9/2551 Thailand Supreme Court Opinion (No. 6393) 2008
Mr. Boonchuay Pimkoak and Dhipaya Insurance Plc., Settakij Transport Co. and Party

Re: Debt release, Indemnity, Duty in taking care of the parents

The Plaintiffs had claimed and counter-claimed the five defendants to jointly or substitutely compensated 200,000.-baht for loss of patronage, with 15% interest rate per year starting from the date later by the complaint day until the payment completed.

The First, Second and Fourth Defendant applied request the court to dismiss the charges.

The Third and the Fifth Defendant were in default of answer and in default of appearance.

During the Trial, the First, Second and the Fourth Defendant applied a motion calling Dhipaya Insurance Plc. enter into the case as Co-Defendant.   The Trial Court granted the application.

The Co-Defendant pleaded and amended the Plea to request for case dismiss.

During the Trial, both Plaintiffs applied a request to withdraw Co-Defendant from the charges, citing that the Co-Defendant had fully paid the Indemnity in according to the Insurance Policy.   The Trial Court permitted and dismissed the Co-Defendant from charges.

The Trial Court ruled the Five Defendants to jointly or substitutely pay to the Plaintiff for loss of patronage at 200,000.-baht with 7.5% interest rate per year starting on  July 22,2009 (the date later by the complaint day) until the completion of payment and also,they had to jointly or substitutely pay Trial Court Fees for the Plaintiffs and imposed Thailand Lawyer fees for 10,000.- baht.

The First Defendant appealed to the Court of Appeal.

The Court of Appeal, Region 4, affirmed and ordered to waive Appellate Court fees.

The First Defendant appealed to the Supreme Court.  The Presiding Judge in Trial Court authenticated that there was ground to appeal in the problem of fact.

The Supreme Court decided that “…there was a problem of fact to consider whether the Plaintiffs possessed the rights to demand for loss of patronage.  The First Defendant cited that the Co-Defendant had already paid the Indemnity in accordance to the Insurance Policy, therefore, the liability of Tort was extinguished.  And the act that both Plaintiffs withdrew their complaint against the Co-Defendant induced benefit to the five defendants that their liabilities would reduced to 48,000.- baht.  The Limited liability Insurance was the Insurance Policy that the agreement would only covered on limited liability.  According to this agreement, Section 2, Part 2, Article 2 stated that Liability by the Act equaled to 50,000.- baht or 80,000.-baht per person, 10,000.-baht per time; Article 2.1 stated that Bodily Injury Liability or Death Liability outstanding from the Act equaled to 150,000.-baht per person, 1,000,000.-baht per time; Article 2.3 stated that Property Damage Liability equaled to 1,000,000.-baht per time; Loss of Patronage Liability is excluded.  The Road Accident Victim Protection Act, 1992, Section 4 (old) prescribed that the DeathIndemnitycovers Funeral Costs and Other Necessary Expenses in handling victim’s body.    Furthermore, the Ministerial regulation which is the bylaw enforcement of the aforesaid Act Section 2 Paragraph 2, affirmed List of Liabilities and Indemnities, Liability for Loss of Patronage was no listed. The Co-Defendant paid 135,000.-baht for Funeral Expenses; 65,000.- baht was paid under the Act; and 70,000.-baht was paid under Article 2.1.  It was cleared that those were Funeral Expenses. The collision coverage was 17,000.-baht and categorized as Property Damage Liability.  These two liabilities were paid from Insurance Policy between the First Defendant and the Co-Defendant.  Tort caused death to the Plaintiffs’ child. The two Plaintiffs were the lawful parents who possessed the rights to claim for loss of patronage as prescribed in the Thai Civil and Commercial Law, Section 443 Paragraph 3 and Section 1563, regardless the fact whether the death had ever been patronized the Plaintiffs or would be able to afford patronage for the future.  Both Plaintiffs withdrew their charges on the first, Second and Fourth Co-Defendant, who were enter to the case by the Plaintiff; such performance would caused no effect on the five Defendants because both plaintiff filed a complaint on Liability for loss of patronage as prescribed by the laws, on the Funeral Expenses and Collision coverage.  Such performance could not induce debt release to free the First, Second and Fourth Defendant from their liabilities.  Both Plaintiffs had done compromise agreement with the Defendant that both Plaintiffs would not ask for any more compensation and the subject was merely on Collision Coverage for 17,000.-baht.   The Supreme Court affirmed with both Lower Courts and ruled that appeal of the First Defendant was not sounded.

Moreover, for this case, the First Defendant was a Juristic Person established in the form of a limited company.  The Second, Third and Fourth Defendant were only the directors who acting for the company, not binding for personal liability, thus, a correction was necessitated.”

The Supreme Court amended that the court would dismissed the Second, Third and Fourth Defendant from charges and waived the Supreme Court fees.  Besides this change, the Supreme Court affirmed all ruling of the Court of Appeal, Region 4.