Mailappagari Prabhakar filed a consumer case on 18 Apr 2015 against The Managing Director, TATA Motor, Teen Hath Naka in the Chittoor-II at triputi Consumer Court. The case no is CC/81/2012 and the judgment uploaded on 29 Apr 2015.
Date of first filing:03.12.2012
Date of first disposal: 18.04.2013
Matter remanded and case restored on :08.12.2014
Date of disposal:18.04.2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
CHITTOOR AT TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
SATURDAY THE EIGHTEENTH DAY OF APRIL, TWO THOUSAND AND FIFTEEN
C.C.No.81/2012
Between
Mailappagari Prabhakar,
S/o. Krishna Reddy,
D.No.92-B, Allikesam Surappa Kasam,
Renigunta,
Tirupati,
Chittoor District,
Andhra Pradesh … Complainant
And
1. The Managing Director,
TATA Motor,
Teen Hath Naka,
Ghyana Sadana College,
Service Road,
Thane – 400 604,
Mumbai,
Maharashtra.
2. The Business Manager (TATA),
Varalakshmi Auto Mobiles Private Limited,
Renigunta Road,
Tirupati,
Chittoor District.
3. The Manager,
Indus Ind Bank,
D.No.20-108, Naidu Buildings,
Chittoor Town and District. … Opposite parties.
This complaint coming before us for final hearing on 09.04.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.C.Vijayakumar, counsel for the complainant, and Sri.P.Venu Gopal Reddy, counsel for the opposite party No.1, and K.Praveena, counsel for the opposite party No.2, and Sri.L.Madhusudhan Reddy, counsel for the opposite party No.3, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Section-12A of C.P.Act 1986, by the complainant against opposite parties 1 to 3 for the following reliefs 1) to direct the opposite parties to pay a sum of Rs.10,00,000/- towards compensation for the damages caused by the opposite parties on account of deficiency in service and also towards mental torture, loss of earnings etc. together with interest at 24% p.a., 2) to direct the opposite parties to pay the costs of the complaint, 3) to pass such other or further reliefs as the Forum deem fit and proper in the circumstances of the case.
2. The brief averments of the case are:- that the complainant (Mailappagari Prabhakar) purchased TATA ACE Magic four wheeler bearing No.AP-03-TV-5418, a motor cab (Sedan) diesel vehicle from opposite party No.2 on 15.09.2011 for Rs.3,28,773/- and paid advance amount of Rs.1,33,000/- to opposite party No.2. The complainant entered into an hire purchase agreement with opposite party No.3 (Indus Ind Bank, Chittoor), which paid the balance of sale consideration of Rs.1,95,773/- to opposite parties 1 and 2. As per the hire purchase agreement, the complainant has to repay the loan amount to opposite party No.3 in 32 equal monthly installments @ Rs.11,000/-. Soon after taking delivery excessive black smoke is found emanating from the engine of the vehicle. The complainant took the vehicle to opposite party No.2 and complained the problem i.e. emanating excessive black smoke from the engine and shrinking of engine oil. The vehicle was taken to trial run by the servicemen of opposite party No.2 and confirmed the defect / problem and opposite party No.2 said that the problem will be rectified within short period and asked the complainant to handover the vehicle. Later, the vehicle was handed-over to the complainant by opposite party No.2 stating that the problem was rectified. The complainant took the vehicle to opposite party No.2 on 05.12.2011 for first service.
