Partly allowed

Smt.Shanta W/O Veeranna Pattar v. Santosh S/O Shyamsundar Sunagar

Karnataka HC24 Feb 2020MFA/100964/2017

Case brief

AI extract

What is this about?

This appeal challenges a Motor Accident Claims Tribunal award of Rs.11,77,871 against a deceased's estate. The High Court modified the contributory negligence ratio from 50:50 to 80% on the Suzuki Access rider and recalculated total compensation to Rs.10,74,420 with interest.

What did the court decide?

Appeal partly allowed; MACT award modified and enhanced to Rs.10,74,420 with interest; liability fixed 80% on Suzuki Access insurer.

Smt.Shanta W/O Veeranna Pattar Vs Santosh… — Contract and Commercial Disputes | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF JUNE, 2019

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PRESENT

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE BELLUNKE A.S.

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MFA No.100964 of 2017 [MV-D]

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BETWEEN

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SMT.SHANTA W/O VEERANNA PATTAR, AGE: 52 YEARS, OCC: HOUSEWIFE, R/O: H.NO.1149, SAHYADRI NAGAR, D.D.POST:BELAGAVI-590010

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... APPELLANT

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(BY SMT.GEETHA K.M. @ PAWAR, ADVOCATE)

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AND

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SANTOSH S/O SHYAMSUNDAR SUNAGAR, AGE: MAJOR, OCC: BUSINESS, R/O.: SADASHIV NAGAR-590010, BELAGAVI. (OWNER OF SUZUKI ACCESS VEHICLE NO.KA-22/E-0999)

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THE DIVISIONAL MANAGER IFFCO TOKIO GENERAL INSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, SHIKSHAK BHAVAN, BELAGAVI-590002. (INSURER OF SUZUKI ACCESS VEHICLE NO. KA-22/EE-0999)

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(POLICY NO.1-2UJ9A42 VAID FROM 24.06.2014 to 23.06.2015)

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SANTOSH S/O VEERANNA PATTAR, AGE: MAJOR, OCC: BUSINESS, R/O: 15/B, CLASS 4^TH QTRS, V.V.NAGAR, BELAGAVI590002. (OWNER OF HERO HONDA MOTOR CYCLE NO KA-23/K-4291)

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT 2^ND FLOOR, DHAMNEKAR ARCADE, DR.B.R.AMBEDKAR ROAD, BELAGAVI (INSURER OF HERO HONDA MOTOR CYCLE NO. KA-23/K-4291) (POLICY NO.472504/31/2015/2681 VALID FROM 28.10.2014 TO 27.10.2015)

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... RESPONDENTS

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(BY SHRI RAVINDRA R.MANE, ADVOCATE FOR R2; MISS REBECCA SOLOMAN, ADVOCATE FOR R3; SHRI A.G. JADHAV, ADVOCATE FOR R4; RESPONDENT NO.1 – SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGEMENT AND AWARD DATED 23.01.2017 PASSED IN MVC NO.1013/2015 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENTS CLAIM TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ORDERS AND THE SAME HAVING BEEN HEARD AND RESERVED ON 03.06.2019, THIS DAY, ARAVIND KUMAR J., PRONOUNCED THE FOLLOWING:

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JUDGMENT

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This is a claimant’s appeal questioning the

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correctness and legality of judgment and award passed by MACT, Belagavi dated 23.01.2017, whereunder claim petition filed by appellant has been allowed in part and as against a claim for award of compensation of Rs.50,00,000/- a sum of Rs.11,77,871/- with interest at 6% p.a. has been awarded.

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Husband of claimant, late Shri Veeranna while proceeding on his motorcycle bearing registration No.KA23/K-4291 (for short hereinafter referred to as ‘motorcycle’) is said to have been dashed by Suzuki Access vehicle bearing registration No.KA-22/EE-0999 driven by its rider in a rash and negligent manner and on account of said impact, Shri Veeranna is said to have sustained fatal injuries to vital parts of his body and while taking treatment at KLE Hospital, Belagavi, he succumbed to injuries sustained. Hence, claim petition

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was filed by the wife seeking compensation of Rs.50,00,000/-.

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On service of notice, insurer of the Suzuki Access appeared and filed written statement denying the claim and contending that accident occurred due to negligence on the part of deceased himself.

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Tribunal framed issues and after examining evidence tendered by the parties, arrived at conclusion by both deceased and the rider of Suzuki Access were responsible for accident and as such, apportioned the contributory negligence in ratio of 50:50. Hence, claimant is in appeal, not only seeking for enhancement but also for assailing the finding with regard to contributory negligence recorded by tribunal.

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We have heard Smt. Geetha K.M., learned counsel appearing for appellant and Shri R.R. Mane, learned counsel appearing for respondent No.2 – insurer, as also Miss Rebecca Solomon and Shri A.G. Jadhav

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appearing for respondent Nos.3 and 4 respectively. Respondent No.1 is served and unrepresented.

