Disputes over improper provision of services

When making the decision, the court took into account the contract with a third party and the Agency Agreement, which does not relieve the carrier of responsibility, T., G., K. filed a lawsuit against the joint-stock company "A" for recovery of material damage and moral damage. By the decision of the Abai District Court of Shymkent dated May 15, 2018, the claims were denied. By the decision of the Judicial board for Civil Cases of the Turkestan Regional Court dated August 24, 2018, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of the local courts and issued a new decision to satisfy the claim of T., G., K. to the joint-stock company "A" for recovery of material damage and moral damage. Recovered from JSC "A" in favor of T., G., K. the amount of material damage is 551,872 tenge, moral damage in the amount of 100,000 tenge, court costs 182,000 tenge, refund of state duty in the amount of 5,100 tenge on the following grounds. It follows from the case file that on April 28, 2017, T. Airline tickets of JSC "A" carrier were purchased through the Air railway travel agency for themselves and family members for a total amount of 411,160 tenge. Departure dates: August 25, 2017 for flights DV 741 Astana-Aktau, DV 819 Aktau-Adler and September 7, 2017 for flights DV 820 Adler-Aktau, DV 742 Aktau-Astana.

Disputes over improper provision of services

According to the electronic ticket itinerary, flight DV 820 Adler-Aktau was scheduled to depart on September 7 at 02:40 a.m. (Moscow time). On September 7, 2017, at 01:00 a.m., T., arriving with his family at the Adler departure airport (Sochi) for departure to Aktau, learned that flight DV 820 Adler-Aktau had already departed at 00:40 a.m. (Moscow time). In accordance with paragraph 2.1.4. According to the Rules of Air Transportation of Passengers, Baggage and Cargo of JSC "A" (hereinafter referred to as the carrier), approved by the order of the President of JSC "A" No. 116/11 dated November 23, 2015 (hereinafter referred to as the Rules), the air transportation contract is considered concluded from the moment of proper and timely payment for air transportation, which certifies the passenger's agreement with the rules and conditions transportation and tariff application rules. In violation of paragraphs 3.8., 3.10. of the Rules, the carrier did not properly inform in a timely manner about the change in the departure time of the flight. At the same time, the applicant indicates that he and his family members were not provided with the relevant services provided for in paragraph 38 of the "Rules for the Carriage of Passengers, Baggage and Cargo by Air", approved by Order No. 540 of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 (hereinafter referred to as the Rules of Carriage), upon cancellation or flight delay due to the carrier's fault or delay, flight cancellation due to the late arrival of the aircraft, or a change in the transportation route. Due to the lack of sufficient funds to purchase air tickets, he and his family members were forced to accept a flight offered by the carrier from Krasnodar on September 10, 2017, having suffered moral suffering at the same time. After purchasing tickets for the Adler-Krasnodar train with personal funds, in the absence of sufficient funds, they were forced to save on food, travel by public transport and live in a bad hotel (hostel) at their own expense, experiencing discomfort and depression for three days. These circumstances had a negative impact on the emotional and mental state of the family, feelings of humiliation, irritation over the ruined vacation, depression, anger and despair possessed him. According to the requirements of Article 11 of the Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan" (hereinafter referred to as the Law), when transporting goods, passengers, baggage, mail and forwarding services, the carrier is obliged to compensate for damage caused to the customer and a third party, including in connection with the loss of time in monetary terms..

The carrier's provision of the opportunity to depart on the next flight from another city confirms the fact of his guilt. The cost of the tickets was not refunded by the carrier. In accordance with article 18 of the Law, if a passenger's transportation is delayed due to the carrier's fault, the carrier pays the passenger a fine of 3 percent of the ticket price for each hour of delay, in addition to compensating the passenger for losses if the latter occurred. This requirement is also fixed in paragraph 40 of the Rules of Carriage, which stipulates that if a passenger's transportation is delayed due to the fault of the airline, the airline pays the passenger a fine of 3 percent of the ticket price (flight section where the delay occurred) for each hour of delay, unless it proves that the delay occurred due to force majeure. Also, paragraph 39 of the Rules of Carriage provides that the airline reimburses the damage or expenses incurred by the passenger as a result of providing him with the specified service or in connection with it. Meanwhile, the departure time of the flight, which is actually the deadline for fulfilling the airline's obligations, is an essential condition of the contract between the passenger and the carrier, which was violated by the latter. The airline must be fully responsible for the delay of the passenger's departure, which is consistent with the requirements of Article 704 of the Civil Code of the Republic of Kazakhstan. The postponement of the flight without warning the passengers resulted in a delay in their departure, and therefore, in accordance with applicable law, the carrier is obliged to compensate for losses. Upon arrival, the applicant sent a claim to the carrier indicating the amounts to be reimbursed. The response to the claim was received at the end of January 2018, in which the carrier agreed to pay part of the damage. At the same time, due to disagreement with the carrier's position, a pre-trial claim was sent, the funds offered by the airline in the amount of 107,820 tenge were not received. The applicant considers that agreeing to pay off part of the damage by the carrier is indirectly an admission of violations, while refusing full compensation for the damage caused is unjustified. When making the decision, the court was based on the Agency Agreement concluded between the defendant and Air LLP dated March 1, 2017 (hereinafter referred to as the Agreement), which cannot be recognized as a norm of current law, but is only an agreement between the carrier and the distributor of air tickets (travel agency).

When issuing a judicial act, the court had to apply the above-mentioned norms of legislative acts and Rules of Transportation. The fact of not knowing the information about the time of the flight postponement is confirmed by a court decision, and the fault of the Air travel agency has been established. However, this applies to the legal relationship between this travel agency and the defendant and does not exclude the liability of the latter provided for by law. When making a decision in favor of the applicant, the defendant has the right to recover the amount of damage in a recourse manner from the travel agency. JSC "A" is the proper defendant in the lawsuit, as its liability is provided for by the applicable law.

Disputes over improper provision of services

At the same time, the evidence provided during the court session testified to the defendant's violations. When making a decision, the court took into account the contract with a third party and the Agency Agreement, which does not relieve the carrier of responsibility. The denial of the claims does not correspond to the circumstances of the case, since the court established a violation by the defendant of the terms of the contract of carriage, but unreasonably refused to find the defendant guilty and recover the amount of damage. The fact of moral damage is obvious and follows from the violations committed by the defendant. 

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