NOW EVERYONE CAN SUE & BE COMPENSATED FOR FLIGHT DELAY

“NOW EVERYONE CAN SUE & BE COMPENSATED FOR FLIGHT DELAY”

On 13-6-2012, the Consumer Tribunal in Putrajaya has made a landmark decision involving a case of flight delay by AirAsia.  It has set a new legal precedent that all passengers of AirAsia has new found legal right: “NOW EVERYONE CAN SUE & BE COMPENSATED for all costs incurred directly from flight delay i.e. cost of food, taxi fares, hotel accommodation and others

En Zoolihsan Ahmad, the Private Secretary to the YB Minister of Domestic Trade, Cooperative and Consumerism paid for his AirAsia flight to Medan on 20-5-2012 at 12:20 pm. He was supposed to attend a function with the said Minister YB Datuk Ismail Sabri bin Yaacob in the evening of 20-5-2012. The said AirAsia flight was delayed and rescheduled for 1:40 pm, then to 8:40 pm and finally it was rescheduled to take off at 10:45 pm. No one knows whether the flight did take off at 10:45 pm that day. The YB Minister’s Private Secretary had to endure a good 9 hours delay! Please read the full report in HERE.

Yours truly has been made to understand that AirAsia was desperately trying to settle the case before the hearing of the case. But the YB Minister of Domestic Trade, Co0perative and Consumerism has instructed his Private Secretary to proceed as this matter involves public interest and a precedent had to be set for the air travelers. The YB Minister himself and his Ministry have received many complaints pertaining to flight delay and passengers were not allowed to check in even though there were late for a few minutes because the AirAsia check-in counter closes 45 minutes before flight departure time. Syabas! YB Minister Datuk Ismail Sabri bin Yaacob, you have walked the talk of the policy “Rakyat Didahulukan” of YAB PM Datuk Seri Najib.

It is quite normal for a supplier or operator of a business to include a term in its contractual document to exclude liabilities in the event that they were unable to perform or certain events occurred. In the case of AirAsia, there is an exclusion clause in the contractual document that it is not liable for any flight delay. Yours truly has also received complaints from AirAsia passengers with regards to the unfair exclusion clause.

The Government must be commended for introducing the Consumer Protection (Amendment) Bill in 2010.  Parliament has passed the Consumer Protection (Amendment) Act 2010.  Under Part IIIA of the said Act“unfair term” has been defined as a term in a consumer contract which, with regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer.

The contract will be said to be unfair if it has resulted in an unjust advantage to the supplier or unjust disadvantage to the consumer on account of the conduct of the supplier or the manner in which or circumstances under which the contract has been entered into.

Part IIIA of the said Act specifically deals with “Unfair Contract Terms” which also provide the power to the Court or Consumer Tribunal to invoke the issue of unfairness of the contract in a case even if the consumer did not include the complaint of unfair terms of the contract in his claim. Part IIIA of the said Act gives the Court very wide power to declare the contract  unenforceable or to grant award to the consumer.

There have been precedents set that a contract was held by the court to be unfair if it is harsh, oppressive, unconscionable, or excludes or restricts liability for negligence or for breach of express or implied terms of the contract without adequate justification.

In the case of En Zoolihsan Ahmad, yours truly believes that the Consumer Tribunal in Putrajaya must have invoked Part IIIA of the Consumer Protection (Amendment ) Act 2010. Had the case been brought before the High Court, the High Court Judge has the power under the said Act to slap a heavy fine or impose jail terms or both if AirAsia is found to have violated Part IIIA of the said Act.

Therefore, the exclusion of liability clause at the entrance of car park in shopping complexes or any public car parks will not at all exclude liabilities if the operator is found to be negligence or in breach of the implied terms of the contract unless it can justify to the Court the inclusion of such clause to exclude its liabilities to the consumers. Part IIIA of the said Act applies to all contracts involving consumers or contract specified under the said Act.

The AirAsia contract in the online ticket falls under Part IIA of the said Act.

The Consumer Tribunal was set up by YB Minister of Domestic Trade, Cooperative and Consumerism and the procedures are made very simple for consumers. Claimant is not allowed to employ lawyer to act for them in the Consumer Tribunal. The filing fees is only RM5. If anyone is interested to exercise your rights when faced with unfair contract terms where you are put in a position of inequality of bargaining power or where you had no choice but to enter into the contract containing unfair terms, please file a case in the Consumer Tribunal which has been set up throughout the country.

For the addresses of the Consumer Tribunal throughout Malaysia and procedures, please read in HERE.

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53 comments

  1. I believe the Court only ordered a refund.

    I can’t find any reports stating compensation for other claims such cost as food, taxi fare and hotel accommodation due to the delay. Could you point it out to us?

