- Court
- High Court of Punjab and Haryana
- Decided
- 1 October 2024
- Bench
- Sudeepti Sharma
- Case no.
- FAO 3029/2006
Judgment
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 204 FAO-3029-2006 (O&M) Date of Decision: October 01, 2024 Suman ......Appellant Vs. Ajay Kumar and others ......Respondent(s) CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Present: Ms. Deepika Advocate for Mr. S.K.Yadav, Advocate for the appellant Mr. Rajneesh Malhotra, Advocate and Ms. Manvi Verma, Advocate for for respondent No.3-Insurance company ---- S UDEEPTI SHARMA J. (ORAL)
¶1The present appeal has been preferred against the award dated
28.02.2006 passed in the claim petition filed under Section 166/140 of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Narnaul (for short, 'the Tribunal') whereby the claim petition filed by the claimant/appellant for grant of compensation was dismissed. FACTS NOT IN DISPUTE
¶2The brief facts of the case as mentioned in claim petition are that on 23.12.2003, claimant/appellant-Suman had come with her husband namely Dharambir for purchase of clothes and other items in the market. After purchasing the same, she alongwith her husband reached near the shop of Dr. Vijay. In the meantime, a motorcycle bearing registration No. HR-35-B-7599 2024.10.16 18:3b7eing driven by its driver Ajay Kumar respondent No.1 at fast speed and in rash and negligent manner came from behind and hit the appellant/claimant. As a result of impact, she fell down on the road and sustained injuries on her nose and other parts of her body. She remained admitted in the Civil Hospital, Narnaul from 23.12.2003 to 29.12.2003 and thereafter, she had also been taking treatment from private doctors. She is still under treatment and had spent an amount of Rs.30,000/- on her treatment. This accident was caused due to sole negligence driving of motorcycle by respondent No.1.
¶3Upon notice of the claim petition, respondents appeared and denied the factum of accident/compensation.
¶4From the pleadings of the parties, the Tribunal framed the following issues:-
1. Whether the injuries to Smt. Suman claimant were caused in a vehicular accident on 23.12.2003 in front of shop of Dr. Vijay in Narnaul on account of rash and negligent driving of motorcycle No. HR-35-B-7599 being driven by respondent No.1.? OPP
2. Whether the claimant is entitled to any compensation, if so, to what amount and from whom?OPP
¶3Whether the driver of the motorcycle No. HR-35-B-7599 was not holding a valid driving licence at the time of accident, if so, its effect? OPR-3
4. Whether the insurance company is not liable to make payment of compensation in view of the preliminary objection in the written statement.? OPR-3
5. Relief.
¶5After taking into consideration the pleadings and the evidence on record, the learned Tribunal dismissed the claim-petition filed by the claimant/appellant. Hence, the claimant/appellant filed the present appeal for grant of compensation. SUBMISSIONS OF THE COUNSELS
¶6The learned counsel for the appellant contends that the claim petition was dismissed only on the ground that registration number of the offending vehicle was not mentioned in the FIR even though the factum of accident is proved by the judgment of conviction dated 10.06.2005 against the respondent No.1, which was placed on record as Ex.P-14.
7. Per contra, learned counsel for the respondent No.3-Insurance Company has vehemently argued on the lines of the award and contends that the Ld. Tribunal has rightly dismissed the claim petition since the registration number of the offending vehicle was never mentioned in the FIR.
8. I have heard learned counsel for the parties and perused the whole record of this case.
¶9The relevant portion of the award dated 28.02.2006 is reproduced as under:- "9. FIR is of 24-12-2003. Accident is of 23-12-2003. Time is 5 P.M. Even when the FIR was registered on 24-12-2003 at 7.50 A.M. i.e. next day, though the police station is at a distance of about half a Kilometer, it was expected that the FIR would contain all necessary particulars especially of the offending vehicle. Perusal of the FIR reveals that though identity of the vehicle as motorcycle is mentioned but neither its number nor even part there of is there. The number is conspicuously missing. It is very strange that though the name of the driver of the offending vehicle has been given in Ex.P6 but number of the offending vehicle which was easy to know and remember has not been mentioned in the FIR. How the informant came to know of name of the driver of the offending vehicle, is not mentioned. Having noticed the registration number of the offending vehicle, the same could have been given in the FIR but it was not done. To cover up this I attest to the accuracy and omission in the FIR. It is vaguely tried to be established that the motorcycle was without any number. This aspect has not been supported by independent witness, and hence is nothing but a comouflage and cover up.
