The Supreme Court, Judgement No 294/2010 of 17 May 2010, establishes the case law regarding the compensation to be given to a child in cases of death in traffic accidents from both parents, without intervention of any other vehicle , and sets as a doctrine that death in the crash of both parents means that, pursuant to Annex LRCSCVM, compensation should be fixed including the family unit in the group II of Table I-victim without spouse, "when one of them is the cause of the accident, and is applicable factor Correction of the death of both parents in the accident referred to in Table II, even though one of them is the cause of the accident.
The Board considers the appeal against the decision which determined compensation to the child whose parents died in a traffic accident in accordance with the group I of Table I of the Annex to LRCSCVM-victim-spouse without applying the correction factor for the death of both parents in an accident in Table II, because no other vehicle was not involved in the incident, "considering that lacked coverage for damage caused by the death of the driver guilty of the accident. So, reference should be made to the Group II of the Table, ie, "victim without a spouse and children."
A) is discussed First, the group that must be applied within Table I of Annex with the update given in Resolution of 21 January 2002 the Directorate General of Insurance and Pension Funds, Table I of the Annex, which reproduces the basic allowances for death including moral damages.
arises first on the question of whether, pursuant to the valuation system of injuries suffered in a traffic accident set out in the Annex to LRCSCVM (often called "scale"), death in the crash of two parents, when one of them is causing the same, implies that compensation be fixed including the family group in group II in Table I (victim with no spouse) or group I (victim's spouse).
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B) The statement applies under review considers that the group I (victim spouse) relying on the principle that indirect damage suffered by the relatives of the driver caused the accident can not give rise to civil liability under the jurisprudence and, today, with Article 5 LRCSCVM regarding compulsory insurance underwriting.
This argument can not be accepted by the Board 2 nd of TS for the following reasons:
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1 º) The lack of coverage by compulsory insurance underwriting road accidents moral damages suffered by the death of the insured driver and only one involved in the accident has not only founded on grounds arising from the scheme of the insurance contract, but in the accountability system responsibility for damage, which means that, by matching the agent and the victim can not be imputed to the driver who caused the accident only caused damage to injured indirect death.
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The valuation system determines the amount of basic compensation for death, taking into account as an objective whether or not the spouse of the victim, but has no legal considerations about the existence or extent of responsibility of that spouse in the production of accident or imputed to him in damages.
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2 º) In the first group of Table I not set the compensation for the indirect injury caused to children by the parent who caused the accident, but the compensation due to them by the indirect injury caused by the death the other parent. To determine the importance of taking into account the objective circumstances surrounding this death and the presumed degree of moral damage caused by such. Thus, it serves fundamentally to the situation of helplessness and lower economic attention from the point of view of family assets for the child involving the absence of the other spouse, whatever the cause, including separation, which determines, to the extent that you will receive less attention and financial condition will not be compensated indirectly through recognition of compensation to the surviving spouse's custody and presumably receive protection.
This follows from the fact that, as evidenced by the SAP Madrid of December 13, 2001, cited by the court of first instance, the note accompanying Table I is compared to the absence of the spouse's legal separation situation expressly stating that it is circumstance that prevents the consideration of this absence, the fact that the legally separated spouse is entitled to compensation reduced.
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3 º) This interpretation is consistent with the principle of full indemnity, in the Annex, first, 7 of the Annex to LRCSCVM, under which the legislature may consider reasons not attributable to causes the accident to assess the intensity of moral damage, as occurs when setting "in appropriate, the survival of pre-existing disabilities "as a correction factor increases the proper compensation for permanent injuries.
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4 º) imputation circumstances accompanying the generation of strict liability as a result of the accident should be taken into account, as prescribed by LRCSCVM, to determine whether there is liability. However, once recognized responsibility, unless the legislature expressly or implicitly (as in the case of concurrent behavior), be taken into consideration the circumstances of the amount charged to graduate of compensation, as Article 1.2 LRCSCVM require inclusion in it, according to the assessment guidelines set out in the Annex, without qualification, "[t] he damage [...] foreseen, foreseeable or knowingly derived from event.
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