PLJ 2023 Cr.C. 667
[Islamabad High Court, Islamabad]
ARBAZ RAHIM--Appellant
versus
MANAGER/INCHARGE CAREEM and another--Respondents
Crl. A. No. 211 of 2022, decided on 17.2.2023.
Islamabad Consumer Protection Act, 1995 (III of 1995)--
----S. 8--Criminal appeal--Dispute on overcharging from a ride in careem--Concisely facts of case were that David Haller was provider of food delivery services in Toronto using Uber’s software application--To become a driver for Uber, Mr Heller had accepted, without negotiations, terms of Uber‟s standard form services agreement, which included resolution of disputes with Uber through mediation and arbitration under International Chamber of Commerce Mediation Rules--Mr Heller started class proceedings against Uber for violation of Employment Standards Act (ESA) and took position that arbitration clause included in services agreement was invalid on ground of being “unconscionable”--The questions considered in said judgment were, “whether there was an inequality of bargaining power and whether there was a resulting improvident bargain”--Respondent No. 1/Careem tried to avoid liability by hiding behind terms and conditions agreed by appellant at time of registration--Such terms and conditions being agreed improvidently and unconscionably cannot be used as a defense by Respondent No. 1/Careem and, therefore, cannot take away right of a person to bring an action against delinquent in matters involving “unfair trade practice” before learned Consumer Court--Parties admit existence of a controversy, however, it prima facie, appears that attempts have been made to divert liability due to absence of version of Respondent No. 2/Captain--Section 6(2) of Act of 1995 provides that “the Police, Capital Development Authority and other agencies of Federal Government and Islamabad Capital Territory Administration shall act in aid of Authority for performance of its functions under this Act.” The learned Judge Consumer Court ought to have adopted other mode to procure attendance of Respondent No. 2/Captain with assistance of other agencies mentioned in section 6(2) of Act of 1995--The questions whether booking was cancelled by appellant and whether Captain charged him in excess of due amount, can best be resolved by learned Consumer Court after recording version of Respondent No. 2--It is noted that reliance of a service providers on terms and conditions of agreements, which otherwise not form part its general representation/advertisements itself is actionable under Act of 1995 as defined in Section 2(f)(i) thereof--Such terms and conditions of an agreement, if otherwise generally not represented to consumers through advertisements, cannot be subsequently relied upon to avoid liability under Act of 1995--Such terms and conditions of agreement cannot be used by service providers as concealed dagger to exploit consumers and defeat ends of justice.
[Pp. 670, 671, 672 & 673] A, B, C & D
Consumer Protection Laws--
----Consumer protection laws are enacted to safeguard rights of consumers from exploitative, unscrupulous and unfair trade practices--The doctrine of “caveat emptor” has gradually been replaced by modern age consumer protection laws, which burdens vendors with certain responsibilities to ensure fair trade practices in market--The purpose of such legislative instruments, therefore, cannot be defeated through adhesion contracts. [P. 673] E
Dismissal of Complaint--
----In case in hand, dismissal of complaint without obtaining version of Respondent No. 2/Captain was pre-mature--The Consumer Court ought to have decided grievance after exhaustive inquiry under applicable law and making every possible endeavor to trace whereabouts of Respondent No. 2--The outcome of matter obviously will be in accordance with law on subject, but dismissal of complaint in cursory manner in circumstances when existence of substance involved in lis has been admitted, was not warranted.
[P. 673] F
Mr. Muhammad Hussain Shad, Mr. Sufyan Haider, Advocates for Appellant.
Mr. Muhammad Mannan Khan, Mr. Saad Javed Satti, Advocates for Respondents.
Date of Hearing: 13.2.2023.
Order
The appellant (Arbaz Khan), through the appeal in hand, has assailed judgment, dated 15-04-2022, passed by the learned Judge Consumer Court/Additional Sessions Judge-West, Islamabad, whereby the complaint filed by the appellant under section 8 of the Islamabad Consumer Protection Act, 1995 (“Act of 1995”), has been dismissed.
