In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi
Phone-011-23216002-04, Telefax: 011-23216005,
Email: comdis.delhi@nic.in
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]
Case No. 996/1108/2019/06/7624-7634 Dated:05/11/2019
In the matter of:
SUO-MOTU
Versus
Regional Operations Manager, Gurgaon,
The Uber India,
One Horizon Centre, 23rd Floor,
Golf Course Road, Sector-43,
Gurugram-122002.Haryana. ...............Respondent No.1
Sh. Pradeep Parmeshwaran,
CEO, India and South Asia,
The Uber India,
One Horizon Centre, 23rd Floor,
Golf Course Road, Sector-43,
Gurugram-122002. Haryana. ..............Respondent No. 2
Ms. Vishpala Reddy,
Sr. Vice President / Regional HR Director & Head- Asia Pacific
The Uber India,
One Horizon Centre, 23rd Floor,
Golf Course Road, Sector-43,
Gurugram-122002. Haryana.
Email: vishpala@uber.com .............Respondent No.3
Last date of Hearing: 30.10.2019
Present: Pradyumn Sharma, counsel alongwith Sh.
Aditya Dayal for respondents.
Order
Sh. Venkatesh of Ummeed, Ray of Hope had forwarded a link
for the video clip of the incident that happened with Sh. Arman Ali, Executive Director, National Centre for
Promotion of Employment for Disabled People (NCPEDP),
E-150, Ground Floor, East of Kailash, New Delhi vide his email dated 24.06.2019.
Sh. Arman Ali is a person with 80% locomotor
disability and a wheel chair user. It was
alleged in the video clip from Mirror Now that the drivers of Uber India
refused to load the wheelchair of Sh. Arman Ali in their cars and cancelled the
trips and thus he was discriminated against on the ground of disability. Consequently, Sh. Arman Ali missed his flight
and had to spend Rs. 14,000/- for a fresh air ticket. Uber India offered to refund only the
cancellation charges of Rs. 45/-.
2. The Rights of Persons with Disabilities Act, 2016 hereinafter
referred to as ‘Act’, has been enacted to implement the United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD) and for the
matters connected therewith or incidental thereto. The following are, amongst the core
principles laid down in the Convention:
(a) respect for
inherent dignity, individual autonomy including the freedom to make one’s own
choices, and independence of persons;
(b) non-discrimination;
(c) full and
effective participation and inclusion in society;
(d) respect for
difference and acceptance of persons with disabilities as part of human
diversity and humanity;
(e) equality of
opportunity;
(f) accessibility;
3. As
per Section 2 (h) of the Act “discrimination” in relation to disability, means any distinction, exclusion,
restriction on the basis of disability which is the purpose or effect of
impairing or nullifying the recognition, enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field and includes
all forms of discrimination and denial of reasonable accommodation. Section 3 of the Act mandates to ensure that
the persons with disabilities enjoy the right to equality and they are not discriminated against.
4. Section
46 of the Act mandates that “the service
providers whether govt. or private, shall provide services in accordance with the rules on accessibility formulated
by the Central Govt. under Section 40 within a period of 2 years from the date
of notification of such rules”.
5. As
per Section 2 (x) “public facilities and services” include all forms of delivery of services
to the public at large, including housing, educational and vocational
trainings, employment and career advancement, shopping or marketing, religious,
cultural, leisure or recreational, medical, health and rehabilitation, banking,
finance and insurance, communication, postal and information, access to
justice, public utilities, transportation;
6. Section 89 of the Act provides, “any person who contravenes any of the
provisions of this Act, or of any rule made thereunder shall for first
contravention be punishable with fine which may extend to Rs. 10,000/- and for
any subsequent contravention with fine which shall not be less than Rs.
50,000/- but which may extend to Rs.5,00,000/-.
7. Section 80 (b) of the Act provides that State Commissioner
shall “inquire, suo motu or otherwise
deprivation of rights of persons with disabilities and safeguards available to
them in respect of matters for which the State Government is the appropriate
Government and take up the matter with appropriate authorities for corrective
action”.
