
1/2005 DEE 2005.306, EfAth 5798/2003 ElD 45,493, EfAth 9663/1999 ElD 42,446,
Decree 2131/1999 ElD 42,445, Decree 6912/1996 ElD 38,1599, Decree 3256/1986 ElD
27,1179). Direct action of the injured third party against the insurer is provided
in the case of general liability insurance only when assigned
to the injured third party from the policyholder the relevant claim by force
contract (liberation contract), as well as from the provision of article 10 § 1
of Law 489/1976, in the case of motor liability insurance
accidents (see AP 288/1998, HellDni 39, 1556, EfLam 211/2005 Law). In
in this case, with the present action the plaintiff states that at
Rhodes on 31-7-2003, due to an accident he had during his flight with
parachute, which took off with the help of her speedboat
business in which the first defendant was responsible and which he was
insured in the second defendant insurance company, suffered physical injuries
injuries to his thoracic and lumbar vertebrae. That the above accident
is due to the sole fault of both the 1st defendant himself, o
who failed to comply with the security obligations arising from
law, as well as the crew of the vessel added by the 1st defendant,
due to his wrong and inadequate handlings before and during
of the route. With this history, he requests that the defendants be obliged to
pay in full, in accordance with the tort provisions, otherwise
due to breach of contractual obligations of the 1st defendant: a) the amount of
€5,871.14, in which he was damaged due to his transport on a special flight to
carriage from Rhodes to Munich, b) the amount of €2,448 in which it was damaged
due to the fact that he paid it, as early as 25-3-2003, to his German
travel agency for a fortnight travel holiday package for
as well as his wife, while his holidays were not completed, c) the amount of
€88 that was damaged due to phone calls handled by his wife on
duration of his stay at the Rhodes Hospital for her information
his insurance company and for the organization of his air transport
in Germany, d) the amount of €420 that was damaged by spending daily from
on 14-8-2003, the date on which his holiday package ended,
until 28-3-2003, the day of his departure for Germany, for the maintenance
of his wife, who remained with him taking care of him, e) the amount of
€126 that was damaged due to his participation in the costs of his hospitalization at the clinic
“.. … ….” and f) the amount of €120,000 due to monetary satisfaction from
the moral damage suffered due to the accident and the total amount of
€128,953, with legal interest from the service of the lawsuit. Also, to be ordered against
of the 1st defendants and the legally responsible bodies of the 2nd
defendants, personal detention of up to three months and a fine of €1,500
as a means of executing the issued decision, to declare the decision provisionally
executor and to order the defendants to pay his court costs. With
this content and request the lawsuit is competently and admissibly introduced to
trial in this court (no. 18 para. 1, 22, 35 of the Civil Code) on
upcoming regular procedure. Further it should be rejected as illegitimate
in its part against the 2nd insurance defendant
company because, in accordance with what was included in its major thought
present and regardless of whether on the date of the accident
there was a strong insurance contract between the injured party and the insurance company,
issue which concerns the essence of the case, the plaintiff is damaged, in each
case, he has no direct action against her from any valid contract
insurance that exists between the latter and the injured party. Further,
the action document does not mention the debtor's inaction in the exercise
of the claim against the obliged insurer, so that any as
plagiarism action against him, no assignment of it is invoked
claim to obtain the insurance (release contract) from 1°
defendant, in order to allow, exceptionally, the bringing of a direct action against
of the insurance company, in accordance with what was stated above. according to
etc. and as far as the 1st defendant is concerned the lawsuit is legal, as
both bases, relying on the provisions of articles 330, 914,
922, 926, 929, 930, 299, 932, 346 Civil Code, 907, 908 §1 d, 1047 and 176 Civil Code and
No. 7 § 6, 12, 14, 22 and 23 of YA 3131/1-03-99, except: a) the request for
payment of the amount of €2,448 that the plaintiff paid on his travel card
agency in Germany for his fortnight package holiday
and of his wife in Rhodes, which is judged legal, only for, by the
date of the accident and then a period of time, i.e. from 9-8-2003 to
and 14-8-2003 (6 days) and more specifically for the amount of [(2.448 /15
days) = 163.2 x 6 days =] €979.20, b) of the request to order
against the 1st defendant a fine of €1500 as a means of execution
issued decision, which must be rejected as illegitimate, as the
a monetary penalty or the threat thereof is not included, according to article 951 of the Civil Code,
in the means of execution to satisfy a monetary claim as in this case
and c) the request for declaration of the decision to be issued temporarily
executor as to the provision concerning the personal detention of the 1st
defendant, which should likewise be rejected as illegitimate, because the
personal detention is executed from the time in which the decision that the
orders becomes final (no. 1049 of the Civil Code). It must therefore be investigated
further, according to its legal requests and in terms of substantial validity
of, given that for the admissibility of the discussion it is submitted by
2-14-2005, statement of the plaintiff's attorney on the failure of
attempted settlement of the dispute, according to article 214A of the Civil Code and
of the rejected request presented by the 1st with his proposals
defendant, that is to postpone the discussion of this action, until
the relevant criminal proceedings pending against him be irrevocably terminated,
on the one hand due to the risk of litigation, (see Makridou at
ErmKPolD, Keramea/Kondyli/Nika, 2000, article 250, no. 4, p. 526),
on the other hand, why any judgment of the criminal court about guilt or not
of the above accused does not bind the judgment of the present politician
Court on the tortious liability of any persons responsible for
compensation of the victim from the disputed accident (see AP 1236/1998, D.