  2. ka ka ka! I like the headline: “Now Everyone Can Sue…”. Should also add now “Everyone Can Not Bullshit”.

    We are all looking forward for them to move everything to Jakarta, Philippines, Thailand or any other countries. We cannot have the Pariah dictating terms to MAHB or the Government.

    Hope they will bring Rashdan, AJ, Rozman, Azhari and Nor Zalida Ahmad of MAS along too.

    • There’s a rumour in town that Danny is joining AirAsia, as CEO for Malaysia? If that is true, what happened to the exit clause that states you need to have a “cooling” period before joining a competitor? Bernard Francis seems to have served the “cooling off” period (well, who was stupid enough to believe Bernard was working for MAS “exclusively” in all the years he was in MAS, but that’s another story altogether lah). Maybe different rules for different people?
      Rozman has done the honourable thing and left. That leaves the shameless Azahari who now claims he’s staying because he is a Khazanah “nominee”?
      Is that why he can so blatantly badmouth MAS staff in meetings with external parties, saying MAS staff are “corrupt”? That means he does not consider himself a MAS staff?

  3. How come such news was not published in the Star? Instead Star published a rosy interview of TF who was talking negatively about MAS. Star has been publishing only negative news about MAS and positive news about AirAsia. Once of these days, its editor and CEO will have to eat their words.

    If MAS was so bad why went into the share swap in such secret manner and placed all his macai like Rozman, Ahari and that Shane Nollan of PlaneConsult n MAS.

      • Anon66

        Online it may publish but not in print. If it is about MAS, it will be headline online as well as print. Please be informed that Ho Kay Tat and the kuncu in the Star are friend of TF. Look at the Edge he was heading it, it was printing only positive story.

      • There was a posting in Utusan Malaysia, page 30 under Dalam Negeri section, dated 14th June 2012 under the headline of “Air Asia diperintah bayar balik wang tiket penerbangan kepada setiausaha sulit”. I really felt so good upon reading the news as media always cover up the bad news of Air Asia!!! Not to mention that Air Asia had MoU with STAR & Media Prima pertaining the so called content sharing. What actually content sharing? Or it is basically are all about controlling the news feed? This time around, they can’t control from being published in the papers as it involved the ‘orang kanan’ of the mentri… It’s feels like winning lottery dude!! 50++ cases more on the waiting list.. Huh… :D
        put3

    • Because TF is now an non-executive director of Star and AirAsia always advertises in Star, of course everything is rosy for them. That is the Star for you.

  4. Thank God that the right of the AirAsia passengers are now protected. I am also a victim of the exclusion clause. I shall file my claim with the Tribunal. Thank you for highlighting this and the link to the website regarding the procedures.

    I hope that they are more MP like you having an active informative blog. Wish you all the best.

  5. I think the positive effects of this so-called “new legal predent” are (1). If any airline company wants to be respected by the people the airline itself should respect its pessengers’ schedule (2). The ‘big tauke’ should not at anytime bully people just because they have money and power.

  6. Terima kasih YB. Sekarang kita semua tahu sebagai penguna kita berhak mengambil tindakan terhadah si Pariah ni.

    Dia nak ke jakarta pergi sahaja, kita tak perlu orang sebegini di Negara kita. Please go. thank you.

  7. As the flight operator, not only air asia, this is something scary..imagine they have to fly at loss due to low rate of passenger esp at certain particular time..

    while the delay caused by the flight operator will result an unconvenience to the passenger, the following will likely to happen consequentially:

    1 – that the flight for certain less busy route will be limited. the passenger may have to take one day early flight to attend function in the following day..

    2 – air flight ticket price may be higher, taking into consideration the risk of being sued – insurances costs etc..

    3 – flying at loss could put Airasia as bad as MAS..charity business..Gov may need to fork out tax payer money to save Airasia..

    4 – Less competition..limited choice to consumer in term of flexibility & options to choose timing for departure..

    Pls note that i’m a passenger and i’m afraid that the above can happen consequential to the above decision. It will affect me and majority malaysian whom always depend on cheap flight offered by AirAsia..

    There must be some mechanisme. Sueing should be at the very last resort.

    tq

  8. I can’t see how AA can survive very long with all their twists and turns! Let me enlighten you on my very pleasant experience with their competitor down south. I booked a return trip from Singapore to Sydney during their launching sales and the return fare for the whole family of 4 (3 adults and 1 child below 12) was only S$1588! Late last month, I was pleasantly surprised when my Credit card was refunded an amount of S$63 due to the fact that airport tax was collect for the child for the SYD-SIN sector! That amount I believe was accidently collected from me when I booked in March during their opening sales when anything can go wrong. But the fact is that I was refunded without me even having to make a complaint! In the first place I did not even know that airport tax was not supposed to be collected for the child passenger on the SYD-SIN sector. Do you think AA will ever refund you any money?

