243/2006 ΕΤ DOOD (435276)
(A PUBLICATION LAW)
Fatal car accident. Sole responsibility of the ICHE car driver
who did not reduce speed at a level road intersection, changed course, entered the
opposite current and cut off the straight path of a two-wheeler driver. Mental
pain. Award 50 thousand euros to the wife, 30 thousand euros to the children, 5 thousand euros
to sons-in-law and grandchildren and 20 thousand euros to a grandchild with special ties.
Objection. The right is transferred to his heirs, after the issue
of the first-instance decision, deceased party. Minors. After
coming of age are present by name. Litigants. It is acceptable to discuss
of the appeal with the heirs of the deceased litigant and their
adults, if the appellant was unaware of the above changes. Judicially
evidence. As such, the documents of the criminal case file are received.
Decision number 243/2006
DODEKANIS COURT OF APPEALS
Composed by Judges: Evripides Lagoudianaki, President of Appellants,
Kalliopi Pyrovolaki, Emmanuel Vasilaki-Rapporteur, Appellants, and the secretary
Ekaterini Diakokoliou.
He met publicly in his audience in Rhodes on April 7, 2006, to
hear the following co-litigation cases:
(A) The appellant: Anonymous insurance company based in Athens with
the name "……………………………………………", legally
represented, who appeared through her attorney
Grigoriou Moraris (promissory note no. 3.078 of the Board of Directors of Rhodes).
Of the appellants: 1)... 11), who appeared by proxy
of their lawyer Ioannis Karamihalis, (no. 2.954 promissory note of the Board of
Rhodes), except for the 8th who passed away.
(B) Of the appellants: 1) …. 11), who were represented by him
of their attorney Ioannis Karamihalis (promissory note no. 2.954
advance collection of the Board of Directors of Rhodes), except for the 8th who died.
The defendant: Anonymous insurance company based in Athens with
the name “…………………………………………..”, legally
represented, who appeared through her attorney
Grigoriou Moraris (promissory note no. 3.078 of the Board of Directors of Rhodes).
The appellants filed an action against the appellant and H.L., a non-party in
in this case, at the Single Member Court of First Instance of Rhodes on 10-1-2003 and with
no. ext. cat. 63/11-3-2003, regarding compensation from a car accident lawsuit
their. That Court with its final decision No. 36/2005,
which was issued against the opposition of the parties, partially accepted the action. Against
of this decision, the 2nd defendant, an insurance company, appealed to the Court
which issued it, addressing the present, the appeal from 4-20-2005 and with
no. ext. cat. 113/22-4-2005, her appeal, a copy of which she filed in
registry of this Court with no. ext. cat. 158/26-4-2005 and the
plaintiffs applied to this Court from 20-6-2005 and with no.
515/12/12-2005 their resistance. For the discussion of appeal and cross-appeal
that were legally written on the sign, the one referred to at the beginning was declared admissible
of this decision.
During the discussion in the audience, during which the case was legally decided
in turn from the relevant board, their attorneys
parties also developed their claims orally and referred to
written proposals submitted by them.
Study the Pleadings
It was thought according to the law
The pending appeal from 20-4-2005 and the counter-appeal from 20-6-2005, which
are pending in this Court against the 36/2005 decision of the Single Member
Court of First Instance of Rhodes, issued during the special procedure of disputes which
concern claims for compensation for damage caused by a car,
as well as from his insurance contract (articles 681A, 666, 667 and 670 to 676
Civil Code), have been exercised legally and in due time, (articles 674, 495, 499, 511,
516, 517, 518, 520 and 523 of the Civil Code). Therefore they are formally accepted, as long as the from
20-6-2005 counter-appeal refers to the chapters challenged by the appeal and
was lawfully served and must be further investigated as to admissibility and
the validity of their reasons during the same procedure (articles 522 and 533 of the Civil Code).
As regards the eighth plaintiff T.R., who died on 22-5-2005, i.e. after
the issuance of the appealed decision and at a point in time that did not exist
pending trial nor stage of application of the provisions for suspension and resumption
of the trial, the right to appeal went to the Catholics
heirs thereof, who are the 2nd, 5th, 7th, 8th and 9th of the appellants,
who admissibly appealed against the percentage of the heir
their rights. Also the 9th and 11th of the plaintiffs P.R. and K.Z., the
who in the first instance trial were minors and were represented in it, o
first of those exercising parental responsibility his parents, third and fifth of them
counter-appellants and the second from the one I had custody of, first of them
appellants, after they came of age, which occurred after the discussion in
first instance, they admissibly filed the counter-appeal and are present with theirs
name (S. Samuel, The Appeal ed. E par. 48, 49. V. Vathrakoili KPolD under article
516 no. 7a and 9). Finally, because the appellant had not received knowledge of the above
changes that occurred after the discussion in the first degree, namely his death
8th plaintiff T.R. and the coming of age of the 9th, P.P. and 11th, K.Z., the sub
judgment appeal directed against the above T.R. and the representatives of the 9th and
11th, as presented at first instance, before the changes occurred, they are not
invalid and the discussion of the appeal will take place with the above heirs as opponents
of the deceased and the now adult plaintiffs (S. Samuel op. par. 84 and
84a, AP 192/1981, NoB 1981.1391, EA 2103/1995 HellDni 39.385, EA 3820/1993
Greece 35,470).
