28/2003 BR ROD (321108)
(A PUBLICATION LAW)
Car accident. The fault of the driver from an intersection with a sign
STOP vehicle. Awarding lost profits to the merchant – his driver
of damaged lorry IX. Reduction of the commercial value of the lorry, first
traffic 4.5 years before the accident at a rate of 10%. Lateral treatment
against the insurer. Limitation of the insurer's obligations towards him
his insured within 4 years from the realization of the insurance policy
case, i.e. from the service of the initial action against the insured.
(A PUBLICATION LAW)
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF RHODES
Number 28/2003
(Special board process)
Consisting of Lazaros Valsamis, Judge of First Instance, appointed by
the President of First Instance, with the cooperation of Zoi, the judicial secretary
Trenchou.
He sat in public in his audience on 5-11-2002 to try the
following case between:
OF THE PLAINTIFF: A.K. resident of Rhodes who was represented in the trial by
their attorney Yannis Karamihalis of Stamatiou.
OF THE DEFENDANTS: 1) H.N., 2) G.K. residents of Rhodes, 3) The anonymous
insurance company with the name "G.E. AEEGA" based in
Piraeus Attica and legally represented, of which the first two
did not appear at the trial or be represented by an attorney,
while the third defendant was represented by her attorney
Evangelia Taraslia. In order to discuss the from 25.9.2001 and with number
filing 258/27.9.2001 action of the above plaintiff against the defendants,
who asked for it to be admitted, the judge of which was appointed
5-11-2002 when he was tried.
The attorneys of the parties, after developing their oral arguments
their allegations, referred to in their written proposals and asked to
accept what is mentioned in them.
AFTER STUDYING THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
According to the provision of article 10 of Law 2496/16.5.1997 "claims that
arise 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". According
and with the provision of article 10 par. 1, 2 et seq. 237/1986 "the person, who
has been damaged by the insurance contract and up to the amount thereof itself
claim against the insurer. This claim is time-barred after two years
from the day of the accident, subject to the written provisions for
the suspension and interruption of the statute of limitations".
From the comparison of the limitation period of the injured third party against him
insurer and the other responsible persons it follows that the first, in
case of limitation of his claim against the insurer (article 10 par. 1,
2 p.d. 237/1986), he can exercise plagiarism against him (KPolD 72) the
claim of the insured, arising from the insurance contract, against him
insurer, since the latter, as mentioned above, is subject to a four-year
statute of limitations (article 10 of Law 2496/1997), however, if the claim has arisen
of the insured against the insurer (Kritikos “compensation from a traffic accident
motor vehicle accidents 1998, paras 2141, 2151).
Finally, from the combination of the provisions of articles 189, 195 EmpN and 201
AK it follows that on the contract of civil liability towards third parties, the claim
of the insured under this contract (no. 189 EmpN) against the insurer
is born, when the third party, who was damaged, against whom he is liable
for compensation the insured, deliver to the latter the relevant to
restoration of the damage of the suit, because since then the insurance has been carried out
case (risk), even if it has not been determined by a court
decision or out-of-court settlement the size of the third party's claim, which
was damaged and therefore neither the amount of the insured's claim against
of the insurer. Since then, it has not been possible to prosecute it
claim of the insured against the insurer (AP 277/1999 legal bank
information LAW).
From No. 3309D/10.1.2002 service report of the bailiff
in the Court of First Instance of Rhodes, Michalis Karakopoulos, which he presents and invokes
the plaintiff finds that, an exact certified copy of the lawsuit in question
with an act of determination of trial and a summons to discuss the trial which
referred to at the beginning of the present, was duly and timely served on
first defendant. The latter, however, did not appear in this trial against
which the case was pronounced by the panel and therefore must be tried
in absentia. The Court will, however, proceed to discuss the case as
that this party was also present (672 CColD). But regarding the second one
defendant, there is no legal summons, since the plaintiff does not plead but
nor does it provide the corresponding performance report and therefore n
discussion of the lawsuit, as far as he is concerned, must be declared inadmissible (art
271 par. 1 cond. 591 of the Civil Code).
