21 January 2016

Muscovite bought air tickets to Delhi and back, and then decided not to go anywhere. The airline and the agent did not respond to the claims, had to request a refund for travel documents to the court. But here it was waiting for an unpleasant surprise — the rate turned out to be «irrevocable», so to compensate the price of tickets in full failed. The experts confirmed that the court is reasonably sided carrier. Lawyer at «Khrenov and Partners', Michael Budashevsky gave his assessment of the case.

In September last year Suyazova booked on the website of «Aeroflot» three ticket from Moscow to Delhi and back, the trip was to take place in January 2015. September 27, she paid for your reservation code by purchasing company «Euroset-Retail», which is an agent to receive payments, and advocates on behalf of and at the expense of the principal, that is, «Aeroflot», which is between the signed agreement. A month later Suyazova and her companions decided not to fly to India and deliver the purchased tickets. October 27 of last year shopper on the phone and contacted the airline to apply for termination of the contract of carriage, refund and paid money for them. Employee of a common reference clock «Aeroflot» has informed that her appeal is registered and it will be possible to return the money in the same way it was introduced payment — pay 10 days in the «Euroset-Retail». November 7 Suyazova agent left a statement on the return of the money, but the answer has not received. Ten days later, she sent a claim to the «Aeroflot» and «Euroset» with the same requirement — to return her ticket price, repeated claims indicating on which account you can transfer money, went to the same recipients, December 4. But no response letters nor money she did not wait, and January 13, 2015 addressed to Savelovsky court with a claim against the carrier and the agent, which demanded to cancel the contract of carriage, to recover the cost of tickets, penalty, compensation for moral damage — from each of the defendants (all the sum of the decisions blacked out), a penalty of 50% of the amount awarded by the court in favor of the consumer, as well as to recognize the false and incomplete information on return tickets, the airline provided (case № 2–981 / 2015).
The trial judge Elena Tsyplakova concluded that the need to terminate the contract in court is not, because, according to Art. 32 of the Law on the Protection of Consumer Rights, a consumer if he is paid to the executor costs associated with the performance of obligations under the contract between them provide services, the right to refuse performance of the contract at any time. Since Suyazova made it one of the complaints directed against the air carrier, the court considered the agreement to be terminated unilaterally.

At the meeting, the representative of «Aeroflot» told the plaintiff that the tickets were purchased at the rate of «Budget-Economy», according to the rules which the freight charge, in the case of voluntary refusal of the carriage is not refundable. These arguments of the defendant have been confirmed by the fact that just such a rate specified in the itinerary to the ticket, and fare rules, posted on the website of «Aeroflot», with whom the customer has had to be found, it is said that the return of the freight until the end of the set time of registration of passengers a flight is not permitted.

As explained company lawyer «Hrenov and partners," Michael Budashevsky currently airlines can sell as conventional (repayable) and non-refundable ticket. Paul Khlyustov, Head of litigation Bar «Barshchevsky and Partners, said that this was possible, thanks to changes to the Air Code of the Russian Federation that have been made to the June 21, 2014." However, the carrier may not deny a passenger the right to conclude an agreement air transportation, provide conditions for the refund of the contract of transportation by air freight rates, terminate the contract at the initiative of the passenger. Thus, the passenger has the right to make a choice: to conclude with the carrier the contract of carriage on return or non-return of the paid freight rates in the termination of the contract, «- said Khlyustov." However, even a passenger who bought a non-refundable ticket, and then refused the flight, in some cases, be able to return ticket price. For example, it is possible in case of illness of a close relative or a passenger flying with him. However, the passenger will be required to prove their words documented and notify the airline before the end of the check-in time, «- said Budashevsky. Pleshanova Olga, head of analytical department law firm» Infraleks «, believes that in the present case, the question of» transience «of tariffs is unlikely.