    • I like your question “Do you think AA will ever refund you any money?”
      HAHAHA……Tony will rather buy himself more beers.

      • For your information, AA still owe me my refund from the FAX days! They cancelled the BKI-LDU flights which I was supposed to be on resulting in me having to fly to SDK and taking land transport to LDU! Not once, but twice! Most flying Malaysians (especially those from Semenanjung) have not experienced the horror we East Malaysians have gone through during those horrible FAX days! They were subsidized to the tune of RM250 million then, but ended up screwing East Malaysians and cannibalizing a few Fokker 50’s! The reason for my hesitation to fly AA now! You’re right! Tony will rather buy himself a few beers and maybe another football team to boost his ego than take care of Malaysians.

  9. I am one of the many victims of AirAsia high handedness. I arrived a few minutes after the 45 minutes and I was not allowed to check in. i was told that it was the term of the ticket that I must check in within the 45 minutes. However, I was asked to buy another ticket if I want to travel on the same flight or another flight.

    How ridiculous and unfair, if the flight is closed then I should not board the flight even if I were to buy another ticket. This was most unfair. I will definitely filed a claim in the Consumer Tribunal. AirAsia must be thought a lesson and I am sure that many people like me will also file claims against AA.

    What Tony has been saying in the press and published mainly in the Star were bullshit and they do not reflect the actual situation.

    Thank you for giving us the information and the link to Consumer Tribunal..

    • Dear Joan, what is the outcome of your claim? I am about to file a claim as well. They are getting desperate in LCCT and many uneducated folks are taken advantage off. I want to take action against them.

  10. YB, thank you for highlighting this. My experience with Air Asia is equally bad. When flights are delayed, they conveniently call it “retimed”! And this “retimed” can go on a few times, and before you know it, it is actually a few HOURS late and still they will never call it a “delay”, which is the truth. I think this is how they avoid paying compensation for “delays” because they never call it that! This, coupled with disturbing news about how Air Asia cuts corners in maintenence so that the aeroplanes can fly maximum hours, has made me think a thousand times before flying Air Asia again. In fact, i had become a happy customer of Firefly, then they stopped the flights. so I tend to agree that Firefly was stopped because it was giving us, the customers, a really good and reliable alternative,
    so it became a competitor to Air Asia. Stopping Firefly was really unfair to us the customers.

  11. En Zoolihsan Ahmad, the Private Secretary to the YB Minister of Domestic Trade, Cooperative and Consumerism…. That was why the refund was ORDERED la…
    If it was En Zulhisham Private Citizen from Malaysia…. you can dream about getting even one sen back from us….

    • thats what I am afraid of, that the ordinary average man-in-the-street like me will not be given the same “rights?”

      • BRIAN

        Thank you for your comment.

        I beg to differ. Consumer Tribunal was set up to assist the consumers in general and the Part III of the Consumer Protection Act was cover situation where consumers are not in the position to bargain (inequality of bargaining power) and more often than not had to agree to all terms in the contract. That’s why the procedure were made very simple and cheap. Lawyer is not allowed to represent the big business or consumer.

        Members of public should give it a try.

        Thank you

        With kindest regards

        wee choo keong

      • Ahahahahaaaaa….. if anyone really believes that the scales of JUSTICE is of equal scales ~ then the person is really damn naive…. if not stupid.
        … don’t have to go so far… if you dunno anyone – steal a can of milk (for your hungry child) and they wud pressed for deterrent punishment. Steal millions and build a Balinese mansion ~ and you get a “suspended’ sentence… (still pending!) better yet – splurge and siphon mega billions on some Free Trade Zone and you would see everything adjourned indefinately ( TBA/UFN )

  12. Is there a similar law to protect companies that have entered an unfair contract terms where goods supplied are at least 300% more than market price? An example Mas contract with Lsg.

    • I am afraid there is no law against such acts of stupidity.

      But there are laws to protect the aggrieved parties if there is an element of deception or impropriety.

  13. Was watching the Midnite News and there was a highlight about they gonna announce the new CEO for AA on Monday. Can anyone enlight what is it about??

  14. Padan muka kepada si pariah. Ramai mangsa akan mengambil tindakan udang melalui Consumer Tribunal dgn kos RM5. Semua penumpang mampu. Terima kasih YB. Blog YB yang bermakna tanpa unsur politik. Blog untuk rakyat.

  15. I previously posted that TF announced plans to relocate Air Asia to Indonesia as nothing more than leverage to pressure Malaysia into submitting to his demands.  Essential to the “paying it forwards” model of an LCC is constant expansion, extract all the incentives from each new destination they fly to and continue to press for more concessions from their existing base.  Either way, the move to Indonesia will end in his favor.

