The court's decision

Case #33- 15869

June 30, 2009 The Judicial Collegium for Civil Cases of the Moscow City Court, consisting of the presiding J., Judges G. and K., having heard in open court on the report of Goncharova O.S., the case on the cassation complaint of the representative of Jacques Paganel Travel LLC against the decision of Presnensky District Court dated December 9, 2008 which ruled that the claim of K., T., P. be satisfied in part. To recover from Jacques Paganel Travel LLC in favor of K. the damage caused by non-performance of the contract in the amount of 9,311 (nine thousand, three hundred and eleven) rubles 29 kopecks.

To recover from Jacques Paganel Travel LLC in favor of K. a penalty due to the defendant's refusal to voluntarily compensate for the damage caused in the amount of 25,567 (twenty-five thousand, five hundred and sixty-seven) rubles 60 kopecks.

To recover from Jacques Paganel Travel LLC in favor of P. the damage caused by non-performance of the contract in the amount of 9,311 (nine thousand three hundred and eleven) rubles 29 kopecks.

To recover from Jacques Paganel Travel LLC in favor of P. a penalty due to the defendant's refusal to voluntarily compensate for the damage caused in the amount of 25,567 (twenty-five thousand five hundred sixty-seven) rubles 60 kopecks.

To recover from Jacques Paganel Travel LLC in favor of T. the damage caused by non-performance of the contract in the amount of 11,279 (eleven thousand, two hundred and seventy-nine) rubles 39 kopecks. To recover from Jacques Paganel Travel LLC in favor of T. a penalty due to the defendant's refusal to voluntarily compensate for the damage caused in the amount of 30,969 (thirty thousand nine hundred sixty nine) rubles 20 kopecks.

Collect from Jacques Paganel Travel LLC in favor of K., P., T. compensation for non-pecuniary damage in the amount of 3,000 rubles each. The rest of the claim is denied.

filed a lawsuit against Jacques Paganel Travel LLC for compensation for damage caused by non-performance of the contract and compensation for non-pecuniary damage, indicating that between them and Jacques Paganel Travel LLC on 08.05.2008 an agreement was concluded, in accordance with which the defendant assumed the obligation to organize and implement a tourist product: "Grand tour of Italy (all inclusive)" 8 days / 7 nights in accordance with the tour program, which includes flights Moscow - Rimini, Rimini - Moscow, accommodation in hotels in Italy: Rimini (1 night), - Rome (3 nights) - Florence (1 night), - Lido di Jesolo (2 nights), excursion service, meals, which is confirmed by the Agreement and the tour program. The plaintiffs fully fulfilled their obligations to pay for the tour, however, the services provided differed significantly from the tour program.

So, instead of being located in

Rimini (1st night) the plaintiffs were stationed in the Republic of San Marino, in a mountainous area; instead of accommodation in Florence (5th night), tourists were taken to Montecatini - Terme, while accommodation in Monekatini - Terme, tourists were not provided with dinner included in the tourist product; instead of accommodation in the city of Lido di Jesolo, the tourists were taken to the Republic of San Mariino, in a mountainous area, in the zone of private residential buildings.

Thus, 4 nights out of 7 the tourists lived in other cities than it was provided by the Agreement and the tour program.

The plaintiffs believe that the terms of the contract were significantly violated by the defendant, in connection with which they ask to recover the amount of the reduction in the cost of the tour in connection with the replacement of cities of residence, the penalty due to failure to comply with the requirements of the consumer in accordance with the law "On Protection of Consumer Rights", and compensation for moral harm: in favor of K.

- amounts of 10,201.28 rubles, 26,632.96 rubles and 75,000 rubles, respectively; in favor of P. - the amounts of 10,201.28 rubles, 26,632.96 rubles and 75,000 rubles, respectively; in favor of T. - 12,205.69 rubles, 32,259.64 rubles and 75,000 rubles, respectively.

