Shaik SARDAR Son of Kalesha filed a consumer case on 11 Oct 2017 against The Executive Director. Bollineni Ramanaiah Memorial Hospitals P Ltd in the Nellore Consumer Court. The case no is CC/79/2014 and the judgment uploaded on 13 Oct 2017.
Date of Filing :18-11-2014
Date of Disposal:11-10-2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE
Wednesday, this the 11th day of OCTOBER, 2017
Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President
Sri K. Umamaheswara Rao, M.A., B.L., Member
Sri M. Subbarayudu Naidu, B.Com., B.L., LL.M., Member
Shaik Sardar,
S/o.Kalesha, Indian Muslim,
22-3-79, Aged 56 years,
R.T.C. Conductor (Sick),
Residing at Panakala Road,
Hallthaliam Street,
Janda Street, Nellore-1. ..… Complainant
Vs.
The Executive Director, Bollineni Ramanaiah Memorial Hospitals (P) Limited, Ambuja Centre, Nellore-3. ..…Opposite party |
.
This complaint coming on 09-10-2017 before us for hearing in the presence of Sri D. Hanumantha Rao and Sri M. Lakshmi Narayana, advocates for the complainant and Sri V. Upendra Rao, advocate for the opposite party and having stood over for consideration till this day and this Forum made the following:
ORDER
(ORDER BY Sri.Sk.MOHD.ISMAIL, PRESIDENT)
The complaint filed by this complainant under Section-12 of Consumer Protection Act, 1986 to direct the opposite party that to pay operation charges and medical bills amount of Rs.1,99,743/- and to award compensation, damages for causing mental agony of Rs.17,50,000/- with subsequent on Rs.19,49,743/- @ 24% p.a. from the date of complaint till the date of realization and submits to allow the complaint with costs.
2. The brief averments of the complaint are as follows that:- the complainant submits that on 23-04-2012 the complainant suffering with chest pain admitted in opposite party hospital and they had given a UMR No.UMR 000018591 for medical checkup and paid an amount of Rs.13,329/- for medical tests and discharged on 24-04-2012 and result of testing diagnosis the decease “Coronary artery disease-distal LMCA 90% + serve TVD” valves was blocked and the doctors advised complainant to undergo for bypass surgery.
The complainant submits that on 29-04-2012 the complainant admitted in opposite party hospital for bypass surgery on a package of Rs.1,76,661/- and complainant paid the above said amount to the opposite party for bypass surgery i.e., “Coronary Artery Bypass Grafting x off Pump CABG done LIMA-LAD, SVG-Diagonal OM, Distal RCA” on 02-05-2012, the surgery was conducted by the opposite party and the complainant was discharged on 12-05-2012 after that the doctors of the opposite party hospital told to the complainant your operation was successes and gave a guarantee for a period of 30 years after that the complainant taking regular checkup for every month and every three months and collected additional consulting fees also and in addition to that the opposite party had collected another Rs.9,753/- for medicines from 23-04-2014 to 17-11-2014.
The complainant submits that the complainant went to his duties from September, 2012 to November, 2013. In the end of November, 2013, the complainant got pain in the chest and immediately he rushed to the opposite party hospital and the doctors were used medicines but in vain and chest pain was not decreased due to negligence of the doctors of the opposite party and the operation was failed. Since then the complainant was not attend his duties in APSRTC as conductor.