10. To cover this serious lapse in the FIR, shelter has been taken by the claimant in statement of HC Anand Parkash (I.O.) PW6. But how and under what circumstance, the vehicle No.HR-35A/7599 was found to be involved in this case, has not been mentioned. It is a clear out case of later introduction of the vehicle when the FIR itself had no clue, to it. It is also to be note worthy that the alleged offending vehicle was taken in possession on 1.4.2004, whereas the FIR had been registered on 24.12.2003.
11. From pointed cross-examination of HC Anand Parkash (1.0) PW6. It is revealed that immediately after registration of the case, the investigation had been assigned to him. How, in what circumstances and on whose instance and on statement of which of the eye witnesses, the Investigating Officer had come to identify the offending vehicle (when number of the said vehicle had not been given in the FIR) is not explained. It is intriguing that the informant has mentioned the name of the driver of the offending vehicle but had not given its number. It immediately after the accident, the Investigating officer had come to know of number of the offending vehicle after recording of the statement of the eye witnesses, he was not to take long.
12. FIR is on 24-12-2003, whereas the offending vehicle had been taken in possession only on 1-4-2004. Version of HC Anand Parkash (PW6) is further irreconciliable, he has stated that he had come to know of the identity of the offending vehicle with its registration number on 7-1-2004. However, he has not given the source and circumstances of receipt of this information. Even after this information, as per his version, the Investigating Officer took about three months to take the said offending vehicle in possession. Why and in what circumstance such delay had occurred has not been explained. Though the Investigating Officer has denied the suggestion that the investigations are false andSonia Arora tainted, neither the claimant nor the Investigating Officer had produced any cogent and convincing evidence to show involvement of the alleged offending vehicle.
13. Learned counsel for the claimant has made reference to the statement of respondent Ajay Kumar (RW1) as also to the copy (Ex.R14) of the judgement dated 6-10-2005 of conviction against the respondent. Merely because the respondent suffered a confessional statement (Ex.P15) and was held guilty and was then convicted, is not sufficient to prove negligence of the respondent in driving the alleged offending vehicle.
14. It is rather a clear case of collusion where the respondent Ajay Kumar had entered the witness box as RW1 to support and sustain the claim of the claimant. This is so, even when he and the owner had been proceeded against exparte. In short, claimant has shown less and hidden more information pertaining to this case and specially relating to the identity of the offending vehicle. No mileage can be drawn by the claimant from the statement of respondent Ajay Kumar as RW1 and also from his confessional statement (Ex.P15) which forms the foundation of judgement of conviction (Ex.P14) dated 6-10-2005 against the respondent.
15. It would be noticed that HC Anand Parkash (I.0) PW6 has been a great helping factor for the claimant but there being no clinching and convincing evidence to connect the loose ends, report of the investigating agency and prosecution pursuant thereto can not be said to be arbiter, no overriding position either can be taken by confessional statement (Ex.P15) and judgment thereof i.e. Ex.P14.
16. Learned counsel for the insurance company however has relied upon authorities reported as Shingara Singh Vs. Ajit Singh and another 1992 (1) PLR 233 (P&H) and Secretary, Communication Ministry, Government of India, Department of P&I, New Delhi and others Vs. Ramrao alias Ramdas and others 1991 ACJ 278
(Bomb), Mataji Bewa and others Versus Hemanta Kumar Jena and others 1994 ACJ 1303 (Orissa) urging that the claimant is to standSonia Arora on his own legs and is not only to establish that the accident has been caused due to negligent driving but it is also to establish that such negligent driving is attributable to the driving of offending vehicle by the respondent-driver.
