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R.Venkataramana, S/o. S.Ramu Naidu, Rep. by his authorized signatory, S.Ramu Naidu, S/o Late S.Sundara Rajulu Naidu filed a consumer case on 05 Jul 2019 against The New India Assurance Co. Ltd., Rep. by its authorized signatory in the Chittoor-II at triputi Consumer Court. The case no is CC/37/2018 and the judgment uploaded on 17 Sep 2019.
Filing Date: 15-05-2018 Order Date: 05-07-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.
Present:- Sri. T.Anand, President (FAC)
Smt.T.Anitha, Member
FRIDAY THE FIFTH DAY OF JULY, TWO THOUSAND AND NINETEEN
C.C.No.37/2018
Between
R.Venkataramana, S/o. S. Ramu Naidu,
Hindu, aged about 32 years, rep. by his authorized Person S.Rama Naidu,
S/o. Late S. Sundara Rajulu Naidu, Hindu, aged about 63 years,
Both are residing at D.No. 2-37/2, Near M.R.Palle Panchayat Office,
M.R.Palle, Tirupati, Chitoor District. … Complainant
And
Rep. by his authorized Signatory, holding its
Office at Flat No.11 and 12, Aditya Towers,
Balaji Colony, Tirupati, Chittoor District.
Rep. by its Authorized Signatory, having its office
At D.No. 9-27, Krishna Reddy Nagar, Thanapalle
Road, Tirupati – 517 503, Chittoor Distritct. … Opposite parties
This complaint coming on before us for final hearing on 27.06.2019 and upon perusing the complaint and other relevant material papers on record and on hearing of Sri.A.Sudarsana Babu, counsel for the complainant and Sri. S.M.Jhan, counsel for the opposite party No.1 and Sri.G.Guru Prasad, counsel for the opposite party No.2 having stood over till this day for consideration, the Forum made the following.
ORDER
DELIVERED BY SRI. T.ANAND, PRESIDENT(FAC)
ON BEHALF OF THE BENCH
This complaint is filed under section 12(1) of the Consumer Protection Act 1986, to direct the opposite parties to clear the existing debt of Rs.4,59,741.69Ps, as per the Syndicate Bank statement of account dt: 28.03.2018 and further debt to be payable as per the orders to be passed by the Hon’ble Forum, to direct the opposite parties to pay Rs.2,17,000/- which is loan amount paid by the complainant and to direct the opposite parties to pay Rs.1,00,000/- towards compensation for undergoing mental agony due to financial loss suffered on account of deficiency in service by the opposite parties and to pay cost of the case.
2.The facts discloses in the complaint are as follows:- The complainant is son of one S. Rama Naidu. He is the owner of the TATA Indica Vista LX TDI BS-III Motor Car Vide Registration No. AP 03/BR-9179 which is the subject matter in the present complaint. The complainant executed a letter of Authorization, dt: 29.03.2018 in favour of his father S. Rama Naidu authorizing him to appear on his behalf before the Consumer Forum. The complainant has purchased the said TATA Indica LX TDI BS-III Motor Car Vide Registration No.AP 03/BR-9179, exclusively for the purpose of eking out livelihood by means of self employment. He obtained loan from Syndicate Bank for the purpose of purchasing car to the extent of Rs.6,00,000/- and the vehicle was duly insured with opposite party No.1 vide policy No. 61270031150100006285. While so the said car met with an accident on 24.04.2016 during the validity period of policy, and the said fact was intimated to opposite party No.1 immediately and on their advice the car was kept with VAKA Cars which is authorized service centre and the said Vaka cars prepared estimation to effect the repairs of car on 02.05.2016. But even after lapse of 45 days vaka cars has not proceeded with the repairs. The complainant contacted the first opposite party in this regard and they advised him to proceed to take the car to M/s. Kumar Tinkering works, S.V.Auto Nagar, Renigunta Road, Tirupati. The complainant caused a letter dt: 17.06.2016 to opposite party No.1 stating that the car is being taken to the said M/s. Kumar Tinkering Works and requested the opposite party No.1 to approve the estimation and expedite the process for repairs works. But the said Kumar Tinkering Works dodged the matter for about two months and finally on 24.08.2016 they have prepared an estimation report for an amount of Rs.4,57,285/-. The complainant has intimated the same to opposite party No.1 and requested for cashless transaction facility. At this juncture, the said Kumar Tinkering Works stated that they have no cashless transaction facility and express their inability to carry out the repair works without payment of cash. Again on advice of opposite party No.1, the vehicle was shifted back to opposite party No.2 on 27.12.2016 and a short estimated report was prepared on the same day by opposite party No.2 to a tune of Rs.4,69,964/- stating as “repair liability and in that Rs.39,351.70Ps., as customer liability and Rs.4,30,612.30Ps, as insurance liability”.
