Will Ban On Uber Mean A Ban On Ola & TaxiforSure Also?
Uber is facing the heat from the same old controversy that has dogged its operations the world over. As this recent CNet report of October 2014 from San Francisco puts it:
An Uber ride is different from hopping into a taxi. When you download Uber's app and get into a car summoned with the mobile reservation system, you agree to a host of terms and conditions by default. And Uber is young enough that situations like this one are still largely uncharted territory...
"People don't know what they're getting into when they get into one of these cars, they don't know what they're getting into when they download the app," said lawyer Chris Dolan of Dolan Law Firm, who is representing a 6-year-old girl struck and killed by an Uber driver earlier this year. "They're giving Uber a free pass -- up to death."
Dolan claims Uber's terms and conditions are a way for the company to absolve itself of any liability in cases of injury or accident and to avoid responsibility for a driver's actions. "It completely covers their ass and says 'We're not responsible for anything that happens to you, period,'" Dolan said. "It says, 'You can be raped, you can be killed, you can be murdered, and it's not our responsibility.'"
While banning Uber in Delhi, Transport Department notification put out an official list of radio cab services that have the requisite licenses to operate in the national capital, prohibiting unrecognised transport providers operating through web-based technologies from continuing their operations till they get license from the transport department.
"Easy Cab, Mega Cab, Meru Cab, Chanson Cab, Yo Cab and Air Cab are licensed with the Transport Department for operating radio taxis in the NCT of Delhi," the Transport Department said.
"All other transport/taxi service providers through web- based technology, who are not recognised, are prohibited from providing such services in the NCT of Delhi to public till they get license/permission from the Transport Department," it said.
"We have registered a separate FIR against Uber under Section 420 (cheating) of IPC. In investigations so far, it emerged that the company cheated their customer on the pretext of providing safe commuting with duly verified driver," Deputy Commissioner of Police (North) Madhur Verma told PTI.
And that is where it gets interesting for Uber has never claimed to be a radio taxi service and the legal disclaimer on its website could not be any clearer:
YOU ACKNOWLEDGE THAT UBER DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER. UBER'S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT UBER HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OR LOGISTICS PROVIDED TO YOU BY THIRD PARTY PROVIDERS THROUGH THE USE OF THE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
UBER DOES NOT GUARANTEE THE SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE IF A THIRD PARTY PROVIDER WILL MEET YOUR NEEDS AND EXPECTATIONS. UBER WILL NOT PARTICIPATE IN DISPUTES BETWEEN YOU AND A THIRD PARTY PROVIDER. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO SITUATIONS INVOLVING THIRD PARTY PROVIDERS THAT ARE POTENTIALLY UNSAFE, OFFENSIVE, HARMFUL TO MINORS, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THIRD PARTY PROVIDERS ARRANGED OR SCHEDULED USING THE SERVICES IS AT YOUR OWN RISK AND JUDGMENT. UBER SHALL NOT HAVE ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR TRANSACTIONS OR RELATIONSHIP WITH THIRD PARTY PROVIDERS.
Observers point out that if the same logic is applied, then effectively Ola and TaxiForSure also would be impacted by the ban, though Uber in addition has also been sought to be booked under CrPc section 188 and other charges as criminal negligence and abetment to the crime have been made out against it.
Both Ola and TaxiforSure have similar fine print on their websites.
- The customer agrees and accepts that the use of the Services provided by the Company is at the sole risk of the Customer, and further acknowledges that the Company disclaims all representations and warranties of any kind, whether express or implied.
- The customer agrees and acknowledges that the use of the Services offered by Company is at the sole risk of the customer and that Company disclaims all representations and warranties of any kind, whether express or implied as to condition, suitability, quality, merchantability and fitness for any purposes are excluded to the fullest extent permitted by law.