    He quieten it down when CCF, KLIA2 and MAB issue was going his way.

    I predicted that like a sore loser, with the unwinding of CCF he will firstly put down what he failed to get, followed by other actions to pull back his “contributions” that will not effect him financially and finally replaying his ace in his sleeve – the relocation.

    He has gone on record to put down the whole episode with his various statements to the press.

    He will try not pull out of the Pilot Training Academy JV cos he put in nothing and yet he has gained substantially.  But if he did, he losst nothing since he put in nothing.  He will not be sending his aircraft to be maintained by MAS cos he used the maintenance agreement as leverage to get even more incentives from Indonesia and Garuda are lowballing the price to attract this, to boot.

    He has now confirmed his move to Indonesia.

    These are not the actions of a man of conscience and noble intentions.  It truely showed his colors.  He will hide behind business sense to justify his actions.  He is selfish.  He went into CCF with his own personal agenda.  There were no intentions to save MAS.  It was all about enriching himself.  For he can still help MAS and gains from the whole deal without the CCF.  Obviously without the CCF, his ability to squeeze every last cent from the deal is very much limited.  He conveniently forgets all the incentives and concessions that Malaysia has given him.  He also forgets the many  words that he has stated.  For now I hope everyone can see that his words are worth nought. He blames everyone, the union, MAS, hell even Malaysia. Not once did he say, he could have done it differently.

    So now it is our turn to screw him. Open the flood gates for a class action suite to get back your money.

  16. Agreed with Old Man. That Pariah has sown his hands. Enough is enough. Unfortunately that stupid AJ is still thinking that the sun shines through the Pariah’s ass. That brainless AJ must go otherwise MAS will keep on cutting profitable routes in the name of saving cost. like Bandung, Sydney (the extra flight granted by the government) and etc.

    Lets fight the three Pariahs who are still in MAS. Get rid of them. They are the incompetents in MAS that were put there to take orders from the Pariah.

  17. Lets see what the Pariah going to do with the 200 Airbuses that he has ordered. At least no more share swap, it will be difficult for him to pass them to MAS. Furthermore, there is no Sleepy Head/Slumber Jack and the 4th Floor to protect him. Lets see whether he can do what he did during the Sleepy Head era where he can owe Airport Taxes to the tune of RM100 over million and thereafter got a discount in Indonesia I also want to owe income tax for many years and then when paid get a 30% discount from LHDN! The Pariah should stop talking cock ok. The same applies to AJ.

  18. Dear YB, I heard some of the allowances for AA pilots being paid discreetly to avoid AA being obliged to contribute to EPF (Employer Portion). Hope YB could investigate and lets the authority (EPF) take legal action against AA for the non compliance to EPF Act.

  19. Minister of Domestic Trade and MAB should join hands to open up a Customer Complain Counter in LCCT or at least sponsor an effective signage explaining consumer rights and how to complain.

    If possible, place those not far from AA operations counter.

    • This is an excellent idea! Now back to the Minister for action please – after all, this is part of “Rakyat didahulukan”. Also gives good image for Malaysia, at least at par with developed countries, not cowboy-and-lanun country.

  20. Now that the pariah has stated no more maintenance contract to MAS from AA, it’s high time that MH Engineering management stop trying to bodek AA for the contract as it ain’t worth it. The management now has to stand up & show some balls against the ineffective engineering CEO, who has done nothing but transform MAE into a stagnant state of inactivity. He has done nothing but try to unneccesarily reduce the unit cost in trying to get the lower price for AA.
    Let the pariah roll his last dice & try Garuda MRO instead. He’ll have nowhere to send his airplanes to fix once he pisses them off the same he’s done to every other MRO.

  21. Dear YB. CCF is cancel. Why MAS dont get back all the routes he give to AA? So if like this, CCF is like just cancel on paper. What give and take during CCF is still active. Where got fair ma? So if like this, MAS where can make money one when all he profit been taken away forever?

  22. Hi sir, the link for Consumer Tribunal throughout Malaysia and procedures to file complaint is not working. Please show me the other link on how to file the complaint. Airasia had delayed my flight for more than 3 hours without valid reason, I want to protect my right as a consumer.

  23. what must i do? me and my friends booked a few weeks ahead for a business cum holiday trip to danang vietnam. flight schedule to be 8am arriving 11am. Subsequently airasia re-timed all flights to danang to 2pm and arrival 430pm.

    Since they only fly 1,3,5,7 it would meant that we will miss our business meeting schedule on arrival at 1230pm. AA offered us to change our bookings for free to a earlier date. However, we will incur extra cost such as few nites stay, transportation, meals etc. We have filed numerous complaints but all fallen upon deaf ears.

    Maybe we are too weak and small to take the case up. Please help

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