28/2008 IR ROD (508127)
(1ST LAW PUBLICATION)
Car accident. Regular procedure. If the damages were not caused by another
car, the dispute is adjudicated by the regular procedure. Auxiliary
Capital. In the case of definitive revocation of its operating license
insurer automatically assumes all rights and obligations
of the insurance company.
Number 28/2008
(Regular procedure)
THE JUSTICE OF THE PEACE of Rhodes
It was formed by Justice of the Peace Stamatia Zachariou and Secretary Ioannis
Rodite.
He met publicly in his audience on November 20, 2007, to
try the case between:
The plaintiff: F. M., a resident of Rhodes, represented by proxy
of Ioannis Karamihalis's lawyer (collection letter number of the Board of Directors of Rhodes
5413).
The defendant: the N.P.I.D. with the name "SUPPLEMENTARY INSURANCE CAPITAL
VEHICLE ACCIDENT LIABILITY", based in Athens and represented
legally, as the universal successor of the obligor anonymous insurance company
under the name "…………………", whose operating license was revoked, the
who was not represented by a legal representative or attorney.
The plaintiff with his lawsuit of November 23, 2005, directed against her
defendant, filed with serial number 934/2005, requested what is contained
to her.
November 28, 2006 was originally set as a trial date for the discussion of the case
and after the postponement mentioned at the beginning of the present, according to
which the case pronounced by the row of the table concerned, was discussed
and the Court
After hearing what is contained in the minutes
Study the case file
He thought according to the Law
From the report cited and cited under No. 4885B/22-12-2005
service of the bailiff of the Court of First Instance of Athens K. P. appears
that an exact copy of the adjudicated action with a deed of determination of jurisdiction and
summons for discussion for the originally scheduled trial of 11-28-2006 was delivered
legally and timely to the defendant insurance company. According to the above
trial the discussion of the case was adjourned from the board for the present
trial and re-registered in it. This registration is considered as a subpoena
to all parties (article 226 par. 4 of the Civil Code) and therefore the defendant
which did not appear at the trial in which the case was decided
in her turn from the panel she must be tried in absentia. The court however
he must proceed to the case of the discussion as if he were all parties
present.
According to article 19 & 1 para. d' of Law 489/1976 the responsibility of
Auxiliary Capital in case of final revocation of the license
operation of the insurer.
Besides, according to par. 4 of art. 24 of the same above law by
date the insurer's operating license is definitively revoked, the
Auxiliary Capital automatically enters into all the rights and
obligations of the insurance company arising from insurance
contracts of the civil liability branch, and pending trials continue without
other than the Auxiliary Fund.
With the pending lawsuit, which is directed against the insurance company
“…………………….”, the plaintiff claims to be running a rental business
cars in Rhodes with the distinctive title "………….".
As part of his business activity, he leased the car
of his property with registration number ………… E.I.X. FIAT factory
AUTO SPA type PUNTO, which was insured at the time of the accident
to the insurance company …………………… with a mixed contract
insurance
to Mr. E. X. with the agreement that the passenger of Mr.
H. A., who (H. A.) on 7-17-2005 driving the above vehicle caused
material damage to it, when the vehicle hit a stone embankment
which was made under the circumstances specifically described in the lawsuit.
He also requests that the insurance company be obliged to pay him the amount of
6,000 euros as compensation and monetary satisfaction due to moral damage,
legal interest from the day after the notification of this present, and to
the defendant is ordered to pay his court costs. With this content
and requests, the action competent and admissible is entered to be discussed
before this court (Articles 14&1, 25&2 and 33 of the Civil Code) against
the regular procedure and not according to the procedure provided by
provisions of articles 681 A amended of K.PolD. (due to her not being provoked
damage from another car) and is legally valid. It is based on
provisions of articles 287, 297, 298, 299, 346 of the Civil Code, 19 par. 1, 24 par. 4 of the Law.
489/76, 176 and 907, 908 of the Civil Code. According to what is included in the major
consideration the relevant right is legally exercised according to article 25 & 4 of Law 489/76,
against the N.P.I.D and the "Liability Insurance Auxiliary Fund Ex
Accidents", legally takes the place of the original insurance party
company and the trial continues between him and the plaintiff. His responsibility
Auxiliary capital is formed by law against the injured party
person and not against the person liable for compensation (E.A. 9160/1998 App.Emp.D
1999-780). Besides, the extent of the liability of the auxiliary capital against
rule is the same as that of the insurer, so the issue in which in
in the present case the insurance concluded was an own damage insurance not
creates some variation in the fact that the Auxiliary Fund
automatically assumed its rights and obligations initially
of defendant insurance company and the suit continues between him and
of the plaintiff according to the above.
