280/2005 ΕΤ DOOD (386517)
(1st PUBLICATION LAW, ARM 2006/1241)
Insurance contract. Damages for a time prior to this are not covered
insurance coverage. Jurisprudence of legal action. Locally competent
courts of the place of origin to the proposer of the acceptance of the proposal
but also of that payment according to art. 321 of the Civil Code of the monetary provision after the
realization of the risk.
Decision number 280/2005
DODEKANIS COURT OF APPEALS
Composed by the Judges: Konstantinos Apostolopoulos, President
Appellants, Nikolaos Karadimitriou, and Eleni Fragkaki-Appellant, Appellants and the
secretary Aikaterini Diakokoliou, court clerk of the Court of Appeal
Dodecanese.
He met publicly in their audience in Rhodes on May 13, 2005, for
to try the following case:
The appellant: F.M., a resident of Rhodes, who appeared at
Court together with the attorney of Ioannis Haritos (with no.
133.142 promissory note of the Board of Directors of Rhodes).
AGAINST
The defendant: Anonyme general insurance company based in
Kifisia under the name "...", legally represented, which was represented
in court through the proxy attorney of Ioannis Karamihalis.
The appellant practiced in the Single-Member Court of First Instance of Rhodes and in the Special Division
procedure, against the respondent from 12-12-2000 and with no. exp. cat.
83/14-3-2001 his lawsuit. That Court with No. 104/2002 no
his final decision ordered the adjudication of the lawsuit by the competent authority
and by location the Single Member Court of First Instance of Rhodes during the regular procedure and the
last with No. 113/2003 non-final decision again declared
himself incompetent in place and referred the action for trial to the competent one
Single-member Court of First Instance of Athens. The plaintiff appealed against the last decision
the appeal from 5-10-2003 and with no. exp. 237/7-10-2003, his appeal,
a copy of which he filed in the registry of this Court with no.
exp. 323/13-10-2003, for the discussion of the one legally written in
panel was set for trial, with adjournment, the one referred to at the beginning of it
of this decision.
During the hearing at which the case was heard
legally in turn from the relevant board, their attorneys
parties also developed their claims orally and referred to
written proposals submitted by them.
STUDY THE LITERATURE
THINK AGAINST THE LAW
The legal appeal against the 113/2003 final decision of the Single Member
Court of First Instance of Rhodes (no. 511, 513 par. 1 C.Pol.D), with which, tried
during the regular procedure and against the opposition of the parties, it was exercised
legal forms (by filing a pleading with the registry of the court which
issued the contested decision – no. 495 par. 1 K.Pol.D) and on time
(since there is no service of the summons – no. 499, 518 par. 1 C.Pol.D)
by the unsuccessful plaintiff against the defendant
of (no. 516 par. 1, 517 K.Pol.D). Therefore, legally brought before the Court
what is competent for its adjudication (no. 19 K.Pol.D), must be done
formally accepted and then examined as to admissibility and
validity of her reasons (no. 533 par. 1 K.Pol.D).
From 12-12-2000 and with no. cat. 83/2001 action by the plaintiff and already
appellant, stated that in the context of his professional activity as
car rental business leased to alien VA the me
No. circular ……….. car owned by him which and at
own damage coverage was insured (mixed insurance) in the defendant and already
liable. That on 15-8-1999 this car driven by the above
lessee at the height of the 20th kilometer of the national road Rhodes-Lindos and
specifically, upon entering the village of Afandou, he deviated from his course
and collided with a fence wall resulting in material damage
damages for the restoration of which the plaintiff lessor spent, according to
detailed in the lawsuit, 991,934 drachmas (and already €2,869). Based on the
of these incidents, he requested that the defendant be obliged to pay him
with interest from its performance, an amount of 2,581,934 drachmas (€7,577) as
restitution of the damages resulting from this incident, consisting not only
in the above repair costs but also in the reduction of its purchase value
car amounting to 900,000 (€2,641) and absconding during the period
of its repair, derived from its loss of use, profits of 690,000
(€2,024) The Court of First Instance with the appellant held that the
The single-member Court of First Instance of Rhodes was locally incompetent to try her
lawsuit and referred it for adjudication to the materially and locally competent
Single-member Court of First Instance of Athens, because the defendant insurance company
company is based in the city of Athens. Complains against this decision
appellant for incorrect application and interpretation of the law by the First Instance
Court, i.e. the provisions that concern exclusively the local
jurisdiction of the court and requests the disappearance of the defendant
decision, in order to accept their action as legally valid and
essentially in its entirety and the conviction of the respondent in court
expenditure of both degrees of jurisdiction.