2. The facts necessary for adjudication of the lis in hand are that on 11-11-2020, the appellant booked a ride through Careem App, a software/application operated by Respondent No. 1 i.e. Careem Network Pakistan (Pvt.) Ltd. (“Careem”), from Zarkoon Heights,
G-15, Islamabad to SZABIST University, Islamabad, for which the estimated cost of ride was shown as Rs. 186/-. The booking was assigned by the Careem App to a registered Captain (i.e. Tariq Khan), driver of vehicle bearing Registration No. DU-310. The appellant has alleged that after completing the ride, the Captain demanded and received Rs. 1,867/-which was much more than the estimated/settled charges of ride. Therefore, appellant filed a complaint under the Act of 1995 alleging that Careem has charged him in excess of the due amount for the services rendered. Pursuant to notices, the Respondent No. 1/Careem filed written reply before the learned Consumer Court, however, Respondent No. 2/Captain never joined the proceedings. The learned Judge Consumer Court after hearing the parties and considering the reply filed by Careem, dismissed the complaint vide the impugned judgment, hence this appeal.
3. The learned counsels for the appellant have argued that; the impugned judgment has been passed without hearing the appellant; the judgment is a result of misapplication of law, mis-reading, non-reading and based on surmises and conjectures; Careem in its reply admitted existence of a dispute and this fact alone warranted a full-fledged trial; stance of Respondent No. 2 was sufficient, however, necessary efforts were not made to trace his whereabouts.
4. The learned counsels for the Respondent No. 1/ Careem have argued that; no cause of action had accrued; the respondent had cancelled the ride; Careem is not responsible for the private arrangements between Captain and customer; the appellant had agreed the terms of use of Careem service at the time of installation of Careem App; appellant cannot claim general damages under the Act of 1995; the complaint was filed with malafide intention; the complaint was not maintainable; clause 2 of the terms and conditions agreed by the Captain acknowledges the role of Captain as “third party contractor” and Careem is not liable for the wrong committed by him; the claim of the appellant is against Respondent No. 2.
5. Heard. Record perused.
6. The appellant had filed the complaint under section 8 of the Act of 1995 alleging overcharging for the service provided by
the respondents. The complaint was contested by Respondent
No. 1/Careem by filing of written reply. The Respondent No. 1/Careem in its written reply took the defense of the agreed terms and conditions by the Customer and Captain at the time of registration. It is the stance of Respondent No. 1/Careem that the Captain being third party contractor acted independently and that Careem is not liable for the wrong committed by him. Respondent No. 1/Careem has further raised a factual controversy that the appellant pursuant to a private agreement with the Captain had cancelled the ride and that any excess amount paid to the Captain pursuant to such agreement is neither recorded in the system nor can be claimed from Careem.
7. The learned Judge Consumer Court has dismissed the complaint on the ground that the appellant had cancelled the ride and there exists no unfair trade practice on part of the respondents. The first question which requires consideration is, whether the terms and conditions agreed by a party having unequal bargaining power in an un-negotiated standard form of contract, can take away the right of the appellant to dispute any unfair trade practice before the learned Consumer Court.
8. A similar question has been considered by the Supreme Court of Canada in the case reported as “Uber Technologies Inc. and others v. David Heller” [2020 SCMR 1279]. Concisely the facts of the case were that David Haller was provider of food delivery services in Toronto using Uber’s software application. To become a driver for Uber, Mr Heller had accepted, without negotiations, the terms of Uber’s standard form services agreement, which included resolution of disputes with Uber through mediation and arbitration under the International Chamber of Commerce Mediation Rules. Mr Heller started class proceedings against Uber for violation of Employment Standards Act (ESA) and took the position that the arbitration clause included in the services agreement was invalid on the ground of being “unconscionable”. The questions considered in the said judgment were, “whether there was an inequality of bargaining power and whether there was a resulting improvident bargain”. The relevant portions of the judgment are reproduced as follows:
“Unconscionability required both an “inequality of bargaining power” and a resulting “improvident bargain”. An inequality of bargaining power existed when one party could not adequately protect its own interests in the contracting process. …… Unequal bargaining power could be established in such scenarios even if the legal requirements of contract formation had otherwise been met. Regardless of the type of impairment involved, what matters was the presence of a bargaining context where the law’s normal assumptions about free bargaining either no longer held substantially true or were incapable of being fairly applied.”
“Second element of unconscionability was an “improvident bargain”. A bargain was improvident if it unduly advantaged the stronger party or unduly disadvantaged the more vulnerable.”