17. Even when statement of Smt. Suman (PW1) and of Dharambir
(PW3) is appraised meticulously, hollowness of the case of the claimant becomes manifest. Informant of FIR (Ex.P6) is Dharambir (PW3). FIR contains name of respondent Ajay Kumar as driver of the offending motorcycle. No explanation has been offered by Dharambir (PW3) as to how he had committed to mention number of the offending motorcycle. It is also very strange that Dharambir though has admitted that he did not know Ajay Kumar (respondent No.1) earlier to this accident, but name of Ajay Kumar as author of the accident has very prominently been mentioned by Dharambir PW in the FIR. How and in what circumstance, name of respondent Ajay Kumar was introduced in the FIR has not been convincingly deposed by any witness.
18. It is also to be noticed that Smt. Suman PW1 who was injured in the accident has specifically deposed that the accident had taken place near the shop of Dr. Vijay but there is no explanation from the claimant side as to why said Dr. Vijay was not examined by her as a witness.
19. Smt. Suman (PW1) giving her own account has deposed that the offending motorcycle had come from behind. Even her version is that she had not known driver of the offending vehicle but how she has given his name without number of the offending motorcycle in her statement, is not made clear.
20. Viewed from another angle, Smt. Suman was first of all taken to one Dr. Jag Bhushan, who had given first aid to her and apparently had also recorded her history. It is also stated by Smt. Suman that Dr. Jag Bhushan had referred her to civil hospital. Dr. Jag Bhushan who could throw light into the initial aspects of the investigations, was not even examined by the investigating agency. Even record of Civil Hospital, Narnaul where the claimant hadSonia Arora allegedly remained under treatment for more than a week, has not been produced.
21. From the totality of facts and circumstances of the case, there is no independent link to establish the identity of the offending vehicle. Thus it can not be said that this accident was caused by the motorcycle bearing No.HR-35B/7599 and further that it was being driven by respondent No.1 Ajay Kumar. Consequently this issue is answered against the claimant."
10. A perusal of the record shows that the claimant appeared as PW-1 and prove the factum of accident. Ram Kishan-Reader to Special Judge, Narnaul who appeared as PW-2 had produced the summoned file tilted as State Vs. Ajay Kumar (respondent No.1) in FIR No.349 dated 24.12.2003, under Sections 279, 336 and 337 IPC, Police Station City Narnaul. He has further proved a copy of final report-Ex.P2. Dharambir (husband of the claimant) was examined as PW-3 who was eye-witness of the accident. Mukesh Kumar store keeper was examined as PW-4 who proved X-ray reports (Ex. P4 and P5). HC Jagdish was examined as PW-5, who brought the original FIR register and had proved the FIR (Ex.P6).
¶11Though the Ld. Tribunal observed that in the cross examination, HC Anand Parkash (I.O.) PW-6 deposed that immediately after the registration of the case, the investigation had been assigned to him that he could not investigate into the number of the offending vehicle after recording of the statements of the eye-witnesses. Ld. Tribunal on this ground that how and what circumstances, the investigation was done has doubted the FIR as well as conviction of the respondent No.1. Though, it has been proved on record by the statement of respondent Ajay Kumar, who was examined as RW-1 as also copy 2024.10.16 18:3o7f Ex.P-14 of the judgment of the conviction dated 06.10.2005 against the respondent still, Ld. Tribunal did not accept the same on the ground that respondent suffered a confessional statement Ex.P15 and was held guilty and was convicted and sentenced. By observing the same, the Ld. Tribunal held that it is not sufficient to prove the negligence of the respondent No.1 in driving the This Court finds it unfortunate that despite perusingalleged offending vehicle. the FIR and the conviction of respondent No.1, the Learned Tribunal, without proper application of judicial mind, still harbored doubts regarding the judgment of conviction dated 06.10.2005 against respondent No.1, Ajay Kumar. Ld. Tribunal failed to adequately consider this crucial fact, whereas a conviction in a criminal case can be used as an evidence in a Motor Accidents Claims Tribunal (MACT) case to prove negligence apart from other corroborative evidence.
