VI.- THIRD GRIEVANCE. VIOLATION OF NUMERALS [Telf1] [Placa1] [Telf2] [Placa2] CIVIL CODE. Based on the first provision, it is argued that there is no proof of the defendant's negligence and recklessness, as it was not possible to demonstrate that the calls were made by Citi. The thesis is not admissible; the recorded phone calls and the witness testimony of [Nombre1] prove this business link between the call center and the banking company; therefore, it is not necessary to demonstrate that the telephone numbers belong to the defendant to derive a causal link that generates responsibility. If the defendant intends to raise the defense that the calls were simulated or made by other persons, she should have argued this when answering the complaint; however, the calls are clear regarding the product offered and the aggressive advertising, the domain of which is proper to a commercial decision of the defendant. It is alleged that the frequency of the calls was not demonstrated; this argument, as explained, is combated with the recording of the calls themselves, since their continuity is extracted from them and that, at all times, the plaintiff emphasizes to the person calling him that he has received a large number of offers and is not interested in the product. Numeral 1048 ibidem is also not violated. The appellant alleges that the witness testimony of [Nombre1] demonstrates an entire protocol to prevent a call to each customer before 45 days, and that, therefore, it is not possible, through the confession in default, to demonstrate non-compliance with that protocol. We do not share the reproach; independently of this procedure, the evidence demonstrates how the telephone calls were intended to offer, in an aggressive manner to the consumer, the defendant's products, and the protocol in question, in this case, if it existed, was not followed; therefore, the existence of a procedure for contacting customers does not constitute an exemption, given that damage was caused to the plaintiff in any case. This is despite the defendant's arguments regarding the impossibility of surveillance; it does not eliminate the defendant's responsibility, given that this alleged impossibility was not demonstrated by her, which makes her liable for the damages caused.
VII.- APPEAL OF THE PLAINTIFF. FIRST GRIEVANCE. THE QUANTIFICATION OF DAMAGE. It is alleged that, in Considerando VI, an inconsistency is incurred, because on one hand, it is affirmed that the plaintiff suffered nuisance, anguish, anxiety, restlessness, overwhelm, anger, rage, impotence, displeasure, and unease as a result of the calls made by the defendant. Also that, in Considerando X, the frequency of the calls was deemed demonstrated, which generated the violation of the plaintiff's tranquility (Considerando XIV). That the calls were made from a telephone identified as \"private,\" which led the plaintiff to always answer them, since he was waiting for news regarding the birth of his firstborn child, as was demonstrated by the witness evidence. That the economic situation of the defendant bank was not assessed, as it is argued that it constitutes one of the largest financial groups in the world and that granting one million colones is insufficient, despite the tortuous judicial path the plaintiff has had to endure. The grievances are partially admissible. For the Tribunal, it is an accredited fact that the plaintiff suffered overwhelming calls from call center operators, who offered him products of the defendant bank, which motivated him to have to tell them on multiple occasions to cease contacting him as he was not interested in any product. Despite this, the defendant entity, through those operators, continued calling him to offer its facilities for obtaining products. The a-quo deemed the frequency of those calls and the psychological damage proven and sets it at the sum of one million colones, arguing that the requested amount –five million colones is high-, and that the granted sum seeks an exemplary character. The Tribunal does not share this premise. The function of effective judicial protection for damage, constitutionally regulated in Article 41, is to compensate the conducts that cause that damage, not to sanction them, given that we are not in a case of \"punitive damages\" as they exist in Anglo-Saxon legislations. This is why the thesis of the exemplary function of damages used by the judge is not a valid argument for its setting. In the sub-júdice, what the plaintiff requests is compensation for the depression, anguish, feelings of anger, overwhelm, and restlessness caused by the large number of calls received from the various operators offering the defendant bank's cards. Said feelings were demonstrated as a result of the evidence received in the proceedings; this is why the Tribunal assesses that the amount granted to compensate this damage does not correspond to the severity of the events that occurred. Experience leads us to assess that being subjected to aggressive advertising campaigns through phone calls produces experiences of frustration and anguish, especially when –as happened in this specific case-, the plaintiff did not provide his phone number for that purpose and, in each call, expressed his disagreement that this senseless offering of products continued. These situations lead us to quantify the compensation to which the plaintiff is entitled at the sum of four million colones. We do not share the reproaches regarding the bank's economic condition, nor the length of the judicial process, to set a compensation as requested, as those aspects do not have a causal link with the damage claimed in the complaint.”