Without prejudice to the above, the Company makes no representation or warranty that:
a. the Services will meet the customer's requirements;
b.the Services will be uninterrupted, timely, secure, or error-free.
c.The Company shall not be responsible or liable for any loss or damage, howsoever caused or suffered by the Customer arising out of the use of taxi service offered by Company or due to the failure of Company to provide Services to the Customer for any reason whatsoever including but not limited to the Customer's non-compliance with the Services' recorded voice instructions, malfunction, partial or total failure of any network terminal, data processing system, computer tele-transmission or telecommunications system or other circumstances whether or not beyond the control of Company or any person or any organization involved in the above mentioned systems.
d.The Company will not be liable for any damages of any kind arising from the use of the Service offered by the Company, including, but not limited to direct, indirect, incidental, punitive, and consequential damages.
The information, recommendations and/or Services provided to you on or through the Website, the Application and by our call centre is for general information purposes only and does not constitute advice. TFS will reasonably keep the Website and the Application and its contents correct and up to date but does not guarantee that (the contents of) the Website and/or Application are free of errors, defects, malware and viruses or that the Website and/or Application are correct, up to date and accurate.
TFS shall not be liable for missing trains/flights/events etc as the Service is dependent on many factors not in our control. You must book TFS by taking into account the check-in time, traffic and weather conditions, political rallies, natural calamities, traffic barricades, car breakdowns and other un-expected delays. TFS will not be responsible for any delays and also if you are not ready at the time of arrival of the cab. It is hereby clarified that TFS is only a facilitator and shall in no event be made liable for any delays or any losses suffered by you due to such delay. However, TFS , at its discretion, may reimburse you the amounts paid by you to us or Rs. 5,000/-, whichever is lesser, in the event you miss a train/flight/bus as a result of such delay. However, in order to be eligible for such reimbursement, the cab must be booked for a pickup time which is at least 3 (three) hours before the scheduled check-in time in case of a flight and at least 2 (two) hours before the scheduled departure time in case of a bus/train, for distances that can be covered in at least 1 hour under normal traffic conditions.
In the event, there is a delay by the vehicle in the reaching the pickup location beyond 30 minutes of the pickup time, TFS shall endeavour to get you in touch with the TPSP whose vehicle delayed in reaching the pickup location. It is hereby clarified that, this and only this, constitutes TFS’s liability with respect to delays pertaining to pick up. However, TFS at its discretion, and based on the circumstances and consequences of such delay, may reimburse you the amounts paid by you to us or Rs. 5,000/-, whichever is lesser. as liquidated damages.
TFS shall not be liable for any damages resulting from the use of or inability to use the channels of booking, including damages caused by wrong usage of website URL, error in call centre number, network issues, malware, viruses or any incorrectness or incompleteness of the Information or the Website or Application, unless such damage is the result of any wilful misconduct or from gross negligence on the part of TFS.
TFS shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the Website or the Application, or e-mail/sms communication including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs used for electronic communications and transmission of viruses.
TFS shall not be liable for any loss / damages caused due to use of any devices installed in the cab and you will be solely responsible for the same.
What is most interesting, however, under the circumstances is to compare the fine print in the case of Uber, Ola and TaxiforSure on one hand and those who are "licensed with the Transport Department for operating radio taxis in the NCT of Delhi" on the other:
- Under no circumstances shall the Company be liable for any loss of profits, business or any indirect or consequential loss whatsoever.
- The Company reserves the right to change, suspend or discontinue the offer at any time for any reason.
- The Company reserves the right, at its sole discretion, to modify or replace these Terms & Conditions by posting the updated terms on the Site.
In these booking conditions, 'force majeure' means any event which we / the supplier of the service(s) in question / the Third Party Supplier could not, even with all due care, foresee or avoid. Such events may include disruptions/diversions of transportation services, floods, and earthquakes, actual or threatened war, riot, civil strife, actual or threatened terrorist activity, industrial dispute, natural or nuclear disaster, adverse weather conditions, disease, fire and all similar events outside the control of the party concerned.
We cannot accept liability or pay any compensation where the performance or prompt performance of our obligations under our agreement with you is prevented or affected by, or you otherwise suffer any damage or loss as a result of 'force majeure'.
Interestingly, the section titled Terms & Conditions of the Easy Cabs Guaranteed Service has now been taken off and leads to a 404 - page not found error.
TERMS & CONDITIONS
- The user expressly agrees that the use of Mega Cabs and megacabs.com is at his or her risk. Neither we, nor our affiliates, are responsible for any loss, injury or damage to person, property or otherwise, or for any delays or alterations in your programme, or expenses incurred – directly or indirectly – due to causes beyond our control.
