Recovery of compensation and moral damage
On June 22, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the presiding judge B., judges A., M., with the participation of a representative of the plaintiff K.A., a representative of the defendant S.A., considered the civil case on the claim of N.A. via mobile videoconference (TrueCoft) in open court. to the joint-stock company "A", a third party who does not declare independent claims on the subject of the dispute on the defendant's side to the republican state institution "Department of Police on Transport" for the recovery of moral damage, received at the request of N.A. for a review of the decision of the district court of November 8, 2021, the decision of the judicial board for civil cases of 13 January 2022,
N.A. appealed to the court to the joint-stock company "A" (hereinafter referred to as the Airline), the republican state institution "Department of Police for Transport" (hereinafter referred to as the Department) to recover compensation for moral damage, arguing that the defendant provided a substandard flight service from the city of N. to the city of A.
By the decision of the district court of November 8, 2021, the claim was dismissed.
By the decision of the Judicial Board for Civil Cases dated January 13, 2022, the decision of the court of first instance remained unchanged.
In the petition, the applicant, disagreeing with the judicial acts that took place in the case, asks them to cancel and make a new decision on the satisfaction of the claim, since in the civil case there was evidence of the defendant's guilt in providing substandard services during baggage check-in.
The response to the petition has not been submitted.
After hearing the explanations of the plaintiff's representative, who supported the arguments of the petition, the representative of the defendant, who objected to the arguments of the petition, having examined the materials of the civil case, the judicial board of the Supreme Court (hereinafter referred to as the judicial board) comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such grounds have been established in the case.
The court of first instance, resolving the dispute and rejecting the claim, proceeded from the fact that the plaintiff had not provided evidence to substantiate his arguments due to the requirement of Article 72 of the CPC.
The Appeals board found the decision of the court of first instance to be consistent with the factual circumstances established in the case and not contrary to the norms of the law, and therefore left unchanged, supplementing the court's conclusions that the plaintiff had not submitted to the court the PIR act, drawn up in accordance with the Rules of Passenger Service at Airports of the Republic of Kazakhstan, approved by the order of the Acting Minister for Investment and Development of the Republic of Kazakhstan No. 189 dated February 24, 2015 (hereinafter referred to as the Rules).
The Judicial Board considers that the conclusions of the local courts are not based on the law.
In order to properly resolve the dispute under consideration, the courts needed to apply the Law of the Republic of Kazakhstan "On Consumer Rights Protection" (hereinafter referred to as the Law), since the dispute arose as a result of the provision of substandard services to the plaintiff.
It follows from the preamble to the Law that it defines the legal, economic and social foundations of consumer protection, as well as measures to provide consumers with safe and high-quality goods (works, services).
At the same time, by virtue of Article 1 of the Law:
A consumer is an individual who intends to order or purchase, or who orders, purchases, and/or uses a product (work, service) exclusively for personal, family, home, or other use unrelated to entrepreneurial activity.;
seller is a natural or legal person who sells goods in accordance with the civil legislation of the Republic of Kazakhstan.;
disadvantage - non-compliance of the product (work, service) with the mandatory requirements of technical regulations, standardization documents, terms of the contract, as well as information about the product (work, service) provided by the seller (manufacturer, contractor);
service is an activity aimed at meeting the needs of consumers, the results of which have no material expression.;
contractor - a natural or legal person who performs work or provides a service under a contract.
It follows from the case file that consumer N.A. purchased tickets from the Airline on a paid basis for May 15, 2019 in order to fly in the direction of N.-A. for flight Z92, including baggage transportation.
On the day of departure, on May 15, 2019, N.A. arrived at the airport of the city of N. with two and four young children. She had one suitcase, which she checked into the luggage compartment at check-in.
However, according to the plaintiff's transportation documentation, the Airline registered 3 pieces of baggage using Z9 baggage tags, with a total weight of 37 kg.
After checking in her luggage, she and her young children went to the waiting room, then she was invited by police officers and the airport security service of the city of N. to the baggage compartment to clarify the circumstances regarding the legality of the items carried in the luggage, namely two boxes containing suspicious items.
This fact was registered in the information book by the Linear Police Department (LOP) at the airport of the city of N. for No. 19 dated May 15, 2019.
After verification, the materials were sent to the airline for decision-making due to the absence of criminal and administratively punishable acts in the actions of the plaintiff, as it was established that these boxes did not belong to the plaintiff, but were registered with her at the initiative of the employee who checked in the tickets for the flight.
After that, the plaintiff and her young children were allowed to fly.
