مؤسسة الريان للمحاماة والاستشارات والترجمة القانونية

Judicial Department

By the Name of the Honorable

 Sheikh Khalifa Ben Zaid Al Nahian

President of the United Arab Emirates

Ruler of Dubai Emirate

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Abu Dhabi Court of Appeals

The second commercial appellate circuit

In the hearing held on 7th of Morram 1439A.H corresponding to 27/9/1017 A.M

At the courthouse in Abu Dhabi

<!--Under presidency of sir, judge : Dr. Saeed Alhaigna,

<!--Membership of judge; Mohamed Shams Eldeen,

<!--                      Judge; Hazem Naeem Al Samady (reporter), and

<!--Attendance of Mr. Khaled Bazerah……………(secretary)

The appeal no 1012/2017 had been reviewed in the same session

 

<!--The appellant’s name ; Kesmat Khan Hagy EED Mohamed, represented by advocate sir, Mohamed AlAzazy and others.

 

<!--The appellee’s names;  1- Sayed Akber Naseeb Khan

                                2- the New India Insurance Co. represented                by advocate sir. Mohamed Mohmoud Al Marzooqi

 

<!--The appealed judgment;

The verdict issued in case no 114/2017 commercial, comprehensive Abu Dhabi on 25/04/2017 A.D

The court issued the following judgment:

 

After hearing, reviewing documents and legally deliberating;

Whereas facts of this case are synopsized that the plaintiff (appellant) filed his case against the two defendants (appellees) requesting referring him to forensic medicine in order to be medically examined and for defining injuries occurred in his body and defining percentages of disability happened to him because of the accident, and judging the two defendants as co-joining parties to indemnify the plaintiff inconsideration for damages occurred to him because of the accident which led to his injury according to the medical report and obligating them to pay fees, expenses and attorney fees.

That was evidence-based on saying that on 07/12/2014 in Abu Dhabi district at the house Golf Club – Om Elnaar st, - Al Shahama, he exposed to a traffic accident which led to his injury where he was standing away near to the angle of his vehicle no (31873 public, first class Abu Dhabi) of type Mitsubishi F.H, and the vehicle was finally stopped, he was choked by the vehicle of the  defendant-firstly no (85676 eighth class, Abu Dhabi, of type Mazda T 3500 insured by the defendant-secondly by virtue of the insurance policy no 14/5301075 valid when the accident occurred and ends on 05/06/2015, it deviated towards him and ran over  him. Then the causative (the appellee-first) has been referred to Abu Dhabi plenary court in case no 6363/2014 misdemeanors’ court of Bani Yas in the charge of prejudice to physical integrity of the victim (the plaintiff) by his default. And that was because of his negligence and not taking due measures as he drove the vehicle above described in the police report negligently, which led to occurring said accident and resulted in injury of the victim (the appellant) and caused due to his default damaging the vehicle and violated traffic signs as he entered the road before being sure the it is vacant as shown in documents. the court decided-in presence- condemning the causative with a fine of 1000 AED for the charges attributed to him. The accident resulted in injuring the plaintiff with an open fraction in the joint of the right first finger and injury in the root in addition to traumas. So the plaintiff demands compensation for damages and injuries occurred to him. And presented a document portfolio contained the following;

<!--Original of decision of conciliation and reconciliation stating no objection to review the case before the court dated 20/10/2015.

<!--A copy of the police report on the traffic accident caused by the defendant-firstly.

<!--Copy of the penal judgment no 6363/2014 misdemeanors of Bani Yas court stating condemning the defendant-firstly as he prejudiced to physical integrity of the plaintiff by his fault.

<!--Copies for the initial medical report issued from Al Mafraq Hospital and translated to Arabic.

By reviewing the lawsuit in sessions as stated in its minutes, representative of the plaintiff and the defendant-secondly appeared before the court, representative of the defendant-secondly submitted a memorandum he requested in its conclusion non-accepting the lawsuit, refusing the same and obligating the plaintiff with paying fees, expenses and attorney fees evidence-relying on saying that it pleas with non-accepting the lawsuit because of brining before due time because not presenting what proves stabling the injury condition for the plaintiff  and refusing the case because of not proving and non entitlement, but the defendant-firstly didn’t appear even though being announced.