Further to the allegations of the plaintiff's attorney at
audience and those included in his written proposals, the jury
examination of the evidence witness, from the cited and cited documents
and the evidentiary process in general, arose at his discretion
Court the following facts: On 17.7.2005 and around time
20.30 the above-mentioned US driver, driving with registration no
…………… E.I.X. car, owned by the plaintiff, such as this one
emerges from the attached copy of the license issued on
of Rodos Lindos Street in the direction of Lindos. At about the 8th km and
specifically at the height of the intersection for the municipal district of Koskinou
on the contrary, an oncoming car used the headlights and swerved
driver, causing him to lose control of the vehicle and
hits a stone embankment at the right end of the traffic stream. Against
at the time of the incident the car owned by the claimant was
insured under a joint insurance contract by the original defendant insurer
company "…………………" for own damages up to the amount of 6,000 euros (See
the number 1841408/23-5-2005 insurance policy after the number
257507 of additional act). Result of the impact was to suffer the
car property damage for the restoration of which the plaintiff spent
the total amount of 3,445.37 euros which is analyzed as follows: 1) for
body shop works amount 791 euros (See no. 3091/30-8-2005
receipt of services), 2) for painting works amount of 452 euros (See
under no. 6239/30-8-2005 proof of provision of services), 3) for purchase
spare parts and bodywork items amounting to 1976.37 euros (See item no.
5702/29-8-2005 sales invoice - delivery note) and 4) for works
repair amount of 226 euros (See receipt no. 73/30-8-2005
services). Due to the above impact and damages caused
in the car the commercial and market value of the vehicle decreased by
10% percentage on the value it had on the day of the accident which
it was estimated by the Court that it amounted to 8,000 euros
in which case also the request for the restoration of technical and commercial eligibility
some must be accepted up to the amount of 800 euros. Further and
in view of the fact that the accident occurred in the month of July which is considered
peak period of the tourist season when the rental vehicles
they are rented, if not daily, at least very regularly and because of her
immobilization of the car due to lack of spare parts for 46 days
it was assumed by the Court that the amount of 1380 euros as an escape
profit from the plaintiff for daily rental of his vehicle must
be accepted up to the amount of 1050 euros which corresponds to 35 days
for 45 euros per day since weekdays cannot be taken for granted
rental of the vehicle when the plaintiff's request for the missing
his earnings must be partially accepted. The whole therefore of his damage
plaintiff amounts to the amount of 5,295.37 euros (3,445.37+800+1050). According
with the above considerations, the lawsuit must be partly accepted and as
substantially valid, to oblige the Auxiliary Fund which
legally entered into the rights and obligations of the original defendant
insurance company "………" to pay the plaintiff the amount of
5,295.37 euros legal interest from the service of the lawsuit. The Court judges
also that the delay in the execution of the decision due to its antiquity
claim will cause significant damage to the claimant and the decision must
be temporarily declared executor for the amount of 3,500 euros. Court costs
of the plaintiff are borne by the defendant (Article 178 of the Civil Code). Finally because of her
default judgment of the defendant, the legal default judgment must be defined
(no. 501,502 and 505 K.Pol.D).
FOR THOSE REASONS
He judges in the defendant's absence.
He partially accepts the lawsuit.
Obliges the defendant N.P.I.D. "Liability Insurance Auxiliary Fund
of Automobile Accidents", as universal successor of the insurance company
"…………………….", to pay the plaintiff the sum of five thousand
two hundred and ninety-five euros and thirty-seven cents (5,295.37) euros with the
legal interest from service of claim until payment.
Proclaims the decision temporarily enforceable for the amount of three thousand
five hundred (3,500) euros.
It sets the default judgment fee in the amount of one hundred (100) euros.
It imposes on the defendant the legal costs of the plaintiff, which
set at two hundred (200) euros.
Judged, decided and published in Rhodes on 23/01/2008 in absentia
of the parties and their attorneys.
EIRINODIKIS THE SECRETARY
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)