By virtue of article 2-1 of the Law, consumer rights protection is based on principles, including providing consumers with safe and high-quality goods (works, services).
According to subparagraph 4 of Article 24 of the Law, the seller (manufacturer, contractor) is obliged to ensure the proper quality of the goods (work, services).
In the case, it was established that the Airline had checked in baggage in the form of two boxes with suspicious items belonging to a third party in violation of the Rules, which was established by authorized persons when clarifying the circumstances of baggage check-in.
As a result, the plaintiff and her two young children were in the baggage compartment of the airport for an hour, were deprived of a comfortable wait for boarding the plane, while the plaintiff experienced stress and moral humiliation, because she had to explain and prove that she had nothing to do with the baggage that aroused suspicion.
The established circumstances are confirmed by the response of the Republican State Institution "Department of Police for Transport" dated August 7, 2019, from which it follows that the fact of registration of third-party baggage in the form of two boxes in the name of the plaintiff, which took place on May 15, 2019 at JSC International Airport, was indeed confirmed during a counter-check by LOP employees and the last It was established that the registration of two boxes in the name of N.A. was made by a representative of the Airline independently without the consent of the plaintiff.
This was fully confirmed at the hearing by a representative of Department Zh., who explained that due to the fault of the defendant's employee, the latter had registered third-party baggage in the name of the plaintiff in the form of two boxes, which did not belong to the plaintiff, which was established by him when clarifying the circumstances of baggage transfer to the baggage compartment.
Thus, the fact of providing the plaintiff with services of inadequate quality when servicing departing passengers has been established and confirmed by the evidence available in the case.
According to paragraph 1 of Article 9 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), one of the ways of judicial protection of civil rights is to recover compensation for moral damage in the provision of substandard services.
In accordance with article 21 of the Law, the right to compensation for moral damage caused to a consumer as a result of a violation by the seller (manufacturer, performer) of his rights and legitimate interests provided for by the legislation of the Republic of Kazakhstan on consumer rights protection may be exercised by a court or subjects of pre-trial settlement of consumer disputes, unless otherwise provided by the laws of the Republic of Kazakhstan.
This legal position is also reflected in paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage."
The stated circumstances indicate that the local courts grossly violated the substantive law, since they did not apply the law applicable to the legal relations that arose, therefore they issued illegal judicial acts, which are subject to cancellation with a new decision on partial satisfaction of the claim in the case.
When determining the amount of compensation for moral damage, the judicial board takes into account the circumstances of the dispute, and for the purposes of reasonableness and fairness provided for in Article 952 of the Civil Code, it considers it necessary to recover 300,000 tenge from the Airline in compensation for moral damage.
The arguments of the court of appeal about the absence of evidence in the case in the form of a PIR act drawn up in accordance with the above Rules are untenable, since the drafting of such an act is not the responsibility of the plaintiff.
According to part 1 of Article 109 of the CPC, the court awards all expenses incurred in the case to the party in whose favor the decision was made.
Due to the partial satisfaction of the claim from the defendant in favor of the plaintiff, a state fee in the amount of 2,155 tenge is subject to collection (1,389 tenge paid to the court of first instance and 766 tenge to the court of cassation).
When submitting the application, N.A. paid a state fee in the amount of 1,532 tenge, whereas according to Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", 766 tenge is payable.
In accordance with subparagraph 1) According to paragraph 1 of Article 108 of the Tax Code, an overpaid amount of state duty is subject to refund.
By virtue of Article 113 of the CPC, the costs of paying for the assistance of a representative in the amount of 300,000 tenge, the payment of which is confirmed by transfer receipt No. 17 dated October 9, 2020, are to be recovered from the defendant in favor of the plaintiff.
Based on the above, guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board of the Supreme Court of the Republic of Kazakhstan DECIDED:
The decision of the district court of November 8, 2021, the decision of the judicial board for civil cases of January 13, 2022 to cancel, to make a new decision in the case.
N.A.'s claim is partially satisfied.
To collect 300,000 tenge (three hundred thousand) tenge from the joint-stock company "A" in favor of N.A. as compensation for moral damage, expenses for the payment of state duty in the amount of 2,155 (two thousand one hundred and fifty-five) tenge, for the payment of assistance from a representative in the amount of 300,000 (three hundred thousand) tenge.
To dismiss the rest of the claim.
To return to N.A. the amount of overpaid state duty in the amount of 766 (seven hundred and sixty-six) tenge.
To partially satisfy N.A.'s petition.
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