The complainant submits that on 03-04-2014 the complainant went to APSRTC Hospital at Taranaka, Hyderabad for medical checkup. The doctors of APSRTC Hospitals conduct all tests and told to complainant that the three valves were damaged i.e., CAD POST CABG, it has to be replaced and they gave a letter credit reference form for emergency medicare and credit reference number 201402142, dated 14-05-2014 to Sunshine Heart Institute, Paradise, Secunderabad to conduct the operation to the complainant. Then the complainant admitted in the Sunshine Heart Institute, Secunderabad on the same day i.e., 14-05-2014 and they made test and discharged on the same day. The doctors nformed the complainant about suffering of negative double vessel decease, heart three valves damaged and they advised to complainant to change the valves. Then complainant was admitted on 26-05-2014 in Sunshine Heart Institute Hospital at Secunderabad and operation was held for two stents on 29-05-2014 and successful PTCA+2 STENTS TO LAD AND POBATO D1 DONE on 29-05-2014 MIDLAD 2.75x12 MM SUPRALIMUS STEND PROXIMAL LAD 35 x 16 MM SUPRALIMUS STENT were replaced and discharged on 02-06-2014 and again complainant was admitted on 31-07-2014 and the operation was held on 04-08-2014 for another stent i.e., PTCAT STENT TO SVG AND OM 3.5 X 32 mm and discharged on 06-08-2014. SUPRAPLEX STENT and they gave discharged summary.
The complainant further submits that after three stents were changed to the complainant, the doctors of the Sunshine Heart Institution Hospital were advised him not to working as a conductor in APSRTC and the complainant is not fit for conductor duty and the doctor gave a certificate.
The complainant submits that he undergone heart operation again and again, the complainant suffered a lot of mental tension, mental worry and financially also. Although the opposite party has conducted the operation to the complainant in the opposite party hospital, Nellore as opposite party done it negligently, the opposite party shall pay an amount of Rs.1,99,743/- for operation charges, medical tests and medicines, the complainant spent previously in opposite party hospital and a compensation ofRs.17,50,000/- to the complainant towards damages and mental agony.
The complainant submits that the complainant gave legal notice to the opposite party through his advocate on 12-09-2014 calling upon to pay medical bills an amount of Rs.1,99,743/- and compensation amount of Rs.17,50,000/- and the notice was served on the opposite party and acknowledged the same and kept quite neither sent any reply nor paid any payment to the complainant. Complainant underwent suffered lot of mental tension, mental worry and financially also. As the opposite party conducted the operation at his hospital negligently and without taking of any care the opposite party shall pay the operation charges and medical bills amount of Rs.1,99,743/- and compensation ofRs.17,50,000/- to the complainant towards damages as the opposite party unnecessarily done illegal operation which causes the complainant again underwent to operation was done 2nd time on the same problem at Sunshine Hospitals, Secunderabad.
The complainant submits that due to negligence of the opposite party doctors the complainant again underwent to heart operation due to that he suffered physically, mentally and spent huge amounts at Taranaka hospital at Hyderabad and Sunshine Hospital at Secunderabad for him and his attendants and travelling expenses and lodging and boarding expenses all the things were happened only negligence of the opposite party. The complainant humbly submits that the opposite party hospital negligently and without taking any care and thereby committed deficiency in service and dereliction of the duty, the complainant underwent lot of mental strain and mental worry and hence the complainant submits to allow the complaint with costs.
3. The opposite party filed written version with the following averments that:- The opposite party submits that the complainant was admitted in the opposite party hospital on 23-04-2012 with chest pain and the complainant was treated with medical management diagnosed as CAD, Unstable Angina, Dyslipidemia, but the complainant was discharged on 24-04-2012 at his request against medical advice.
The complainant has undergone Angiogram at Narayana General Hospital, Nellore on 24-04-2012 as per complainants version and it is true that again on 29-04-2012 the complainant got admitted in the hospital of opposite party and on 02-05-2012 and basing on Angiogram report, bye pass surgery was conducted. LIMA-LAD and SVG-Diagonal, OM, Distal RCA grafts are arranged during CABG operation and the complainant was discharged on 12-05-2012 by prescribing medicines.
The opposite party denies that the complainant went to his duties from September, 2012 to November, 2013 and in the end of November, 2013 the complainant got pain in the chest and he immediately rushed to the opposite party hospital and the doctors used medicine, but his chest pain was not decreased and his surgery was failed. The opposite party has no knowledge about the absence of the complainant to his duties as a conductor in APSRTC.
