Rights of the owner of a damaged vehicle

19/05/2022

DAMAGE TO A VEHICLE IN THE EVENT OF A TOTAL LOSS:

RIGHT OF THE OWNER OF THE ACCIDENT VEHICLE TO REPAIR OR DEMAND INDEMNITY WITH THE LIMITATION OF THE RIGHT TO CHOICE REPAIR WHEN THIS REPAIR IS DISPROPORTIONATE TO THE VALUE OF THE VEHICLE AT THE TIME OF THE ACCIDENT.

IN THIS CASE THE CAUSE OF THE LOSS CANNOT BE IMPOSED THE COST OF REPAIR WHEN IT IS DISMEASURABLE AND IN SUCH CASE AN INDEMNITY MUST BE ESTABLISHED THAT WILL BE EQUIVALENT TO THE COST OF THE LOST VEHICLE PLUS A SURCHARGE THAT WILL BE CALLED VALUE OF AFFECTION DUE TO ADMINISTRATIVE EXPENSES, DIFFICULTIES IN FINDING A VEHICLE, UNCERTAINTY ABOUT ITS OPERATION.

DUTY TO PAY THE RENTAL EXPENSES OF A VEHICLE IF THE VEHICLE IS DECLARED TOTAL LOSS, AND THE COMPANY HAS BEEN DELAYED IN THE LIQUIDATION OF THE DAMAGE.

JUDGMENT NO. 420/2020 OF TS DATED JULY 14, 2020.

" FIRST.- Relevant background

3.- The sentence of second instance.

The defendants filed an appeal against said resolution. The judgment of second instance, issued by the 4th section of the Granada Provincial Court, partially upheld the appeals, and, revoking the Court's resolution, jointly and severally condemned the appellant defendants to pay the plaintiff the sum of 4,511 euros, plus legal interests.

The Court reasoned that, in the alleged defendant, we find a vehicle registered on April 1, 2004, with a considerable age at the time of the incident on December 20, 2013, three years having also passed since that date, without has been repaired. It also noted a clear disproportion between the repair value (€6,700) and the market value of the vehicle (€3,470), so it considered that this way of compensating for the damage was uneconomical. Based on the above considerations, it set the compensation amount at a total of 4,511 euros, as a result of adding 30% of the damage value to the market value.

On the other hand, the claim for a sentence to pay the rental costs of a passenger car similar to the one in the accident was dismissed, since it was considered that it was not logical that the money destined for the rental had not been used, either in the repair of the damaged vehicle. , well in the acquisition of a similar one in the market. It was also pointed out that, three days after the accident, the company had reported that it was a total loss, and that, in any case, the course that the plaintiff was taking in Motril (Granada), for which he was using the vehicle damaged, ended in the month of June, claiming, however, subsequent monthly rent without justification of necessity.

Finally, the insurance company was sentenced to pay default interest under art. 20 of the LCS, having offered the appropriate compensation five months after the date of the incident.

4.- The damaged vehicle was not repaired and documentary evidence of the rental costs of the replacement vehicles, which the plaintiff used to travel to Motril (Granada) and thus attend a training course, was provided to the process. professional in which he was enrolled, being the amount accrued for such concept until May 8, 2014 of 2947.84 euros. The defendant company offered the actor, on May 5, 2014, an amount of money, higher than his market value, for the acquisition of another vehicle, which was rejected, as the actor demanded the repair of his vehicle.

" THIRD.- Decision of the appeal .

5.- Specific analysis of the cases in which the repair is manifestly higher than the value of a similar vehicle .

The right, which is the responsibility of the owner of the vehicle, to approach its repair, postulate that it be carried out, or demand, where appropriate, the corresponding compensation, is not questioned.

Something different is that it can unilaterally impose the repair or endorse the cost of the same to the cause of the damage, regardless of the amount to which the labor and spare parts necessary to carry out the repair of the vehicle in the event of a total loss are raised. .

Indeed, the problem arises, when the repair is viable, as well as serious and real, the intention of the owner to carry it out, or even its price has been addressed and paid, it is intended to pass on the amount of the same to the cause of the damage. , despite the cost being manifestly disproportionate with respect to the value of the vehicle at the time of the accident.

Such an issue is not new, since it is usually raised before the courts of justice, there are decision criteria, not always coincident, in the sentences issued by our Provincial Courts, which justifies the appeal, as the basis for the appeal filed.

Already this same 1st Chamber, in plenary ruling 338/2017, of May 30, tried to address this problem, although irremediable procedural defects in the formalization of the appeal prevented establishing jurisprudential doctrine in this regard.

