The woman who was allegedly raped in Delhi by a driver contracted by US-based cab booking service Uber, has instructed one of New York’s top litigators Douglas Wigdor in a potential negligence action, reported The Guardian.
Wigdor told The Guardian that had met “extensively” with the alleged victim and her family in Delhi, and thought that a substantial body of US case law suggested that US courts would accept jurisdiction in a negligence action against the company that is managed from the US The criminal rape trial against the driver is currently ongoing in Delhi, with the woman having yesterday identified the driver in court (see below).
Wigdor has earlier brokered a rumoured $6m settlement against Dominique Strauss-Kahn over his alleged assault of a hotel maid and a later-settled $1.4bn sexual harassment class action against investment bank Dresdner Kleinwort Wasserstein.
IANS reports that the woman executive allegedly raped by Uber taxi driver Shiv Kumar Yadav identified him as the rapist during the recording of her statement in the trial which began Thursday, according to sources.
Testifying as a prosecution witness in the case, the victim told Additional Sessions Judge Kaveri Baweja that she was raped by the cab driver Dec 5 last year. The victim’s statement was recorded in in-camera.
According to court sources, the victim identified the accused and pointed that he has raped her. The sources further added that woman repeated the same facts as she mentioned before a magistrate during recording of her statement Dec 8 last year.
“She told the court that the accused had threatened and slapped her while committing rape upon her,” the sources said, adding she had also deposed that she felt sleepy after taking the cab and when she woke up, she found that the cab had been stopped in an isolated area and therupon the crime was committed.
The victim will be cross-examined by the defence counsel Friday.
The court Tuesday framed charges under sections 376(2)(m) (while committing rape causing grievous bodily harm or endangering life of a woman), 366 (kidnapping or abducting woman), 506 (criminal intimidation) and 323 (voluntarily causing hurt) of the Indian Penal Code against Yadav.
The trial is being conducted on a day-to-day basis.
Yadav, 32, allegedly raped the woman in the cab she hired to head back home in north Delhi’s Inderlok area. In the over 100-page charge sheet, which was filed Dec 24, the police cited 44 prosecution witnesses in support of its case as well as relying on forensic evidence and a route map of the cab.
Comments
Would it even be possible to prosecute for negligence in Indian criminal law? Or do you mean whether a competent authority is considering civil action?
338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Section 108 in The Indian Penal Code
108. Abettor.—A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor....
The media failed to follow up on this after reports such as: http://timesofindia.indiatimes.com/india/Cops-considering-filing-FIR-against-Uber-in-rape-case/articleshow/45417724.cms
[quote name="kianganz"]Interesting.
Would it even be possible to prosecute for negligence in Indian criminal law? Or do you mean whether a competent authority is considering civil action?[/quote]
I'm sure there would have been some work from lawyers behind the scenes to ensure that this didn't happen.
However, and please correct me if I'm wrong, are there examples of successful prosecution of companies under 338? And could one Uber defence be that they did not commit an act, but at most an omission? Unless 338 is generally interpreted as similar to a civil law tort?
For 108, there needs to be mens tea to commit the offence on Uber, it seems (EG intention to rape), which would go far beyond negligence, no?
Just thinking out loud - I have to admit I'm not at all well versed with Indian criminal law.
Though, again, in this case the Delhi regulators should be at least as much to blame as Uber, surely? They basically sat on their hands for years, feigning ignorance about this new-fangled technology that everyone was using (while probably knowing exactly what's going on).
Delhi hands out the individual taxi driver's licences, no? Why don't they also do due diligence and a background check? And why didn't they regulate e-rickshaws properly, improve metering in autos, modernise the fleet of ambassador black and yellow taxis, rather than basically letting the shit hit the fan every single time?
At least I'm not convinced that Ola, Meru (particularly Meru Genie, their low cost service) and others weren't doing exactly the same thing.
In fact, I'm pretty sure about Meru Genie - I took one a week or so after the Uber ban, and it was a rickety van with an Army sticker on the windshield and a co-pilot on the passenger seat, both chewing pan and having a jolly good time.
If they had a radio taxi licence, I'll eat my hat.
It's also worth looking at how Uber has for years stated to have had an approach of 'disrupt' (i.e. break) existing laws first, deal with the aftermath later.
http://pando.com/2012/10/24/travis-shrugged/
Would be interesting if this also raised liability.
Will try to look into this in more detail if time.