3. It is stated that though the opposite party No.1 has the knowledge about the same they further dodged the matter for three months and finally on 27.03.2017 issued letter to opposite party No.2 with a request to provide cashless service facility for repairs subject to the terms and conditions of policy for admissibility of claim. Having received the said communication from opposite party No.1, opposite party No.2 insisted for payment of Rs.39,351.70Ps, as customer liability as per short estimation report dt: 27.12.2016. The complainant paid Rs.30,000/- as an advance amount for which opposite party No.2 issued a receipt dt: 31.03.2017 vide No.1428. But opposite party No.2 has not effected the repairs. No reasons are assigned for that. The vehicle was kept in their garage. Finally on 24.10.2017 opposite party No.2 prepared a full estimation report “ wherein the repair liability was shown as Rs.7,50,355/- and in that the customer liability is Rs.57,059.90Ps, and the insurance company liability as Rs.6,93,295.10Ps”.The complainant stated that, cost of the car as per statement of account issued by the Syndicate Bank is Rs.6,00,000/- and as per full estimation report of opposite party dt:24.10.2017, the repair cost is Rs.7,50,355/- and in that insurance company liability is Rs.6,93,295/-. The outstanding loan amount is Rs.4,59,741.69Ps as per bank statement. After deducting Rs.2,80,000/- as credit from Rs.7,39,741.69Ps and as debit and repair liability or insurance company liability is much more than the amount to be paid to the Syndicate Bank from where the loan has been obtained.
4. The complainant caused a letter dt: 01.11.2017 to opposite party No.1 to do the needful at the earliest and having received the same, opposite party neither complied nor replied to the letter. The said car was kept in the garage of opposite party No.2 and the condition of the car is shown in the photos taken on 02.04.2018. The complainant paid Rs.63,000/- in six EMIs at the rate of Rs.10,500/- before the accident and Rs.2,17,000/- after the accident of the car without using the vehicle. The amount payable to the Syndicate Bank as on 28.03.2018 Rs.7,39,741.69Ps. The complainant is a consumer as he purchased the car exclusively for his livelihood as self-employment. It is therefore prayed to allow the complaint as prayed for.
5. Written versions on behalf of the opposite party No.1 and 2 are filed.
6. Opposite Party No.1 contended as follows:- At the outset the complaint averments are denied. The complaint contains false averments. The complainant has not approached the forum with clean hands as he suppressed material facts. There is no deficiency of service on part of the opposite party No.1 as alleged by the complainant. It is admitted that, the complainant has purchased the subject motor car vide registration No. AP 03/BR-9179 for the purpose of his eking livelihood by availing car loan to the extent of Rs.6,00,000/- from Syndicate Bank and thereafter insured the vehicle with opposite party No.1 under Policy No. 61270031150100006285 for the period covered from 12.10.2015 to 11.10.2016. However the complainant was called upon to prove that the car met with an accident on 24.04.2016 and the same was intimated to opposite party No.1 and on the advice of opposite party No.1, the car was kept with Vaka Cars which is the authorized service centre and that the service centre prepared an estimation dt: 02.05.2016 to effect repairs of the car. No such advice was given by opposite party No.1 to the complainant and the option is left to the insured to get it repaired as per his will from any of the recognized garages of opposite party No.1. It is denied that, even after lapse of 45 days the said Vaka Cars has not proceeded with repairs and the complainant, burdened with payment of EMIs for car loan, contacted the opposite party No.1 and on the advice of opposite party No.1, the complainant shifted the car to M/s. Kumar Tinkering Works and thereafter addressed a letter to opposite party No.1 stating that the car is being taken to Kumar Tinkering Works and requested opposite party No.1 to approve the work estimation and expedite the process of repair. It is also denied M/s. Kumar Tinkering Works dodged the matter for two months and finally on 24.08.2016 they prepared an estimation for an amount of Rs.4,57,285/- towards costs of repairs of car. It is stated that the delay in getting the car repaired occurred due to the actions of complainant but he is unnecessarily throwing blame on opposite party No.1 for wrongful gain. The complainant called upon to prove that he requested opposite party No.1 for cashless transaction and at that juncture as the said Kumar Tinkering Works informed that they have no such facility and further upon the advice of opposite party No.1 the vehicle was shifted back to opposite party No.2 garage and the opposite party No.2 on 27.12.2016 to prepared a short estimated report to a tune of Rs.4,69,964/- towards repair liability out of which Rs.39,351.70Ps as customer liability and Rs.4,30,612.30Ps as insurance company liability.
