Precedent offers hope

BENGALURU: What action can one take against a ride-hailing firm such as Uber or Ola if an affiliated driver commits a rape or mugging? Quick answer: Right now, close to zilch.After an increase in crimes by drivers with these firms over the past decade, Ola and Uber responded by providing users with safety features and emergency options. Yet offences against their customers, especially women, continue to occur. The companies largely emerged unscathed.The horror stories include the rape and murder of a 12-year-old girl in Kolkata by two Ola drivers in August 2016, which highlighted the fact that the company did little or no verification checks of drivers.Two years later, confirming that Uber too did few background checks on its drivers, a driver with the firm, Shiv Kumar Yadav, raped a woman passenger in Delhi, and confessed after his arrest that he was a serial sexual offender.In Bengaluru an Ola cab driver, HM Nagesh, stabbed 30-year-old Pooja Singh Dey 22 times for just `500 that she was carrying in her bag. The firm had even less liability in this case because Dey asked the cabbie to pick her up instead of booking a ride on the app.Sometimes the roles reverse and drivers with such firms are victims of crimes by people posing as customers.At 12.30am on October 8, for instance, three men stabbed and robbed a Rapido bike taxi captain (rider) near Kudlu Gate, off Hosur Road. Two hours later a trio mugged another bike taxi rider near Parappana Agrahara.Tech platforms such as Amazon or Flipkart usually try to address issues such as theft. Why then can’t Uber and Ola be brought to book as the perpetrators are? Lawyers say one reason is that law in India does not permit customers to file class action lawsuits. In California, for example, 14 women filed a class action suit against Lyft, stating that the company’s drivers had sexually assaulted or raped them.“A larger group of people can collectively put more pressure through class action suits, but in India it is only possible for individuals to file separate lawsuits,” a lawyer said.Lawyer Anirudh Rastogi said intermediaries like Ola and Uber insist that they only offer a technology platform. “They say the ride is a contract between the driver and customer,” he said. “But courts across the world have started challenging this notion.”Because it is a high-stakes game involving their reputation with the possibility of monetary fallout, tech platforms are now taking more steps to prevent crimes against customers — while continuing to deny liability.“The general principle is a company is liable for the actions of its employees but not contractors/partners,” Rastogi said. “The pushback has resulted in companies exercising a degree of control over the drivers, making them, in substance, employees of the company and increasing companies’ liability exposure.”But former additional solicitor general P Wilson, who currently represents a taxi aggregator, said a Madras high court ruling holds hope for action against cab-hailing firms. “The high court directive this year was very clear,” he said. “When there are technical failures, human negligence or crimes perpetrated by drivers, the aggregator should be held accountable. They cannot call freelancers non-employees and wash their hands of the matter.”Because speeding by cabbies is another problem, Bengaluru traffic police say regulations on speed governors could help. “Government vehicles are fitted with speed governors,” a DCP said. “If regulations mandate that cabs should also have them, many accidents and deaths can be prevented.”Regulation could help drivers too. “There have been many driver deaths due to asphyxiation. Their earnings are low, so they work themselves to exhaustion for incentives and fall asleep in their cars,” said accident victim Damodharan Sampathkumar.“I was seriously injured when an Ola driver hit me, while I was cycling. When we asked the driver if he was blind, he said he’d been driving for 28 hours at a stretch,” he said. “If the government regulates Ola and Uber, and the companies pay well, the drivers will not have to drive for long periods.”Another issue with criminal liability in India is that it sometimes cannot be quantified. “Indian courts do award compensation in case of death or disability, but have not awarded damages for breach of privacy,” an expert said. “Zomato, for instance, had a massive data breach in 2017, in which the records of more than 17 million users were compromised.”Activists said companies like British Airways or Citigroup are liable to pay compensation to customers — even if the customers do not face any financial loss — in case of a data breach. “In India, there are data breaches and tech platforms illegally share data with third-party vendors,” said blockchain expert Pushpendra Singh.