The plaintiff states that the first defendant driving the car, which
belongs to the second defendant and is insured for the damages, which
caused to third parties, to the third defendant insurance company
damage and damage to his car due to his fault, during the collision,
which took place under the circumstances described in the lawsuit. He asks,
after the admissibility with the sentences (223 KPolD) in part restriction (40%)
of the request of the lawsuit, regarding the fund of lost profits, o
which is equivalent to a partial waiver of the legal document (295 Civil Code),
so the action, in this part, is considered not to have been brought (AP 1699/1991,
HellDni 1993, 579, 580) to compel the first two defendants to
pay jointly and severally the amount of 4,799,500 drachmas in total
as his compensation and for monetary satisfaction due to moral damage and
collaterally to compel the third defendant to pay the first two
the above amount with legal interest (in both claims actions) from the
service of the action as well as to declare the decision temporarily enforceable.
With this content and request, the judged lawsuits (direct and
plagiarism), which must be litigated together, due to their relationship with each other
of obvious relation and relevance, because thus it is accelerated and facilitated
the trial, and a reduction of expenses also occurs (articles 31, 246 of the Civil Code), competent
and admissible (see also the performance report no. 3718d/8.3.2002
bailiff of Rhodes, Michalis Karakopoulos to the D.O.Y. Rhodes, where
concerns the lost profits fund) are brought to be discussed before
of this Court in the special procedure provided for by the provisions
of articles 72, 681A, 666, 667, 670 to 676 and 681a of the Civil Code. They are legal.
They are based on the provisions of articles 914, 297, 298, 299, 330 ed. B, 341,
345, 346, 481 ff. and 932 AK, 10 of Law 489/1976, 907 and 908 par. 1 d
KpolD. They must, therefore, be further investigated in substance.
From the evaluation of the impartial examination in the audience of the party Argyris
Kontakis and the other documents, which the parties present and
are invoked, the following facts are proved:
On 1.9.1999 at approximately 11:25, the plaintiff driving the no.
POE 7812 FIH car (truck), owned by the owner with normal registration
speed on the national road of Rhodes, heading from Rhodes to Lindos. At
intersection of said street with St. Varvaras (in the area, where
SUPER MARKET “TROFO” is located), having priority over the
moving on the above road due to the presence of a “STOP” sign (P-2) on it,
continued his course crossing the intersection. At the same time, the first
defendant, driving the car owned by him with registration number PINK 8560
of the second defendant and insured for civil liability against third parties in
third defendant insurance company, opened on St. Ag. Varvaras me
in order to enter the national road. But arriving at the intersection with
highway, did not act as he ought and could have done as an average prudent person
driver, obeying the relevant rule of the K.O.K. (article 26 par. 4 in cond.
with 4 para. 3/P-2 Law 2094/92) and specifically it was not immobilized before
"STOP" sign, which was located on Ag. Barbara in order to
control the movement of vehicles on the national highway, in this case granting it
priority of movement in the car, which was driven by the plaintiff and which the
at that moment he was passing through the intersection in question but continued on his way
with the result that he entered the stream of the plaintiff's path, to stop
his course and collide head-on with his car causing
of material damage.
From the above conflict, of which the former is solely to blame
defendant, driver of the PINK 8560 FIH car, the car
the plaintiff suffered damages for the restoration of which he was forced to
spend the total amount of 1,299,500 drachmas (see the no. 118/
23-12-2000 proof of services provided by the company "P.M. & CO., where
presented in the case file).
It was further proved that the plaintiff is in the profession of merchant and that
using the above truck car he supplied department stores
with supermarket items, running daily routes for this purpose.
However, due to the collision, the car remained for fifteen days
immobilized in the workshop for repair and therefore during the interval
this the plaintiff was deprived of its use and exploitation. That's how he lost it
total amount of 1,200,000 drachmas, (an amount corresponding to half of
requested, given that the period of one month, which is supported by
plaintiff that he was deprived of the use of his car is considered excessive for
the repair of the damage, which it suffered), which the plaintiff would receive
in the ordinary course of things, if the above did not intervene
accident.