The opposite party has no knowledge that on 03-04-2014 the complainant went to APSRTC Hospital at Tharnaka for medical checkup and the doctors of APSRTC Hospital conducted all tests and informed that three valves in the heart of the complainant were damaged and the same has to be replaced and they gave a letter of credit reference form for emergency medicare, the credit reference No.201402142, dated 14-05-2014 to Sunshine Heart Institute, Paradise, Secunderabad to conduct surgery to the complainant. The opposite party has no knowledge about the admission of the complainant on 14-05-2014 in Sun-Shine Hospital, Secunderabad and discharged on the same day with an advice that the damaged three valves in the heart of the complainant have to be replaced.
The opposite party has no knowledge that the complainant again got admitted on 26-05-2014 in Sun Shine Heart Institute, Secunderabad and the doctors conducted surgery and fixed two stents on 29-05-2014 and discharged on 02-06-2014. The opposite party has no knowledge that the complainant again admitted on 31-07-2014 and surgery was held on 04-08-2014 and fixed another stent and discharged on 06-08-2014. The opposite party is also not having any knowledge about the vessels to which stents were arranged.
The opposite party has no knowledge that the doctors advised the complainant not to work as a conductor and he is not fit to work as conductor in APSRTC and issued a certificate to that effect. The opposite party submits that at the time of surgery on 02-05-2012 in opposite party’s hospital, the age of the complainant was 52 years and the opposite party conducted surgery successfully by taking all precautions and discharged the complainant with an advice to him to have regular checkup. But the complainant without following the advice of the doctors, attended to his duties as conductor. The complainant is a chronic smoker, Dyslipedemic and had hypothyroidism. Even though CABG operation is successful, the above mentioned complainant’s risk factors can cause progression of native vessel disease and it had happened precisely in this complainant leading to recurrence of symptoms. Success of CABG operation is determined by not only the technique of the surgeon but also by the extent of the disease, risk factors for CAD and their control. CABG operation is not a curative operation, but a palliative operation and no body can really give guarantee for 30 years or so. At the time of CABG operation, the opposite party took the consent of the complainant and his relatives and conducted the surgery successfully and discharged him from the hospital. The complainant has progression of native vessel disease and no mention was made about patency or blockage of grafts by Sun Shine Heart Institute. The opposite party submit that native vessel disease progress is unrelated to surgeon’s technique or hospital care and hence the question of negligence or careless surgery on the part of the opposite party does not arise. Thus there is no negligence on the part of the opposite party. Without following the advice of the doctors, the complainant acted negligently. As per the complaint, the complainant again underwent operation on 29-05-2014 in Sun-shine Heart Hospital, Secunderabad. If there is any negligence on the part of the opposite party, the complainant ought to have made complaint against this opposite party in the year 2012 itself and there is no proof that the opposite party conducted operation negligently and that the opposite party is responsible for the damage of three valves in the heart of the complainant. The doctors of Sun Shine Heart Institute, Secunderabad also did not give any certificate about the damage of three valves in the heart of the complainant due to the negligent act of the opposite party. Due to the negligence and carelessness of the complainant, only he had undergone surgeries again and again.
The opposite party received notice but the same was misplaced as such the opposite party has not sent a reply within time and non submission of reply is not an admission that the opposite party has acted negligently.
There is no deficiency of service on the part of the opposite party and as per the allegations mentioned in the complaint and the case does not come under the purview of this Forum. There is no cause of action for this complaint and the alleged cause of action is invented for the purpose of this case only. The complaint is also barred by limitation. When there is no negligence on the part of the opposite party, the complainant is not entitled to any compensation and damages. This hospital is having 15 long years of experience in medical field and conducting several cardiac procedures and heart surgeries without any remarks and also catering to the medical and surgical needs of the patients of not only Nellore but also from neighboring districts in 22 super speciality and multi speciality services with 32 consultants and 35 Junior Doctors. With an intention to harass and defame the opposite party, the complainant has filed this complaint with false and baseless allegations without proof of evidence that the opposite party did surgery in a negligent manner and hence submits for dismissal of the complaint with costs.
4. On behalf of the complainant the affidavit and the additional affidavit of P.W.1 was received in evidence and Exs.A1 to A16 were marked.