7. The complainant is further called upon to prove that, opposite party No.1 dodged the matter for three months and finally on 27.03.2017 issued letter to opposite party No.2 requesting to provide cashless service facility for repairs and made it clear that claim is admissible subject to terms and conditions of the policy. Further the opposite party No.2 insisted for payment of Rs.39,351.70Ps from the complainant towards customer liability as per short estimated report dt: 27.12.2016 and that the complainant paid Rs.30,000/- as an advance amount to opposite party No.2 for that car repair and that opposite party No.2 issued receipt dt: 31.03.2017 vide receipt No.1428. The entire delay was caused by complainant himself, even though the opposite party is always ready to comply its part of contract. The complainant is further called upon prove that though the amount was paid to opposite party No.2, they have not affected repairs and without assigning any valid reason, kept the vehicle in their garage as garbage and after prolonged procedure and requested made by complainant finally on 24.10.2017, the opposite party No.2 caused a full estimated report wherein the repairs liability is shown as Rs.7,50,355/- and in that the customer liability is Rs.57,059.90Ps and insurance company liability is Rs.6,93,295.10Ps. With regard to Para 10 of the complaint it is denied that, the cost of car as per the statement of account issued by Syndicate Bank for Rs.6,00,000/- and as per full estimated report of opposite party No.2 dt: 24.10.2017 the cost of the repair is Rs.7,50,355/- out of which this opposite party liability is Rs.6,93,295/- and the outstanding car loan stood at Rs.4,59,741.69Ps as per statement of account after deducting Rs.2,80,000/- as credit from Rs.7,39,741.69Ps. It is denied that the complainant addressed a letter to opposite party No.1 dt: 01.11.2017 to do the needful and having received the same, opposite party No.2 did not comply the request of complainant nor replied to the letter.
8. The complainant has to prove the contents in Para 12 that, the amount payable to Syndicate Bank by him as on 28.02.2018 is Rs.7,39,741.69Ps. According to opposite party No.2 they made prompt correspondence and followed the procedure in processing the complainants claim and also agreed to provide cashless facility in getting repair of the vehicle by addressing letter dt: 22.11.2017 but the same was returned with addressee left. Further opposite party No.1 also issued reply letter dt: 20.12.2017 mentioning all the facts about assessing damage to car by surveyor for claim amount but the complainant without any reason filed this complaint against opposite party No.1 for wrongful gain. There is no cause of action whatsoever to establish the case of the complainant which is speculative and not tenable. There is no deficiency of service on part of the opposite party No.1, the complaint is also barred by limitation hence it is prayed to dismiss the complaint.
