State Consumer Disputes Redressal Commission
Uber India Systems Pvt. Ltd. vs Mohit Bansal on 4 June, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First appeal No.743 of 2022
Date of institution : 26.08.2022
Reserved on : 14.05.2024
Date of decision : 04.06.2024
Uber India Systems Pvt. Ltd., Lv.13 Platinum Techno Park, Plot
No.17/18, Sector 30A, Vashi Navi Mumbai 400705, Maharashtra,
India.
.....Appellant/Opposite party No.2
Versus
1. Mohit Bansal, S/o Shri Kamal Bansal, R/o Badah, District Kullu,
Himachal Pradesh.
.....Respondent No.1/Complainant
2. Uber Cabs, Plot No.88, Near Hotel Sky, Industrial Area
Phase- II, Chandigarh-160029 through its Manager.
.....Performa Respondent/Opposite Party No.1
First Appeal under Section 41 read with
Section 47(1)(a)(iii) of the Consumer
Protection Act, 2019 against the order
dated 15.12.2021 passed by District
Consumer Disputes Redressal
Commission, S.A.S.Nagar (Mohali)
Quorum:-
Mr. H.P.S.Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh.S.S. Joshan, Advocate For respondent No.1 : Ex-parte For respondent No.2 : Deleted vide order dt.17.05.2023 KIRAN SIBAL, MEMBER The instant appeal has been filed by the appellant/opposite party No.1 against the order dated 15.12.2021 2 FA No. 743 of 2022 passed by District Consumer Disputes Redressal Commission, S.A.S. Nagar, Mohali (in short, the "District Commission") in CC/405/2017, whereby the complaint filed by complainant against opposite parties (in short 'OP'), under the Consumer Protection Act, was allowed as under:-
"8. Accordingly, we allow the present complaint. The OPs are jointly and severally directed to pay a consolidated compensation of Rs.15,000/-(Rs. Fifteen Thousand only) for mental agony and harassment and costs of litigation."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that on 07.03.2017 the complainant was on his way to Zirakpur from Delhi Airport and he had further to go to Kalka to meet his old aged parents. As such, he had undertaken the services of OP No.1, by using the mobile application of the company, and booked one Uber-X cab/taxi from Zirakpur. As per the mobile application, one Maruti Suzuki Swift Dzire bearing No. HR-56A 8251, was provided for the trip and was to be driven by one Kamaljit. Accordingly, at about 6.12 am the said cab came for complainant and he boarded the same. However, after covering some distance of about 10 minutes, the driver of the cab started misbehaving and forced the complainant to vacate the cab. The driver also stated that he would not go to Kalka and insisted that the complainant pay him for the distance covered by his cab. The complainant clarified and apprised the driver 3 FA No. 743 of 2022 of OP No.1 that he had booked the cab till Kalka and he was supposed to take him to that destination. The driver's attitude became worse and he started abusing him and he forced the complainant to pay Rs.105/- for the distance covered. The complainant further stated that from the website of Uber India, for Uber-X, a fare estimate of Rs.307/- to Rs.407/- is given for the journey from Zirakpur (333, Chandigarh Road, New Defence Colony, Zirakpur, Punjab) to Kalka, Haryana. Further it can be seen from the route that an Uber driver has to turn right from the starting point and follow the route next to Paras Downtown Mall, Zirakpur. However, the driver of OP No.1 instead of following the said route, made a U-turn and started driving on Ambala Chandigarh Expressway and after about 10 minutes stopped the cab at the place shown in the screen shot enclosed as annexure C-2. The driver of OP No.1 followed the wrong route and yet he charged much higher rate for the 10 minute journey. Even the driver has left the complainant high and dry on an empty road at 6:20 AM, which amounts to malpractice and highly unjust. The complainant could not reach his home on time to meet his old aged parents. The said facts were brought to the notice of OP No.1 through legal notice on 11.03.2017 and OP No.1 in reply to said legal notice stated that it had refunded the complete fare to the complainant on 27.03.2017. But no amount was ever received by the complainant from the OPs. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant filed the consumer complaint before the District Commission and sought directions against the OP No.1 to refund payment of Rs.105/- paid via 4 FA No. 743 of 2022 cash to the driver, to pay Rs.1,00,000/- as compensation for harassment and embarrassment, Rs.1,00,000/- for mental tension, agony and other sufferings and Rs.20,000/- as litigation expenses.