1999.351, Official Gazette 2422/2001 Arm 2002.73).
From the evaluation of the affidavit of the witness of the 1st defendant (o
plaintiff did not examine a witness), which is included in the same numbers as this one
decision minutes of the meeting of this Court and which is appreciated
according to his knowledge and trustworthiness and in the estimation of all,
without exception, of the legally and subpoenaed public documents presented on both sides
and private documents, others of which are taken into account immediately
receipt and others, (no. 339 in conjunction with 395 of the Civil Code), for the synagogue
judicial documents (public ones are also included among the latter
documents of the previous criminal proceedings – see in relation to AP 154/1992 HellDni
33.814, ad hoc AP 1034/1977 NoB 26.921), the following facts were proved
facts: On 31-7-2003 the plaintiff, a German citizen, arrived in Rhodes together
with his relatives (his wife, the latter's daughter and the husband
of this) for a fortnight's vacation, i.e. until 14-8-2003. On the 10th day
of his vacation, namely on 9-8-2003 at 11:00 in the morning, the plaintiff went with
his relatives at the beach of the Aquarium for swimming, where and
decided to fly a parachute over the sea, which was taking off
with the help of a speedboat. To this end, he addressed the company
of sea sports maintained by the 1st defendant on the beach in question, for the purpose of
to hire such a vessel. From the evidence in
case file does not prove with certainty whether the 1st defendant himself was
present during the said lease, however, it was not he who
got into the speedboat with the plaintiff. On the contrary, they entered the speedboat with me
the plaintiff, another operator, who according to his testimony
witness of the 1st defendant, called ...., the son of the 1st defendant as
operator's assistant, as well as the daughter of the plaintiff's wife. It must
however, it should be noted that the Court has serious doubts about
the true identity of the operator of the vessel in question, as the name of N.
M. referred to by the witness K. K., son of the 1st defendant, not at all
it was mentioned during the pre-investigation and especially during the drafting of the relevant criminal case
case file against G. K., neither by the 1st plaintiff – defendant, nor
by the witness – his son, on the contrary, the above-mentioned witness testified under oath in
9-8-2003 before the competent investigative body, that the operator on the vessel
was the 1st defendant – his father, a fact which he categorically denied with
his deposition in this Court, testifying that "then he lied."
The said crew then instructed the plaintiff, before
board the boat, about the procedure that would follow, while o
the latter wore, always under the instructions of the above, the special outfit
of the parachute consisting of a belt and two straps with loops which
are connected to the parachute, as well as the life belt and then the boat
entered the sea. The weather conditions that prevailed in the area during
at a specific time there were winds of 3-4 Beaufort, however it did not prove to be the case
from the material of the case file that there was a relevant one, according to Article 7 § 12 of the above
Regulation, decision of the Harbor Master, on the prohibition of maritime activities
due to adverse weather conditions. As soon as the claimant received a take-off position at
corresponding platform that existed at the back of the vessel, its operator
developed speed so that the parachute began to take off, which
it is connected to the boat with a special tow rope 50 meters long. After
some minutes of smooth flight and while the plaintiff was at a height of 20-30 meters
first her right and then her left belt broke successively
dependence, which connected the plaintiff to the parachute, resulting in
violent fall of the latter into the sea. Immediately after the incident in question, Mr
son of the 1st defendant, cut the tow rope of the parachute,
in order to avoid entanglement in the boat's propeller and the boat
approached the plaintiff, gathering him. Then the 1st defendant,
perceiving the accident from land, transported him in a small boat
plaintiff on the beach, where he was offered first aid by a doctor.