8. A suo-motu cognizance of the incident was taken under Section
80 of the Act and the respondent was directed to show cause why Sh. Arman Ali
was discriminated against and to submit his/her version of the case by 10.07.2019
and a hearing was also scheduled on 04.07.2019 vide show cause-cum-hearing
notice dated 24.06.2019. The said notice
was sent to the address of the Regional Operations Manager, Gurgaon, Uber
India, DLF Phase 5, Sector 43, Gurgaon-122002, Haryana as was available in the
internet. It was also emailed at various
addresses such as grievanceoffice_india@uber.com and
also at supportdelhi@uber.com. However, neither any response was received
from Uber India nor anyone appeared on its behalf on 24.07.2019.
9. A copy of the notice was also forwarded to Sh. Arman Ali who
appeared on 24.07.2019.
10. As the emails did not get bounced, it was presumed that someone
must have received them in Uber India.
The concern of this Court was therefore conveyed to Uber India which is a
private establishment as defined in Section 2 (v) of the Act, which reads as,
“private
establishment” means a company, firm, cooperative or other society,
associations, trust, agency, institution, organisation, union, factory or such
other establishment as the appropriate Government may, by notification, specify.
11. It was also brought to the notice of Uber India that besides the
penal provisions for contravention of the Act, Section 93 also provides for
punishment for failure to furnish information which may extend to fine of Rs.
25,000/- in respect of each offence and in case of continued failure or refusal,
with further fine which may extend to Rs.1,000/- for each day of continued
failure or refusal.
12. Sh. Arman Ali suggested that a copy of the notice and RoP should
be sent to Sh. Pradeep Parmeshwaran, CEO, India and South Asia, Uber India at
Gurgaon office and Ms. Vishpala Reddy, Sr. Vice President/Regional HR Director
& Head-Asia Pacific of the company at vishpala@uber.com. They
were also impleaded as respondent no. 2 & 3 respectively. Besides
emailing them, the RoP and copy of Show Cause-cum-hearing notice were also sent
at their given addresses and the matter was fixed for hearing on
22.08.2019. The communication sent to
Ms. Vishpala Reddy by Speed Post was received back.
13. On the next date of hearing on 22.08.2019 also none appeared. On further search, the address at One Horizon
Centre, 23rd Floor, Golf Course Road, Sector-43, Gurugram was found
in the internet and the copy of RoP dated 02.09.2019 was sent at that
address. Sh. Aditya Dayal, Associate
Counsel, India South Asia on behalf of Uber India Pvt. Ltd (Uber India)
responded vide email dated 01.10.2019 and sought extension till 15.10.2019 to
file the response as they did not receive the notice and the RoP earlier.
14. Another hearing was scheduled on 30.10.2019. During the hearing, Sh. Pradyumn Sharma,
Counsel alongwith Sh. Aditya Dayal appeared on behalf of Uber India System
Private Limited and filed written reply dated 30.10.2019 which is reproduced
below:
“This is with reference to the above
referred show cause notice dated June 24, 2019 ("Notice") issued by your good office to Uber India Systems
Private Limited ("Uber",
"we" and "our"). In response to the said
Notice, Uber now submits this present reply.
We have noted the contents of the
Notice as it refers to a video clip of Mirror Now wherein it has been alleged
that drivers of Uber refused to load wheel chair of Mr. Arman Ali in the cars
and cancelled the trips and thus was discriminated against.
At the outset, and without prejudice
to the contents of the present reply, Uber would like to express its sincerest
regrets for the inconvenience experienced by Mr. Arman Ali during his
interactions with driver partners registered on the Ether technology platform
("Uber Apr”). As part of our
policy, we had reached out to Mr. Arman Ali as soon as this incident was
brought to our attention and assured him that any kind of alleged incidents of
discrimination, once reported, are thoroughly investigated by our team. These
investigations are followed by corrective actions as per our policies and
guidelines (available at: hups://www.uber.com/legal/community-guidelines/ind-en/)
and annexed with this response as Annexure A. It worthy to mention that the
same process has been followed by Uber in relation to this unfortunate incident
as well, and we have communicated the gravity of the incident to the Driver
Partner involved, and reiterated our non-discrimination policy to them along
with a warning to refrain from any such discriminatory conduct in the future.
