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2019 (9) TMI 520

..... nation (a) refers to a position of strength, enjoyed by an enterprise, in the relevant market, which, in this case is the National Capital Region (NCR), which: (1) enables it to operate independently of the competitive forces prevailing; or (2) is something that would affect its competitors or the relevant market in its favour. Given the allegation made, it is clear that if, in fact, a loss is made for trips made, Explanation (a)(ii) would prima facie be attracted inasmuch as this would certainly affect the appellant’s competitors in the appellant’s favour or the relevant market in its favour. Insofar as ‘abuse’ of dominant position is concerned, under Section 4(2)(a), so long as this dominant position, whether direc .....

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..... n of other market players. Uber pays drivers/car owners attached on its network unreasonably high incentives over and above and in addition to the trip fare received from the passengers. A summary of the incentives provided to one fleet owner attached to Uber s network, having 4 cars, which were driven by 9 drivers is reproduced below. Statement period 1st June to 28th June Total Trips 1,135 Billed to Consumer (Uber's Collection from Consumer) Fare 256,187 Surge 18,621 Surcharges & tolls 23,499 298,307 Operates Earning [Car Owner's Earning] Operator's Share out of Consumer Revenue Service Tax 100% 274,808 Surcharges & Tolls Reimbursed 4.94% (12.946) Others 518 Incentives Received from Uber 230,464 Operator's net earn .....

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..... ir or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory conditions or prices which may be adopted to meet the competition; or (b) limits or restricts- (i) production of goods or provision of services or market therefor; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access in any manner; or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by .....

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..... extracted above, it is clear that if, in fact, a loss is made for trips made, Explanation (a)(ii) would prima facie be attracted inasmuch as this would certainly affect the appellant s competitors in the appellant s favour or the relevant market in its favour. Insofar as abuse of dominant position is concerned, under Section 4(2)(a), so long as this dominant position, whether directly or indirectly, imposes an unfair price in purchase or sale including predatory price of services, abuse of dominant position also gets attracted. Explanation (b) which defines predatory price means sale of services at a price which is below cost. This being the case, on the facts of this case, on this ground alone, we do not think it fit to interfere with the .....

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