The court of first instance decided-by virtue of a preliminary judgment-  to delegate a forensic doctor and defined his job as will be stated in the sentence of the same so the court refers thereto avoiding reiterating. The forensic doctor concluded in his report that injuries resulted from the accident occurred to the plaintiff on 07/12/2014 are as the following;

<!--Right hand; bone fractures in the near and far phalange of the right first finger and had been surgically treated through fixing wires internally.

<!-- The abdomen; traumatic injury in the abdomen resulted in taking out part of the small intestine in length of 10-15 cm far away from the inferior ileocecal by 7cm which required processing a surgical process in the abdomen and cutting part of the small intestine and processing ileostomy for small intestine.

 

The instant healthy condition for the injured is permanent disability represented in heavy limitation in movement of bending phalanges of the right first finger and assessed disability percentage by 8% (eight percent) of the total working power (16% sixteen percent of the interest of the upper right part) and surgical wound penetrating the abdominal cavity.

Through considering the lawsuit by the court of first instance, representative of the plaintiff appeared before the court and submitted a commentary memorandum on the expert report and requested in its conclusion obligating the two defendants as co-joined parties to indemnify the plaintiff inconsideration for physical, bodily, moral and psychological damages occurred to him and earning he lost, earning he hoped to achieve in addition to obligating the two defendants with paying fees, expenses and attorney fees. Representative of the defendant-secondly appeared and submitted a commentary memorandum on the expert report and requested in its conclusion not accepting the lawsuit and bearing the plaintiff with the suitable quantum of liability because of his participating in said accident and obligating the plaintiff with paying fees, expenses and attorney fees. But the defendant firstly didn’t attend even though being legally announced.

The court decided to set the date for adjudication on session of 25/04/2017 where the court issued its judgment containing the following;

Obligating the two defendants as co-joining parties to compensate the plaintiff with the sum of 46000 AED (forty six thousand AED), and obligating the two defendants to pay fees, expenses and a sum of two hundred AED as attorney fees, and refusing the otherwise requests.

The appellant wasn’t satisfied with such judgment so he challenged it before this court evidence-relying on the following grounds;   

<!--Arguing that the challenged judgment was marred with error in applying law and interpreting the same, and that the challenged judgment was defective by shortage in reasoning and corruption in evidencing  because of the compensation it judged for the appellant for either bodily, physical, moral or psychological damages occurred to him which not fit the quantum of damages and injuries occurred to him such as heavy injuries, different percentage of disability in main organs with biological functions in the body such as chest and respiratory apparatus, other than injury of  liver and the accompanied internal bleeding continually which need comfort of the appellant and remaining in bed and disability for moving, and that he became in need for anyone to afford him and in need for visiting physician on daily bases.

 

And that the appellant;      

Firstly; maintain and adheres to his right to receive the full wergild “blood money” for injuries occurred to him in addition to compensation for the other bodily and physical damages which includes the appellants’ right to receive wergild for losing interest of his liver and mesentery in addition to the respiratory apparatus other than the physical damages for loss occurred to the appellant, and what he lost of earning in addition to unemployment and damage.

 

<!--Arguing that the challenged judgment was marred with error in applying law and interpreting the same, and that the challenged judgment was defective by shortage in reasoning and corruption in evidencing  because of the compensation it judged for the appellant for bodily damages, injuries and pains occurring to him as a result of surgical processes made to him in addition to physical and moral damages occurred to him which not fit the quantum of damages occurred to him. And that the appellant is entitled to receive compensation by the sum of 700,000 AED for physical and moral damages and what he lost of earning.

He requested accepting the appeal as per the legal form and as per subject to amend the challenged judgment and judging newly refusing the lawsuit and obligating the two appellee as co-joined parties to pay the appellant the full wergild for organs he lost and redressing him more than the sum the court of first instance has judged to fit disability, bodily, moral and physical damages occurred to him in addition to expenses and attorney fees for the two instances of judiciary.