9. Opposite Party No.2 contended as follows:- The averments made in Para 7 of the complaint is partly true and partly untrue. The averments in Para 3,4,5 and 6 of the complaint are not known to opposite party No.2. It is denied that the complainant has intimated about the accident to opposite party No.1 and requested for cashless transaction and at that juncture, Kumar Tinkering Works stated that they do not have cashless transaction facility and as such they could not carry out the repair works and that on the advice of opposite party No.1 the vehicle was shifted to opposite party No.2. But it is true that opposite party No.2 prepared short estimated report to the tune of Rs. 4,69,964/- and apportionment of repair liability between customer and opposite party No.1. The liability is Rs.39,351.70Ps as a customer liability and Rs.4,30,612.30Ps as insurance company liability. It is admitted that opposite party No.1 on 27.03.2017 caused a letter to opposite party No.2 with request to provide cashless facility for repairs and that the claim is to be admitted subject to terms and conditions of the policy and that the complainant paid Rs.30,000/- as advance and opposite party No.2 issued a receipt dt: 31.03.2017 for receiving the said amount. With regard to Para 9 of the complaint it is denied that, though the amount was paid to opposite party No.2, opposite party No.2 paid to effected the repairs without assigning any valid reason and kept in vehicle in their garage as garbage. It is admitted on 24.10.2017 opposite party No.2 made a full estimate report where the repair liability is shown as Rs.7,50,355/- and customer liability is shown a Rs. 57,059.95Ps and insurance liability is shown as Rs.6,93,295.10Ps. There is deficiency of service on part of the opposite parties since the car is in bad condition. In fact the car was brought to the garage in a damaged condition after lapse of eight months from the date of accident. The vehicle was totally in damaged condition. As per the instructions of the opposite party No.1 and complainant, the opposite party No.2 prepared short estimation report for Rs.4,59,964/- and as the complainant did not argue for this claim, the opposite party No.2 at the request of the complainant, prepared full estimation report on 24.10.2017 for Rs.7,50,355/-. The repairs have to be carried out by opposite party No.2 subject to approved by opposite party No.1 and acceptance by complainant. Hence the question of deficiency of service or negligence on part of the opposite party No.2 does not arise. Hence it is prayed to dismiss the complaint with costs.
10. The complainant filed chief affidavit as PW-1 and marked Ex:A1 to A13. On behalf of opposite parties R1 to R3 filed chief evidence affidavit and marked Ex:B1 and B2.
11.The point for consideration is:-
Whether there is any deficiency of service on part of the opposite parties 1 and 2 as alleged by the complainant? If so, to what extent, the complainant is entitled for the claim as prayed for?
12.Point:- It is not in dispute that the subject car was insured with opposite party No.1 as per Ex:A3 which is policy bearing No. 61270031150100006285 and the validity period is 12.10.2015 to 11.10.2016. The IDV value of the subject motor car is mentioned as 5,24,696/-. Ex:A1 is the RC of subject motor which is standing in the name of the complainant. It is also not in dispute that the subject car met with an accident on 24.04.2016. According to complainant the fact of accident was intimated to opposite party No.1 immediately and on the advice of opposite party No.1, the car was kept in Vaka Cars which is authorized service centre for TATA Motors and the said service centre prepared estimation dt: 02.05.2016 which is marked as Ex:A4. It is an admitted fact that the complainant himself addressed a letter to manager of opposite party No.1 on 17.06.2017 as per Ex:A5 requesting for permission to take the car to M/s.Kumar Tinkering Works (herein after Kumar Tinkering Works) for speeding up repair works and for quality delivery of car after repair. Ex:A6 is the estimation given by Kumar Tinkering Works for Rs.4,57,285/- and it is dt: 24.08.2016. It is an admitted fact that since there is no cashless transaction facility in Kumar Tinkering Works Tirupati, the subject motor was shifted back to opposite party No.2 service centre and opposite party No.2 prepared short estimation report dt: 27.12.2016 for an amount of Rs.4,69,964/- wherein customer liability and insurance liability are shown separately at Rs.39,351.70Ps and 4,30,612.30Ps respectively and the same was intimated to opposite party No.1. Ex:A8 is the letter addressed by opposite party No.1 to opposite party No.2 to provide cashless facility subject to terms and conditions of the admissibly of the claim. Ex:A7 is the short estimation report dt: 27.12.2016 issued by opposite party No.2. It is the case of the complainant that after receipt of Ex:A8, the opposite party No.2 insisted him to pay customer liability of Rs.39,351/- to initiate work and as such the complainant paid Rs.30,000/- as advance vide receipt No.1428 dt: 31.03.2017 which is marked as Ex:A9. It is further case of the complainant that the opposite party No.2 waited for the communication from opposite party No.1 for acceptance of claim amount. It is alleged that opposite party No.1 kept silent for a long time and finally at the intervention of the surveyor M.Sridhar opposite party No.2 prepared final estimation report dt: 24.10.2017 wherein the repair cost is shown as Rs.7,50,355/- and (customer liability is shown as Rs. 57,059.95Ps and insurance liability is shown as Rs.6,93,295.10Ps). Ex:A10 is the full estimation report of opposite partyNo.2 dt: 24.10.2017.