5. On behalf of opposite party, chief affidavit of R.W.1 was received in evidence and no documents were marked.
6. Written arguments on behalf of complainant and opposite party filed.
7. Perused the written arguments filed on behalf of complainant and opposite party.
8. Arguments on behalf of both parties heard.
. 9 Now the points for consideration are:
10. POINTS 1:The learned counsel for the complainant submits by relying upon the decisions reported in
Suresha Nanda Vs. DR.Anoop Kumar reported in II (2012) CPJ 228 (NC)
| |
| In Dr.Gangadharan Vs. K.A. Abdul Salam reported in 2004 CTJ 688 (CP) (SCDRC)
|
| In Reji Mathew and another Vs. Dr.Radha Krishnan and another (NCDRC) reported in 2004 CTJ 55 (NC) (CP) |
and by relying upon evidence of PW.1 and Exs.A1 to A16 that on 02-12-2012, the complainant undergone surgery in the hospital of opposite party and joining duty in the month of September, 2012 and worked till November, 2013 and when the complainant went to APSRTC Hospital, they found that three valves of the complainant was damaged and after taking the letter of credit, the complainant undergone surgeries in Sunshine Heart Hospital, Secunderabad and as the opposite party’s doctors conducted surgery in negligent manner, the complainant was suffered and eventhough as there is no other in support of his evidence P.W.1, the Forum can draw influence about the negligent act of the opposite party and hence he submits that the complaint filed by the complainant for payment of the amount and hence the complaint filed by the complainant against the opposite party and submits to allow the complaint with costs.
On the other hand written arguments filed by the opposite party shows that the complainant was undergone surgery on 02-05-2012 and discharged on 12-05-2012 after collecting surgery charges and without taking precautions and without following the duties again the complainant joined in duty and worked as a conductor in APSRTC from September, 2012 to November, 2013 and as the surgery of the complainant is successful one and the opposite party doctors conducted surgery with efficient qualified doctors and discharged from the hospital on 12-05-2012. Hence there is no negligence on the part of the opposite party and in the absence of any other evidence by the expert to prove about the negligence act of the opposite party, the complaint filed by the complainant against the opposite party is not maintainable and submits for the dismissal of the complaint against the opposite party with costs.
In view of the arguments submitted by the learned counsels for both parties and as seen from the records, there is no dispute that the complainant was undergone surgery in opposite party hospital on 02-05-2012 and discharged from the hospital on 12-05-2012 after collecting the surgery charges and later the complainant who is working as conductor in APSRTC joined in duties APSRTC from September, 2012 to November, 2013 and as there was pain again, the complainant went to APSRTC Hospital at Taranaka, Hyderabad for medical check up and there they found that three valves of the complainant was damaged and on issuing of letter of credits, the complainant undergone surgery for two valves on 29-05-2014 and undergone surgery for one valve on 04-08-2014. The surgery of the complainant in the hospital of opposite party was conducted on 02-05-2012 and discharged on 12-05-2012 and after taking sufficient rest, the complainant, who is working as conductor in APSRTC joined duty from September, 2012 to November, 2013. The discharge of the duties for more than 13 months itself shows that the surgery conducted by the opposite party is a success one and because of the successful surgery, the complainant was attended the duties and discharged as conductor for more than 13 months. Hence, we are of the opinion that there is no deficiency of service as stated by the complainant against the opposite party.
| In, Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & Others reported in I (2010) CPJ 29 (SC) |
Wherein the Hon’ble Apex Court held that when the doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skills and competence, medical negligence not proved in view of settled principles of medical negligence – No relief entitled.
| In Achut Rao Haribhan Khodwa Vs. State of Maharashtra and others reported in AIR 1996 SC 2377 = 1996 (2) SCC 634. |
The Hon’ble Apex Court held as follows; that for establishing negligence or deficiency in service there must be sufficient evidence that a doctor or hospital has not taken reasonable care while treating the patient. Reasonable care in discharge of duties by the hospital and doctors varies from case to case, and expertise expected on the subject, which a doctor or a hospital has undertaken. Courts would be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability with due care and caution.
| In K.S. Bhatia Vs. Jeevan Hospital and another reported in 2004 CTJ 175 (NC) (CP) |
The Hon’ble National Commission held, it is for the complainant to allege and prove negligence by expert evidence or by producing medical reports.
| In Marble City Hospitals and the Research Centre Vs. V.R.Soni reported in 2004 (2) CPJ (102) (Rajasthan) |
The Hon’ble State Commission held that negligence has to be proved, it cannot be presumed.
