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Super-Fast delivery opening the Pandora box of road safety Negligence

Author: Balabavithra M

Superfast delivery is a mainstay of the trend now. On March 9th, 2021 Hitesh Chandranee a Bangalore-based influencer, Model and a Makeup artist accused Zomato delivery boy, Kamaraj of punching her face and breaking her nose while she was making a complaint to the Zomato customer care executive about the delayed delivery of her order. Her online video explaining the incident with a bandage on her nose went viral on March 11th, 2021, which has raised several questions about the mechanism of these fast delivery services, road safety, and the kind of profits these companies make using these delivery men. This article tries to bring the nexus between the super fast delivery and the non-monetary cost we pay for them.

The contents of the 3 live videos and Zomato’s response:

Hitesha in her live videos on her IGTV explains to the viewers that the delivery boy snatched the order and hit her while she was making a complaint about the delay. She did not videotape or record the incident while the delivery boy assaulted her. Meanwhile, It was found that no one had been a witness to this incident. Through the video, she was only able to show her bleeding nose and narrate the incident immediately after it had happened.

Zomato on its Facebook and Twitter handles responded that the local representative of Zomato had gotten in contact with her as soon as the incident came into notice and ensured that the delivery boy was terminated from his service.

Kamraj the delivery boy who is accused by Hiteshaof assaulting and threatening her recorded his side through the interviews to the news channels saying that even after he had explained the causes for the delay as the dug roads and blocked paths on his way, Hitesha threw slippers at him and got hit by her own hands while he tried to stop her.Kamraj had filed an FIR against Hitesha for wrongful restraint (Sec.399 of IPC), Assault (sec.351 of IPC) intentional insult (Sec.504 of IPC), and criminal intimidation (Sec. 506 of IPC).

Liability of Zomato:

Since Zomato had provided the option for “On time or free” to Hiteshi while making the order, this naturally becomes a clause of the contract between Hiteshi and Zomato. Section 72 of the Indian Contract Act provides that when a party causes the breach of a contract, the other party that suffers the breach is entitled to receive compensation for the loss or damage caused by him.[1] Thus, Zomato is obliged to provide compensation to Hiteshi for not providing the delivery on time.

In the case of Sitaram Motilal Kalal v. Santanupradsad1966 SCR (3) 727, it was held that “A master is vicariously liable for the acts of his servant acting in the course of his employment.[2]Also in Pushpabai Purshottam Udeshi &Ors vs Ranjit Ginning & Pressing Co. 1977 SCR (3) 372, it was held by the supreme court that “a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it.”. [3]

Furthermore, Section 2 (11) of Consumer Protection Act, 2019 defines “Deficiency of Service” as “any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance which is required to be maintained”and the initial step of the remedies include contacting the consumer redressal mechanism of the service provider.[4] In the instant matter, Hiteshi had contacted customer care for the complaint.

While we argue about whether Zomato is responsible for Kamraj’s actions or not, Bangalore police have been found to have stopped the investigation on this matter after finding no substantial evidence on the part of Hitesh or Kamraj. Moreover, the investigating officer in his interview with The New Indian Express expressed that Hitesha who poses to be the claimant in this issue was not cooperating with the police.

Earlier controversies:

Log out:

In August 2019, More than 1200 restaurants logged out from Zomato due to their deep discounts in the dine-in restaurants. It was called the “Logout Campaign”. National Restaurant Association of India refused the modified version of the Zomato gold service plan and following this Goyal the co-founder had to admit and rectify the company’s mistake.[5]

“Food has no religion”:

In July 2019, a customer insisted that the food should be delivered through a Hindu Boy. Zomato refused to change its rider and the customer canceled his order and tweeted it saying that zomato has Jain and halal tags on its food items but refused to provide a Hindu delivery boy. Zomato’s tweet “Food doesn’t have a religion. Food is a religion!”[6] gained popularity for Zomato among the Netizens.

The need for “On time or free”:

Swiggy, Zomato, and other popular food delivery apps have increased their delivery charges depending upon the order value, the availability of the said product, the rating of the restaurant, and the distance applying their strategic marketing techniques amidst the pandemic situation.

Over the past six months, there have been strict rules on their order cancellation and have introduced fancy loyalty programs for its customers. Dominos used the “30 minutes or free delivery” promise for many years. Following this Swiggy had the “30 minutes delivery or free service” and competing with its rival, Zomato has adopted this method and lets its customers click “On-time or Free” while placing the order. This lets the customers have the free delivery of the food or the refund on their money when the order is not delivered within the promised time.

Apart from this Zomato have several other offers like the popular PROMO Code which lets the customers have upto 50% off on their orders. To retain the customers and increase its customer loyalty, Zomato has also come up with PRO memberships for its customers wherein the rates of the food are set even below the rates of the same foods available in the said restaurants.

How does Zomato earn money?

