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| The decisions of courts |
| Kovliack Anatoliy |
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Judgement 06 June 2002 The local court of the Komsomolskiy
district, Kherson, is presented by: The head Zhyla I.E. The secretary Veretschak V.S. After the open court meeting in Kherson - the case of
the suit of Kovliach Anatoliy Vladimirovich to Department of living
exploitational service of the Komsomolskiy district Kherson,
the third person - the organization with limited responsibility "Shumen",
to reimburse financial damages, moral damages, forcement to actions, concluded: The plaintiff called to the
court on 21.03.01 with the suit above mentioned and with the following
changes from 09.04.02, referring to
the fact that from July 1980 and he from 12.09.2000
after the privatization of the apartment, he is the owner of the flat.
That house is on balance of the defendant, with who the plaintiff has
made a contract that he shares expenditures on maintenance of the house
and the adjoining territory. In spite of the contract existing, the
defendant for a long period of time has not been executing his
duties of maintenance and repairing of the building (porch) which is
under his authority. It causes a feeling of humiliation of his
dignity and honour, as he is not capable to provide normal living conditions
to himself and his family. On trying to resolve the problem
with service of the porch, he and other inhabitants of the porch appealed
not once to the authorities and other staff representative of the Department
of living exploitational service, the housing municipal authorities, the sanitary-epidemic
unit, but the defendant does not take measures to remove the drawbacks. The porch
needs reparation of inner parts, it should be wMtewashed and newly painted.
There is no hot water in the
porch - the water supplying system is out of order, the systems of water supply and water drain want general repair,
as they are leaking. The auxiliary rooms (porch and attic) need
sanitary cleaning, it is also desirable to limit access of strangers
to the rooms - they should be closed. The porch, entrance to the porch
and the adjoining territory are not lighted. The refuse chutes are out
of order, are to be repaired and changed. The glass in the windows of
the porches is broken, the windows are to be glazed, the splinters should
be removed. The defendant was appealed not once
but it did not give any results. One had to queue for the appointment to officials. It was unpleasant to him to explain
to every worker of the Department of living exploitational service,
what problems he has and why he wants to resolve them. But in turn he
heard that the defendant has no financial possibilities to remove the
drawbacks. On his information that all pubblic utilities and charge for
the flat are payed the defendant did not react, and offered to wait
his queue for the reparation. The defendant did not register appeals
of citizens, did not keep the terms of appeal and refused to note defects
reported. The absence of reaction from the defendant on complaints as
for unsatisfactory living conditions made the plaintiff to be sure that
the defendant can not be punished and it is impossible to make him to
execute his duties. At the same moment the plaintiff could stop the
duration of the contract and choose another supplier of living
services. On the basis of the facts
mentioned above, he felt that his dignity and honour are humiliated
because of bad living conditions for his family, made by the defendant.
Because of the moral stress and worry his health became worse and his
morale-psychical state got worse, as a result for the first time in
his life he had to obtain stationary treatment of the cordial system
and start the course treatment which is being taken at the present period
of time, and as the result the plaintiff has to buy necessary
medicines. The defendant with his actions has broken
the rights of the plaintiff, envisaged in the article 28, 50 of the
Constitution of Ukraine, art. 16 parti Law of Ukraine "Consumer
protection laws", art. 31,22 Law of Ukraine "Supply of sanitary and epidemological safety to population
", the defendant .caused morale suffering, which in its turn led to decrease of health state, of morale-psychical
state, the family and friendship
relations got worse. The plaintiff asks to recover from the defendant
in Ms benefit 4500 grivnas of moral damages, 2500 grivnas of damages
to his health. Asks to
oblige the defendant to improve in the most short terms the following
drawbacks of living services of
his porch and building: -make general repair of the water
supply and water drain system, remove leaking and renew hot water supply of the porch; -make sanitary cleaning of the auxiliary rooms
(cellar and attic) and limit access of strangers there (lock them); -make inner reparation of the building
(wallpainting, whitewashing, etc); -provide lighting of the porch,
porch entrance and adjoining territory; -repair (change) the refuse chutes; -glaze the windows and remove spliters. At the
court session the plaintiff insisted on his demands, informing that
after his appeal to the court,
the defendant made the sanitary cleaning of the auxiliary rooms. The
plaintiff asked to comply all his demands. The representative
of the plaintiff at the court Shapovalov A. V. asked the court to comply all the
suit demands. The representatives
of the defendant and that of the third person did not come to the court,
although they were informed about the dates of the case was to be held
in the court . Having heard
explanations of the plaintiff, his representative, having learned the
materials of the present suit, the
court wants that the suit is to be partially complied. The court decided that the plaintiff,