By relying upon the above decisions, we are of the opinion that as the complainant undergone surgery on 02-05-2012 and discharged on 12-05-2012 and after taking of rest, the complainant who is working as conductor in APSRTC joined in duty in the month of September, 2012 and worked till November, 2013 as the complainant has attended his duties without any inconvenience till he went to APSRTC Hospital, Taranaka, Secunderabad, we are of the opinion that there is no negligence on the part of opposite party against the complainant.
| In Shibshree Banerjee Vs. Pearless Hospital & B.K.Roy Research Centre and others reported in III (2009) CPJ 88 (NC). |
The Hon’ble Apex Court held that when expert evidence not produced, negligence, deficiency in services not proved.
| In Rajkumar Gupta and others Vs. Dr.P.S.Hardia and others reported in 2007 (3) CPJ 146 and
|
| In Shikha Vs. Dr. Ashoka Jindal reported in 2003 (1) CPJ 239 (NC). |
Wherein the Hon’ble National Commission held that when the complainant could not produce any expert evidence to prove medical negligence, the complaint filed by the complainant has to be dismissed.
By relying upon the above decisions, we are of the opinion that as the complainant attended the duty for more than one year after taking rest and discharged his duties as conductor for more than 13 months. In these circumstances, it cannot be said that the opposite party has acted in a negligent manner towards the complainant and services provided by the opposite party is deficiency of service and it cannot be possible to say that the opposite party has acted in negligent manner towards the complainant.
The learned counsel for the complainant submits by relying upon a decision reported in
| Suresha Nanda Vs. DR.Anoop Kumar reported in II (2012) CPJ 228 (NC) |
that as the doctor has acted in a negligent manner, it amounts to deficiency of service and submits to allow the complaint with costs. But the facts in the decision submitted by the learned counsel for the complainant is that the person died due to cardiac arrest and the doctor has not produced E.C.G. report and not consulted the cardiologist to manage the medical position of the patient and once she is suffered, the cardiac arrest is a serious omission on the part of the doctor. But the facts in the above decision are different one with the facts of the present case . In the present case, the complainant discharged from the hospital, the complainant undergone surgery on 02-05-2012 and discharged on 12-05-2012 and later he attended for his duties as conductor from September, 2012 to November, 2013. In these circumstances, we are of the opinion that the facts of the above case are different one. The decision submitted by the learned counsel for the complainant is not applicable to the facts of the present case.
The learned counsel for complainant submits by relying upon the decisions in
| Dr. Gangadharan Vs. K.A. Abdul Salam reported in 2004 CTJ 688 (CP) (SCDRC).
|
| In Reji Mathew and another Vs. Dr.Radha Krishnan and another (NCDRC) reported in 2004 CTJ 55 (NC) (CP) |
that when direct evidence is not available to substantiate the plea of negligence against a doctor for risks beyond the control of a complainant, the doctrine of res ipsa loquitur comes into play and submits to allow the complaint with costs. But we are of the opinion that the facts of the above decisions are different from the facts of the present case. In these case, the complainant after sufficient time he worked as conductor and discharged his duties in the APSRTC and after undergone surgery, the complainant attended the duties for 13 months and after the complainant went to APSRTC, Taranaka, Secunderabad then only he came to know about the damage of the valves. Further there is no evidence by the complainant or a medical officer who examined the complainant in APSRTC, Taranaka, Secunderabad gave evidence that the act of the opposite party is a negligent manner. In view of the facts of the present case, the decision submitted by the learned counsel for the complainant are not applicable to the facts of the present case.
