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.