“The doctrine of unconscionability had particular implications for standard form contracts. The potential for such contracts to create an inequality of bargaining power was clear, as was the potential to enhance the advantage of the stronger party at the expense of the more vulnerable one, particularly through choice of law, forum selection, and arbitration clauses that violated a party’s reasonable expectations by depriving them of remedies. Applying the unconscionability doctrine to standard form contracts also encouraged those drafting such contracts to make them more accessible to the other party or to ensure that they were not so lop-sided as to be improvident, or both.”
In the referred judgment, the agreement was thus held to be invalid because it was “unconscionable”.
9. In the case in hand, the Respondent No. 1/Careem tried to avoid the liability by hiding behind the terms and conditions agreed by the appellant at the time of registration. Such terms and conditions being agreed improvidently and unconscionably cannot be used as a defense by the Respondent No. 1/Careem and, therefore, cannot take away the right of a person to bring an action against the delinquent in matters involving “unfair trade practice” before the learned Consumer Court.
10. The main ground on which the complaint was dismissed is the claim of Respondent No. 1/Careem that since the appellant had cancelled the ride, therefore, there was no unfair trade practice on part of the respondents. The Respondent No. 1/Careem in its written reply admitted existence of a controversy. It was categorically mentioned in the reply that “the complainant booked a ride on 11.11.2020 through Careem App but the same was cancelled & subsequently the Respondent No. 2 offered private ride which the complainant accepted & thereafter took the ride privately which has no record or nexus with the Respondent No. 01”. Respondent No. 1/ Careem has attempted to shift the burden by mentioning that Respondent No. 2, being third party contractor, alone was responsible for the wrong committed, if any. The learned Consumer Court issued repeated notices but the Respondent No. 2 did not tender appearance. In the case in hand, the version of Respondent No. 2, whether he took a private ride and demanded excessive charges and whether he actually received the excessive charges calculated by the software application operated by the Respondent No. 1/Careem, is crucial. In the instant case the parties admit existence of a controversy, however, it prima facie, appears that attempts have been made to divert the liability due to absence of the version of Respondent No. 2/Captain. Section 6(2) of the Act of 1995 provides that “the Police, Capital Development Authority and other agencies of the Federal Government and Islamabad Capital Territory Administration shall act in aid of the Authority for performance of its functions under this Act.” The learned Judge Consumer Court ought to have adopted other mode to procure the attendance of Respondent No. 2/Captain with the assistance of other agencies mentioned in section 6(2) of the Act of 1995. The questions whether the booking was cancelled by the appellant and whether the Captain charged him in excess of the due amount, can best be resolved by the learned Consumer Court after recording version of the Respondent No. 2.
11. It is noted that reliance of a service providers on terms and conditions of agreements, which otherwise not form part its general representation/advertisements itself is actionable under the Act of 1995 as defined in Section 2(f)(i) thereof. Such terms and conditions of an agreement, if otherwise generally not represented to consumers
through advertisements, cannot be subsequently relied upon to avoid the liability under the Act of 1995. Such terms and conditions of agreement cannot be used by the service providers as concealed dagger to exploit consumers and defeat the ends of justice.
12. Consumer protection laws are enacted to safeguard the rights of consumers from exploitative, unscrupulous and unfair trade practices. The doctrine of “caveat emptor” has gradually been replaced by modern age consumer protection laws, which burdens vendors with certain responsibilities to ensure fair trade practices in the market. The purpose of such legislative instruments, therefore, cannot be defeated through adhesion contracts.
13. In the case in hand, dismissal of the complaint without obtaining the version of Respondent No. 2/Captain was pre-mature. The learned Consumer Court ought to have decided the grievance after exhaustive inquiry under the applicable law and making every possible endeavor to trace the whereabouts of Respondent No. 2. The outcome of the matter obviously will be in accordance with law on the subject, but dismissal of the complaint in the cursory manner in the circumstances when existence of substance involved in lis has been admitted, was not warranted.
14. For what has been discussed above, the instant appeal is allowed. The impugned judgment, dated 15-04-2022, is hereby set aside. The matter is remanded to the learned Consumer Court. The learned Consumer Court is expected to decide the matter on merits, in accordance with law, after taking the version of Respondent No. 2. The learned Consumer Court is further expected to seek assistance of the agencies of the Federal Government mentioned in section 6(2) of the Act of 1995 to procure attendance of Respondent No. 2.
(A.A.K.) Appeal allowed
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