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It is the contention of Smt. Geetha K.M. that learned judge erred in holding that deceased was liable for accident and it erred in not considering the fact that charge sheet has been filed against the driver of Suzuki Access, who caused accident and as such, entire liability ought to have been fixed on the insurer and insured of the Suzuki Access vehicle. She would also contend that statements of eyewitness was not at all been considered by the tribunal in proper perspective and tribunal erred in arriving at a conclusion that riders of both vehicles have equally contributed to the accident. Hence, she prays for setting aside the award passed by the tribunal by fixing the entire liability on the rider/owner/insurer of the offending vehicle i.e., Suzuki Access. She also prays for enhancing the compensation under all heads by allowing the appeal.

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Per contra, Shri R.R. Mane, learned counsel appearing for respondent No.2 insurer would not only support the award passed by the tribunal. He would also contend that compensation awarded by the tribunal is itself on the higher side and it would not call for interference. Hence, he prays for dismissal of the appeal.

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Having heard the learned advocates appearing for parties and on perusal of records, we are of considered view that following points would arise for our consideration:

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“1) Whether finding recorded by tribunal that riders of both vehicles have contributed to the accident in question and as such, apportioning negligence in ratio of 50:50 is to be sustained or modified? If so, in what manner?

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2) Whether compensation awarded by tribunal is just and reasonable? Or it requires to be modified? If so, to what extent?”

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RE. POINT NO.1:

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Issuance of policy to the offending vehicle as well as accident having occurred on 22.11.2014 are not in dispute. However, the manner in which accident occurred is in dispute.

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Tribunal has recorded a finding that accident in question occurred in the middle of the road and both vehicles collided with each other and as such, has apportioned contributory negligence on the riders of both vehicles in the ratio of 50:50.

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At the out set, it requires to be noticed that FIR in Crime No.217/2014 came to be registered for the offence punishable under Section 184 of M.V. Act read with Sections 279, 337 and 338 of IPC, against the rider of the Suzuki Access. Charge sheet came to be filed on completion of investigation against the same person for the offences punishable under Sections 279, 337 and 304-A of IPC read with Section 184 of M.V. Act, 1988.

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Though this fact has been noticed, yet, the tribunal has ignored the same and no reasons are assigned as to why the said evidence is to be brushed aside while considering the issue relating contributory negligence. This is the first error, which the tribunal committed. That apart, the statement of eyewitnesses to the accident in question, which had been recorded by the jurisdictional police and marked as Exs.R-1 to R-3 has been ignored and has not been considered by the tribunal while considering the issue relating to the contributory negligence. This is the second error committed by the tribunal.

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Perusal of said statements i.e., Exs.R-1 to R-3 would disclose that said witnesses have stated, rider of Suzuki Access drove her vehicle in a rash and negligent manner and was driving the said vehicle in a very high speed. The contents of Exs.R-1 to R-3 is not rebutted by the insured or insurer. Non-consideration of this vital material has resulted in contributory negligence being

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apportioned in an improper manner by the tribunal. Thus, third stage of error has occurred in the impugned award.

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It is to be further noticed by us that sketch of the accident spot drawn by the jurisdictional police which came to be marked as Ex.P-7 would clearly indicate that deceased was proceeding from west to east on first cross road, Hanuman Nagar, whereas rider of Suzuki Access was coming from north to south. Accident in question has occurred at the junction where these four roads meet. As could be seen from the said sketch, rider of the motorcycle had crossed 80% of the road at the junction, whereas rider of Suzuki Access had crossed only 20% of the road upto the spot of the accident. Said sketch, Ex.P7 when read in conjunction with the statements (Exs.R-1 to R-3) of eyewitnesses to the accident would clearly indicate that rider of Suzuki Access was driving her vehicle not only in a rash and negligent manner, but also at a high speed. Had been she (rider of the Suzuki

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Access) more cautious by driving her scooter in a moderate speed, she could have avoided the accident in question. Thus, accident in question had occurred on account of the negligence of the rider of Suzuki Access only. However, on account of riders of both vehicles were able to see each other approaching the junction, either of them could have reduced their respective pace or could have slowed down their respective vehicles. Neither of them undertook this exercise. However, this Court cannot loose sight of the fact that deceased as already noticed herein above had crossed the junction to an extent of 80%, whereas, the rider of Suzuki Access had crossed only 20% of the road up to the junction and as such, the contributory negligence requires to be apportioned in the ratio of 80% to the rider of Suzuki Access and 20% to the deceased.

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In the light of aforestated discussion, we are of considered view that tribunal committed a serious error in arriving at a conclusion of apportioning the

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contributory negligence in the ratio of 50:50 and we apportion or hold the contributory negligence in the ratio of 80% to the rider of Suzuki Access and 20% to the rider of motorcycle i.e., deceased has to be fixed.

