This article was written by Saurabh Misra of HNLU in the course of his internship with iPleaders.

Introduction

On the night of 5^th December, a 27 year old finance executive in Delhi was raped inside a cab she had booked using the popular taxi app Uber. Uber has been steadily gaining popularity as the safer alternative to regular taxis that ply our road; it declares ‘everyone is a private driver’. There is an assumption that because of smart phone apps and GPS you are safe. But the Delhi rape has shown us this is not the case.

Uber issued a statement after the incident and pledged to support and assist police during the investigation. They also said that In India they work with licensed driver partners to provide a safe transportation option with layers of safeguard such as driver and vehicle information and ETA sharing to ensure there is accountability to traceability of all trips that occur on the Uber platform.

There have been numerous instances in United States where Uber riders have faced such a situation[1] like alleged rape of 20 year old rider[2], sexual assault of a female passenger[3] . This incident has raised several important questions before us like.

1. Is the operation of Uber legally valid in India?
2. What is the extent to which Uber can be made liable for conduct of its drivers during the course of journey?

 

Is operation of Uber legally valid in India?

It is alleged that Uber, Ola and Taxi for Sure have been circumventing various rules and norms to become operational in India. After the recent horror of rape of a financial executive by an Uber cab driver, the Delhi Government has banned the services of Uber India in Delhi citing that Uber India is misleading the customers by offering them Taxis with All India permits that cannot ply in Delhi from point to point ferrying customers.  This implies that taxis plying with Uber in Delhi can be fined and impounded.

Transport officials have maintained that Uber did not have a rent-a-cab permit which requires them to have adequate parking space for their fleet and must contain a minimum of 50 cabs, and show experience in the passenger service sector.

The recent event has highlighted the fact that while registering drivers, services like Uber may not be really verifying their driver’s criminal history. In the instant case the driver did not have a license from the Delhi Transport Authority he had previous convictions.

While the Radio Taxi Scheme of 2006 which is alleged to have been violated by Uber, Uber may contend that it is not required to follow the Radio Taxi Scheme as it is not a radio taxi service. The Radio Taxi Scheme of 2006 specifies that the licensee must be either a Company under Companies Act, 1956 or a Society under the Societies Registration Act, 1860. Following are the key requirements of the scheme:

1. Licensee should have adequate parking space for all taxies and office space (minimum of 1000 sq. ft.
2. Adequate space for control room with radio communications
3. Ten telephone lines
4. Minimum fleet size would be 500 motor cabs
5. Vehicle must be fitted with GPS/GPRS based tracking devices which must be in constant communication with the Central Control Unit while vehicle is on duty.
6. It will also be the responsibility of the radio taxi licensee for quality of drivers, their police verification, employer control and supervision of drivers’ employee behavior.

What is unfortunate is that there is little that Uber has violated in terms of law as existing laws do not specify the extent to which a service like Uber should verify its drivers before registering them.

The uber model of ‘ride sharing’ has been a worldwide success because it uses technology to circumvent the laws to make cabs more easily available travelers. It is an opportunity for Indian legislators to deliberate the Draft Road Transport and Safety Bill 2014 which dealt with passenger transport through services as well. The loopholes of the existing transport laws which help in services like Uber to shy away from responsibility and liability should be addressed.

Terms and Conditions for Uber User

What services does Uber provide?[4]

Uber provides information and means to obtain transportation services offered by the third party transportation providers, drivers or vehicle operators which is requested through the use an application supplied by Uber application.

How is contract concluded between you and Uber?[5]

By using the application or service the person enters into contract with Uber. In order to be able to use the application or service we need to sign up with Uber, while signing up with Uber personal information, mobile phone number and credit card details are provided to Uber. Uber provides us with a personal account accessible with a password of our choice.

Liability of Uber

The quality of the transportation services requested through the use of the Application or the service is entirely the responsibility of the Transportation Provider. Uber will not be liable under any circumstances for the acts, actions, behavior, conduct or negligence on the part of transportation provider. The website furthers state that any complaints about the transportation provider should be therefore submitted to the transportation provider.

Uber itself does not provide any transportation services and uber is not a transportation carrier. Uber only acts as an intermediary between the customer and transportation provider.

From the terms and conditions it is very apparent that Uber wants to absolve itself from any liability in cases of injury or accident and to avoid responsibility for driver’s action. The terms and conditions mean that Uber will not be responsible for anything that happens to you on a ride.

We will find out that there is contradiction between terms and conditions and their safety claims. The terms and conditions of Uber clearly indicate that passengers accept a risk by using the service.

There is an attempt on part of Uber to portray itself as a ride matching services rather than transportation companies. This will help them in protecting themselves from legal actions.

 

Uber drivers are not there employees but independent contractors which protects Uber from liability. But if it is proved that Uber exercises a certain amount of control over its drivers and they are akin to employees. Such factors of control would include the ability to hire and fire, decide where there services are performed or provide them with specialized equipment.  The difficulty arises for Uber when it tries to assert more and more control as likelihood of characterizing them as employee would increase.

Background Check[6]

Uber website does not offer country specific details on how it runs a background check. However in United States there is three step screening process which includes county, federal and multi state checks. These checks go back to 7 years and there is regular monitoring of driver’s vehicle records to ensure ongoing safe driving. Following criteria are kept in mind while doing background check:

• No drug related driving violations
• No hit and Runs
• No fatal accidents
• No history of reckless driving
• No Violent Crimes
• No Sexual offences
• No gun related violations
• No resisting or evading arrest

 

The concerns over Uber screening process has been raised by its competitors as well. Rival operators such as Meru Cabs, Mega cabs Pvt. Ltd and Easy Cabs have maintained that Uber Uber ignored the processes most of the Companies follow.  It is also to be mentioned that there is a clear distinction between the safety regulations for radio taxi fleets and for aggregators like Uber, Ola.

In order to work for a radio tax company, a driver has to go through the long process of becoming a badge holder. Once a fleet taxi driver has his commercial license, he undergoes a police verification which can take three months. The police screening takes into account criminal records, driver’s permanent address. If a driver is approved by the police, the State transport authorities issue him a unique number making him a badge holder.

The aggregators have stayed clear of this regulation till now. The drivers only have a commercial license which does not ensure the quality of the driver or his background.

Conclusion

Uber was established in 2009 currently operates in 45 countries, 200 Cities and is valued at US $40 billion. These are astounding numbers    . In India it was first introduced in Banglore and has expanded to 10 Indian cities. Uber has been in news in United States for unethical behavior and business practices and the recent event and even in India it came under the scanner of RBI for flouting its norms. In the recent event also proper verification of the driver was not carried out by Uber, GPS was not installed on the vehicle, and the swift dzire in which the event took place was used by 3 drivers. This event has also provided an opportunity for law makers to regulate the aggregators and form a comprehensive code of conduct which ensures safety of passengers.

[1] http://firstbiz.firstpost.com/corporate/the-ugly-side-of-uber-exposed-in-us-heres-why-indians-should-also-care-108842.html

[2] http://www.washingtonpost.com/local/uber-driver-charged-with-raping-woman-in-dc/2013/03/14/2bbf4c8e-8cb0-11e2-9838-d62f083ba93f_story.html

[3] http://www.nbcchicago.com/news/local/Former-Uber-Driver-Charged-With-Fondling-Passenger-254799501.html

[4] https://www.uber.com/legal/ind/terms

[5] Id.

[6] http://blog.uber.com/driverscreening