With their action of 10-1-2003, before the Single Member Court of First Instance of Rhodes,
the plaintiffs and already defendants-appellants, state that in the place and
time and under the conditions they describe a traffic accident took place,
in which the first defendant H.L., a non-party in this case, leading
car, which was already insured with the second defendant
appellant collided with a moped driven by B.H., her husband
of the first, father of the second and third, father-in-law of the fourth and fifth and
grandfather of the other plaintiffs, resulting in his fatal injury
their relatives. They further state, according to the petitioner, that the
first defendant does not exercise his rights from the insurance contract with
second defendant insurance company and request that it be obliged to
pay the first defendant the amount of 1,540,000 euros, in cash
satisfaction of the mental anguish suffered by the death of the relative
them, according to the amount mentioned for each and that the first is also obliged
to pay the above amount to the plaintiffs by paying it to him. The
Court of first instance, with its appealed decision, partially accepted the
suit and ordered the first defendant to pay the plaintiffs the
referring to each amounts and the second defendant insurance company to
pay the first defendant the same amounts. Against this decision
complains the appellant, second defendant insurance company, with the
her appeal and the plaintiffs with their opposition, as above
it is stated that they are present, for the reasons mentioned above, that all
they come down to incorrect interpretation and application of the law and poor assessment of
evidence and pursue its disappearance, so that for the plaintiffs-
requesting that the action be accepted in its entirety, and for the defendant-
I requested that the action be dismissed in its entirety.
From the innocent testimony of the first plaintiff and the testimony of the witness,
which was examined under oath before the audience of the Court of First Instance,
which are contained in the same documents as the requested minutes of the meeting
of, from all the documents presented and referred to, from its documents
related criminal proceedings, which are taken into account as judicial evidence
(AP 283/2003 published in Law, AP 1286/2003 Chr.ID 2004.245) and from
provided photographs, the authenticity of which is not disputed (articles
444 no. 3, 448 par. 2, 457 par. 4 of the Civil Code) the following is proved: On 6-30-
2000 and around 20:00 B.H., husband of the first, father of the second
and third, father-in-law of the fourth and fifth and grandfather of the others
of the plaintiffs, he was driving the two-wheeled moped with the registration number ………
of his property on the provincial road Gennadiou-Kattavia, with direction
from Kattavia to Gennadi. At the same time and place the first defendant
H.L., not a party to the appellate proceedings in this case, led the
registration number …… ICHE car, which was insured for the
against third parties his civil liability to the defendant insurance company, on
of the same provincial road in the opposite direction, that is from Gennadi to Kattavia.
At a short distance before the village of Kattavia, there is a branching of the upper one
road and the road splits into two directions, the one leading straight
to Kattavia and the other that leads with a left deviation to Apolakkia. Before
from this intersection there is another intersection formed by the
first street ……….. with the street from ………….. .
Thus, a large plateau is formed from the upper intersections, and the only one
traffic regulatory sign that exists is the sign with the signal
STOP, located on the road that runs from Mesanagro to Kattavia,
placed before said plateau. So for those moving on the street
……………………………………………. the rule applies that, h
priority belongs to the one coming from the right (article 26 par. 5 of the law
2696/1999). The first defendant moving as above in the upper street
Gennadiou-Kattavias and intending to enter the road to Apolakkia
attempted a left maneuver, as a result of which he entered the opposite current
course, to cut off the straight course of the driver of the two-wheeler, to
collides with the front right part of his car in front
part of the two-wheeler, which he dragged along with his driver and to his
cause the following bodily injuries, which resulted in his death.
The above conflict, as described above, is due to the exclusive
fault of the first defendant, who was not driving prudently and without
to have his attention constantly strained (Article 12 par. 1 Law 2696/1999) nor
reduced his speed when he entered the level road intersection (article 19 par.4
same law) and attempted to change course resulting in entering the
opposite flow of the Kattavia-Gennadiou provincial road, to cut off
the straight course of the driver of the two-wheeler, who had priority
and collide the vehicles in the manner aforesaid. The defendant
claimed at first instance and reiterates with the first ground of appeal that the
accident happened, because the driver of the moped and a relative of the plaintiffs
he was driving the moped on the provincial road from Mesanagro to Kattavia and
violated the existing traffic stop sign and entered
at the intersection with the result that the defendant driver did not have time to react. THE
this claim of the defendant must be rejected as substantially unfounded,
since it did not appear from any of the above evidence that the driver
of the moped came from Mesanagros. No one testified about this.