4. The complaint was contested by the OPs, who filed joint written reply, wherein they raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, the OPs stated that the transportation service is provided by the driver partner through the Uber App independently and the Uber B.V. merely provides a technology that helps summon driver partners and thereafter the transaction is strictly between the driver partner and the passenger. In exchange of such ease of access, all driver partners pay Uber B.V., a service fee which is a portion of their total earnings through the Uber App. The OPs further stated that the amount of fare that is shown on the app/website is an estimate and that the actual fare may be different on the basis of the route taken and/or the time taken to reach the destination. Moreover, the alleged amount of fare had already been refunded to the complainant on 27.03.2017. The OPs further stated that OP No.1 does not exist as an entity under Indian Law. The name of the correct entity is Uber India Systems Private Limited, which is OP No.2. After denying the other averments made in the complaint, OPs prayed for dismissal of the complaint.
5. After filing the written reply, the OPs failed to lead any evidence in their defence despite sufficient opportunities and even did not appear before the District Commission on many hearings. As 5 FA No. 743 of 2022 such, the OPs were proceeded against exparte vide order dated 02.04.2019.
6. The complainant led his evidence in support of his contentions and the District Commission after going through the record and hearing learned counsel for the complainant, allowed the complaint of the complainant, vide impugned order as mentioned above. Aggrieved with the same the present appeal has been filed by the appellant/OP No.2.
7. Notice of the appeal was issued to the respondent No.1/complainant, but he failed to appear to contest this appeal despite service. Hence, respondent No.1/complainant was proceeded against exparte, vide order dated 17.05.2023. Respondent No.2/OP No.1 was, however, deleted from the array of the parties in view of the statement of leaned counsel for the appellant.
8. We have heard the learned counsel for the appellant/OP No.2 and have carefully gone through the written submissions filed by it and the record of the case.
9. Learned counsel for the appellant/OP No.2, has vehemently contended that the District Commission has passed the impugned order in a hurried and hasty manner, and in disregard to the established rule of procedure, by not allowing appellant an opportunity to convey its logistical difficulties due to which the appellant could not participate in the proceedings. The District 6 FA No. 743 of 2022 Commission has failed to consider the prevailing COVID situation at the time of passing the impugned order, whereby in the interest of justice, the District Commission should have issued notices/summons to the appellant before the final arguments were heard even if the right to lead evidence were closed against appellant. The learned counsel has further contended that the District Commission has failed to appreciate the fact that the appellant company is a technology service provider that provides a software on smart phones, which is utilized by prospective passengers to request for transportation services and providers of such transportation services. The Uber App provides a common platform to the driver partners and riders to interact directly with each other for the purpose of availing and providing transportation or taxi services. Therefore, the appellant acts as an aggregator of transportation services and in no manner is responsible for default of the driver, if any, as its role is restricted only to the extent of facilitating a connection between the driver-partner and riders. The learned counsel further argued that all driver-partners using the 'Uber App' work as independent contractors who are not employed by Uber or any of its affiliates and are individually responsible for any acts committed by them and any incidents that take place during the transport service. The District Commission has failed to refer to the terms and conditions agreed between the riders and appellant. Every rider agrees to the terms and conditions while signing up for the Uber App and in the said terms and conditions, it is specifically stipulated that appellant does not guarantee the quality, suitability, 7 FA No. 743 of 2022 safety, or ability of the third party providers. Additionally, it is clearly mentioned that Uber India shall not be liable for delay or failure in performance resulting from causes/reasons beyond its control. Further the District Commission has failed to appreciate that the appellant acting in bonafide interest of respondent/complainant, refunded the amount of Rs.106/-, which was charged upon him by the driver-partner. The appellant thus did not earn any illegal gains from alleged duping of respondent. The learned counsel further argued that the respondent No.1/complainant opted for an Uber Go ride, which is only serviceable in the local area of Chandigarh and his destination to Kalka in Haryana was in an unserviceable area. Nevertheless, despite the fault of the complainant that he booked an intra-city cab for inter-city travel, the appellant still refunded the fee charged upon him. Alleging no deficiency in service on the part of the appellant, the learned counsel prayed for acceptance of the present appeal by setting aside the impugned order.