On this matter, in addition to the aforementioned judgment 79/1978, of March 3, judgment 347/1996, of April 24, was pronounced, indirectly and without constituting a specific reason for appeal, in the case of a case of judicial error , in which the decision of the single-person body of the Provincial Court was considered logical and reasonable, for such and exclusive purposes, which endorsed the refusal of the appellant entity to pay for the repair of the damaged vehicle, in the cases in which the value of Said repair is much higher than the sale price, in which case the latter amount will be the appropriate amount to set the corresponding compensation, increasing it by the amount necessary to cover the cost of acquiring another vehicle with similar characteristics and the possible value of the condition, if any.

In ruling 48/2013, of February 11, the Court's criterion of quantifying the damage to the vehicle according to the market value, plus the necessary increase in concept of affection value, was not questioned; rather, it was intended that said value be increased from 20% to 50%, which was dismissed, given that "the differences are covered by specific assumptions that have been duly considered in the two lower court rulings."

Well, from this perspective, we must point out that there is no unconditional ius electionis (right of choice) of the owner of the damaged vehicle to pass on the amount of the repair against the causer of the damage, opting for this compensation formula, when its cost is disproportionate and requires the causer of the damage a disproportionate sacrifice or an unreasonable effort.

Consequently, when we are faced with a situation of this kind, which occurs in cases in which the amount of the repair is much higher than the value of a vehicle with similar characteristics, it is not contrary to law that the compensation of the injured party is carried out by establishing compensation equivalent to the price of the damaged vehicle, plus a percentage amount, which has been called a surcharge, a supplement for risk or trust, and which, in our judicial practice, has been generalized with the expression of price or value of affection, which will include the amount of administrative expenses, difficulties in finding a similar vehicle on the market, uncertainty about its operation, among other circumstances that can be weighed, which must be assessed by the instance bodies in their specific role in assessing the damage

6.- Criteria of the court on the decision of this reason for the appeal filed

By virtue of the set of reasons exposed, this court considers that the criterion adopted by the Court, in the resolution of this judicialized conflict, which is also the one mostly followed by our provincial Courts, is in accordance with law.

The appealed judgment, when dealing with the reparation of the damage, has not departed from the canon of rationality, nor has it incurred in any notorious or patent error. His decision is not arbitrary, but is duly founded and has respected the principle of proportionality, which determines the endorsement of his evaluative criterion of the damage caused (sentences 91/2011, of February 16; 116/2011, of 20 of February; 374/2011, of May 31; 712/2011, of October 4 and 91/2017, of February 15, among many others).

For all these reasons, the appeal should not be upheld in this regard.

7.- Criteria of the court in relation to the dismissal of the claim for the satisfaction of the rental expenses

When addressing this issue, we must start from the basis that the plaintiff has been deprived of the use of his vehicle, since it cannot be used as a means of transport to move to the town of Motril (Granada), and to assist in such a way to the professional training course, which he had been receiving in said locality; circumstances from which your right to be compensated for the damage suffered arises. This does not mean that the way in which compensation for the damage claimed is sought is acceptable.

Indeed, on the one hand, the victim is subject to the duty, derived from good faith (art. 7 of the CC), to mitigate the damage, without subjecting the deceased to disproportionate sacrifices. Even such an obligation has a specific normative manifestation in art. 17 of the Insurance Contract Law, in the case of the existence of conventional links of such nature.

As we have been emphasizing, a form of damage repair that is disproportionate to the concurrent circumstances is not feasible, which is that, knowing that the vehicle was a total loss, three days after the accident, opting for the rental of a motor vehicle whose cost , at the date of the preliminary hearing, doubled the amount of the repair of the vehicle and tripled its market value and also continues to accrue. High cost, whose assumption by the victim accredited an economic capacity that allowed him to resort to other less burdensome alternative means to preserve the use value of the thing.

However, the insurer must also have been diligent in liquidating the damage, having verified the need for the vehicle by the plaintiff. It makes no sense to delay the offer of compensation until five months after the accident, nor does it make sense to demand rental costs until the execution of the repair work, when this was not appropriate and the compensation offered by the insurer in accordance with law and proportionate to the concurrent circumstances, in such a way that it made possible the acquisition of a similar vehicle on the market.

It is, for this reason, that the court considers that it is appropriate to grant compensation for the value of use of which the actor was deprived, corresponding to the rental amounts documented as justified until May 8, 2014 , in view of the fact that, on May 5 May of that year, the defendant company made the payment offer of the corresponding compensation provided to the entity of the damage. This supposes, assuming the instance, an additional compensation for such concept of 2947.84 euros, with the legal interests of art. 20 of the LCS from the date of the accident, without stating that the amount of fuel consumed by the plaintiff was included in said sum.