Aggregator and Internet service as an intermediary: the scope of responsibility
Whom to prosecute in case of damage when using the services of a taxi, ordered through a service aggregator? Aggregator is an application or website accumulating performers with which, as a rule, the aggregator company has agency contracts.
On the one hand, an aggregator in a taxi is only an information service that takes orders, clarifies the details of the trip, transfers information to drivers (or principals, and they, in turn, are allowed to pass this information also to their employees).
On the other hand, the aggregator is an agent acting on its own behalf and, accordingly, should be responsible for the violation during the execution of the transaction. In the case of a taxi, the responsibility should be similar to that borne by carriers when providing transportation services.
Plot of affairs
The family of a person who died in a car accident has filed a lawsuit demanding the recovery of burial expenses and compensation for non-pecuniary damage. The death occurred through the fault of the taxi driver (there is a prejudicial court decision). The lawsuit was filed to the driver (DV Neklyudov, Respondent-1) as the immediate culprit of the accident, his employer and car owner - V.G. Komarov. (Respondent-2), as well as to the aggregator Taxi Prestige LLC, which served as a taxi dispatch service and cooperated with Komarov V.G. by agency agreement.
Opinions of courts of different instances were divided: the court of first instance charged the expenses from the owner of the car, moral damage from the taxi driver, refused to file an action with the aggregator. The appeal overturned the decision in respect of the collection of expenses for burial.
The cassation court disagreed with the motivation of the courts and sent the case for a new consideration to the court of appeal.
Judicial Act: Determination of the Judicial Panel on Civil Cases of the Armed Forces of the Russian Federation No. N 5-KG17-220 dated January 9, 2018
The findings of the court:
1. The agency agreement between the owner of the vehicle and Taxi Prestige LLC provides for the implementation by the contractor of the search for customers, informing them about the approximate cost of taxi services, providing the opportunity to search for offers according to specified parameters. The agent becomes obliged under the transaction concluded by him with a third party, on his own behalf and at the expense of the principal. Taxi aggregator in this case acted on its own behalf, which is confirmed by SMS messages sent to customers' mobile phones, with the cost of the service.
2. Subsequently, the user of taxi services directly interacted with the employee of Respondent-2, but this does not detract from the fact that the responsibility for the obligations still lies with the agent.
3. The agency agreement to the owner of the car is prescribed to insure civil liability, the driver and passengers from accidents. These requirements have been met. The Court of Appeal used this fact as an argument for refusing to recover from V.G. Komarov. the cost of burial, indicating that the plaintiffs should have contacted the insurer.
4. The liability insurer is obliged to pay to the victims the amount that exceeds the insurance indemnity. In this case, the plaintiffs have the right to refer to the one whose fault in the damage was established.
5. The court of cassation indicated that citizens who use a vehicle as a source of increased danger in their activities automatically bear responsibility even if their fault was not established, that is, they are obliged to compensate for the damage, to compensate for moral damage in any case, unless will not prove the presence of force majeure or the intent of the victim in causing harm.
6. The employer is obliged to monitor the condition of the car, to carry out a medical examination of the driver, to compensate for the harm caused by his employees.
Comments:
1) The most important conclusion of the court, which can extend to all aggregators and Internet services (and this may be aggregators of tours, air tickets, food delivery, etc.) - an agent acting on his own behalf becomes obliged under the transaction, even if an employee of the principal directly communicated and provided services to the customer. This conclusion is not a judicial interpretation.
2) This is the norm of Article 1005 of the Civil Code of the Russian Federation, which in some cases is forgotten by the courts. The argument that Taxi Prestige LLC was only a “information intermediary” collecting information about customers and placing it in a system accessible to all principals (drivers) should not be grounds for relieving such an organization from responsibility. The aggregator, taking an order from a passenger, concludes a contract of carriage with him and is responsible as a carrier.
3) In accordance with the Civil Code of the Russian Federation, the agency agreement can be structured according to two schemes: the agent acts at the expense of the principal, but either on his own behalf or on behalf of the principal. In the case when the agent enters into a transaction on behalf of the principal, the principal becomes obliged under such a transaction. However, in the situation with the taxi aggregator service, a different scheme was chosen: the agent acted on his own behalf, and in this case he became obligated under the transactions, and therefore was responsible for the violation of the transaction and the infliction of harm during its execution.
4) Focusing the attention of the judicial division in civil cases on this article of the Civil Code of the Russian Federation is another plus in the practice of bringing to justice aggregators of various services. Already there is a practice to prosecute travel agencies, for example, in the case of a trip disruption due to the fault of third parties (since the agency acted on its own behalf). However, the practice on these issues is still being formed.
5) It raises a question: why the court discharged the employer of the driver from the responsibility, given that the driver’s fault in the accident was proved in a prejudicial manner, it was established that the driver was deprived of his driving license at the time of the collision. The employer is obliged to exercise pre-trip control. Defendant-2 consisted of labor relations with the owner of the car, executed in accordance with the law; in the case file there is an employment contract and an order for employment. Komarov V.G. should be liable under the law as the owner of the source of increased danger.
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