13. The contention of the complainant counsel is that the opposite party No.1 kept quiet long time without giving approval to opposite party No.2 to proceed for carrying out repairs of the subject motor car. The complainant and opposite party No.1 personal along with surveyor M.Sridhar visited opposite party No.2 garage and to their surprise found the subject motor car in dump yard of garage in a bad condition and as per estimation of surveyor the damage was assessed at Rs.2,74,000/-.According to complainant counsel right from 24.04.2016 which is the date of accident till the date of final inspection by surveyor of opposite party No.1 on 09.11.2011 as per Ex:B1, the complainant was put to great hardship as he could not run the vehicle and also could not pay EMIs towards car loan amount of Rs.4,59,741.69Ps due as on date of 28.03.2018. As per the contention of complaint both opposite party No.1 and 2 are jointly and severally liable to pay the compensation to the complainant.
14. The facts disclosed as per documentary evidence filed by the complainant are not in dispute. But the contention of opposite party No.1 is that there is no deficiency of service on their part since the delay in getting car repair occurred only due to the Acts of complainant. As already stated by us the subject car was first taken to opposite party No.2 service centre and later at the request of the complainant the vehicle was shifted to Kumar Tinkering Works and again at his request the vehicle shifted back to opposite party No.2 service centre. So the complainant cannot say that the entire delay in carrying out repairs of the subject car occurred only on account of the negligence of opposite party No.1 and 2.
We have gone through the documentary evidence and it is clear that total negligence cannot be attributed to opposite party No.2. As per the contention of opposite party No.2 the subject car was brought to their service centre on 05.12.2016 after lapse of eight months from the date of accident in totally damaged condition and as per instructions of opposite party No.1 and complainant, opposite party No.2 prepared short estimation report for Rs.4,69,964/-. Since the complainant did not admit the claim then at the request of complainant opposite party prepared full estimated report on 24.10.2017 for Rs.7,50,355/-. The documentary evidence support the version of opposite party No.2.
15. As regards opposite party No.1 they threw the blame on complainant for the delay caused in repairing the car. As seen from the documentary evidence when the vehicle was again brought to opposite party No.2 service centre for carrying out repairs on 27.12.2016 and short estimation report was prepared on the same day by opposite party No.2 and communicated to opposite party No.1, opposite party No.1 did not immediately give approval for the reasons best known to them. Ex:B1 and B2 are same documents and as per Ex:B1 and B2 it is admitted that on 12.10.2016 they requested the complainant to submit the repair bills to enable them process the claim and that the complainant failed to respond.Again on 27.12.2016 they issued request letter for shifting subject vehicle from M/s.Kumar Tinkering Works, Tirupti to opposite party No.2 service centre and on 27.12.2016 once again the complainant submitted a revised estimation of Rs.7,65,415/- given by opposite party No.2 and basing on the written request given by the complainant on 27.03.2017 they have issued a letter addressed to opposite party No.2 that they are ready for the settlement of claim on Cash Less Basis and on 09.11.2017 in the presence of complainant the company officials and final surveyor inspected the damaged vehicle at the garage of opposite party No.2 and the damage was assessed basing on the first estimation given by complainant for an amount of Rs.2,74,000/-. However, the complainant failed to file the surveyor’s report. As per Ex:B1 and B2, opposite party No.1 has given permission to carry out repairs basing on the first estimation report of surveyor for Rs.2,74,000/-. But Final estimation report dt: 24.10.2017 under Ex:A10 prepared by opposite party No.2 shows that the estimated cost is Rs.7,50,355/-. Though delay occurred in carrying out repairs of the subject car, on request made by complainant for shifting of vehicle to M/s.Kumar Tinkering Works and again shifting back the vehicle from M/s.Kumar Tinkering Works to opposite party No.2 service centre for availing cashless facility service, it cannot be said that there is no delay on part of the opposite party No.1 in giving approval to the opposite party No.2 for carrying out repairs of the subject vehicle.