It is because it is a failure to comply, the validity of which is not osparivaetsya. Sergey Savelyev, a partner at the practice of dispute resolution law firm «Nektorov, Saveliev and Partners», described as «absurd» cases where the courts consider the carriage of non-refundable rate unlawful. According to him, non-refundable fare ticket — quite civilized and market practice that allows airlines to be flexible and competitive, and to offer a tariff, which is often unprofitable for the carrier, but it is extremely beneficial to the passenger. The ban on the provision on non-refundable rate — is an obstacle to competitive carriers and the inability to buy a ticket at the lowest prices for consumers, according to the lawyer. «In this case, the court upheld the absolutely true condition of the non-refundable rate, although in terms of the law is much easier to prove the invalidity of such provision. Information about the court order can only be glad,« — he says.
In court, the lawyer airline reported that pursuant to Art. 108 Air Code of the Russian Federation at the request of the plaintiff to book flights Moscow — Delhi and back has been canceled. And when Suyazova applied to a carrier with a claim about a refund for unused tickets, it reviewed and submitted a response stating that the refundable money (ie fees for each ticket, net of freight rates) were translated «Euroset-Retail» where the plaintiff can get them. At the same time, in violation of Art. 56 Code of Civil Procedure Code (burden of proof), no evidence to show that the funds really are transferred, except to print from the database, which does not confirm the transfer, the defendant has not provided. A «Euroset» denied receiving money. For information about what really Suyazova received a reply to the claim, too, was not confirmed. Plaintiff the sum of the calculation carried out by the defendant did not deny, but claimed that no «Euroset-Retail» or «Aeroflot» with the purchase have not informed her of complete and accurate information about the fact that not all the money to be returned. However, the court decided that the agent had nothing to do with it — he just took the payment and the airline conditions payment does not hide, they have a website through which Suyazova buy tickets. Therefore Tsyplakova judge concluded that «Aeroflot» must still return to a customer money for tickets to the extent specified in the conditions of the tariff. And to meet the requirements for recognition of the information provided by the plaintiff, incomplete and unreliable was denied.

According to our experts, and here the Court was right, thinking that by «Euroset» claims were not to be brought. «The circumstances of the case indicate that the company» Euroset-Retail «is the only agent of» Aeroflot «and in the relationship with the consumer acted not on his own behalf and on behalf of the airlines, — says Khlyustov — so, by virtue of Art. 37 of the law Consumer Protection and Art. 1005 of the Civil Code, it can not be regarded as an independent subject of responsibility. In this regard, it is appropriate respondent airline. " I agree with him and Pleshanova. In her view, passengers can address the requirements of both the intermediary or directly to the carrier, however, in accordance with Art. 401 of the Civil Code for failure to respond.

the contract was itself an airline chooses intermediaries. «The court’s decision recognized the responsibility of» Aeroflot «, looks reasonable,« — says the lawyer. «Of course, in this situation, the proper defendant — a carrier (Aeroflot), but in the face of uncertainty plaintiff correctly secure and sued two defendants — the agent and carrier — says Saveliev. — That’s right, and tactically, and is not contrary to procedural law.»
Since Suyazovoy rights have been violated, the court awarded her favor non-pecuniary damage, «according to the principle of reasonableness and fairness," and 50% «consumer» fine. The penalty payment was refused because the legal relationship of the contract of carriage regulated by the Air Code of the Russian Federation, rather than the law on consumer protection, but the interest for the use of borrowed money to pay the defendant ordered.

«Aeroflot» with the decision disagreed and filed an appeal with the Moscow City Court. Judicial board chaired by Anton Lashkova considered that, since the airline was unable to provide bank statements and payment orders with notes Bank, referring to the difficulty of committing these actions, cash «Euroset-Retail» for the payment of the plaintiff it is not listed. «The court also rightly sought from the defendant to the plaintiff compensation for moral damages, interest on borrowed money and a fine,« — said in the ruling of the court. Arguments airline that Suyazova not proved she suffered non-pecuniary damage, the appeal is not taken into account because, according to para. 1, Art. 15 of the law on protection of consumer rights, the moral damage caused to the consumer due to the violation of his rights, if found guilty, must be compensated by the offender. The rest of the arguments of the complaint, in the opinion of the judges, do not refute the findings of the trial court and has already been the subject of judicial review, simply aim at a different assessment of the substantive law and the previously studied circumstances. The reason for the cancellation of the decision of the court Savelovsky they can not be, have colleagues, denying the appeal.
Thus, the plaintiff received from the «Aeroflot» the money paid under the contract of carriage (excluding the freight charge), interest on borrowed funds, compensation for moral damages and a fine of dissatisfaction with customer requirements on a voluntary basis (the sum of the acts blacked out).