The patient was then taken to the Emergency Department by EKAB ambulance
of incidents at the Rhodes Hospital, where after examinations it was established
that he had suffered a chest injury, a fracture of the T12 thoracic vertebra, and
multiple ecchymosis of the left pelvic region (see under no. pr. 2913/2-9-
2003 information note of the Director of the A surgery clinic where
the plaintiff, T. P.) was introduced. The plaintiff was submitted to the aforementioned surgical clinic
initially in conservative treatment, while it was recommended to him by a neurosurgeon
placement of a thoracolumbar type …… The plaintiff, who decided
to carry out any operation required, in his home country,
he remained in the Hospital for nineteen (19) days, i.e. until 28-8-2003,
when he left for Germany in a stretcher on a special flight, where and
he was immediately admitted to the “… ………..” Hospital in Munich. In said
hospital until 11-9-2003 and it was found that he had
sustained stable compression fractures of not one, but three pectorals
vertebrae, as well as contusion of the lung with collection of fluid in
side cavities, both, hemorrhagic anemia with severe hematomas at
soft particles (see the translated from the attachment in German and with
date 18-9-2003 medical diagnosis report of the above-mentioned chief physician
clinic.... …………. Subsequently, it was deemed necessary to transfer him to
another more specialized hospital and specifically in the special physical clinic
of medicine and rehabilitation "……..", where he remained hospitalized at
orthopedic department until 30-9-2003 to continue the recovery
of (see translated from the attached German and dated 31-
3-2004 hospitalization certificate). After his discharge from the above Hospital and
due to his ongoing pains in the thoracic-lumbar transition area
country, the plaintiff was visited on 3-11-2003 by the neurosurgeon dr. GH, o
who referred him for treatment or recommended appropriate treatment
to the radiologist dr. HH, who diagnosed severe spinal problems
sufferer's column (see the translated from the attached German and
dated 3-11-2003 medical letter of the above doctor) and referred him
in the neurosurgery department of the "Traumatic Clinic Social
Professional Insurance" in the city of Murnau, which the plaintiff visited
initially on 21-11-2003 and subsequently remained there for clinical treatment
from 27-11-2003 to 5-12-2003. On 1-12-2003 and after
activity was found among others in lumbar vertebra 5,
underwent surgery under general anesthesia and intubation (see
translated from the attached German and dated 12-12-2003
certificate of the head physician of the neurosurgery clinic dr. ….), while vs
upon leaving the clinic on 5-12-2003 he was advised to come back for
examination after 6 weeks. Thereupon the plaintiff continued to
be monitored medically and undergo continuous mandatory
physiotherapy, such as indicatively on 12-13-2003, 12-18-2003, 1-13-2004, 2-17-
2004, 19-2-2004, 24-3-2004 and 19-4-2004, having however suffered permanent
reduction of his physical capacity (see the translated from the attachment at
German and dated 30-7-2004 medical certificate of the specialist doctor
pathologist UB) and being forced to constantly receive preparations with
calcium, vitamin D and siphosphonates for prophylactic and preventive purposes
future osteoporotic fractures. The above accident and the consequences thereof
as stated above, physical injuries suffered by the plaintiff are due to
sole fault, on the one hand, of the 1st defendant, as owner and
operations manager of the water sports business from which he leased it
speedboat the plaintiff, on the one hand, of the operator added by him and
assistant, i.e. members of the crew, who at the given time
they acted to serve professional and financial interests
of the 1st defendant – additional and subject to control, in general
instructions and orders thereof. More specifically, the disputed accident and the
corresponding physical injuries described above
plaintiff are due to the negligent conduct of the 1st defendant who, a)
in violation of article 7 § 6 of no. 3131/1-3-1999 of his decision
of the Minister of Shipping regarding Approval of the General Port Regulation with no. 20
"Speedboats (high-speed) boats and other marine recreational vehicles", which
published in no. 444.26-4-1999 Official Gazette (issue B), did not take care of the
proper maintenance of parachute equipment and components which
the sufferer was tied up, resulting in the straps with which he was tied up
last and which connected him through two links with the parachute to
they are old and worn, a fact which caused them to be cut off
and the fall of the victim into the sea, b) used as crew and especially as
operator and as his assistant persons who did not have a competency license
operator in violation of articles 5 para. d. and 7 § 14 of the above regulation.