according to the certificate ¹7198 from 12.09.2000 of the right of property on the accommodation,
is an owner of the flat ¹28 situated in the Dimitrova Street 11 Kherson in the building
that is in the balance of the Department of living exploitational service
the Komsomolskiy district, Kherson. Between the parts
of the case of 30.09.2000 an agreement ¹ 134 is concluded, according
to which the plaintiff agreed to
share the expenditures on maintenance of the house and the adjoining territory, and the defendant
has obliged himself to execute a set of works of maintenance of the building, adjoining
territory and provide all necessary conditions for the plaintiff and other inhabitants
to live, and provide pubblic utilities and other services. The plaintiff,
according to the contract paid running costs on maintenance of the building
and the
adjoining territory, but the defendant his duties written in the contract
does not execute, does not provide necessary complex of works for maintenance
of the building and the adjoining territory, does not provide necessary living conditions to the plaintiff,
his family and other inhabitants, does not provide necessary service. It is ascertained
that the water supply and water drain systems in the porch of the plaintiff
are out of order, are leaking, there is no hot water supply because
the the hot water system supply does not work; the inside part of the building need to be whitewashed
and painted; the porch, entrance of the porch and the adjoining territory are not lighted;
the refuse chutes are to be repaired or changed; the windows are to glazed and
spliters are to be removed. According to the
art. 10 part 4 Law of Ukraine "About the privatization of the state
living fund", art. 179 Accommodation code of Ukraine, paragraphs
5,6,25,26,27,31,33 "Rules of exploitation of the living buildings and adjoining territories",
paragraph 2.1. of the contract ¹9134 from 30.09.2000, concluded
between the parts, art. 15,161,162 the civil code of Ukraine, art. 15,24 Law of Ukraine "Consumer
protection laws", the defendant should be obliged by the court to remove the above mentioned
drawbacks of the living conditions service. The
court has established that the defendant has broken the rights of the
plaintiff on the normal and quality service of the building and the
adjoimng territory, and, in the result, the defendant
has caused morale damage to the plaintiff which revealed in his morale
suffering from bad living conditions, low quality service, absence of
saratary hygiemc service which existed because the defendant did execute his duties properly. On the basis
of the art 440-1 the civil code of Ukraine, art.234 Law of Ukraine "Consumer protection
laws", the defendant, to the benefit of the plaintiff, is called to pay a sum of money
to recover the morale damages. Taking into account the essence
of the demands of the suit, the character of actions of the defendant, caused morale suffering
to the plaintiff, negative consequences which took place after the rights
of the plaintiff were broken, and also the fact that the plaintiff did
give any provements that the decrease of his health state was the
fault of the defendant, the sum to recover the morale damages is to
be reduced up to 1000 grivnas. Other demands
of the suit to be complied to recover morale damages are declined as
they are not well-grounded. Taking
into account that the plaintiff did not give any provement to the court
that he suffered from
the damage to his health state on the sum of 2500 grivnas because of
the fault of the defendant, the comply of this part of the suit is also
declined. The demand to
oblige the defendant to clean the territory is declined because, as
the plaintiff has explained himself,
the defendant already executed the demand on his own will. According to the
art. 15,15-1, 30, 62, 75 civil code of Ukraine, art. 151,161,162, 440-1
civil code of Ukraine, art. 179
living code of Ukraine, art. 10 part 4 Law of Ukraine "About the
privatization of state living fund", paragraphs 5,6,25,26,27,31,33
"Rules of exploitation of living buildings and adjoining territories
", established by the decree of the Cabinet of Ministers of Ukraine, from 08.10.92 ¹ 572, art.
15,24 Law of Ukraine "Consumer protection laws", The court has concluded: The suit of Kovliaha Anatoliya Vladimirovicha
comply partly. Recover
from Department of living exploitational service of the Komsomolskiy
district, Kherson to the benefit of Kovliaha Anatoliya Vladimirovicha
1000 grivnas to recover morale damages and also state duty in the amount
of 8 grivnas 50 kopecs. Oblige Department
of living exploitational service of the Komsomolskiy district, Kherson
to execute the following works in the porch ¹ 1 building ¹ 11 in the
Dimitrova Street in Kherson: -repair
the water supply and water drain systems, remove leaking, provide hot
water supply of the porch; -repair inner part of the porch; -provide lighting of the porch,
entrance of the porch, adjoining territory; -repair(change if necessary) the
refuse chutes; -glaze the windows, remove the spliters; Other demands of the suit to recover
morale damages, financial damages, connecting with the decrease of the health state, forcement
to actions are declined as they are not well-grounded. On that conclusion
of the court one can appeal to the Court of Appeal of the Kherson region by the local court of Komsomolskiy
district, Kherson, within one month, beginning from the day the decision of the court
was announced. Judge
I.E. Zhyla The translation is done by the translator Kucherenko
Yuliyey Viktorovnoy, the diploma of the Kherson State Pedagogical University
XE ¹15282581, issued on the 29 of june 2001. |
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