In the trail currying before this court, in which both representatives the appellant and the appellee-second appeared, and representative of the appellant submitted an explanatory memorandum  for grounds of his appeal in which he reiterated his requests stated in the statement of the appeal, also the representative of the appellee-second submitted an answering memo in which he requested refusing the appeal and confirming the challenged judgment and obligating the appellant with paying fees, expenses for the two instances of litigation and attorney fees, then the court decided setting the date for adjudication on this day 27/09/2017.

As per legal form, the court finds that the challenged judgment was issued on 24/05/2017 i.e. it was issued within the legal period determined in article no 159 of civil procedures law, and that it has satisfied its legal conditions so it is accepted as per the legal form.

Whereas per subject matter and grounds of the appeal;

  Whereas it is legally stipulated virtue of the article no 165 of civil procedures law that appeals shall transfer the lawsuit as is as before issuing the appealed judgment as per the challenged part  only, and the court of appeals review the case based on submitted  evidences, defenses, new pleas and what has been submitted of the same before the primary court, and new requests shall not be accepted before court of appeals and the court shall decide refusing the same on its own.

Also, it is decided that trail court have the full discretion to understand facts of lawsuit and searching and inspecting all evidences and documents presented to the same-including experts report- until reaching to what complies with the right adjudication in the case, and it has the power to consider what make it assuring and refusing otherwise, and that the court is not obliged to follow litigants in everything they raise of defenses and arguments if the court found the same not worthy of responding with anything otherwise what was concluded in the expert report which it depended on because of being satisfied and dully based on true principles and correct results it reached to and if the court found that what was judged is deemed as implied reply to said arguments and defenses.

<!--(Citation; Abu Dhabi Cassation court, appeal in cassation no 521 of 2016 adjudicated on 17/11/2016).

    Whereas it is decided in cassation judiciary that producing understanding the fact in lawsuit and assessing evidences such as experts report and extracting reasoning, contexts and presumptions produced from the same is of the trail court’s discretion, and it shall be sufficient for trail court to show facts it became convinced with, and build its adjudication relying on reasonable and accepted grounds  which have its origin proved in documents and sufficient to justify such adjudication. And also, the trail court is not obliged to follow litigants in their various sayings, arguments and requests then independently answering every saying, argument or any argument raised by litigants as long as the truth trail court was convinced of and stated its evidence containing the implied refuting answer for such sayings and arguments.

<!--(Citation; appeal in cassation no 813 f0r the year 2009 commercial cassation – at session of 20/01/2011).

 Whereas per assessing compensation, where it was stipulated by the article no 292 of civil law transactions which stated that warranty in all cases shall be assessed by the quantum of damages occurring to the damaged and what he lost of earning provided that such damages be the natural result of the malfeasance”. Ant it is judicially stabled that it is decided in doctrine of the Islamic Shari’ah that; injuries in anything otherwise the man self are divided to five classes synopsized as the following;

<!--Cutting or separating human parties and the like; i.e. cutting human organs which shall be entitled to a lawfully assessed wergild such as cutting hand or leg.

<!--Stopping use of the human parts with remaining of their origins such as injuring an organ with palsy but not removing the same, then compensation of wergild shall be assessed considering losing the interest.

<!--Cleaves; they are wounds in the head especially in face. It was assessed for some of the same a determined indemnity and on the cases undetermined indemnity upon size of injury and the extent of damage occurs to man.

<!--Wounds; such as body injuries otherwise the face and head, and it is to types; deep wounds which entitles one third of wergild, non deep which entitles indemnity assessed by court.

<!--   Injuries which don’t reach the abovementioned limit; they entitle indemnity assessed by court. And it was decided that; in the event that man loses the ability to walk and standing out and setting down, he shall be entitled one wergild.

<!--(Citation; Abu Dhabi court of cassation-appeal in cassation no 765/2011 commercial appeal – issued on 19/10/2011).

Also it is judicially stabled that wergild is lawfully defined as the sum of money payable inconsideration for felony or less be committed against man-self, it is considered as penalty to the malfeasance and forms indemnity for the family inconsideration for losing their relative and is considered as indemnity to the damaged person in consideration for deprivation of the organ which he lost.