Hence we hold that, there is deficiency of service on the part of opposite party No.1 in perusing the matter. But the complainant is not entitled to claim of Rs.7,50,355/- towards cost of the repair work which is beyond the IDV value mentioned in Ex:A3. Hence the complainant is entitled for Rs.5,24,696/- which is IDV value mentioned in Ex:A3. The complainant claimed Rs.1,00,000/- towards compensation for undergoing mental agony due to deficiency in service on part of the opposite party No.1 and 2. But as seen from the documentary evidence, the complainant is also responsible to some extent for delay caused in carrying out repairs of subject vehicle. Hence we hold that, reasonable compensation of Rs.10,000/- can be awarded to the complainant and the same has to be paid by opposite party No.1 hence this complaint is partly allowed.
In the result, complaint is partly allowed against opposite party No.1 to pay Rs.5,24,696/- ( Rupees five lakhs twenty four thousand six hundred and ninety six only) being IDV value of the vehicle mentioned in Ex:A3 and to pay Rs.10,000/- (Rupees ten thousand only) towards compensation and in addition to pay Rs.3,000/- (Rupees three thousand only) to the complainant towards cost of the litigation within the eight (8) weeks failing which, the amounts shall carry interest @ 9% p.a. from the date of default till realization. The complaint is dismissed as against opposite party No.2.
Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 05th day of July, 2019.
Sd/- Sd/-
Lady Member President (FAC)
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: Sri R. Venkataramana (Chief Affidavit filed).
Witnesses Examined on behalf of Opposite PartY/S.
RW-1: Sri R. Madhusudhan Rao (Chief Affidavit filed).
RW-2: Sri Sreedhar V.V. (Chief Affidavit filed).
RW-3: Sri P. Muralidhar Reddy (Chief Affidavit filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
Exhibits (Ex.A) | Description of Documents |
Self attested photo copy of CERTIFICATE OF REGISTRATION, A.P. TRANSPORT DEPARTMENT bearing Regn. Number: AP03BR9179. | |
True copy of Syndicate Bank, Tiruchanoor Branch- Statement of Accounts from 01/01/2015 to 28/03/2018. | |
Original copy of POLICY SCHEDULE CUM CERTIFICATE OF INSURANCE issued by the New India Assurance Co.Ltd.,Tirupati. Period of Cover: 12.10.2015 02:00:00 PM to 11.10.2016 11:59:59 PM | |
Self attested photo copy of ESTIMATION of VAKA CARS, Tirupati. Dt: 02.05.2016. | |
Self attested photo copy of Request Letter. Dt: 17.06.2016. | |
True copy of ESTIMATION issued by KUMAR TINKERING WORKS, Tirupati. Dt: 24.08.2016. | |
Photo copy of Short Estimate Report Main Estimate issued by TATA –VIJAYA BHARATHI AUTOMOBILES PVT. LTD, TIRUPATI. Created Dt:27.12.2016. | |
Self attested photo copy of Letter by O.P.No.1. Dt: 27/03/2017 to O.P.No.2. | |
Self attested photo copy of RECEIPT issued TATA –VIJAYA BHARATHI AUTOMOBILES PVT. LTD, TIRUPATI. Dt:31.03.2017. | |
Photo copy of Full Estimate Report Main Estimate issued by TATA –VIJAYA BHARATHI AUTOMOBILES PVT. LTD, TIRUPATI. Created Dt:24.10.2017. | |
Photo copy of Request Letter. Dt: 01.11.2017. | |
Colour Photographs 3 in Number. | |
Letter of Authorisation (Attested copy of Notary). Dt: 29.03.2018. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
Exhibits (Ex.B) | Description of Documents |
Letter Correspondence Dt: 22.11.2017 made to R. Venkata Ramana along with postal cover and Ack. Due. | |
Letter Correspondence Dt: 20.12.2017 made to R. Venkata Ramana along with Ack. Due, Dt: 21.12.2017. |
Sd/-
President (FAC)
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to: 1) The Complainant,
2) The Opposite party 1 and 2.
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