III. A) According to the provision of article 33 of the Civil Code, disputes concerning
the existence and validity of a legal deed in existence as well as all the rights which
arising from it can also be introduced in the court in the district
of which the place where the deed was drawn up or where it should be located
to fulfill the provision. Moreover, in the sense of the provisions of the articles
185, 189 and 192 of the Civil Code, which are applied by the court, before it
in which a certain case is pending for the assistance of the article 33 K.Pol.D
by place of jurisdiction, the termination and therefore the drawing up of the contract
occurs, after the declaration for the acceptance of the proposal has been received by
proposing. Thus, as the place of conclusion of the contract, the place is considered
in which the proposer received the acceptance of the proposal (Official Decree 5134/2003
ElDni 45. 194, Efllar. 287/2002 EPISK EMPD 2003/458). B) Further as a place
fulfillment of provision means the place of fulfillment in substantive law,
i.e. the place of performance of the defendant's provision, i.e. that which
arises from the legal action, expressly or implicitly, otherwise the one specified
from the interpretative provisions of articles 320-322 A.K. The place of fulfillment
considered, not in relation to the whole contract, but to the provision in question, to
and in the event that this is monetary, the place of fulfillment of the provision is
according to article 321§1 of the Civil Code, the place where the creditor has his residence
at the time of payment. The insurance contract is two-way,
drawn up by simple consent of the parties and is deemed to have been drawn up since then
that the insurer will accept the insurance proposal (Official Decree 4939/2003
EEMPD 2003/626). C) In the insurance contract, after its occurrence
insurance event, the insurer's obligation to provide insurance
protection turns into an obligation to provide for the risk that
was carried out, which benefit is monetary and is paid on the spot
which has been agreed, otherwise at the place of residence of the counterparty or his
beneficiary. In other words, the existence of the insured event changes the
insurer to the debtor of this provision (EfThr. 368/1999 EpiskEmbD 2000. 737
op. and references in no. and theory.).
IV. Therefore according to the above set out in the history of the decision and the
major sentence of this, the Court of first instance was, according to article 33
K.Pol.D., locally competent for the adjudication of the case, since n
Rhodes is the city where the insurance contract was drawn up since, as
and the defendant herself states, there is an insurance agent in this city
through which the declaration of acceptance of the defendant company was received at
plaintiff's proposal for insurance, and which acceptance was expressed by
sending him the insurance policy. In addition, according to the above,
in Rhodes is also the place of fulfillment of provision, since the risk for him
who had insured his car (own damage insurance),
took place and the defendant - defendant insurance company has
obligation to compensate him for the damage to his car that occurred
from the reported accident, i.e. benefit (which) is monetary and as
therefore payable, according to article 321 of the Civil Code, if it has not been agreed
otherwise, nor does the defendant company invoke such a thing, in
place of residence of the plaintiff-insured, which is the city of Rhodes.
In other words, a special co-current jurisdiction of the legal action with both is established
above forms of it (article 33 K.Pol.D) which applies in parallel with the general one
legal jurisdiction of the residence of the natural person (article 22 of the Civil Code) or of the
seat of the defendant legal entity (article 25§2 C.Pol.D). After all, in sub
judgment case the plaintiff, who according to article 41 of the Civil Code has the right
of choice among the several, locally competent courts, chose it
Court of First Instance of Rhodes. According to the above considerations the primary
court which, accepted that in the considered case competent by place
court is only that of the seat of the defendant insurance company and, without
to investigate its assistance, in parallel with that of existing litigation
of the place of formation of the deed and fulfillment of the provision,
declared himself incompetent and referred the case to the
The single-member Court of First Instance of Athens erred in the interpretation and application of the law.
Therefore, the appeal must admit the merits of its only argument
to be accepted as valid in substance, to disappear the alleged
decision and to retain the case from this court, which must
then to proceed with the adjudication of the lawsuit with the special procedure
of articles 666 and 670 to 676 since it is an existing between
insured and insurer dispute which has as its object a claim from
car insurance contract (article 681A section b).
V. A). From the provisions of nos. 1 and 2 of Law 2496/1997 it follows that with
insurance contract, the insurer undertakes it for a premium
obligation to pay the insured compensation for the damage that will
suffered from the occurrence of the insured event during it
insurance, which can, with the express agreement of the parties, start from time
before the conclusion of the contract if the interested parties were unaware
the possible occurrence of the risk from the possibly agreed start of it
insurance coverage until the conclusion of the contract (AP 848/2002
submitted, interpreting the corresponding provision of nos. 189 and 192 EmpN
which are no longer valid after the entry into force of Law 2496/1997). Not particularly
with the no. 1 of Law 2496/1997 which gives the meaning of insurance
case: "the insurer is obliged to pay... benefit in money
...when the incident occurs on which it was agreed to depend on
his obligation (insurance case"), and an element of the insurance contract
according to the same no. 1 par. 2 is also "... the type of risk (insurance
risks"). As it does not appear from the provision of no. 7 par. 7 of Law 2496/97
the insurance compensation becomes due and payable when
the insured risk occurs, i.e. the loss to be covered occurs
of which the insurance contract has been concluded. B) The above under judgment
lawsuit, which refers to own damage insurance, as to the requests that
refer to the reduction in the commercial value of the car by the amount of
900,000 (€2,641) and to, during the period of its repair, the missing
profits of the plaintiff amounting to 690,000 drachmas (€2,024) and is indefinite and must
to be rejected, since they are not exposed if the contract referred to therein
insurance includes the compensation of these cases. By the way
is legal based on the aforementioned provisions of articles 1,2
and 7§7 ed.a of Law 2496/1997 and must be investigated in substance. THE
defendant, with its legally filed proposals, concludes the contract
insurance but denies its obligation to the defendant
provision of the insurance, disputing the cause of the damage
claiming at the same time that the insured car had suffered the
damages referred to in the action earlier than its period
insurance coverage of the time.
