JUDGEMENT NO 24331 30/09/2008 THE
The Third Civil Chamber, ruling on compulsory insurance against civil liability arising from the use of vehicles and boats, has established and perfected a principle which was introduced by Sec. III, No. 23298, 14.12.2004, on the theme of the commensurate to the damage resulting child is not engaged in paid work. In that regard, said that when this child suffers as a result of a traffic accident, personal injury, with permanent consequences, impact on future earning capacity, its damage to be compensated - a significant gain in the least perceive that the child than he would have received if his earning capacity was not impaired - may be determined pursuant to Art. 1226 cc depending on the type of activity that presumably exert a minor, according to probabilistic criteria, taking account of the studies undertaken and inclinations expressed by the minor himself, as well as the socio-economic position of the family. If the trial court does not wish to use this presumptive evidence, may have recourse, on an equitable basis, the criterion of three times the social pension. The choice between one or the other, on the merits, is final within the legitimacy, if suitably motivated. In the same pronunciation is found also said, according to RV. 600,386, the insurer, in Following the request of the victim made pursuant to Art. 22 of Law No 990 of 1969, is obliged to fulfill directly towards the victim that the debt of compensation arising from the insurance contract and that, after the expiration of the sixty days provided by that rule, he is in arrears to the victim, if was placed in a position to be determined in order to '"an" and the "quantum" of liability. In this case, the insurer's obligation to the victim may exceed the ceiling for improper delay (for "maladministration" so-called improper) as a liability for the failure of a debt and, therefore, without proof of damage, the interest earned on the ceiling for the time of arrears and the legal rate, and beyond this level in the presence of allegation and evidence (including by presumptions) of a greater harm.
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