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant.
11. Admitted facts of the case are that complainant booked a cab/taxi through 'Uber App' of the OPs to travel from Zirakpur (333, Chandigarh Road, New Defence Colony, Zirakpur) to Kalka, Haryana, and they provided one 'Maruti Suzuki Swift Dzire' bearing No.HR-56A 8251, for the said trip and the same was to be driven by one Kamaljit, Ex. C-1. The complainant alleged that he boarded the said cab from the starting point to reach his destination i.e. Kalka but 8 FA No. 743 of 2022 after covering some distance, the driver of the said cab/taxi started misbehaving with him and forced him to vacate the cab and also charged an amount of Rs.105/- illegally, Ex.C-2. The complainant alleged that due to said act of the driver, he could not reach his home at Kalka on time and suffered lot of harassment and embarrassment. Alleging, deficiency in service and unfair trade practice on the part of the OPs, the complainant filed the consumer complaint before the District Commission, which was allowed vide impugned order as above. Aggrieved with the same the appellant/OP No.2 filed the present appeal for setting aside the impugned order.
12. The foremost contention of the appellant/OP No.2 is that the District Commission has proceeded to pass an exparte judgment without affording an opportunity to the appellant to present its case, which is erroneous qua appellant and it has ignored the principles of natural justice i.e. 'audi alteram partem'. To determine this point we have perused the proceedings of the case held before the District Commission. A perusal of Zimini orders of the District Commission show that on 10.08.2017, the complaint filed by the complainant was admitted and notice of the same was issued to the OPs to appear and file the written version. On 23.10.2017, Sh. R.S. Mahal, Advocate appeared on behalf of the OPs and filed memo of appearance and further sought time to file Power of Attorney and reply. The case was adjourned to 03.11.2017 but on the said date, the learned counsel for OPs did not file POA and reply and 9 FA No. 743 of 2022 requested for adjournment. The District Commission granted last opportunity for the said purpose and case was adjourned to 19.02.2018. On the said date the POA as well as reply to complaint was again not filed by the OPs and the counsel sought adjournment, which was allowed subject to cost of Rs.500/- and the case was adjourned to 20.03.2018. Thereafter, on 20.03.2018, the OPs deposited the cost and also filed the written reply as well as POA. Then the case was adjourned for leading evidence by the complainant. The complainant took two opportunities to lead his evidence and on 08.08.2018, closed the evidence after tendering affidavit and certain documents. Then the case was adjourned to 17.09.2018 for evidence of the OPs. On 17.09.2018 the quorum was incomplete and case was adjourned to 25.10.2018 for evidence of the OPs. On the said date, no evidence of the OPs was present and on the request of learned counsel for the OPs, the case was adjourned to 14.12.2018. On the said date, none appeared on behalf of the OPs for leading their evidence and case was adjourned to 31.01.2019 for evidence of the OPs subject to last opportunity. On 31.01.2019, the quorum was incomplete and case was adjourned to 05.03.2019. On the said date again, the OPs failed to appear and case was adjourned to 02.04.2019. It has been specifically stated in the order dated 05.03.2019 that "Term of order dated 14.12.2018 extended until 02.04.2019 and in case none turned up for the OPs on the next date of hearing or evidence not produced, then the OPs would be treated as ex-parte." But despite the specific directions issued to the OPs, on 02.04.2019 again, none turned up on behalf of 10 FA No. 743 of 2022 the OPs to lead evidence. Accordingly, keeping in view of terms of order dated 05.03.2019, the OPs were proceeded against exparte for want of appearance.
13. From the scrutiny of various zimini orders as discussed above, we are of the considered opinion that the appellant/OPs were granted more than sufficient opportunities to lead their evidence. Moreover, the counsel for the OPs had put a memo of appearance upon receipt of notice but took an inordinately long time to file the written reply and still did not lead their evidence. As such, we have no hesitation to conclude that the OPs adopted a very casual approach before the District Commission to defend the case. The District Commission has duly considered the written reply filed by the OPs in its impugned order. Therefore, the contention of the appellant that it was not provided fair opportunity to be heard, is not tenable and the same is hereby rejected.