3. As the defect of shrinking oil is not rectified, subsequently,. The vehicle was taken to opposite party No.2. As per the instructions of opposite party No.2, complainant took the vehicle to head office of opposite party No.2 at Nellore, where it was found that the engine was completely defective. Hence, it was again brought to opposite party No.2 and complained the said defect. The opposite party No.2 informed the complainant that after contacting opposite party No.1, the engine will be changed, as such the vehicle was left with opposite party No.2 on 17.01.2012 (within 42 days after purchase). On 10.02.2012 the vehicle was handed over to the complainant saying that the engine was changed. But the defect is still existing. Therefore, the complainant again took the vehicle to opposite party No.2 on 27.04.2012 for the same defect. The opposite party No.2 on the same day returned the vehicle to the complainant stating that the defect was rectified but the defect still continued. Due to the deficiency in service on the part of opposite parties 1 and 2 and defect in the engine of the vehicle, complainant faced much difficulty to pay the installments to the opposite party No.3 and suffered mental agony. The complainant has suffered loss of Rs.1,000/- per day, as such he is entitled for compensation of Rs.10,00,000/-. On 09.07.2012, he got issued a notice calling upon the opposite parties to pay the damages. The opposite parties 1 and 3 gave reply with false and frivolous contents to avoid payment of damages claimed. In the reply of 1st opposite party dt:24.07.2012 admitted the fact and said that if the complaint is given, his problem will be resolved. The opposite party No.3 in its reply dt:14.07.2012 stated that opposite party No.3 has taken the vehicle from opposite party No.2 and it is in the custody of opposite party No.3. On 24.07.2012 opposite party No.3 issued sale notice in respect of the vehicle in question. Opposite parties 1 to 3 are liable for the deficiency in service. Hence the complaint.
4. Opposite party No.1 (M.D., TATA Motors, Mumbai) filed its 12 pages notarized written version on 11.02.2015 contending that the complaint is filed suppressing the material facts. Hence it is not maintainable. All the averments of the complaint are vague, malafide, baseless and misconceived and it is not supported by any experts opinion. The complaint does not come under “Consumer Dispute” and it is liable to be rejected, that the complainant failed and neglected to follow the guidelines given in the borrower’s service book, as recommended for smooth and better performance of the vehicle. The complainant failed to carry out mandatory recommended services at specified service intervals at the authorized service centers of opposite party No.1. The opposite parties noticed the instances of maintenance and operational faults. The warranty shall be limited to 12 months from the date of sale or 36,000 kms. running of the vehicle as per clause-5 and 7 of the terms and conditions of the warranty.
5. That the vehicle in question is a well established product in the market. The vehicle is delivered only after approval of Automotive Research Association of India (ARAI). The opposite party No.1 has given the procedure followed before releasing the vehicle into the market and pre delivery inspection of the vehicle. The complainant failed to follow the procedure under Section-13(1)(C) of C.P.Act, that this Forum has no jurisdiction to entertain the case. The opposite party No.1 further mentioned in its written version that by the time the vehicle was brought to first service on 05.12.2011 mileage was recorded at 6,254 kms. (approx.) for 1st free service wherein scheduled service and standard checks were done but neither any complaint was reported by the complainant nor observed by the workshop. A copy of tax invoice dt:05.12.2011 is filed. Subsequently, the vehicle reported on or around 14.12.2011 at 7,291 kms.(approx.) for greasing of lubes when nipple greasing was done on paid basis. A copy of tax invoice dt:14.12.2011 is filed. The vehicle in question was reported on or around 13.01.2012 at 10,920 kms. (approx.) to the workshop of opposite party No.2 at Nellore for the complaints of poor pick up, excessive smoke, engine oil consumption high and other complaint on fuel injection pump. On investigation, it was found that the cylinder head gasket was leaky, cylinder head cover gasket was damaged and inlet and exhaust valve was broken. Necessary repairs in the vehicle were required to be carried out at Tirupati workshop. Thereafter the vehicle was reported on or around 17.01.2012 while the meter of the vehicle running 11,055 kms. (approx.) to opposite party No.2 at Tirupati. It was attended replacing assy. half block, gasket cylinder head, assy. clutch disc, etc. under warranty. A copy of tax invoice dt:10.02.2012 is filed. Again the vehicle was reported on 28.04.2012 and the meter reading was 16,644 kms. (approx.) for the problems of poor pick up, excessive smoke and no mileage. After investigation, it was observed that fuel injection pump has issues and the same was set right by calibrating the pump under warranty. The job card also filed in the Court along with tax invoice. After repairs opposite party No.2 informed the complainant about roadworthiness of the vehicle and requested him to take delivery of the vehicle but he did not come forward to take the vehicle and there is no deficiency in service or defective service on the part of the opposite party No.1 and prays the Forum to dismiss the complaint against opposite party No.1 with costs.