Even the defendant's wife, who was riding on him, was examined as a witness
car driver testified that neither she nor her husband saw the moped.
On the contrary, the first plaintiff who was examined before the court clearly testified that the
her husband had left their house five minutes before the accident
in Kattavia and took the road to Rhodes, to Agios Pavlos and not to
Middle black. However, the conflict described above is also confirmed and the
path of the vehicles from the collided parts thereof, as depicted in
subpoenaed photographs, the authenticity of which does not
is disputed. In particular, if the conflict took place, as claimed by
defendant, due to the violation of STOP on the part of its driver
moped, the collided parts would be either the right side of the car
with the front of the moped or the front of the car
with the left side of the moped. But the conflicting parties, such as
certified by the photos, it is the front part of the moped
and the front part of the car and especially in the right part
headlight, which confirms the cut-off of the motorcyclist's path, when
the defendant car driver attempted to swerve to the left of the
junction to enter the road to Apolakkia. Next, the first reason
of the appeal must be dismissed as unfounded.
As a result of the collision, the relative of the plaintiffs B.X., undercover, was injured
abrasions (not) dorsal surface, (not) hand, abrasions (not) abdomen,
multiple scattered abrasions (n) shin (n) thigh (n) shin-(n) thigh,
and fracture of lower third (de) femur, blunt force trauma
parietal country and corresponding country hematoma. It was caused by injuries
thromboatheromatous occlusion of coronary vessels, from which the
death before being admitted to the hospital, a fact admitted by her
defendant. It was further shown that, the plaintiffs, wife, children, sons-in-law
by daughters and grandchildren of the deceased suffered mental anguish from the
his death in the disputed accident. The deceased, aged 68, lived with
first plaintiff harmoniously, while raising the eleventh with her
plaintiff, his grandson, after his mother's death and between them
strong bonds of love and respect developed, transcending relationships
that develop between grandfather and grandson. The other plaintiffs had
close and unbreakable emotional ties with the deceased and
his death, which came unexpectedly, caused them intense mental anguish.
For the monetary satisfaction of this and the determination of its amount, the
The court takes into account the following specific elements: a)
the sole fault of the wrongdoer (first of the defendants), h
act of which also constitutes a criminal offence, (violation of article 302 par.1 of
PK), for which he was referred to be tried at the Three-member Criminal Court
Rhodes, b) the age of the deceased (68 years old), c) the degree of kinship
of each of the claimants, d) the degree of mental suffering, grief and
of the pain experienced by each of the above beneficiaries, as well as the others
personal relationships, e) the social and economic situation of the parties,
except for the property situation of the defendant insurance company, h
responsibility of which is guaranteed (see Ef. Ath. 14234/1987 Greek Civil Code 189.118, Ath.
Kritikou op no. 922). In view of the above, it must be awarded in the first case
plaintiff the amount of fifty thousand (50,000) euros, as monetary satisfaction
for the mental anguish he suffered, in the second and third of the plaintiffs
an amount of thirty thousand (30,000) euros to each of them, to
fourth, fifth, sixth, seventh, eighth, ninth and tenth plaintiffs the amount
of five thousand (5,000) euros, to each of them and to the eleventh
amount of twenty thousand (20,000) euros. The appellant also accepted these
which awarded the respective amounts to the plaintiffs was not in error and dismissed
the second ground of appeal and the counter-appeal of the plaintiffs as a whole are decided
her. Finally, her third and last reason is rejected
appeal, with which the defendant complains about her conviction in art
partial court costs, amounting to 5,000 euros. Because based on the provisions on
sentencing the party depending on the extent of his defeat (Article 178 of the Civil Code)
and given that the total amount awarded against her amounts to
165,000 euros, only the attorney's fee, according to
provisions of articles 100 and 107 of the Code on Lawyers amounts to 4,950
euros (165,000X3%), not including other expenses and therefore n
awarded expense is less than the legal one. His legal costs
present degree of jurisdiction must be imposed against the appellant
for the dismissed appeal and against the counter-appellants for the
rejected appeal (articles 176, 183 and 191 par. 2 of the Criminal Code), which
leads to their total offsetting.
G I A T O Y S L O G O Y S A Y T O Y S
He is jointly litigating the appeal and the counter-appeal against the parties.
It formally accepts these and rejects them in essence.
Set off between the parties the court costs of this degree
jurisdiction.
It was judged, decided in Rhodes on 21-8-2006, in a secret conference and
published in his audience in Rhodes on 14-9-2006 in an extraordinary public
meeting, in the absence of the parties and their attorneys, with
present the Secretary.
The President The Secretary
R.K.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