¶12On the touchstone of hearinabove discussed findings and judicial precedent, the award dated 28.02.2006 passed by Ld. Tribunal, Narnaul stands vitiated by a complete absence of judicial application of mind. SETTLED LAW ON COMPENSATION
¶13Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability. The Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has held as under:- General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The 2024.10.16 18:37 object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
6. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General 2024.10.16 18:37 Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability 2024.10.16 18:37 can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
20. The assessment of loss of future earnings is explained below with reference to the following Illustration 'A' : The injured, a workman, was aged 30 years and earning Rs. 3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows: a) Annual income before the accident : Rs. 36,000/-. b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) : Rs. 91,800/- Illustration 'B' : The injured was a driver aged 30 years, earning Rs. 3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows : a) Annual income prior to the accident : Rs. 36,000/- . b) Loss of future earning per annum (75% of the prior annual income) : Rs. 27000/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/- Illustration 'C' : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows : a) Minimum annual income he would have got if had been employed as an Engineer : Rs. 60,000/- b) Loss of future earning per annum (70% of the expected annual income) : Rs. 42000/- c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/- [Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on 2024.10.16 18:37 actuals taken from the decision in Arvind Kumar Mishra (supra)].
¶14Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary. The relevant portion of the judgment is reproduced as under:- " Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."
¶15Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:- " 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18'; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para 46 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15-25 years, the multiplier has to be '18' along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.
(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract below the principle set out in the Jagdish (supra) in para 8: "8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together with its amenities;
(iv) Medical expenses including those that the victim may be required to undertake in future; and
(v) Loss of expectation of life." [emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1½ years from August 2011 to January 2013. The nature of injuries had been set out as under: 2024.10.16 18:37 "Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 61(iii), considering the age of the appellant, would be 50% of the actual salary in the 2024.10.16 18:37 present case.
(c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish's case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. CONCLUSION
8. The result of the aforesaid is that relying on the settled principles, the calculation of compensation by the appellant, as set out in para 5 of the synopsis, would have to be adopted as follows: Heads Awarded Loss of earning power Rs. 9,81,978/- (Rs.14,648 x 12 x 31.1/100 Future prospects (50 per Rs.4,90,989/- cent addition) Medical expenses including Rs.18,46,864/- transport charges, nourishment, etc. Loss of matrimonial Rs.5,00,000/- prospects Loss of comfort, loss of Rs.1,50,000/- amenities and mental agony Pain and suffering Rs.2,00,000/- Total Rs.41,69,831/- The appellant would, thus, be entitled to the compensation I attest to the accuracy and of Rs. 41,69,831/- as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment. CONCLUSION
¶16In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated
28.02.2006 is set aside. The appellant-claimant is entitled to compensation as per the calculations made here-under:-Sr. Heads Compensation Awarded No. 1 Medical Rs.5000/-2 Pain and Suffering Rs.15,000/-3 Special diet Rs.5000/-4 Transportation Rs.5000/-5 Loss of amenities Rs.10,000/-Total Compensation Rs.50,000/-
¶17So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellant-claimant is granted the interest @ 9% per annum on the enhanced amount from the date of filing of claim petition till the date of its realization.
¶18The Insurance Company is directed to deposit the enhanced amount of compensation alongwith interest with the Tribunal within a period of two months from today. The Tribunal is further directed to disburse the enhanced amount of compensation alongwith interest in the account of the claimant/appellant. The claimant/appellant is directed to furnish her bank 2024.10.16 18:3a7ccount details to the Tribunal.
¶19Disposed off accordingly.
¶20Pending applications, if any, also stand disposed of. (SUDEEPTI SHARMA) JUDGE October 01, 2024 sonia arora Whether speaking/non-speaking : Speaking
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