6. Opposite party No.2, the Business Manager, (TATA Motors), Varalakshmi Automobiles Pvt. Ltd. filed its written version on 09.04.2015. After the case is remanded to this Forum, it was heard on 31.03.2015 and reserved for orders. At this stage opposite party No.1 filed I.A.No.18/2015 on 04.04.2015 for reopening the matter and to give an opportunity for advancing arguments. Basing no the reasons mentioned in the affidavit, petition is allowed and the case is posted to 09.04.2015 for arguments. At this stage, opposite party No.2 made appearance through their advocate and filed written version, chief affidavit and written arguments. Later on the same day oral arguments of both parties were heard.
7. The contents of primary objections under Para. A to D are as same as written version of opposite party No.1 and parawise reply remarks from Para.1 to 6 also seems to be adopted from written version of opposite party No.1. Opposite party No.2 further contended in Para.3 of parawise reply of written version of opposite party No.2 are similar to that of Para.3 parawise reply written version of opposite party No.1. The above said paras in the written version of opposite party No.1 and opposite party No.2 assumed much importance and prays the Forum to dismiss the complaint against the opposite parties.
8. The opposite party No.3, financier filed its written version on 01.03.2013 admitting the release of Rs.2,50,000/- in favour of the complainant for purchasing TATA ACE under agreement dt:14.09.2011. The complainant accepted the terms and conditions of the agreement. One M.Muni Ramaiah stood as co-borrower for the said loan. Opposite party No.3 admitted that the complainant got issued notice on 09.07.2012 for which opposite party No.3 also gave reply on 14.07.2012, that the complainant committed default in payment of loan installments despite repeated demands made by opposite party No.3 and as the complainant did not regularize payments of installments inspite of repeated demands, opposite party No.3 has taken possession of the vehicle when it was with opposite party No.2 and disposal of the same on 10.12.2012 as per regulations of the bank and credited the auction amount of Rs.1,45,000/- to the loan account of complainant. As on 26.02.2013, still a sum of Rs.92,002/- is due from the complainant. Opposite party No.3 alleged collusion between complainant and opposite parties 1 and 2. There is no cause of action for filing the complaint against opposite party No.3 and complaint is false and frivolous. The relation between complainant and opposite party No.3 is debtor and creditor but not consumer and service provider. Therefore, the complaint is not maintainable and prays the Forum to dismiss the complaint against opposite party No.3 with costs.
9. Heard the counsel for both parties Exs.A1 to A9 were marked for complainant and Exs.B1 and B2 were marked for opposite party No.2. No documents were marked for opposite parties 2 and 3.
10. Now the points for consideration are:-
(i). whether there is deficiency in service on the part of opposite parties 1 to 3?
(ii). whether the complainant is entitled to the reliefs sought for?
(iii). to what relief?
11. Point No.(i):- Before answering this point, it is pertinent to mention that this C.C.No.81/2012 was earlier disposed-off on 18.04.2013. Against the said order opposite party No.1 preferred an appeal in F.A.No.1206/2013 and the same was allowed and the matter was remanded to this Forum, for disposing the matter afresh after giving opportunity to both sides. Accordingly, this matter is taken-up for disposal.
