Juzgado de Primera Instancia nº 36 Madrid, Sentencia 28 Noviembre 2016
Diario La Ley, Nº 8927, Sección La Sentencia del día, 22 de Febrero de 2017, Editorial Wolters Kluwer
LA LEY 852/2017
Si la aseguradora se niega a peritar los daños e indemnizar conforme a la valoración que considere que procede, no puede imponer que el vehículo tenga que ser reparado en el taller que ella decida. Inclusión en la indemnización de la factura del perito del demandante al ser un gasto necesario para reparar el vehículo.
El Juzgado de Primera Instancia estima la acción de cumplimiento contractual ejercitada y condena a la aseguradora del vehículo a abonar la indemnización reclamada.
El asegurador está obligado a pagar una indemnización equivalente al importe del daño sufrido por el vehículo asegurado. Por ello, una vez comunicado el siniestro debe realizar las investigaciones y peritaciones que considere necesarias para constatar la realidad de aquél y para determinar el importe de los daños reclamados.
Pero lo que no es admisible es que se niegue realizar estas actuaciones alegando que la póliza no incluía la cobertura de libre elección de taller.
Así, una vez que el actor comunicó el siniestro a la compañía, requirió a ésta mediante burofax para que procediese a la peritación del vehículo con la finalidad de llevar a cabo su reparación. No consta contestación a dicho requerimiento.
Si la compañía se niega a peritar no puede imponer que el vehículo sea reparado en el taller que ella elija, teniendo en cuenta, además, que su perito excluyó del informe realizado dos meses después de comunicarse el siniestro uno de los daños que presentaba el vehículo y que estaba cubierto por la póliza contratada.
La libre elección del taller no estaba expresamente excluida de la cobertura de la póliza, por lo que la aseguradora debe indemnizar en la cantidad íntegramente solicitada. Se incluyen los gastos de peritaje por tratarse de un gasto necesario para proceder a la reparación del vehículo dañado, dado que la compañía tardó más de dos meses en enviar a un perito suyo.
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