By relying upon the above decisions and discussion made above, we are of the opinion that there is no negligence or deficiency of service by the opposite party towards the complainant and hence the complaint filed by the complainant against the opposite party is not maintainable and the same has to be dismissed. In view of the above said discussion, we answered this point against the complainant and in favour of opposite party.
11. POINT No.2: In view of our answering on point No.1 against the complainant and in favour of the opposite party, the complaint filed by the complainant has to be dismissed.
In the result, the complaint is dismissed but in the circumstances no costs.
Dictated to Stenographer, transcribed by her corrected and pronounced by us in the open Forum, this the 11th day of OCTOBER, 2017.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined for the complainant
P.W.1 - | 17-06-2015 and 03-12-2015 | Sri Sk.Sardar, S/o.Kalesha, R.T.C.Conductor, Nellore-1 (chief affidavit and additional chief affidavit filed)
|
Witnesses Examined for the opposite party
R.W.1 - | 13-08-2015 | Sri Thalluru Giri, S/o.Penchalanaidu, Executive Director, Bollineni Ramanaiah Memorial Hospitals Private Limited, Nellore (Chief affidavit filed). |
EXHIBITS MARKED FOR THE COMPLAINANT
Ex.A1 - | - | Photostat copy of Appendix-II application for claiming refund of medical expenses for Rs.13,329-14 Ps. in favour of complainant.
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Ex.A2 - | - | Discharge Summary in favour of complainant issued by the opposite party, complainant discharged on 12-05-2012.
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Ex.A3 - | 12-05-2012 | Photostat copy of package bill summary issued by the opposite party.
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Ex.A4 - | - | Medical bills issued by the opposite party (Eighteen bills).
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Ex.A5 - | 14-05-2014 | Photostat copy of APSRTC Hospital Credit Reference Number 201402142 Credit Reference Form for emergency medicare.
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Ex.A6 - | 14-05-2014 | Coronary Angiogram Report in admission No.SH14-002861 and Discharge summary in favour of complainant issued by the Sunshine Heart Institute, Secunderabad-03.
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Ex.A7 - | - | Discharge Summary (discharged on 02-06-2014)in admission No.SH14-003003 and in favour of complainant issued by the Sunshine Heart Institute, Secunderabad-03.
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Ex.A8 - | - | Coronary Angiogram Report admitted dated 26-06-2014 in favour of complainant issued by the Sunshine Heart Institute, Secunderabad-03.
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Ex.A9 - |
| Discharge Summary (discharged on 06-08-2014)in admission No.SH14-004457 in favour of complainant issued by the Sunshine Heart Institute, Secunderabad-03.
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Ex.A10 - | - | Photostat copy of Certificate in favour of complainant issued by the Sunshine Heart Institute, Secunderabad-03.
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Ex.A11 - | 12-09-2014 | Legal notice from complainant’s advocate to the opposite party alongwith registered post receipt.
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Ex.A12 - | - | Postal acknowledgement received from the opposite party sent by the complainant’s advocate.
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Ex.A13 - | - | C.D. in IP.No.2861 on 14-05-2014 in favour of complainant issued by the Sunshine Heart Institute.
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Ex.A14 - | - | C.D. in c.th.No.2418 & 7789 dated 05-05-2015 to 09-05-2015 in favour of complainant issued by the Sunshine Heart Institute regarding CAG & PTCA along with others cash bill – cum – receipt dated 05-10-2015.
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Ex.A15 - | 25-04-2012 | Coronary Angiogram Report issued by Narayana Hospital, Nellore in favour of complainant.
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Ex.A16 - | - | Out Patient Card in favour of complainant issued by the opposite party.
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EXHIBITS MARKED FOR THE OPPOSITE PARTY
-Nil-
Id/-
PRESIDENT
Copies to:
1. | Sri D. Hanumantha Rao and Sri M. Lakshmi Narayana, Advocates, Nellore.
|
2. | Sri V. Upendra Rao, Advocate, 26/2/1664,Chaintanya Nagar, Opposite to Lakshmi Venkataramana Kalyana Mandapam, Vedayapalem, Nellore-524 004. |
Date when free copy was issued:
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