12. So far as opposite party No.1 is concerned, the written version of opposite party No.1 and opposite party No.2 itself is sufficient to hold that there is deficiency in service or defect in the vehicle that was sold to the complainant on 14.09.2011. On the basis of written versions and chief affidavits filed by opposite parties 1 and 2, there arose a doubt whether the opposite parties 1 and 2 have sold a brand sealed vehicle or a second hand vehicle to the complainant, on the following grounds. The vehicle was purchased on 14.09.2011. The 1st service was scheduled by 05.12.2011, but according to the complainant soon after taking delivery of the vehicle from opposite party No.2, he observed that excessive black smoke was emanating from the engine and also shrinking oil, for which it was taken to opposite party No.2 and effected some repairs, again it was taken to opposite party No.2 on 05.12.2011 for 1st service, later on 14.12.2011 i.e. within 9 days from the date of 1st service, again the vehicle was forced to be taken to opposite party No.2 for the complaint of emanating excessive black smoke from the engine and oil shrinking. At that time, some repairs were carried out for greasing of lubes and nipple greasing on paid basis. Again on 13.01.2012 on the complaint of poor pick-up, excessive smoke, engine oil consumption high and complaints on fuel injection pump and it was directed to opposite party No.2 to carry out necessary repairs. On inspection by opposite party No.2, it was found that a) cylinder head gasket was leaky b) cylinder head cover gasket was damaged c) inlet and exhaust valve was broken. Necessary repairs were carried out at opposite party No.2. Thereafter, again the vehicle was reported before opposite party No.2 on 17.01.2012, it was attended by opposite party No.2 by replacing a) Assy b) half block c) gasket cylinder head and d) assy.clutch disc under warranty. Again the vehicle was reported on 28.04.2012 before opposite party No.2 for the problems of poor pick-up, excessive smoke and no mileage, after investigation it was observed that fuel injection pump has issues and the same was set at right by calibrating the pump under warranty. Thus within 4 months from the date of purchase, the vehicle was taken to the dealer opposite party No.2 with the aforesaid complaints more than 5 times. The above said averments are the admitted facts. Thereafter on 10.02.2012 also again the vehicle was taken to opposite party No.2 with some complaints, it was attended by opposite party No.2, inspite of carrying out repairs and replacing some parts of the engine, opposite parties 1 and 2 failed to correct the defects. Unless there is deficiency in service as contemplated under Section-2(1)(g) of the Act, the above said problems ought not have recurred. The vehicle was taken to opposite party No.2 on 27.04.2012, at that time opposite party No.2 told the complainant that after contacting opposite party No.1, the engine of the vehicle has to be changed, for which it will take some time. Therefore, the vehicle was left with opposite party No.2 by the complainant and went away.
13. According to opposite party No.2, the defect was rectified (without replacing the engine) and informed the complainant that the vehicle was made ready and the roadworthiness of the vehicle and take the vehicle away, but the complainant did not turn-up. According to complainant, no such intimation is given and therefore he could not approach opposite party No.2 for taking delivery of the vehicle. In the meanwhile, opposite party No.3 gave intimation that the vehicle was taken possession from opposite party No.2 on 30.05.2012 and some notices were also served on complainant on the ground that the complainant committed default in payment of installments inspite of repeated demands by opposite party No.3. According to opposite party No.3, the vehicle was disposed-of in auction on 10.10.2012.
14. The contention of opposite party No.1 is that to prove the defect in the engine, the complainant has to produce the vehicle before an expert and obtain his / her opinion, but failed to do so, as such the complaint cannot be accepted. In order to answer this query, we have to state that as per the advise of opposite party No.2, the vehicle was left with opposite party No.2 for changing the engine, without changing the engine or rectifying major defects in the engine, it was stated that roadworthiness of the vehicle was okayed and asked the complainant to take back the vehicle, but no such intimation is there on record. In the meanwhile, opposite party No.3 has taken away the vehicle while it was in the custody of opposite party No.2, as such there is no opportunity to complainant to produce the vehicle before any expert for taking his opinion in the functioning / performance of the vehicle. Therefore, the objection of opposite party No.1 in this regard cannot be accepted. Because of the latches on the part of opposite parties 1 and 2 in handing over the defective vehicle to the complainant, he could not run the vehicle for eking-out his livelihood, consequently he could not pay the installments as agreed in the hire purchase agreement to opposite party No.3, as a result of which, opposite party No.3 has seized the vehicle from the custody of opposite party No.2 and disposed it off as per the terms and conditions of the hire purchase agreement. Therefore, we are of the opinion that there are manufacturing defects and also latches and deficiency in service on the part of opposite parties 1 and 2. Accordingly this point is answered.