Our non-discrimination policy is
apprised to every driver partner utilizing the Uber App at the time of on-boarding
such driver partners. Uber insists that such driver partners comply with the
community guidelines (available at https://www.uber.com/legal/community-guidelines/ind-en/)
while using the Uber App. As a global organization, and keeping in mind the
mandate of the United Nations Convention on the Rights of Persons with
Disabilities, we at Uber believe that everyone should feel supported and
welcomed when they use the Uber App. Accordingly, Uber already conducts
disability sensitization programs for its driver partners which are aimed at
increasing awareness and education about the problems faced by
differently-abled persons. Uber also has in place an accessibility policy (available
at https://accessibility.uber.com/) that is annexed with this response as
Annexure B.
Having
said that, we would like to specifically highlight that Uber is a technology
company or aggregator that seeks to connect the riders with independent third
party transport service providers (i.e., the Driver-Partners), based on the
requirements specified by the riders of the Uber App. The operation of Uber
only involves providing riders a technology platform for connecting them with
independent third party contractors; wherein, such independent third party
contractors are not employees of Uber, such contractors are not plying vehicles
owned by Uber, and Uber does not control the conduct of such contractors.
In this regard, while the incident
involving Mr. Arman Ali was truly regretful, we would like to state that Uber
does not have any actual-on-ground control of the Driver Partners, and the
decision to accept and fulfil the travel-booking on the Uber App rests solely
with the Driver Partners. Based on our internal investigation, we understand
that the second Driver Partner was unable to carry Mr. Arman Ali's wheelchair
on the front and rear seats of the car since the wheelchair was not fitting
into the trunk of the car, and accordingly, the Driver Partner was unable to
fulfil the travel-booking by Mr. Arman Ali. As stated above, we have warned the concerned
driver partners to refrain from acting in such a manner in future instances;
however, please do note that owing to the nature of business of Uber, Uber
cannot actively control the conduct of driver partners, which is solely the
domain of the independent driver partners.
However, we would also like to
reiterate that Uber is committed to fostering a non-discriminatory environment
towards all persons. In this regard, we
would like to bring your attention to certain initiatives undertaken by Uber
for the furtherance of the principles of non-discriminatory treatment towards
differently-abled persons – i.e. Uber ASSIST and Uber ACCESS. We have partnered
with MPHASIS, a pioneer in supporting accessibility of persons with disability
(through its corporate social responsibility and diversity initiatives) to
increase the mobility, efficiency, and freedom of customers/ users of the Uber
App. Uber ACCESS and Uber ASSIST connect
customers who are differently abled, older adults or other persons who may feel
more comfortable with an extra hand when getting from place to place, with
driver partners who provide door to door service. Uber ACCESS and Uber ASSIST
are presently being tested as pilot projects in Bengaluru; and the driver
partners associated with the programs are the top-most rated driver partners,
and they have received comprehensive in-person training from the Diversity and
Equal Opportunity Centre (DEOC) to sensitize them in dealing with differently
abled customers and in order to enable them to assist customers. These programs
also have a dedicated fleet of vehicles that can accommodate most foldable
wheelchairs. Brief details of the Uber
ACCESS and Uber ASSIST programs are available at —
https://www.uber.com/en-IN/blog/bangalore/faqs-uberassist-uberaccess/; https://www.uber.com/enIN/blog/bangalore/making_blr_accessible/;
and https://www.uber.com/en-IN/blog/bangalore/uberaccess_blr/ and also annexed
with this response as Annexure C.
Uber plans to launch the Uber ACCESS
and Uber ASSIST programs pan-India over time, and is already actively working
towards achieving ease of accessibility for differently-abled persons to be
able to avail the services offered through the Uber App.
Uber would be delighted to partner
with and assist the Ministry of Social Justice and Empowerment, and your good
offices, across India, to drive the sensitization of individuals towards
disabilities and the needs of differently-abled persons, and Uber is willing to
develop and provide services to further empower persons with disabilities.
