Appeal 9663/2008 - Resolution: 1497 - Secretariat: SPECIAL
Santiago, 5 January, two thousand nine.
VIEW:
statement is reproduced on appeal, with the following modifications: a.
- the reasons are eliminated eighth, ninth, tenth and eleventh.
b. - be deleted paragraphs thirteenth and fourteenth.
AND IS IN PLACE, AND ALSO PRESENT:
First: That, being the kind of an event involving the theft of a vehicle in a parking lot is owned Alameda Supermarket Ltd., corresponds precisely determine, if the liability of the provider to consumers as to the valet parking;
Second: That the species is decisive in the supplier, in this case the supermarket not only provides the service provided and the sale of goods, but is also part as a whole in providing facilitating a parking within the premises Supermarket to help acquire the product or products and services offered;
Third: That the authorization of parking by Supermarket Alameda Ltda Avenida Padre Hurtado No. 60, district of Central Station, in addition, not only because to the service itself, but also is part of the planning and building standards governing those matters, such legal provisions in the event of being broken, there would not even obtain the respective building permit, the so that the argument which may be in order is a free service that has no consideration or not applicable the species by establishing the world icipio competent at the time, authorized the building of a work destined to be a supermarket, which included, necessarily, the respective stations as an integral part of everything, so that the circumstances to be a free service does not absolve themselves of obligations inherent to the provision of generic service provider being a sale of goods and services to consumers who attends the supermarket and referred to that effect, is parked on the premises owned or under guard of the store mentioned;
Fourth: That, so it is not possible to conclude that the free parking service constitutes a service Annex, in addition to or different from the simple sale of goods or services, but part of the alleged offer, who has not fulfilled its obligation to protect the safety of consumer goods, and in particular in safeguarding property of his client. Indeed, for such purpose an alleged account, as appears in the record of a backup service, which lies essentially in order to provide a minimum of safe conduct and operation of the specific act of providing services or selling goods services;
Fifth: That, in addition, the existence of a global operation, broken down in the acts of admission to the exhibition, circulation and trading, payment and subsequent withdrawal, all of which constitute acts of consumption are governed by Law No. 19,496, and to reason to the contrary, leads to the absurdity of holding that even acts or damages that may occur to the consumer within the grounds of the supermarket or in parking lots, by the mere fact of not buying the good or service could not be covered by the situations of the Consumer Act;
Sixth: That, having deducted civil action for damages at page 33 of autos, which is collected by the sum of $ 384,900 .- for damages and $ 1,000,000 .-, for moral damages, these judges, attended the accompanying documents, mainly on pages 59 et seq, estimate that the damage alleged is accredited by the civil plaintiff, by accessing the damage and appreciating moral prudently assessing damage in the sum of $ 1.00 .- 0000;
Seventh: That, likewise provides that pay the sums ordered in the operative part of the fault is adjusted according to the CPI since this sentence becomes enforceable and generate interest in the only event of default.
For these reasons and addressed the provisions in Articles 1 and following of the Law 18287 and Law 19.496, it reverses the original ruling of 13 December, two thousand seven, written on pages 104 and following and instead decides:
I. - Order to Alameda Supermarket Ltd. represented by Mr. Francisco Zuniga Krum to a fine up to 25 monthly tax units, tax benefit, as infringing Articles 12 and 23 of Law 19.496 on Protection of Consumer Rights.
II .- A. - order Alameda Supermarket Ltd. to pay to Mrs. Nancy Cabello Marcela Ocampo the sum of $ 384,900 .-, by way of damages and the sum of $ 1,000,000 for pecuniary damage.
B. - That such sums shall be readjusted and generate interest in the manner described in the plea seventh.
C. - order for costs against the defendant.
Register and refunded. A member of the Advocate Editorial
Mr. Nelson Pozo Silva.
No. 9.663-2008 .-
Delivered by the Sixth Chamber of the I. Santiago Court of Appeals, composed of Messrs. Juan Fuentes Belmar Ministers, Mr. Joaquin Billard Acuña and Integrative Advocate Mr. Nelson Pozo Silva.
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