News & Articles

A judgment in the case of compensation for a road accident

 

 

By The Name Of Nation

South Cairo First Instance Court

Circuit (12) Compensations

 

 

By the civil session held in the court premises on Tuesday 20/5/2014 publicly

         Under chairmanship of Mr: -------------------------------- Court President

And with the membership of Messrs: ------------------------ Judge

                                                       And: ----------------------- Judge

      And in the presence of Mr: ------------------------------------- Secretary

The following judgment has been issued

In claim no. 4510 for the year of 2012 south Cairo Court Compensations

Filed by:

First: ـــــــــــــــــــــــــــــــــــــــــــــــــ                (Engineer in Electrical Engineering)

Second: ـــــــــــــــــــــــــــــــــــــــــ               (Musician- Specialist)

Located in Belgrade- State of Serbia

And their elected domicile is at the office of Mr: Hamada Sayed Abu Deif - Attorney

Against

First: -------------------------------------------------- Insurance Company

Second: --------------------------------------------

Third: ---------------------------------------------- 

Fourth: -------------------------------------------- 

The court

After hearing the pleadings and after reviewing documents that shall be deliberated legally, whereas the facts of the case are obtained as evidence by the examination of all other documents and statements and what is settled in the court’s doctrine that the plaintiffs have held a dispute by virtue of the signed statement from an advocate and filled with all its legal and official document issued and deposited with clerk’s department by the date of 5/12/2012 and legally declared the first and third defendant shall pay the financial amount of seven hundred and thirty thousand pounds and shall be charged with the advocate’s fees and the provision’s inclusion of the accelerated apply without bail.

Based on saying that on 16/7/2009 the second defendant/ ـــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــ while driving a trailer with licenses number of 311/11536 Red Sea which is owned by the company that is represented by the third defendant, caused the death of twelve persons and injured nine persons and this was a consequence of his negligence, carelessness and non-compliance of law and provisions that he drove the trailer endanger people’s lives and money in risk without driving licenses and he crashed a bus no ـــــــــــــ tourist Red Sea which is owned by ـــــــــــــــــــــ Tourism company carrying a tourist regiment which led to the injury of the plaintiffs.

Released from this incident record no 2999 of the year 2009 misdemeanor safaja and is registered with no 1006 of the year 2010 misdemeanor appeal Red Sea which convicted the accused and the judgement became final and objection to a referee became too late.

Both of Plaintiffs were injured as a result of the incident was damaged by the injuries suffered by each of them as a result of the accident with the loss of profits and loss of their right, as well as the second plaintiff has suffered from the expenses of treatment and moral damages represented in grief and her psychological case became worse which lead them to file such a claim with a view of eliminations of their statements.

And they provided a bond for their claim of eight statements; the first statement was folded on a certificate of suitability, and an official copy for the issued judgement in misdemeanor no 1006 of the year 2010 appeal misdemeanor Red Sea and is registered with no. 2999 of the year 2009 misdemeanor safaja, and an official copy from the record no. 2999 of the year 2009 misdemeanor safaja, and the other statements were folded after court’s sight on the provided documents.

The proceedings of bailiff of the sessions shall be fixed with the session of 5/3/2013 like an advocate as a delegate of both plaintiffs and provided three bond statements; the first one was folded with the certificate information of the car, the accident tool that is proved that it has an insurance from ــــــــــــــــــــــــــــــــــــــ insurance company within the period from 4/6/2009 till 4/6/2016, and a copy from the compulsory insurance on the car, the accident tool that was issued from ــــــــــــــــــــــــــــــــــــــــــــــ Insurance company.

Another two bonds have been folded with the documents that have been reviewed by the court, and the court decided reserve the claim, and the court has issued a judgement of delegating the forensic medicine department in Cairo. The forensic doctor submitted his report which proved that the injury of the first defendant is a rigor of the right side and obstruction by the movement of the cap and the ventricle of the right side and obstruction by draping the fingers with the right hand and weak grip of the same hand, which are all permanent disability estimated at fifty percent (50%). The injury of the second plaintiff is rigor of the joint of the left side and a rigor with the left wrist joint and an obstruction by the end of lifting the left arm and it affects the hand feeding nerves that constitutes a permanent disability of 80%.

The session of 10/12/2013 the delegate of both plaintiffs represented as an attorney and represented the delegate of first defendant with his capacity and he abjured the provided copies and the extinguishment thereof prescription in accordance with article 15 from the law no. 72 of the year 2007, and the delegate of the third defendant represented him and provided a bond of statement and a pleading has been reviewed by the court, and the delegate of the first defendant in his capacity and by the session of 4/3/2014 the delegate of both of the plaintiffs was a lawyer and provided a pleading that was reviewed by the court, and the delegate of the third and fourth defendant in their capacity, the court took a decision to reserve the case to issue an adjudication by the session of 20/50/2014.