K. supported the claims and asked them to be satisfied.

T. and P. did not appear in court and asked to consider the case in their absence.

The defendant did not recognize the stated claims, referring to the fact that the purpose of the plaintiffs' tourist trip was to get acquainted with the sights of Italy according to the tour program, and not to stay in certain hotels or cities. All excursion services were provided to the plaintiffs in full. The tour program did not provide for accommodation in certain cities, only accommodation in hotels of a certain category (3 stars) was fixed. The plaintiffs were accommodated in hotels of the corresponding category.

The court ruled the above decision, the abolition of which, based on the arguments of the cassation appeal, is requested by the representative of the defendant.

After checking the case file, listening to the parties, discussing the arguments of the cassation appeal, the Judicial Board believes that the court decision is subject to change in terms of the recovery of fines in favor of the plaintiffs in connection with the refusal to voluntarily compensate for the damage caused.

From the case materials it is seen that on 08.05.2008 between the defendant and K. an agreement was concluded, under the terms of which the company sells to the client and also to the persons following with him, and named in the order form, a tourist product on the terms, in volume and cost, indicated in the order form, as well as in the tourist voucher. According to the order form to the contract dated 08.05.2008, the plaintiffs purchased a tourist product - an Individual tour for 8 days / 7 nights "Grand Tour All Inclusive".

The court found that the tourist program - Individual tour for 8 days / 7 nights "Grand Tour All Inclusive", is posted on the Internet on the official website of the defendant, while all the essential terms of the contract are indicated in this tour program.

Assessing the evidence presented, the testimony of witness F. the court correctly pointed out that at the conclusion of the contract 08.05. 2008, all essential terms of the agreement on the implementation of the tourist product were agreed by the parties. Some of them (name and address of the Respondent, subject of the contract, price, information about the tourist) are indicated in the contract and the order form, the other part (stay program, travel route) is indicated in the tour program, which both parties were aware of on 08.05. 2008 at the time of signing the contract and making the plaintiff money to the defendant's cash desk.

According to the information indicated on the official website and agreed upon by the parties when concluding the contract, the Grand Tour of Italy (all inclusive) tour should take place according to the program: Rimini - San Marino - Rome - Vatican - Pompeii - Naples - Siena - Pisa - Florence - Venice - Rimini. In Florence and Rome - hotels in the city center. 1 day included, among other things, departure to Rimini, hotel accommodation. Day 5 included arrival in Florence, accommodation in a hotel in the city center. Day 6 included arrival and accommodation at the hotel in Lido di Jesolo. Day 7 included departure from Lido di Jesolo to Venice, then return to Lido di Jesolo.

The court indisputably established that the placement of the plaintiffs was not in the cities indicated in the information posted on the company's website. So, instead of being placed in Rimini (1st night), the plaintiffs were placed in the Republic of San Marino, in a mountainous area; instead of staying in

Florence in the city center (5th night) tourists were taken to Montecatini - Terme; instead of accommodation in Lido di Jesolo (night 6 and 7), the tourists were taken to the Republic of San Marino, in a mountainous area, in the zone of private residential buildings.

Under such circumstances, the court came to a reasonable conclusion that the defendant violated the terms of the contract related to the provision of information about the consumer properties of the tourist product, which, according to Art. 10 of the Federal Law "On the Fundamentals of Tourist Activities" No. 132-F3 dated November 24, 1996, relate to the essential terms of the contract.

According to Part 1 of Art. 29 of the Law "On Protection of Consumer Rights", the consumer, upon detection of shortcomings in the work performed (service rendered), has the right, at his choice, to demand, among other things, an appropriate reduction in the price of the work performed (service rendered).

Determining the amount of the reduction in the cost of the tourist product "Grand Tour of Italy (all inclusive) (All year round)" 8 days / 7 nights, the court accepted as admissible evidence the Opinion of the "Institute of Financial Expertise and Audit" LLC dated November 6, 2008, since it was drawn up by an appropriate organization, accredited to carry out valuation activities, based on the current regulatory framework developed by the Federal Antimonopoly Service of Russia, using the Frankfurt Table.