We hope the above clarifies the matter
and will satisfy your query. Assuring
you of our best cooperation and looking forward to your sustained support.
Thanking
you,
Yours sincerely,
For Uber India Systems
Private Limited
Joyjyoti Misra
Authorized
Representative”
15. Sh.
Pradyumn Sharma specifically drew the attention to annexure B and C to bring home
the point that Uber had started the pilot project Uber Assist & Uber Access
in November, 2017 itself and there is a specific question in the FAQs which
reads, “will my driver be able to fold up
my wheelchair?” and the answer is “yes.
Driver-partners will have an understanding of how to fold your wheelchair, but
please feel free to provide specific instructions along the way.”
16. It
is observed that Uber Community Guidelines under the heading ‘Why riders can lose access to Uber’ and
‘why drivers can lose access to Uber’,
there are guidelines on ‘discrimination’.
17. Guidelines
for the riders read as under:
“Uber has a zero tolerance policy
towards discrimination of any kind. This
means you will lose access to your account if you are found to have
discriminated against drivers or other riders based on their race, caste,
religion, national origin, disability,
sexual orientation, sex, material status, gender identity, age or any other
characteristic protected under applicable law.”
18. The
guidelines for drivers with respect to disability under ‘discrimination’ is as
under:
“We have a zero tolerance policy
towards discrimination of any kind at Uber.
What leads to you losing access to
your account? It is unacceptable to
refuse to provide services based on where someone is going, or characteristics
like a person’s race, caste, religion, national origin, disability, sexual orientation, sex, marital status, gender
identity, age or any other characteristic protected under relevant central,
state or local law. Actions like these
will result in permanent deactivation of your account.”
19. It is also observed that under the Uber Access and Uber Assist initiated
in November, 2017, ‘driver-partners that
are trained in care giving and the vehicles can accommodate most foldable
wheelchairs’.
20. Annexure B to the reply is about Accessibility at Uber which
provides information specifically for use of riders with various disabilities
such as those who are blind or low vision, deaf and hard of hearing, those with
mobility disabilities, assistance needs and the drivers with disabilities who
are deaf and hard of hearing and driver partners who have mobility
disabilities.
21. It is also observed that while the guidelines and the policy of
Uber India are fairly disabled friendly and I appreciate the same, the policy
does not provide for any compensation to the customers/riders with disabilities
in such situations. The key is the implementation of the policies and monitoring.
Awareness about the key provisions on ‘non-discrimination’
and ‘accessibility’ for persons with disabilities in the Act as well as the
policy of Uber itself and appropriate training are integral part of the
implementation process.
22. As regards the contention of the Uber India that it is only the aggregator
and hence Uber does not control the conduct of the third party transport
service providers, cannot be a ground for abdication of its responsibility to
ensure compliance of the relevant laws and its own policy and providing for
compensation for the loss caused due to the negligence or poor quality of
service on the part of those who are mandated to follow the guidelines and the service providers.
23. I would also like to take this opportunity to record my
observation and the concern of persons with disabilities that the passenger car
manufacturers in India neither have a universal design policy nor is there any
mandate for them to manufacture a certain percentage of disabled friendly cars out
of the total number of the vehicles produced so that all or enough number of
taxis meet the requirement of persons with disabilities. A person with disability can also purchase a
car of his/her choice and use it on equal basis with others. I would like to reiterate my recommendation,
which I had made in one of the Society of Indian Automobile Manufacturer’s (SIAM)
General Body Meeting many years ago that they should take the initiative to produce
disabled friendly vehicles in India.
Ministry of Heavy Industries and Ministry of Road Transport and Highways
should also consider forming a policy on this.
24. In light of the above discussion, the following recommendations
are made:
i) The respondent company should introduce
training module for its employees as well as the driver-partners on key
provisions of the Act and its own policy in respect of riders with disabilities.
ii)
The agreement between the respondent company
and the driver-partners should provide for penalties in case of discrimination or
non-compliance with the provisions of the Act and its policy as a deterrent.
iii) The respondent company should provide for
compensating the riders with disabilities for any loss caused due to the
negligence or poor quality of service by the respondent company or its driver
partners to riders with disabilities.
iv)
The respondent company should compensate Sh.