Whereas that the allegation and the liability of the third defendant with his capacity then what is applicable by the article no. 178 from the civil law:

(Whoever is in charge of a thing whose supervision requires special care, or of a machine, is liable for damage caused by it, unless he shows that the damage was due to a cause beyond his control, subject always to any special provisions of the law in this respect).

Whereas the prescribed by the district court of cassation:

(The liability of object based on article 178 from the civil law, based on presumed error of the guard of the object which shall not be proved contrary to the liability if it proves that the damage was a cause of the alien it is not only a force majeure or the fault of the victim or the fault of a third party. The act is not considered as a foreign cause unless it is outside the thing, it is not related to its formation, shall not be expected, paid or prevented).

(Appeal no 759 of the year 55 session of 26/10/1988)

Whereas it is legally stable that:

(the causal link shall be existed between the act itself and the damage, which means that the damage is caused by the act of the same thing, in another meaning the intervention of the object is what caused the damage and the burden of proof of causality falls on the injured person.(

(The civil code in the light of doctrine and jurisdiction- Muhammed Kamal AbdelAziz- Judges edition page 707)

Whereas what is provided and proved after the court reviewed all the documents, statements of the case and the certificate information of the car the accident tool which is owned by company that is represented by the third defendant in his capacity…whereas that it was proved that the third defendant in his capacity didn’t provide any evidence that the incident occurred as a ground of force majeure or as a fault of the injured person or third party’s fault…by the virtue of matter that the third defendant in his capacity of being liable of what happened by the car the incident tool from the damage and the liability shall be is assumed not to prove the contrary according to the article no. 178 from the civil law. Therefore the third defendant in his capacity shall be adhered to pay the compensation amount to the both of plaintiffs for the damages caused to them by the incident.

Whereas it is a compensation for the material and moral damages which is legally claimed by virtue of article (170/1) from the civil law:

(The judge shall decide, in accordance with the provisions of Articles 221 and 222 and in the light of circumstances, the extent of the damages for the loss suffered by the victim).

Article (221) from the same law states that:

(The judge will fix the amount of damages, if it has not been fixed in the contract or by law. The amount of damages includes losses suffered by the creditor and profits of which he has been deprived, provided that they are the normal result of the failure to perform the obligation or of delay in such performance.

These losses shall be considered to be a normal result, if the creditor is not able to avoid them by making a reasonable effort.

When, however, the obligation arises from a contract, a debtor who has not been guilty of fraud or gross negligence will not be held liable for damages greater than those which could have normally been foreseen at the time of entering into the contract).

Article (222) from the same law states that:

(Damages also include compensation for moral prejudice. The right to compensation for moral prejudice cannot, however, be transmitted to a third party, unless it has been fixed by agreement or unless it has been the subject of legal proceedings.

The judge may award compensation for moral prejudice only to spouses and to relatives up to the second degree, by reason of grief caused to them by the death of the victim).

Whereas what is determined in the district of court of cassation that:

(Material damage is the violation of the rights of the financial person to the right to his body)

(Appeal no.1041 of the year 58 judicial session 14/4/1993)

Whereas what is legally stable that the moral damage is the damage to emotion and feeling and related to the psychological aspect of the victim and is due to the action of others and requires that the investigator personally and that the permissibility of compensation to see that this compensation helps to alleviate the pain of the same victim.

(Sources of Obligation doc El Sanhoury copy no.1981 page 1211)

Whereas it is prescribed in the district of the court of cassation:

(It does not tarnish the provision to combine the material and moral damages together and it is possible to compensate for them without allocating any value to each of them this does not preclude the fact that each of these elements have been determined with the amount of compensation that shall be paid)

)Appeal no.617 of the year 51 judicial session 22/1/1985)

Whereas what is provided and proved after sight of court on the documents and the report  of forensic medicine department deposited by

And this is what is resulted material damage represented in harm of the safety of his body because of this damage in addition to the loss of gain and loss of right of the material damages represented in grief, pain and his psychological case became worse . The court shall determine the compensation for these material and moral damages that caused to the first defendant with an amount of seventy five thousand pounds. And it is caused to the second defendant with an amount of one hundred and twenty five thousand pounds as shall be stated in the operative.

Whereas it is the liability of the first defendant in his capacity it is legally prescribed by virtue of article (1) from the law no. 72 of the year 2007:

(An insurance shall be applied on the civil liability arising from accidents licensed express transport vehicles shall be insured in accordance with the provisions of the Traffic Law. The insurance includes cases of death and physical injury as well as physical damage to the property of third parties, except for vehicle damage, in accordance with the provisions of the insurance policy issued in implementation of this law).