For this reason, in preliminary investigation, both himself as accused,
and his son on trial as a witness, tried to convince
that the operator of the boat was the 10th defendant himself, precisely because he was
alone of those involved, who held the relevant license and c) no
provided a special lifeboat with equipment to rescue the plaintiff
meets the criteria of article 23 § 1 of the above regulation, but on the contrary
a small boat. With the aforementioned negligent behavior and especially
said omissions created a certain dangerous situation against him
plaintiff, which he had an obligation to prevent by taking every
measure indicated by the circumstances to protect the latter from the
causing him any harm, but he did not. Not indicative
of the negligence of the 1st defendant is also the fact that after the accident
he did not even bother to notify, as he should have, the Port Authority of Rhodes, which
he was informed of the events by an anonymous phone call (see her with reference no.
2212/94/03/9-9-2003 submission of the case file of K.L. Rhodes). Further,
jointly and severally liable with the 1st defendant for its occurrence
accident are also the, added by him, operator of the boat and
assistant -auditor, who although found the bad condition in which
was the equipment and in particular the straps connecting the plaintiff to
the parachute which were old and worn out, however, believing
that no accident would occur, he was allowed to hire the boat, with
resulting in the incident in question. In conclusion, exclusively
responsible for the accident and the physical injuries suffered by the plaintiff are
10th defendant, both as independently responsible and as responsible reason
addition, as well as the crew of the vessel added by him, which
however, he is not sued in this case. On the contrary, the plaintiff bears none
culpability in the occurrence of the accident, as it was not proven that he
deviated from the instructions indicated to him, while the claim of the 1st
defendant that the plaintiff, in a state of excitement and joy, was playing
with his body and left his hands in the air, on the one hand it was not proved,
on the other hand, truly assumed, it is not in a causal connection with it
occurrence of the accident, as, as the 1st witness himself testified
defendant in the audience when asked about it, "if anyone lets go of his hands
it doesn't automatically mean he's going to fall out of the parachute because he's strapped in."
Following the above. the relevant legal objection, according to article 300 of the Civil Code
1st defendant on contributory fault of the plaintiff should
rejected as essentially unfounded. Consequence of the accident and regardless of
of his physical injuries, the plaintiff suffered the following material damages: a) for the
his transfer on 28-8-2003 from Rhodes to Munich on a special flight, in a special
stretcher stretcher and accompanied by an accompanying physician, paid to
“…… …….. ……………. ………”, as of 22-8-2003, the amount
of €5,871.14 (see the translated by, attached in German, under no.
01382/2003 offer of the above association and the one translated by,
enclosed in German and dated 22-8-2003, remittance order), b)
from canceling his vacation for the remaining period of six
(6) days and given that his own holiday package cost him 1,224
€, without being proven by any other evidence that he himself
he also paid for his wife's vacation (see translated
from the attached in German and dated 25-3-2003 his document
travel agency... …….), suffered a loss in the amount (1224/15=81.6 x 6
days) = €489.60. c) Due to his stay for fourteen days after
the end of his holiday package in Rhodes, namely from 14-8-2003 until
and on 28-8-2003 he was forced to spend daily for its maintenance
his wife who stayed with him and took care of him, an amount, which at the judgment
of the court amounted to 20 euros per day and especially for the period
of 14 days in (14 x 20 =) 280 €, an amount which essentially corresponds to
services that would otherwise be offered to him by a domestic helper or nurse and the
which he is entitled to seek, as well as the fact that said services
offered by his wife cannot benefit the debtor
defendant and to avoid payment by him of the relevant compensation
plaintiff, which is causally related to the disputed accident (see EfAth
7007/2003 Greek Law 2004.833) and d) due to his participation in his hospitalization expenses
in the clinic "…… ………. ……… ……”, paid on 12-9-2003 the
amount of €126 (see the from 12-9-2003 translated by, attached to
German, document requesting his participation, patient of the above clinic) and
in total suffered a positive loss of (5,871.14 + 489.60 + 280 + 126 =) 6,766.74
€, amount which the 1st defendant is obliged to pay him, as
solely responsible for the accident. It should be noted that the applicant
from the plaintiff the amount of €88 due to phone calls handled by
his wife in Rhodes during his hospitalization here should
rejected as essentially unfounded, since it was not proved that the damage in question
is causally related to the occurrence of the accident. But apart from
material compensation, should be awarded to the plaintiff, monetary satisfaction
for the recovery of the moral damage suffered by the legal accident and
the physical and mental suffering that followed its occurrence, which
must be determined in the amount of fifteen thousand (15,000) euros, amount the
