Loss or theft of mobile operator requires to provide another device or reduce termination fine
September 9, 2009 Category: News 
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Loss or theft of mobile operator requires to provide another device or reduce termination fine
In case the client loses cell as a result of unforeseeable circumstances or force majeure, duly attested, the telephone company must provide free other apparatus for the remainder of the grace period or, alternatively, halving the amount of the fine to be paid on termination the contract. The decision is the Third Chamber of the Superior Court of Justice (STJ), giving part of the appeal of Tim Celular S / A in Rio de Janeiro.
The discussion began with a civil action filed by the prosecutor of Rio de Janeiro, requiring the operator to refrain from charging any fine, fee, charge or value for resolution of mobile phone contract due to force majeure or unforeseeable circumstances, especially in case of theft of the mobile device.
He asked also to return double the amount received as a result of termination of the contract mobile phone, as well as compensation for material and moral damages caused to consumers.
In the first instance, the action was judged partially founded, having been convicted of the operator to refrain from charging termination fine, under penalty of a daily fine of R $ 20 thousand. The judge also double the return of amounts paid as a fine, plus monetary and interest of 1% per month in addition to repair the damages of consumers who were compelled to pay such amount, determined as a 15% the amount to be made by the defendant.
Tim and the prosecution appealed. The Court of Rio de Janeiro (TJRJ) has partially upheld the appeal of Tim, just to delete the refund double the fine, keeping the form simple. The appeal of the Attorney General was provided, having considered abusive TJRJ a fine imposed. The company filed requests for clarification that the court rejected, even by applying a fine of 1% on the amount of the claim, by considering them merely laziness.
The operator then lodged an appeal to the Supreme Court, adding to the resource claims of lack of judgment, decision and need for extra petita Anatel litisconsorte included in the process as necessary. After examining the case, the Third Panel rejected these allegations away, however, delaying the fine against the company.
To the Minister Nancy Andrighi, rapporteur of the case, the solution of the case involves the equalization of rights, obligations and interests of the Contracting Parties to the new reality that emerged after the occurrence of unexpected and unpredictable event, for which none of them helped.
"On the one hand the applicant, which subsidized the purchase by the consumer device, hoping that this would take their services for a minimum period. On the other, the client, which, compared to the loss of cells by unforeseeable circumstances or force majeure and the inability or unwillingness to purchase a new appliance, was forced to pay for a service that will not use. "
According to the minister, circumstances allow the revision of the contract. "Although the loss of the cell by fortuitous event or force majeure can not be seen as cause for immediate termination of the contract for loss of object, it is undeniable that the situation causes excessive burden to the consumer," he added.
When deciding, the Minister took into account the consumer be a disadvantage in the commercial relationship, with two alternatives to the operator: a device in lending to the customer during the remainder of the grace period in order to provide continuity in service provision and therefore, the maintenance contract, or accept the termination of the contract, by reducing by half the amount of the fine due at that time by the termination.
The Rapporteur also highlighted that if a cell is provided, the customer can not refuse to continue the contract, under penalty of being subject to full payment of the termination fine. "This is because a device available to the client, they will cease the effects of the event [cell loss] which justifies the reduction of the fine," Nancy concluded Andrighi.
Source: Superior Court of Justice
very good .. my phone was stolen and has to pay
Athat has to be how to cancel the shares? Live mobile operator
I lost my phone and it was expensive mt
is to recover
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