Article (6) from the same law stated that:

(The validity of the insurance statement shall be continued within the duration of the licenses to operate the vehicle and within the duration that shall be allowed to renew the licenses according to the traffic law)

Article (8) from the same law stated that:

(The insurance company pays the amount of specified insurance for accidents referred to article (1) of this law to the deserving person or his heirs without need to recourse to courts in this regard.

The paid amount for insurance by the insurance company is forty thousand pounds in case of Death or continuing total disability, however the paid amount of insurance in cases of continuing partial disability is determined according to the extent of disability.

The paid amount of insurance regarding damages to property of others is also determined for a maximum of ten thousand pounds.

board of directors of the General Authority for Insurance Supervision determine methods and terms in which the amount of insurance is to be paid to the deserving persons according to previously mentioned cases, taking into consideration that the amount of insurance shall be paid within a month from the date in which the insurance company informed with occurrence of the accident).

And article three from the executive regulation of the law no.72 of the year 2007 states that:

(The disability resulting from the accidents of the rapid transport vehicles shall be proved by the competent medical authority and the insurance amount shall be paid in accordance with the percentages shown in the table attached to these Regulations).

Article (747) from the civil law states that:

(Insurance is a contract whereby the insurer undertakes, in consideration of a premium or any other pecuniary payment, to pay to the assured or the beneficiary for whose benefit the insurance is contracted, a sum of money or an annuity or any other pecuniary prestation upon the occurrence of the event or the risk specified in the contract).

Whereas what is legally stable that the insurance company shall be obliged to cover the civil liability for accidents that occur to others in the Arab Republic of Egypt about the vehicle whose data are recorded in the insurance statement during the period of validity in cases of death and permanent or partial disability as well as physical damage to the property of others according to the provisions of law no. 72 of the year 2007.

The insurance company shall not cover the e the risks arising from direct moral damage for physical injury and material damage from missed opportunity and treatment expenses, etc.

(Referring to the report of the compensations cases Counsel/ Ahmed Mokhtar copy 2012 page 8)

Whereas what is provided and proved from reviewing the certificate information of the car, the incident tool that it has insurance by a national insurance company within the period from 4/6/2009 till 4/6/2010, and the incident that cause the injury for both of the plaintiffs occurred by the date of 16/7/2009, which means that it occurred at the time of the validity of the insurance statement, which means that the car had an insurance at the time of incident by the insurance company that is represented by the first defendant in his capacity, and this was proved in the report of the Forensic Medicine Department filed with the case file.

By virtue of the matter that the court will order to the first plaintiff with an insurance amount of twenty thousand pounds and for the second plaintiff with an insurance amount of thirty two thousand pounds, and the first defendant in his capacity shall be obliged by paying the insurance amount for the both of plaintiffs as shall be stated in the operative.

Whereas according to the request of the plaintiffs that the first and third defendant shall be obliged to enter into an agreement with each other to pay the due amount of the compensation, the company is responsible in coordination with the rest of the defendants Within the amount of the insurance.

(Referring to the report of the compensations cases Counsel/ Ahmed Mokhtar copy 2012 page 13)

Whereas what is provided and proved that the liability basis of the first defendant in his capacity is contractual liability and its basis is the insurance statement and the base of the third defendant in his capacity of the owner of the car that is the tool of the incident and this is presumed liability and the basis is the guard of objects. The source of the obligation of each of them is different from the source of the obligation of the other and thus their obligation to perform the amount of compensation. By virtue of a matter for the court’s order to accept the application of both of the plaintiffs to oblige the first and third defendants with their capacity to pay the amount of compensation awarded provided that the first defendant's liability is within the limits of the amount of the insurance ordered, as shall be stated in the operative.

Whereas the case expenses shall be inclusive the advocacy expenses, the court shall oblige the first and third defendant in their capacity according to article no. 1/184 from the civil and commercial procedures law and article no. 1/187 from the law no. 17 of the year 1983 and amended by the law no. 10 of the year 2002.

For These Grounds

The Court Ruled:

Obligating the first and third defendants in their capacity to pay the amount of compensation awarded for the both of the plaintiff an amount of Two hundred and fifty-two thousand pounds as a material and moral compensation and an insurance amount shall be divided on a following grounds and the amount that will be paid by the first defendant shall not increase above fifty two thousand pounds and shall be obliged by the expenses and an amount of seventy five pounds for the advocacy expenses and rejected the rest of requests.

Court President                                                                                                                                                                                                          Secretary