14. Another contention raised by the appellant/OP No.2 is that the District Commission has failed to appreciate the fact that the appellant company is a technology service provider, which provide a common platform through its 'Uber App' to the Driver Partners and Riders to interact directly with each other. Further, the appellant is in no manner is responsible for default of the driver, if any, who is a independent third party contractor and has not been impleaded as party to the present complaint. Regarding the said contentions as raised by the appellant, we are of the considered view that the respondent No.1/complainant has booked the cab/taxi through the 11 FA No. 743 of 2022 'Uber App' and only the number of the taxi and name of the driver was provided by the appellant/OP. The other details/whereabouts of the Driver i.e. his residential address etc. has not been provided by the appellant/OP. In such an eventuality, respondent No.1/complainant was not in a position to implead him as a party to the complaint. It is pertinent to mention here that when a passenger sends request for transportation on 'Uber App', the passenger gets information and call from driver and further the appellant provides service by arranging the scheduled transportation as well as logistic service. Moreover, appellant has the right to determine the total fare, to charge additional amounts in excess of the original agreement, based on the additional services by the driver (such as additional pickups), and even the consideration is not paid to the driver, instead, it is paid to appellant, which then pays the drivers after deducting its commission. Accordingly, it is established that the Uber App is managed and controlled by the appellant/OP No.2 and also all transactions and services provided via said App is managed by the appellant. It is a settled principle of law that in an employer-employee relationship, the employer is liable for the acts of the third party and is also responsible to provide the social security benefits. The plea of the appellant is that all Driver-Partners using the 'Uber App' work as independent contractors who are not employed by Uber or any of its affiliates and are individually responsible for any acts committed by them and any incidents that take place during the transport service and merely acted as an intermediary. However, the Consumer Protection Act, provides instances in which an intermediary may be 12 FA No. 743 of 2022 liable for defective goods or deficiencies in services. Moreover, under the CPA E-Commerce Rules 2020, appellant would be a 'marketplace e-commerce entity' under Rule 3(g), which defines it as:
"an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers." This definition would include the appellant also, which claim to merely provide technological solutions. Therefore, appellant would consequently be governed by the E- Commerce Rules, which define the scope of their liability as platforms. Further, Rules 4 and 5 of the 2020 E-Commerce Rules provide a description of cases where such platforms will not be able to claim immunity as an intermediary under Section 79 of the IT Act. This means that if there is a breach of duty by an intermediary meeting the requirements of Rule 4 or 5, the platform can be held liable without there being an employer-employee relationship between the platform and the worker. Under the CPA, the provision of a good or a service by an intermediary can also be used to challenge the intermediary/aggregator, if it plays an active role in the provision of the good/service, making it more than a mere intermediary. The appellant's control over the driver hints towards a similarly active intermediary role, since a mere technological intermediary would not exercise such a high degree of control relating to booking, consideration etc. Therefore, under the CPA, the appellant can be held liable for the acts of their independent contractors, despite them not being deemed as employees. Consequently, we do not find any 13 FA No. 743 of 2022 force in the contentions raised by the appellant/OP No.2 and the same are hereby rejected.
15. With regard to the contention raised by the appellant, that the respondent No.1/complainant opted for an Uber Go ride, which is only serviceable in the Local area of Chandigarh and his destination to Kalka in Haryana was in an unserviceable area, is concerned, we are of the opinion that if the destination opted by the respondent/complainant is an unserviceable area, then the Driver Partner should not accept the said ride booked by the complainant. Once he accepted the ride and boarded the complainant in the said cab/taxi, then he cannot refuse to take the complainant to his destination on the ground that the area opted by him is an unserviceable area. Moreover, the complainant was left abandon at 6:20 AM and he could not reach his destination on time, which caused harassment to him. Hence, we do not find any force in the contention raised by the appellant and the same is also rejected.
16. Sequel to our above discussion, we find that the District Commission has rightly decided the case and there is no material infirmity and irregularity in the order of the District Commission. Finding no merit in this appeal filed by the appellant/OP, the same is hereby dismissed & the order of the District Commission is upheld.
17. The appellant had deposited a sum of Rs.7500/- at the time of filing of the appeal. This amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. Respondent No.1/complainant may approach the District Commission for the release of the above amount and the 14 FA No. 743 of 2022 District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
18. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER June 04, 2024 (Dv)