- These parties do not warrant that megacabs.com will be uninterrupted or error free or that the results obtained from megacabs.com as information, service or merchandise will be accurate or reliable, and are not liable in case such defects cause the user loss or damage of any kind.
- megacabs.com is provided on an "as is" basis without warranties of any kind, either expressed or implied, including, but not limited to, warranties of title, merchantability or fitness for a particular purpose, other than those which are incapable of exclusion, restriction or modification under the laws applicable to this agreement.
- This disclaimer of liability applies to any damage or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of record, whether for breach of contract, tortuous behaviour, negligence, or under any other cause of action.
- User specifically acknowledges that megacabs.com is not liable for the defamatory, offensive or illegal conduct of other users or third-parties and that the risk of injury from the foregoing rests entirely with user.
- Mega Cabs shall be entitled to change these terms and conditions at any time and the Customer shall be bound by such amendments.
- The information, recommendations provided to you on or through the Website, or the Application is for general information purposes only and does not constitute advice. The Company will reasonably keep the Website and the Application and its contents correct and up to date but does not guarantee that (the contents of) the Website and/or Application are free of errors, defects, malware and viruses or that the Website and/or Application are correct, up to date and accurate.
- The Company shall not be liable for any damages resulting from the use of or inability to use the Website or Application (but to the exclusion of death or personal injury), including damages caused by malware, viruses or any incorrectness or incompleteness of the Information or the Website or Application, unless such damage is the result of any wilful misconduct or from gross negligence on the part of the Company.
- The Company shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the Website or the Application, including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs used for electronic communications and transmission of viruses.
- Without prejudice to the foregoing, and insofar as allowed under mandatory applicable law, the Company's aggregate liability shall in no event exceed an amount of INR 1000.
- The quality of the taxi services requested through the use of the Application or the Service is entirely the responsibility of the Service Provider who ultimately provides such taxi services to you. The Company under no circumstance accepts liability in connection with and/or arising from the taxi services provided by the Service Provider or any acts, action, behaviour, conduct, and/or negligence on the part of the Service Provider. Any complaints about the taxi services provided by the Service Provider should therefore be submitted to the Service Provider.
Only Chanson cabs seem to devote a clear section on safety features, specially for women and we could not, in so far as looked for the purpose of this blog, locate any fine print absolving the company of claims:
Chanson Cabs is a Women Safe & Friendly
- Safety during travel is a major concern of women traveler in Delhi NCR. There have been few unfortunate incidents that have raised concerns about safety of the women traveler in Modern Urban Cities of India. Chanson Cabs is concerned about safety and security of its women traveler and has launched certain initiatives to make travelling safer and secure in our cabs.
- All Chanson Cabs are equipped with Panic Button in the back seat that is World Class Innovation which can be used in case of any Emergency Situation faced by the women Traveler.
- Chanson Cabs has also installed world class In-Mobilisers that de-mobilize a vehicle by single command from Call Center in case required to keep vehicle and passenger safe.
- Beside this, the cabs are equipped with advanced GPS based monitoring and tracking system to enable monitoring and tracking of cab for women safety.
- All the cab drivers are hired after very stringent background check and well trained in customer etiquettes.
- Chanson Cabs is also committed to start many initiatives in future to ensure that women traveler feel secure and safe with us like launching exclusive women fleet service, adding up new advanced safety features etc.
- The Customer agrees and acknowledges that the use of the services offered by Yo Cabs is at the sole risk of the Customer and that Yo Cabs disclaims all representations and warranties of any kind, whether express or implied as to condition, suitability, quality, merchantability and fitness for any purposes are excluded to the fullest extent permitted by law.