Whereas the meaning of the article no 299 of civil law transactions was that damaged person shall not be indemnified for damage which entitled the wergild as compensation for the same; because in such case the damaged would collect two types of compensation for one damage, and that is not allowed lawfully or legally, otherwise if such losing of the organ or its interest-for which the wergild was entitled- has led to distortion to the injured which caused psychiatric pains, that is different and an independent damage and not covered by the wergild. But what was decided that receiving both compensation and wergild inconsideration for moral damage is not allowed, such adjudication is misplaced and no prevention for judging compensation for the same.

<!--(Citation; Abu Dhabi court of cassation-appeal in cassation no 141 of 2011 commercial-issued on session of 30/11/2011)

Also it is judicially stabled that moral damage is defined as; everything that prejudice to dignity or sense or honor including psychiatric pains – it doesn’t represent a monetary loss- and the intended meaning of indemnifying such pain is not removing such  the same at all, because it is a type of damage which can’t be removed by monetary compensation, but the intended meaning is that the damage produces an alternate for himself inconsideration for the moral damage occurred to him, and there is no standard for counting conditions of indemnity for moral damage. As any damage occurs to the human in his honor or consideration or his emotions shall be a valid reason for compensation.

<!--(Citation; Abu Dhabi court of cassation-appeal in cassation no 322 of 2011 commercial-issued on session of 21/04/2012)

Whereas it is judicially stabled that assessing compensation is of the discretion of trail court upon what it sees suitable guided by all circumstances of the lawsuit, and it shall not be challenged if assessed the suitable compensation without showing or answering circumstances raised by the appellant. And if the compensation wasn’t determined by agreement or law, in such case, trail court shall has the full discretion to assess the same without control of the court of cassation , and judgment shall be sufficient if defined items of damage that the indemnity was assessed inconsideration for. Also it is decided that judgment shall not be defective if legally exposed to all the damage items that must be counted when assessing compensation and ends to assess the compensation entitled to the damaged totally as a lump sum. Also it is stipulated that if the chance was a possible matter, but losing the same is attained, and the law doesn’t prevent to count in lost earning what the damaged hoped to attain as long as such hope was based on reasonable grounds.

<!--(Citation; Abu Dhabi court of cassation-appeal in cassation no 398 of 2012 commercial-issued on session of 06/05/2011)

<!--  Whereas what was produced as a result of the accident the appellant exposed to as per the forensic report is deemed as permanent disability which is represented in heavy limitation in move of bending phalanges of the right first finger and disability percentage was assessed by 8% eight percent of its entire working power (16% sixteen percent) of the use of the right upper part) and surgical wound penetrating through the abdominal cavity, in addition to displaced fractures in bones of the near and far phalange of the right first finger of the appellant’s hand which had been surgically treated through fixing medical wires internally.

 The abdomen; traumatic injury in the abdomen resulted in taking out part of the small intestine in length of 10-15 cm far away from the inferior ileocecal by 7cm which required processing a surgical process in the abdomen and cutting part of the small intestine and processing ileostomy for small intestine. Whereas the indemnity decided by court of the first instance is suitable either for its part related to physical damage or the related to the other moral one, it is suitable for size of damage that occurred to the appellant and redressing him either for the moral or physical side. Also it complies with rules, provisions and principles of the Islamic Shari’ah in addition to complying with what is judicially stabled regarding assessing percentages of indemnity, hence the grounds of the appeal shall neither meet the challenged judgment nor defect the same.  Cite;

<!-- (Citation; Abu Dhabi court of cassation-the two appeals in cassation nos 411 and 510 of 2010 civil challenge- judgment issued on session of 23/01/2011).

Whereas what the court of first instance has reached to through its challenged judgment has dully met the law and the grounds of the appeal shall neither meet the challenged judgment nor defect the same, hence this appeal becomes worthy of refusal.

Whereas per fees and expenses, the appellant shall be liable for as applying to provisions of the two articles nos 133 and 168 of civil transactions law.


 

For these reasons

 

The court decreed;

Accepting the appeal as per legal form and refusing the same as per subject matter, and confirming the challenged judgment and obligating the appellant with paying fees, expenses and a sum of 500 AED inconsideration for attorney fees.

 

Secretary                                                                head of court

(signature)                                         (Judge Dr. Saeed Al Haiagna )

                                                                             (signature)  

  

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