which the Court deems reasonable and fair weighing the circumstances below
from which the legal accident took place, the lessons of common experience
and logic, the degree of guilt of the 1st defendant, the type and the
severity of the plaintiff's injury, the time required for the
rehabilitation of his injuries and the social and economic situation of
litigants. It should also be noted that the Court did not
deemed it appropriate to carry out a medical examination on the plaintiff,
rejected of the relevant request of the 1st defendant who requested it
to ascertain whether the claimant was also suffering from other illnesses or injuries
prior to the accident, on the one hand because any previous ailments
of the plaintiff are clearly separated in all the above exposed and
provided medical certificates from the injuries suffered as a result of it
accident, characterized as "secondary diagnoses", so that no
any ambiguity is left to the Court as to whether the said
diagnoses mentioned in this decision concerned exclusively and
only the legal accident, on the other hand because any predisposition of the victim, no
plays no critical role in the path of causality between
accident and consequential damage, according to what was stated at the beginning of it
present. Pursuant to the above, the lawsuit must be filed, in the part that
is directed against the 1st defendant to be partially accepted as well-founded and against
essence and to oblige the 1st defendant, on the one hand as its responsible
marine sports business from which the plaintiff chartered the boat, on the other hand
and as you have added the two-member crew of the vessel in which the dispute occurred
accident, to pay the plaintiff the total amount of (5,871.14 + 489.60 +
280 + 126 + 15,000) = €21,766.74, with legal interest from the service of the lawsuit.
Regarding the request to declare this decision temporarily enforceable, the
The Court considers that there are exceptional reasons that impose the
temporary enforceability and that the delay of execution is possible to
causes significant damage to the claimant, so the relevant request must
be partially accepted, as defined in the ordinance. Still, the court did not
deems it necessary to impose a threat of personal detention against the 1st
defendant, as a means of executing the decision, as it must
recited only as an exception to the rule of inviolability of the personal
freedom, while it was not proven by specific elements of the case file that
he is insolvent in paying the amount awarded (see
EfAth 6182/2003, HellDni 2004.859, EfThes 360/2003, HellDni 2004.535). Further,
since during the proceedings in the audience it arose, according to
what was exposed above, a fact that can be characterized as a crime
prosecuted ex officio and more specifically, that of Article 224 § 2
KPD, perjury allegedly committed by K.K., witness of the 1st
defendant, during his previous sworn statement on 9-8-
2003, before the competent investigating officer, testifying that the 1st
defendant – his father was the operator of the vessel in which the
accident, while the real thing, as he himself testified in his testimony before
of the Court, included in the minutes of the present, is that
operator was another person named, according to him, N. M., must, according to
application of article 38 of the CPC, to be ordered, edited by its Secretary
of this Court, the transmission to the Criminal Prosecutor of Rhodes
official copy of both the aforementioned pre-investigative statement of the person in question
witness, as well as the minutes of the meeting of this court,
in order to investigate whether or not he has committed the aforementioned crime
act, which is prosecuted ex officio. Finally, the court costs of the 2nd
defendant must be imposed against the plaintiff (no. 176 of the Civil Code), while
part of the plaintiff's costs must be awarded to him
of the 1st defendant (no. 178 of the Civil Code), as specified in particular in the decree
of the decision.
FOR THOSE REASONS
JUDGES against the opposition of the parties.
DISMISSES the action against the 2nd defendant
insurance company.
ORDERS the court costs of the 2nd defendant, at the expense of the plaintiff, the
which it sets at the amount of four hundred (400) euros.
The action is GRANTED in part, in so far as it is directed against the 1st
defendant.
ORDERS the 1st defendant to pay the plaintiff the total amount of
twenty one thousand seven hundred sixty six euros and seventy four cents
(21,766.74), with legal interest from the day after the service of the action and until
full payment.
DECLARES the decision temporarily enforceable for the amount of ten thousand
(10,000) euros.
ORDERS the Clerk of this Court to transmit, by
case file, to the Criminal Prosecutor of Rhodes official copies: a)
of, dated 9-8-2003, report of sworn examination of K. K.'s witness,
before the competent investigative officer and b) those identical with
present minutes of the meeting of this court, in order to
investigated whether or not KK has committed the crime of perjury.
ORDERS the 1st defendant to pay part of his court costs
plaintiff, which he sets at the amount of eight hundred (800) euros.
JUDGED and decided in Rhodes on 12-6-2007.
PUBLISHED in his audience, at an extraordinary, public meeting thereof at
Rhodes, without the presence of the parties and their attorneys,
on 6-22-2007.
THE PRESIDENT AND THE SECRETARY
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)