VI. From the documents presented and referred to by the parties among themselves
including those of undisputed authenticity (articles 444
no. 3, 447, 448 par. 2 and 457 par. 4 K.Pol.D.) photographs of the injured party
car, the following are proven in the judgment of this Court
facts: The plaintiff maintains a rental business in Rhodes
cars with the distinctive title “……”. With no. 10-168430/2-8-
1999 contract of the defendant company had insured it with no.
circular …… I.X.E., manufactured by NISSAN, owned car
of for the period from 13-7-1999 to 13-10-1999 on the one hand for
its coverage against third parties, from civil motor vehicle accidents
liability, on the one hand, and for the coverage of own damages that might be caused
in the car for various reasons (accidents, theft, fire, etc.). At
27-8-1999, as the defendant herself states, without presenting the relevant
document, that the plaintiff made a statement to the defendant that the above insured
this car suffered damages because on 15-8-1999 driven by
VA tenant, veered off course and crashed into a fence wall.
Furthermore, he, invoking the existing contract between them
insurance, claimed coverage of the insured's repair costs
car which totaled (purchase of spare parts, repair and painting
at 991,934 drachmas and already €2,869. The defendant after the statement of the plaintiff
was not summoned to examine the insured car to establish the
damage. According to the plaintiff's statement to her, the car was
repaired and thus the defendant was unable to ascertain the extent and
the type of damages caused to the insured car by the collision,
damages, but it was not even indicated at this point, specifically the wall at
which this bumped into. Further than what the plaintiff himself mentions in
the following contradictions are noted in his lawsuit: 1) The insurance risk,
allegedly occurred on 8-15-1999 while driving the car from as
upper foreigner, to whom however, as again in the lawsuit this is mentioned
was leased from the plaintiff to him for the period from August 25 to 30
period. (see also the petition filed by the plaintiff with reference no.
06020/1999 lease contract of “…..”). The Court cannot
to be led to the judgment that the day of occurrence of the insurance risk on
8/15/1999 is due to an obvious error on the part of the author of the petition, since
to, from the beginning and repeated remarks of the defendant
both in the first instance and in the appellate court that it is about
contradiction, (see the submitted proposals), the plaintiff never stated that the
date of occurrence of the insurance risk is other than 8-15-1999 and
that the chronology of this accident is due to
slip. In addition given that the insured car collided with
wall on 15/8/1999 and subsequently leased on 25-8-1999 to
Court is led to the conclusion that this in fact to the
defendant statement had been repaired. 2) The lawsuit states that the repair
of the car was done according to the instructions of the 15-10-2000 reports
expert opinion of the damage assessor A.K., which
indeed the plaintiff submits. However, below in his lawsuit he pleads that
the purchase of the spare parts, body work and paint shop were done on
October of the year 1999, i.e. in a time earlier (one year before
reports of the A.K.), the repair instructions, and also the related ones
invoices that he submits as proof of the repair costs they bear
dated 1/10/1999 and 8/10/1999. It is noted that the plaintiff no
protests against these remarks of the defendant despite the fact
that he knows the content of the depositions in both Courts
proposals. From these incidents the Court is led to the judgment that the
occurrence of the insurance risk, i.e. its damage due to impact
insured car had occurred prior to the insurance
coverage (13-7-1999) year. This judgment of the Court, beyond what
were exposed, is reinforced by the fact that the plaintiff does not invoke either
provides rental agreements of the insured car on the one hand for the
from the start of the insurance coverage period until the following day on
15, or even, on August 25 impact and on the other hand for the immediate
prior to his insurance coverage (July 1 to 12, 1999)
space. After that the plaintiff, who also has the burden of proof for
the occurrence of the insurance risk during the insurance coverage period
did not prove that the car suffered damage within the specified time
period, nor the cause from which the damages were caused to
insured car. The action must therefore be dismissed as unfounded at
essence of it and to impose the court costs of the defendant of the two degrees
jurisdiction, as specifically specified in the ordinance, at his expense
plaintiff, who was defeated (178, 183, 189, 191 Civil Code, 99 ff. Code on
lawyers)
FOR THOSE REASONS
Judges the appeal against the opposition of the parties.
He formally and substantively accepts the appeal.
Eliminates decision No. 113/2003 of the Single Member Court of First Instance of Rhodes
He holds and tries her from 12-12-2000 and with no. cat. 83/2001 lawsuit.
She rejects it.
It imposes its legal costs against the claimant
defendant – respondent of both degrees of jurisdiction which it determines
in the amount of five hundred (500) Euros.
It was judged, it was decided in Rhodes on 8-9-2005, in a secret conference and
published in his audience in Rhodes on 12-9-2005, in an extraordinary public
meeting, in the absence of the parties and their attorneys, with
secretary present.
The President The Secretary
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