Objecting to the application of the specified table and the conclusions of the said Conclusion, the defendant pointed out that the "Frankfurt table for reducing prices for tourist trips" is of an exclusively advisory nature and is applied on the territory of the European Union, which Russia is not a member of, therefore, cannot be used by the claimant.

The court correctly pointed out that the defendant during the consideration of the case did not provide the court with a reasonable calculation of the reduction in the cost of the tourist product, did not provide justification for other possible, in the opinion of the defendant, methods for calculating the reduction in the tour under the circumstances of this civil case.

The panel of judges considers it possible to agree with the calculations of reducing the cost of the tourist product, the court of first instance.

The plaintiffs complied with the pre-trial procedure for resolving the dispute, they sent a claim to the defendant. In response to this claim, the defendant did not deny the possibility of paying compensation for the change of residence in Florence (night 5), Lido di Jesolo (night 6) and Rimini (night 7). However, the money was not paid to the plaintiffs.

In making the contested decision, the court correctly referred to the provisions of paragraph 5 of Art. 28 and paragraphs 1 and 3 of Article 31 of the Law of the Russian Federation “On the Protection of Consumer Rights” and recovered in favor of K.T. and P.

respectively 25,567 rubles. 60 kopecks, 30,699 rubles. 20 kop. and 25567 rubles. 60 kop.

However, the panel of judges believes that the amount of the penalty collected by the court in favor of the plaintiffs is disproportionate to the consequences of the violation of obligations, and considers it possible, by applying the provisions of Art. 333 of the Civil Code of the Russian Federation, reduce the amount of the penalty, and recover in favor of K. and P. 20,567 rubles each. 60 kopecks, in favor of T. - 25,699 rubles. 20 kop.

Determining the amount of compensation for non-pecuniary damage, the court correctly proceeded from

the principle of reasonableness and justice, as well as the degree of moral feelings of the plaintiffs, deprived of the opportunity to visit the pre-planned cities of Italy, and exacted in favor of each plaintiff.

The judicial collegium believes that the court carefully and comprehensively examined the circumstances of the case and the arguments of the parties and gave them a legal assessment. The conclusions of the court correspond to the requirements of the law and the actual circumstances. Violations of the norms of procedural and substantive law, entailing the annulment of the decision, the court did not allow.

The arguments of the cassation appeal that the court's conclusions do not correspond to the actual circumstances of the case and that the court did not prove the circumstances relevant to the case are untenable and are refuted by the case materials.

The court correctly, when making a decision, proceeds from the recognition by the defendant of the fact of violation of obligations. Violations of the terms of the contract are confirmed by written evidence submitted to written evidence and were not actually denied by the defendant. The tour program and travel itinerary include the accommodation of claimants in specific cities. The itinerary of travel is in accordance with the provisions of Art. 10 of the Federal Law "On the basics of tourism activities in the Russian Federation" is an essential condition of the contract and could not be changed unilaterally.

Arguments about misuse as evidence in the case of the opinion on the reduction in the cost of the tourist product from 6.11.

2008, are insolvent and were the subject of an investigation by the trial court.

Based on the above, guided by art. 360, 361, 362 Code of Civil Procedure of the Russian Federation board

To change the decision of the Presnensky District Court of December 9, 2008, in part of the recovery of penalties in favor of the plaintiffs in connection with the defendant's refusal to voluntarily compensate for the damage caused and to recover from Jacques Paganel Travel LLC in favor of K. and P. 20,567 rubles each. 60 kop. to each and in favor of T. - 25,969 rubles. 20 kop. The rest of the court decision is left unchanged, the cassation appeal of the representative of Jacques Paganel Travel LLC is not satisfied.

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