Zomato was initially an online restaurant directory called the “FoodieBay”, Its parent companies are Info Edge, Ant Financial, and Uber. Deepinder Goyal and Gaurav Gupta Zomato’s CEO and COO respectively, have altered its business model to offer services such as:

• Food delivery

• Food discovery (Restaurant listing/ Advertising)

• Loyalty programs (Subscription programs)

• Live events – Zomaland

• White labeling access (Branding requests)

• Restaurant reservation

• Zomato Kitchens ( Funds for entrepreneurs to set up a restaurant )

• Consultation services (For Clients and prospects willing to set up a restaurant or become a part of the delivery agency)

In the year 2020, Zomato’s net worth was estimated to be Rs.2486 crores. The delivery services like Zomato earn through the commission paid by the restaurants for each delivery.This commission is in turn split between Zomato Company and the delivery partner.

During the covid pandemic and the lockdown situation, many companies have been offering doorstep fast delivery.The fast delivery has been a Pandora box and it's hard to close as customers expect every company to deliver “On time” or else prefer another company that might do it at a better cost.

How much does the delivery boy earn?

The salary of the delivery boy is not fixed and it depends purely on the distance he covers and the number of deliveries he makes. For instance, Zomato expects the delivery boy to deposit Rs.1000 in turn for a delivery bag and 2 T-shirts. A delivery boy in Zomato gets paid on a weekly basis (On every Thursday). There is no salary payment system in Zomato like other food delivery agencies.

These delivery services do not have part-time or full-time jobs.Instead, the company allows the delivery boys to work even beyond 15 to 16 hours a day. And taking a leave is optional. The amount per delivery is based on the distance and time of the delivery.

On average, a Zomato delivery boy works more than 12 hours a day and earns up to Rs.50-60 per order. And Zomato provides daily incentives for delivery boys who make more than 7 orders per day.

For example, an average delivery boy who works 7 to 12 hours a day making 8 deliveries per day,gets an additional Rs.50 as a daily incentive from Zomato. i.e, he makes Rs.50 on each delivery plus the additional daily incentive (Rs.50 x 8 deliveries + Rs.50 = Rs.450 per day).

A delivery boy earns between Rs.25,000 and Rs.50,000 per month depending upon his availability for the delivery and the rating he gets for them. (Rs. 10 on each 5-star rating).

The sudden expansion of the delivery agencies has come up with a huge cost on our own safety. Companies now handle hundreds of orders on the same day and run on a tightly packed schedule forcing the delivery boys to navigate into the places that are unfamiliar.

Delivery of food or delivery of Accidents:

Delivery boys to meet the rating and reduce the delay tend to ignore the traffic rules. The delivery companies do not show concern about the ignorance of their delivery boys to the RTO rules during the course of delivering the food “On time “. No action or responsibility has been found to be taken by these companies to prevent such dangerous road accidents.

No driving tests are conducted on these delivery boys before hiring them. No road safety programs are conducted to educate them. Instead, the delivery boys are forced to take the orders “on time” even during peak hours. The delivery agent or the food delivery companies like Zomato do not take any liability or provide compensation for the accidents caused by their delivery men.

While it is pre-eminent that the delivery boys drive for more than 10 hours a day making them very prone to lose control and causing trauma to the other drivers and pedestrians. These delivery boys are also found to be crossing the speed limits apart from driving on the pavements, not waiting behind the line on the red light, using a mobile phone while driving, and ignoring the use of helmets during the night.

The order bythe road transport ministry came into effect on October 1, 2020, which says that handheld devices like mobile phones can be used while driving only for the purpose of navigation, and any other usage such as texting or calling is prohibited. A violation of this is punishable under Sec.177 and Sec.184 of the Motor vehicles Act. The amended Motor vehicles Act attracts a fine of Rs.5000 or 1-year jail or both. Moreover, driving with an excessive speed is punishable under sec.183.[7]

The most common causes for the accidents of these delivery boys include:

• Distraction – through GPS notification, delivery updates and customer calls.

• Fatigue – Due to long hours of driving and few/ no breaks

• Crossing the speed limit, ignoring traffic rules, signs,spotlights, etc.

• Inexperienced driving skills

• Unknown roads etc.

The government should insist these companies open a portal for the customers or general public to lodge a complaint against a delivery boy for his negligence in road safety. These companies can provide incentives for their delivery boys who abide by the traffic rules to promote the awareness of road safety rules among the delivery boys.

Conclusion:

Thus, the nexus between the profits of fast delivery services and road safety is extremely conspicuous. A collision with a delivery boy is much complex than any other ordinary road accident, provided the companies do not take any responsibility for the accidents caused during the delivery. It is high time the government brings up rules and regulations pertaining to the delivery companies and the restriction on the working hours of these delivery boys who are found to be a vulnerable occupational group. Traffic rules and public safety should be made aware of these delivery boys. The negligent delivery boy and his executive should be punished, making them abide by the rules all the time.

References:

[1] Se.72, Indian Contract Act ,1872 [2]Sitaram Motilal Kalal v. Santanupradsad1966 SCR (3) 727 [3]Pushpabai Purshottam Udeshi &Ors vs Ranjit Ginning & Pressing Co. 1977 SCR (3) 372 [4]Section 2 (11) of Consumer Protection Act, 2019 [5]The Financial Express. 18 August 2019. Retrieved on 1 April 2021 [6]The Indian Express. 1 August 2019. Retrieved on 1 April 2021 [7] The Motor Vehicles Act,1988