Besides, the plaintiff's car is manufactured by FORD,
type SIERRA VAN, with date of first release 19.1.1995, preserved
in good condition and had a pre-collision market value of 4,000,000
drachmas. In view of the observed reluctance to buy refurbished
vehicles by a large portion of the buying public, due to the suspicion that
has, that such a car can appear later, during
its use defects (see also Ef. Thes. 805/1990 Ef. Syng. Court. 1992.
42) and despite its repair (which, however, was carefully done, in a workshop
of the plaintiff's choice) his car suffered a reduction in its commercial value
value, which amounts to a percentage of 10%, i.e. 400,000 drachmas.
Finally, in view of the circumstances of the accident, its type and nature
degree of fault of the driver, who injured him, of the social and
economic situation of the parties, the plaintiff suffered moral or financial damage
satisfaction for which it is valued at 80,000 drachmas.
The lawsuit must, therefore, be partially accepted as substantively valid and
to compel the first defendant to pay the plaintiff the sum of
2,979,500 drachmas with the legal interest from the service of the lawsuit. Concerning
the request to declare the decision provisionally enforceable, the Court
deems that there are exceptional reasons, which impose the temporary
enforceability and that the delay in enforcement may result
substantial damage to the claimant. That is why the relevant request must be made
accepted for the amount of 1,000,000 drachmas. The plaintiff's legal costs
must be distributed according to the extent of his victory (article 178 par.
1 KPolD), as specified in particular in the operative part of the decision and to
define the fee for the case of challenging default judgment (art
673 of the Civil Code).
Finally it was proven as mentioned above that the damaging vehicle at the time
of the legal accident was insured against the third party defendant,
insurance company and the plaintiff's claim was born with its exercise
of his action against the first defendant insured and is time-barred within
four years from the end of the year in which the action was served on the latter
(date of performance 10-1-2002) according to what was exposed in its major
present. Hence the objection of limitation, raised by the third
defendant must be dismissed as substantially unfounded and the action dismissed
accepted, in view of the defeat of the direct and insured therein, first
defendant to the extent, where said defeat took place, and to be condemned
the above insurance company to pay the defendant the amount of
2,979,500 drachmas, which he will be obliged to pay to the plaintiff with the
legal interest from the service of the action. Regarding the request for the declaration
of the provisionally enforceable decision the Court considers that its delay
enforcement is likely to cause significant damage to the claimant for this
the relevant request must be accepted in its entirety. His legal costs
plaintiffs must be imposed against the third defendant on account of the defeat
(Article 176 of the Civil Code), as specified in particular in its statutes
decision.
FOR THOSE REASONS
It hears the opposition of the first defendant.
Sets the default judgment fee in the amount of two hundred (200) euros.
He declares the discussion of the lawsuit inadmissible, as regards the second
defendant.
He partially accepts the lawsuit.
It orders the first defendant to pay to the plaintiff the sum of two
million nine hundred seventy nine thousand, five hundred (2,979,500)
drachmas or eight thousand, seven hundred and forty-three (8,743.9) euros and seven
minutes.
It imposes on the defendant the court costs of the plaintiff
of which he sets at three hundred and fifty (350) euros.
Accepts the plagiarism action against the third defendant.
He orders the third defendant to pay the first defendant the amount
of two million nine hundred seventy nine thousand, five hundred
(2,979,500) drachmas or eight thousand seven hundred and forty three (8,743.9)
euros and nine cents with the legal interest from the service of the action.
He declares the decision provisionally enforceable for the entire amount.
It imposes on the third defendant the court costs of the first
plaintiff whose style is set at three hundred and fifty (350) euros.
It was judged, decided and published to his audience, in an emergency
public meeting in Rhodes on 2-14-2003.
The Judge The Secretary
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