Arman Ali for the loss he incurred on buying the fresh air ticket and the
stress he had to undergo on account of refusal to take him to the airport to
set an example and as a deterrent for all concerned including driver partners.
v)
Ministry of Heavy Industries and Ministry of
Road Transport and Highways should take the initiative to frame a policy for
manufacturing disabled friendly cars and vehicles in consultation with Society
of Indian Automobile Manufacturers or other organizations keeping in view the
needs of persons with disabilities. The
Policy should mandate that the car/vehicle manufacturers should either follow a
universal design of the car/vehicle usable by ‘ALL’ or alternatively, they
should be mandated to produce a certain number of disabled friendly cars/vehicles
or make them available ‘on demand’.
25. Due
to unavailability of the name, designation, address and other contact details
of the concerned functionaries of the company at an appropriate and prominent
location in the website/internet, a lot of time and effort was lost to reach
the concerned persons and it caused inordinate delay in passing this order.
Hence, Ministry of Corporate Affairs should mandate all companies operating in
India to ensure easy access to information and contact details.
26. This
Court and the complainant be informed of the action taken on the above recommendations
within three months from the date of receipt of this order as required under
Section 81 of the Act which is reproduced below:
“Whenever
the State Commissioner makes a recommendation to an authority in pursuance of
clause (b) of section 80, that authority shall take necessary action on it, and
inform the State Commissioner of the action taken within three months from the
date of receipt of the recommendation:
Provided
that where an authority does not accept a recommendation, it shall convey reasons
for non-acceptance to the State Commissioner for Persons with Disabilities
within the period of three months, and shall also inform the aggrieved person.”
27. The
complaint is disposed off.
28. Given under my hand and the seal of the Court this 5th day of November, 2019.
(T.D.
Dhariyal)
State
Commissioner for Persons with Disabilities
Copy to:
|
1. |
Secretary, Ministry of Heavy Industries, Govt. of
India, Udyog Bhawan, New Delhi - 110011. Email : shioff@nic.in |
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For
action on para 23 and recommendation no. (v) |
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2. |
Secretary, Road Transport and Highway, Govt. of
India, Transport Bhawan, Sansad Marg, New Delhi – 110001. Email : secy-road@nic.in |
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3. |
Secretary, Department
of Empowerment of Persons with Disabilities, Ministry of Social
Justice & Empowerment, 5th Floor, Pt. Deendayal Antyodaya Bhawan, CGO
Complex, Lodhi Road New Delhi – 110003.Email: secretaryda-msje@nic.in |
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For information and necessary action as deemed
fit w.r.t. the last but one para of the reply of Uber at page 8 of this
order. |
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4. |
Secretary, Ministry of Corporate Affairs, A-wing,
Shastri Bhawan, Rajendra Prasad Road, New Delhi,110001 Email: secy.mca@nic.in |
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For
necessary action on para 25 |
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5. |
Pr. Secretary
cum-Commissioner, Transport Department, Govt. of NCT of Delhi, 5/9 Under Hill
Road, Delhi-110054. Email: commtpt@nic.in |
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6. |
Mr. Rajan Wadhera, President, Society of Indian
Automobile Manufacturers (SIAM), Core 4-B, 5th Floor, India Habitat Centre,
Lodhi Road, New Delhi – 110003. Email
: siam@siam.in |
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For
action on para 23 and recommendation no. (v) |
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7. |
Sh. Arman Ali, Executive Director, National Centre
for Promotion of Employment for Disabled People (NCPEDP), E - 150, Ground
Floor East of Kailash, New Delhi – 110065. Email: secretariat@ncpedp.org / secretariat.ncpedp@gmail.com |
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For
information |
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8. |
Sh. Venkatesh of Ummeed. Email: venkatesh.kz@gmail.com |
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