15. Point No.(ii):- to answer this point, it is evident on record, as discussed in point No.1, that there are latches and deficiency in service on the part of opposite parties 1 and 2 in effecting service on the vehicle in question, which is said to be a brand new sealed vehicle. Apart from this, the pre sale notice issued by opposite party No.3 dt:24.07.2012 to the complainant shows that the vehicle was seized from the custody of opposite party No.2 on 30.05.2012, in para.2, it was specifically mentioned that the vehicle referred to above “under scrap condition”. So it can be safely held that opposite parties 1 and 2 have ignored the vehicle from effecting required repairs, though it was a brand new one and left it idle in the premises of opposite party No.2. It also shows that there is defect and deficiency in service on the part of opposite parties 1 and 2.
16. Coming to the activities of opposite party No.3, when the opposite party No.3 seized the vehicle from the custody of opposite party No.2 on 30.05.2012, it is expected to follow the terms and conditions that were stipulated in the agreement (hire purchase agreement entered into with the complainant). Pre sale notice under Ex.A4 was served on the complainant. Except it no sale notice is served on the complainant. Similarly no auction proceedings were conducted and filed before this Forum. Apparently as there was no such mentioning either in the written version and additional written version, chief affidavit and additional chief affidavit filed on behalf of opposite party No.3. Simply it was mentioned in their pleadings, evidence including documentary evidence that the vehicle was disposed-of on 10.12.2012. But no mode of disposal i.e. either by public auction or private auction or otherwise is specified anywhere. As per Ex.B2 terms and conditions of the loan agreement under clause.15, point.4 it is mentioned as “the lender shall, in any / all the aforesaid events of default, be entitled to and the borrower hereby irrevocably authorizes the lender to take possession and sell / transfer / assign the asset either by public auction or by private treaty or other wise dispose howsoever and appropriate the proceeds thereof towards repayment of all the outstanding amounts from the borrower to the lender under this agreement. If the sale proceeds are not sufficient to meet all the dues of the lender, the borrower shall be liable to pay for any deficiencies after the said appropriate. In case there if any surplus after adjusting the dues of the lender, the same shall be paid to the borrower. Nothing contained in this clause shall prevent the lender to sell the asset and the lender shall be entitled to proceed against the borrower (s) or co-borrower (s) independently of such security”. So, it is mandate that the lender shall conduct public auction or private treaty or otherwise to dispose the asset in question. The opposite party No.3 being the lender did not mention anywhere in the pleadings and evidence, the mode of disposal of the asset it followed. When pre-sale notice is served on the complainant it is deemed opposite party shall conduct the sale i.e. auction. In which case, opposite party No.3 also expected to give public notice by giving wide publicity about the proposed auction over the vehicle to attract number of bidders to participate in the auction. No such evidence is available on record that opposite party No.3 has given such public notice either by way of newspapers or electronic media or public auction notice in conspicuous places, so as to enable the bidders the participate in the auction and purchase the vehicle for appropriate rate on the vehicle. Simply it mentioned that opposite party No.3 disposed-of the vehicle. So it is lacuna in conducting the auction proceedings on the part of opposite party No.3. No doubt the terms and conditions in Ex.B2 makes the opposite party No.3 entitled to seize the possession of the vehicle and auction the same with all precautions and to adjust the bid amount towards the loan due to opposite party No.3, expected to follow the procedure contemplated by its own document Ex.B2. Even before seizing the vehicle, no notice is given to the complainant. When the vehicle was left for getting repairs with opposite party No.2 and when the vehicle was in the care and custody of opposite party No.2, it was seized by opposite party No.3 on 30.05.2012. The pre-sale notice under Ex.A4 issued to the complainant is dt:24.07.2012. The vehicle was said to have disposed-of on 10.12.2012 but the procedure followed by opposite party No.3 appears to be in-correct procedure because of which there is loss to the complainant, consequently the complainant became due to a sum of Rs.1,07,371.69/- as per Ex.B4. In this regard, I am relaying on a decision reported in IV(2014) CPJ 452 (NC) – HDFC Bank Ltd Vs. R.Govardhan Reddy in which their Lordships held (at para.8 of the judgment) that “ though the petitioner claims to have sold the tractor in question in a open public auction, there is no material or even an averment that before conducting auction of the tractor, a public notice was given by the petitioner in a newspaper circulating in the area where auction was allegedly held. In the absence of public notice, the proposed auction did not get publicity and therefore it cannot be said that a fair amount of certainty, that the tractor fetch the prevailing market price in the auction, which the petitioner claims to have held. This was yet another act of deficiency on the part of petitioner in rendering services to its consumer. In the case on hand also since the 3rd opposite party has not given publicity in any newspaper circulated in the area where the auction was held, the complainants vehicle could not fetch the prevailing market price in the auction, as such the amount is still due. Under the above circumstances, we are of the opinion that there is deficiency in service on the part of opposite parties 1 and 2 being the manufacturer and dealer of the vehicle in question and also on the part of opposite party No.3, being the financier of the complainant and therefore they are liable for the said deficiency in service on their part. The complainant is therefore entitled to the reliefs sought for. Accordingly this point is answered.
