Travel Reference
In-Depth Information
who are insured. It is interesting to note that travel
insurance and the associated risks of travelling
uninsured are amongst the mandatory informa-
tion to be delivered to travelers in United King-
dom (regulation 8(2)(d), Package Travel, Package
Holidays and Package Tours Regulations 1992),
the Republic of Ireland (section 12(1)(c), Pack-
age Holidays and Travel Trade Act 1995), Ontario,
Canada (regulations 34(1) and 36(d), Regulations
26/05) and other European countries (Article 4(1)
(b)(iv), European Union Council Directive 90/314/
EEC on package travel, package holidays and
package tours). From the provision, the practice
in the United Kingdom and the Republic of Ire-
land seem to imply that travel insurance may be
amongst the inclusive components of package tour
sold by travel agencies.
5 CONCLUSION
A consensus has almost always existed among
jurisdictions under review on the prominent role
of travel compensation fund as an instrument for
travelers' protection through a much equitable
scheme of contribution. The regulatory reform
currently taking place in Australia is an indicative
lesson to be learnt by Malaysia. It remains to be
observed whether the TICF would be a pragmatic
mode of alternative dispute resolution involving
package tour. In the meantime, for the mutual
interest of travelers and travel agencies in Malay-
sia, the implementation concern as highlighted
demand utmost vigilance. The appropriate path to
approach the implementation concerns is always
the middle path between travelers' interest and
travel agencies interest.
4.3.3 Evidentiary concern
Every claim must be supported with sufficient
evidence for evaluation by the Board of Trustee
or Committee. It is yet to be determined as to
the application of rules on evidence and it may
appear to be a challenging task for both travelers
and the Board of Trustee or Committee to estab-
lish a case founded on contractual negligence and
fraud. In fact, to avoid complexity, claim for per-
sonal injury and death is expressly ousted from the
jurisdiction of the Tribunal for Consumer Claims
(section 99(3), Consumer Protection Act 1999).
It is important to note that the ceiling-amount of
compensation claimable is 80% of the amount of
loss claimed subject to the total amount approved
by the Board of Trustee or Committee. Through
such percentage-based scheme of compensation,
the total amount claimable may exceed RM25,000
being the maximum amount of claim which may
be awarded by the Tribunal for Consumer Claims
(section 98(1), Consumer Protection Act 1999).
Therefore, it would appear that claims involving
complex factual and legal issues are inevitable.
Another evidentiary concern is on the onus of
proof applicable to the travelers in establishing
their claims. It is settled that proof of fraud in civil
cases is on balance of probabilities ( Lau Hee Teah v.
Hargill Engineering Sdn Bhd & Anor [1980] 1 MLJ
145 as per Abdoolcader J.). However, the applica-
ble degree of probability very much depends on the
gravity of the allegation ( Lau Hee Teah v. Hargill
Engineering Sdn Bhd & Anor [1980] 1 MLJ 145 as
per Abdoolcader J.). The degree of probability in
cases involving fraud as required in civil court is
higher than that which it would require in con-
sideration of whether negligence was established
( Bater v. Bater (1950) 2 All ER 458 as per Lord
Denning). In the absence of clear guideline on the
existing proposed TICF, the burden of proof in
claims from the TICF remains questionable.
REFERENCES
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