Substandard provision of tourist services
In case of non-fulfillment or improper fulfillment of the contract by a person engaged in tourist activities, the tourist has the right to terminate the contract on the terms and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan during the term of the contract. The expiration of the contract does not release the parties from responsibility for its violation that occurred before the expiration of this period. The tour operator provides tourists with all services included in the tourist product, independently or with the involvement of third parties, who are charged by the tour operator with fulfilling part or all of its obligations to tourists. According to article 17 of the Law of the Republic of Kazakhstan "On Tourism activities in the Republic of Kazakhstan", the provision of tourist services is carried out on the basis of a contract. The contract for tourist services is concluded in writing, with the exception of contracts concluded by a guide (translator guide) and a tour guide, and must comply with the legislation of the Republic of Kazakhstan. The essential terms of the travel service agreement are established by a standard agreement approved by the Government of the Republic of Kazakhstan. Each of the parties has the right to demand modification or termination of the agreement in connection with significant changes in the circumstances from which they proceeded at the conclusion of the agreement. Significant changes in circumstances include: deterioration of travel conditions, changes in travel dates; unforeseen increases in transport tariffs; the introduction of new or increased current rates of taxes and fees and other mandatory payments to the budget; other grounds determined by agreement of the parties. For example, the NGO "National League of Consumers" in the interests of X. filed a lawsuit against "V" LLP for termination of the contract, recovery of an amount in the amount of 447,000 tenge, a penalty in the amount of 200,115 tenge and moral damage in the amount of 500,000 tenge, motivating its claims by the failure of the defendant to fulfill obligations to provide travel services to China, paid by the consumer in full in the amount of 747,000 tenge. the amount of 447,000 tenge unpaid by the defendant, the losses incurred by her and the moral suffering as a result of the defendant's unlawful actions.
By the decision of the Atyrau City Court of February 28, 2017, the claim was partially satisfied, the contract dated September 26, 2016 No. 109, concluded between the parties, was terminated from the defendant in favor of X. 447,000 tenge was collected, a state duty in the amount of 4,470 tenge was paid to the state income, and the claim for a penalty in the amount of 200,115 tenge and compensation for moral damage in the amount of 500,000 tenge was refused. The appellate judicial board of the regional court changed the court's decision, as the court unlawfully refused to satisfy the claim regarding the recovery of penalties and compensation for moral damage, as well as incorrectly satisfied the claim regarding the termination of the contract. Thus, the term of the agreement is determined by the parties until the fulfillment of their obligations in accordance with the purchased tourist package to China from October 29 to November 5, 2016. The voucher was not provided within the specified period, the contract was terminated, and therefore the plaintiff's claim to terminate the contract was to be left without satisfaction due to the expiration of its validity. According to paragraph 4 of Article 386 of the Civil Code, the expiration of the contract does not release the parties from liability for its violation that occurred before the expiration of this period. By virtue of paragraph 2 of Article 401 of the Civil Code, a violation of the contract by one of the parties is considered significant, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract. The circumstances of the defendant's substantial violation of contractual obligations were established in the case. Thus, the defendant did not provide the consumer with a tourist voucher, the cost of which was paid by the consumer in full before the start of the tour. At the same time, the defendant did not motivate his actions, he returned half of the cost of the tour only after filing a claim, the remaining part of the cost of the unused tour due to the defendant's fault remains unpaid to date, which indicates his unfair, illegal behavior, violation of the requirements of the law, infringement of consumer rights. According to paragraph 5 of Article 35 of the Law "On Consumer Rights Protection", for violation of the deadlines for the start and end of the work (provision of services), as well as for violation of the deadlines for eliminating deficiencies in the work (service), the contractor is obliged to pay a penalty in the amount of one percent of the cost of the work (service) for each day of delay, unless otherwise stipulated by the contract, by the laws of the Republic of Kazakhstan. In refusing to collect the penalty, the court of first instance indicated that the defendant had returned part of the amount in the amount of 300,000 tenge. The board reasonably considered these conclusions of the court to be untenable, since a penalty was imposed for recovery, calculated from the amount of the unpaid part of the money for the period from November 26, 2016 to the day of filing the claim. The judicial board also accepted the plaintiff's arguments that, as a result of the violation, the consumer suffered from the inability to use the planned tour, the forced search for funds to re-purchase the trip, the failure to receive what he expected by paying for services, experiencing despair, anger, irritability. In this regard, the conclusions of the court of first instance on the refusal to compensate the plaintiff for moral damage are unlawful, since according to article 21 of the Law "On Consumer Rights Protection" moral damage caused to the consumer as a result of 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 is subject to compensation if the fault of the seller (manufacturer, contractor) in the amount determined by the court, unless otherwise provided by the laws of the Republic of Kazakhstan. In connection with the above, the court's decision was changed and canceled in terms of the refusal to satisfy the claim for recovery of penalties and moral damage, satisfaction of the claim for termination of the contract.
In this part, a new decision was made: recovered from LLP "V" in favor of X. penalty in the amount of 200,115 tenge, compensation for moral damage in the amount of 50,000 tenge; the claim for termination of the contract for the provision of tourist services was refused. The rest of the solution remains unchanged. It should be noted that some local courts have expressed the opinion that the rights of consumers in the field of financial, medical, tourism and other services, as well as issues of their protection, are established by special laws of the Republic of Kazakhstan, which are not regulated by the norms of the Law "On Consumer Rights Protection". We consider this position to be unfounded, since all of these services fall within the scope of regulation of the Law "On Consumer Rights Protection" in the part not regulated by special laws (paragraph 2 of Article 2 of the Law).
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