17. Point No.(iii):- In view of our holding on points 1 and 2, we are of the opinion that the claim made by the complainant is appears to be quite just and reasonable and the opposite parties 1 and 2 are liable to pay compensation of Rs.7,00,000/- for causing mental agony to the complainant right from the date of purchasing the vehicle on 14.09.2011, till the vehicle was seized by 3rd opposite party from the custody of opposite party No.2. The opposite party No.3 also liable to be pay compensation of Rs.1,00,000/- to the complainant for causing mental agony by seizing the vehicle without notice and conducting auction without effecting auction notice on the complainant and also without giving public notice by way of newspapers in the locality where the alleged auction was conducted and the complainant is also entitled for a sum of Rs.2,000/- towards the costs of the litigation. Accordingly, the complaint is to be allowed.
In the result, the complaint is partly allowed directing the opposite parties 1 and 2 to pay Rs.7,00,000/- (Rupees seven lakhs only) to the complainant and also costs of Rs.2,000/- (Rupees two thousand only) towards litigation expenses. Opposite party No.3 is also directed to pay Rs.1,00,000/- (Rupees one lakh only) towards damages to the complainant and opposite parties 1 to 3 are hereby directed to comply with the order within six (6) weeks from the date of receipt of copy of this order, failing which the above said amounts of Rs.7,00,000/- and Rs.1,00,000/- shall carry interest at 9% p.a. from the date of complaint, till realization.
Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 18th day of April, 2015.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
WITNESS EXAMINED ON BOTH SIDES
PW-1 Mailappagari Prabhakar, (Affidavit filed)
RW-1 Ms. Thinlay Chukki, (Chief Affidavit filed)
RW-2 T.Amarnadh (Chief Affidavit filed)
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S
Ex.A1 | Office copy of Legal Notice issued along with postal receipts and acknowledgemet.Dt:09.07.2012. |
2 | Reply notice sent by the 3rd opposite party to the complainant. Dt:14.07.2012. |
3 | Reply notice sent by the 1st opposite party to the complainant. Dt:24.07.2012. |
4 | Sale notice issued by the 3rd Opposite Party. Dt:24.07.2012. |
5 | Cash paid receipts 4 in number towards monthly installment. |
6 | Job card issued by the 2nd opposite party. Dt: 28.04.2012. |
7 | Job card issued by the 2nd opposite party. Dt:07.05.2012. |
8 | R.C and permit of the vehicle in original. |
9 | Letter Dt: 24.12.2012. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S
Ex.B1 | Statement of Account. Dt: 04.04.2013. |
2 | Photo copy of Loan Agreement between the complainant and 3rd opposite party. Dt:14.09.2011 |
3 | Statement of Account of the Induslnd Bank.Dt:29.01.2015. |
4 | Settlement amount of copy of the Induslnd Bank. Dt:14.09.2011. |
5 | Photo copy of Tax invoice filed on behalf of the opposite party No.1. Dt: 05.12.2011. |
6 | Photo copy of Tax invoice filed on behalf of the opposite party No.1. Dt: 14.12.2011. |
7 | Photo copy of Tax invoice filed on behalf of the opposite party No.1. Dt: 10.02.2012. |
8 | Photo copy of Tax invoice filed on behalf of the opposite party No.1. Dt: 07.05.2012. |
9 | Photo copy of Job card filed on behalf of the opposite party No.1. Dt: 28.04.2012. |
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The Complainant.
2. The opposite parties.
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