This article talks about what are your potential legal remedies in the event of a flight cancellation or unreasonable delay. This article will address only domestic flight and local laws.
It is common that many Malaysians choose to take a flight home in order to avoid the massive jam on the road during festive holidays. Hoping that by paying slightly more, we can save on stress and time.
However one thing that would definitely throw everything out of the window and potentially ruin your holiday before it even begins is unreasonable delay or worse, cancellation of your flight. You end up spending way more to get a replacement ticket, or waste your precious holiday time at the airport waiting miserably.
Flight delays are extremely common in Malaysia. While AirAsia has revolutionised the industry and introduced us to low cost domestic flights, they and their competitors ie Malindo, Firefly have their respective notorious records for delays and sudden cancellations. Many have been left helpless by these occurrences and many just “take the hit” and accept that as pure bad luck.
Unlike the European Union where there is clear regulation imposed by the EU which among others provide for standard compensation in the event of a non-boarding, there are no such provisions in Malaysia law.
So what are we left with?
Perhaps the starting point could be your contract with Airasia when you decide to buy a ticket from them.
In their terms and conditions, which I have extracted the relevant provisions knowing most people don’t read these terms and conditions, it is stated that:
9.2 Cancellation, Changes of Schedules:
At any time after a booking has been made changes, cancellations, diversions, postponements, reschedules and/or delays of any flight may occur due to circumstances beyond our control or for reasons of safety or commercial reasons. In the event of such flight cancellation, we shall at our discretion, either:
- carry you at the earliest opportunity on another of our scheduled services on which space is available without additional charge and, where necessary, extend the validity of your booking; or
- retain the value of your fare in a credit account for your future travel if you choose to travel at another time, provided that you must re-book within ninety (90) days therefrom.
- refund the value to your bank account or credit or debit card if you choose not to proceed with your trip due to a flight cancellation and/or rescheduling that occurs three (3) hours or more before or after the original scheduled departure time. For avoidance of doubt, no refund will be issued when a flight is delayed, cancelled and/or rescheduled at the airport on the day of departure for which you may not have been accepted on the flight.
9.2.1 FLY-THRU: If a delay or cancellation/reschedule of our flight causes you to miss a FLY-THRU flight on which you hold a confirmed booking, you are entitled to the following:
If your flight is delayed at the point of origin:
- a free move to the next available flight that connects to the final destination within our Connecting Time.
- If your subsequent flight is delayed a free move to the next available flight within our Connecting Time.
If your new flight does not meet our Connecting Time (a window between 45mins – 6hrs) or if the next available flight falls on the next day, we will not provide the following:
- Day or overnight accommodation
- Surface transfers
- Storage of your checked baggage. You are required to collect your bags at the transit point and recheck-in for new subsequent flight.
9.3 Sole remedies: Upon the occurrence of any of the events set out in Article 9.2, the options outlined in Article 9.2 (a) to (b) are the sole and exclusive remedies available to you and we shall have no further liability to you.
So?
To summarise it simply, it is quite clear that Airasia is saying that in the event of a cancellation or delay, it is at their discretion to offer you a compensation, ie the next flight or refund.
Firstly this means that whether you get any compensation is purely at the discretion of AirAsia. If they decide that they wouldn’t do anything, then you would get nothing. As mentioned, without any laws by the government forcing some form of compensation, basically there’s nothing you can ask for. This is the contract you agreed to; it’s a free market; it’s your choice to enter into this contract; this is the consequence you must accept.
This is not forgetting that the cancellation can be due to circumstances beyond our control or for reasons of safety or commercial reasons.
What are considered “commercial reason” is not stated, so I would assume that even in the event that Airasia overbooked the flight (as they want to make sure the seats are all taken even if somebody fail to turn up), that is also a “commercial reason” to deny your boarding. Yet, it is their discretion whether to offer you a remedy.
Also, the options outlined in Article 9.2 (a) to (b) are the sole and exclusive remedies available to you and we shall have no further liability to you – this statement seems to mean that the options offered, if Airasia decide to provide any, are the only remedies available to you. In the event that you don’t accept them, you also lose the right to bring any action for other remedies against Airasia, as they shall have no further liability to you. To stretch it even further, that clause can even be interpreted as, even if Airasia exercises their discretion not to offer you any remedy, you also have no further legal right against them.
Harsh isn’t it? What can you do?