Without prejudice to the above, Yo Cabs makes no representation or warranty that:
- the service will match your requirements;
- the service will be uninterrupted, timely, secure or error free
- Yo Cabs shall not be responsible or liable for any loss, injury or damage, howsoever caused or suffered by the Customer, property or otherwise arising out of the use of taxi services offered by Yo Cabs or due to the failure of Yo Cabs to provide services to the Customer for any reason whatsoever including any natural calamity, flight cancellations, dangers, fire, accident, breakdown in machinery or equipment, breakdown of transport, weather, landslides, wars, civil disturbances, strikes, riots, thefts, pilferages, epidemics, sickness, medical or custom department regulations, political closures or any untoward incidents, defaults or any other causes beyond our control, but not limited to the Customer's non-compliance with the services' recorded voice instructions, malfunction, partial or total failure of any network terminal, data processing system, computer tele-transmission or telecommunications system or other circumstances whether or not beyond the control of Yo Cabs or any person or any organization involved in the above mentioned systems.
Without prejudice to the above, Yo Cabs shall not be liable for any direct or indirect loss or damage which may be suffered by the Customer as a result of any failure by Yo Cabs to provide a taxi to the Customer within any stipulated time even if Yo Cabs has agreed to do so provide the taxi or even if the Customer has advised Yo Cabs of the possibility that any such loss or damage would result if the taxi is not provided at all or within the stipulated time.
The Customer shall indemnify Yo Cabs from and against and in respect of any or all liabilities, losses, charges and expenses (including legal fees and costs on a full indemnify basis) claims, demands, actions and proceedings which Yo Cabs may incur or sustain directly or indirectly from or by any reason of or in relation to the use of the Services by the Customer.
- All vehicles registered with Yo Cabs Pvt Ltd. are continuously tracked using GPRS for security reasons only. Yo Cabs is hereby authorized to use the location based information provided by any of the telecommunication companies when the Customer uses the telephone/mobile phone to make a taxi booking. The location based information will be used only to facilitate and improve the probability of locating a taxi for the Customer.
- Yo Cabs Pvt.Ltd. has the right to use the customer contact information for its own marketing purposes. Yo Cabs shall be entitled to disclose to all companies within the Yo Cabs Pvt. Ltd. or any of its authorized chauffeurs or any government body as so required by the law or by directive or request from such government body or any third party, the particulars of the Customer in the possession of Yo Cabs in any way as Yo Cabs, in its absolute discretion, deems fit or if it considers it in its interests to do so.
- Yo Cabs shall be entitled at any time without giving any reason or prior notice to terminate the booking of taxis done by the Customer
As in the case of Chanson Cabs, Air Cabs also did not seem to have any fineprint seeking to limit the company's liability, and there are claims about stringent checks in the choice of drivers:
In AirCab, every driver undergoes stringent training from reputed institutes like the Institute of Driving and Training Research (IDTR before driving an AirCab). The character of each and every driver is scrutinized and his knowledge about city roads is also adjudged. Their antecedents are verified by competemt authorities before they are awarded a driver's badge.
That's why we provide a 24x7 safe and secure radio taxi service, bringing you an international commuting experience that is available everyday and at anytime.
For those who came in late
"Uber is New Delhi's best way to request a safe, reliable, and affordable ride within minutes".
That's how the buzzing international startup, valued at USD 40 billion, described its services in India.
But the "ridesharing service headquartered in San Francisco, United States, which operates in multiple international cities" has been blacklisted and its services that use a smartphone application to arrange rides between riders and drivers, have been banned in Delhi after allegations of sexual assault on a customer led to widespread protests.
The Uber customer, a 27-year-old woman, returning home from her office in Gurgaon, took a cab in Vasant Vihar around 9.30 pm on Friday December 6, for her home in north Delhi. The cab driver allegedly pulled up in a secluded area and assaulted her.
It then turned out that the 32-year-old cabbie, Shiv Kumar Yadav, who was arrested in his home town Mathura, is a repeat offender and according to the police had earlier too been jailed in a rape case in 2011 but was later acquitted in the case.
What added to the outrage was that he seemed to have been given a character certificate by the office of the additional DCP (south-east).
Delhi Police Commissioner BS Bassi has meanwhile questioned the certificate: "we have got information that the date on which the said certificate was issued, the officer, whose signature are on the certificate, was not posted there. "So, prima facie this antecedent's verification certificate is fake. An FIR has been registered to ensure a proper inquiry into the matter of forgery and cheating on the basis of the certificate."
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