- Insurance
Whenever you buy a ticket on Airasia, Airasia offers you the option to purchase the flight travel insurance managed by Tunes Insurance. It offers the following:
For Tune Protect Travel Insurance by AirAsia purchased on/after 15th June 2015
Benefit Domestic/Regional
- Travel Inconvenience Benefits
Flight Cancellation
- Reimbursement for the cost of flight if the Insured Person has to cancel the Trip due to Insured events
- Up to original flight cost
AirAsia Flight Delay
- For every 6 hours delayed from original departure time of Scheduled Flight due to inclement weather, equipment failure or strike
- Up to RM1,050 (RM150 per 6 hour delay period)
Missed Flight Connection
- No onward connecting flight available within 6 hours from the missed Scheduled Flight due to delay of AirAsia’s Incoming connecting flight
- Up to RM600 (RM300 per 6 hour delay period)
On Time Guarantee
- Delay more than 2 hours from scheduled departure time caused solely by AirAsia /AirAsia X
- Up to RM200
So if you have bought this insurance package (which I believe is around rm 10 plus) , all you need to do is file the claim form, and you should receive the compensation offered.
Although personally I hardly buy these insurance, I must admit it’s a legit option.
- Legal avenues
Many would consider going to the courts is unnecessary and counter-productive. We all want a fast, cheap yet fair system that could provide resolution to our problem.
Fortunately, an avenue that has proven itself to fit the requirements is the Tribunal For Consumer Claims Malaysia (TCC) established under Section 85, Part XII, Of The Consumer Protection Act 1999 which came into force on 15 November 1999.
The relevant forms to file and the procedure of a hearing is clearly stated at its website, which you can read here https://ttpm.kpdnkk.gov.my/portal/index.php/en/faq ,so I will save myself from reiterating.
In summary, the tribunal offers a cheap and fast avenue for resolution of these matters. Flight delays or poor flight service are within the jurisdiction of this tribunal.
As such, in the event that you didn’t buy an insurance and/or the delay/cancellation was unacceptable and/or Airasia fail to offer you an acceptable or reasonable remedy, this tribunal is where you should file your case and seek remedy from.
Likelihood of success?
Unfortunately unlike court decisions, there are no clear reports/records of the tribunal decisions with their reasoning available online. Hence there is lack of guidance on how would the tribunal rule in cases like this.
However, Legal Eaglet has done the job for you la, by being able to find record of decisions by the tribunal on matters as such.
Firstly it is this two news. They are reported news of successful claims at this tribunal for flight cancellations and delays. Read them here.
http://sabahkinimirror.blogspot.my/2013/04/ttpm-arah-air-asia-bayar-rm1431.html
Both were regarding the poor response by the airasia team in an event of a delay, being unable to specify clearly the reason for the delay and their offer of a solution, ie when is the next flight available, causing major inconvenience to the consumer.
Secondly and more importantly, it is this gem here. It’s actually a decision by the tribunal with reasoning regarding a flight cancellation by airasia X (it is an international flight scenario but I believe can still be used as strong precedent in a claim)
http://aseanconsumer.org/misc/claims/ttpm-wppj-(p)-10-2011.pdf
In the case the tribunal president hearing the case stated that although the consumer has signed the terms and conditions of airasia x (which is exactly the same as stated above), the consumer nonetheless has not been treated fairly by the flight company.
The tribunal held that the remedies offered by Airasia X was not good enough, and that in actuality the consumer really did not have any choice to refuse. The bargaining power is not equal and sides too much to the service provider.
The tribunal went further to state that the consumer tribunal is set up with the spirit of protecting consumer interest and the amendment of The Consumer Protection Act 1999 (in introducing the unfair contract term provision as well as to set up the tribunal), is primarily construed in favour of the consumer as it is a social benefit oriented legislation.
As such in deciding a case, following the spirit of the act, the tribunal must have regard to fairness and when looking at the facts, give priority to the interest of the consumers over the businesses. The tribunal decided in favour of the consumer in that case.
Conclusion
Therefore, I am pleased to say that there is justice available in these events. It is not true that there is nothing we can do, and it is not true that there is no legal avenue available when we are being treated unfairly.
I hope this article will not apply to you as you will not have to suffer any flight delays or cancellations in your upcoming trip haha. Also there are alot more to this ie the unfair contract terms provision itself and what if you bring this case to the courts, which for brevity i have omitted. Email me if you would like to find out more.
Kindly take note that this article was written in 2016 and may not be up-to-date.