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Accordingly, we answer point No.1 by concluding that finding recorded by the tribunal to the effect that riders of both vehicles had contributed to the accident that occurred on 22.11.2014 equally is an erroneous finding and the contributory negligence is apportioned in the ratio of 80% to the rider of the Suzuki Access and 20% to the rider of motorcycle i.e., deceased.

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RE. POINT NO.2:

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Tribunal while considering the plea for award of compensation has taken into consideration that a claim had been made seeking Rs.50,00,000/- and had awarded the compensation payable to the claimants in the sum of Rs.11,77,871/-. Tribunal has determined the

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compensation payable to the claimants under the

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following heads:

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(i)	Loss of dependency	Rs.10,00,991/-
(ii)	Medical expenses	Rs.96,880/-
(iii)	Loss of estate	Rs.25,000/-
(iv)	Toward food and attendant	Rs.5,000/-
(v)	Loss of consortium	Rs.25,000/-
(vi)	Funeral expenses and conveyance expenses	Rs.25,000/-
	Total	Rs.11,77,871/-

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Insofar as the compensation awarded in a sum of Rs.11,77,871/under the head loss of dependency is concerned, requires to be modified. By taking into consideration that Hon’ble Apex Court in the matter of National Insurance Company Limited Vs.

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Pranay Sethi and others reported in AIR 2017 SC 5157 has held that where deceased was a permanent employee and drawing fixed salary, future loss of income will have to be construed by adopting fixed percentage,

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depending upon age. At paragraph 61(iv), it has been held:

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61. (i) to (iii) xxx xxx xxx

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(iv) In case the deceased was selfemployed or an a fixed salary, an addition of 40% of the established income sho8ld be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

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In the instant case, the tribunal for computing the compensation payable towards loss of income to the dependants, it has adopted split multiplier, which cannot be found fault with. The deceased was working as a senior driver in the department of mines and geology and was drawing gross salary of Rs.35,003/- per month.

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Taking into consideration, the annual income at Rs.4,20,036/- and after deducting professional tax and income tax, the total income of the deceased arrived at has been Rs.4,00,398/- per annum. On account of claimant alone being the dependant, 50% from the income of dependant has been deducted towards personal and living expenses of the deceased and thereby arrived at the loss of income to the dependant at Rs.2,00,199/-.

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Taking into consideration that the deceased had 8 months 20 days remaining service i.e., around one year, tribunal has adopted the multiplier of 9 which is also just and correct. However, tribunal has not taking into consideration the future prospects, which is contrary to the law laid down by the Hon’ble Apex Court in the matter of Pranay Sethi (supra) . As held thereunder, the loss of future prospects who were on fixed income/salary in the age group of 50 to 60 years would 15% and as such, 15% to Rs.2,00,199/- deserves to be

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added, which would be Rs.30,029.85/-. Thus, loss of dependency would be salary income for a period of one year and pension income for the remaining period of 8 years. Thus, the claimant would be entitled to loss of dependency as under:

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(a) Rs.2,30,229 X 1 year = Rs.2,30,229/(b) Rs.1,15,114.50 X 8 years = Rs.9,20,916/Total = Rs.11,51,145/-

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Insofar as the compensation awarded by the tribunal towards medical expenses are concerned, we do not propose to interfere with the said award, inasmuch as tribunal has taken into consideration that immediately after the accident, deceased was shifted to KLE Hospital, Belagavi and was treated for five days and the bills produced collectively as per Ex.P-13 would disclose that in all a sum of Rs.96,880/- has been spent towards medical expenses.

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Insofar as the compensation awarded under the conventional heads, it is to be modified namely towards loss of estate, loss of consortium and funeral expenses from what has been awarded by the tribunal. Hon’ble Apex Court in the case of Pranay Sethi (supra) has held where the companionship of either spouse is lost, it would amount to filial loss and as such, loss of consortium in a sum of Rs.40,000/- deserves to be awarded and accordingly, it is awarded.

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Insofar as loss of estate and loss of funeral expenses are concerned, we are of the considered view that in the light of the law laid down by the Hon’ble Apex Court in the case of Pranay Sethi (supra) referred to supra, a sum of Rs.40,000/- and Rs.15,000/- is to be awarded and accordingly it is hereby awarded. Thus, in all claimant would be entitled to following compensation.

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(a)	Loss of dependency	Rs.11,51,145/-
(b)	Medical expenses	Rs.96,880/-

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(c)	Loss of consortium	Rs.40,000/-
(d)	Loss of estate	Rs.40,000/-
(e)	Funeral expenses	Rs.15,000/-
	Total	Rs.13,43,025/-

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Tribunal has held deceased has stepped into the shoes of owner of the motorcycle and he was negligent himself and as such, it cannot fasten the liability on the insurer of the motorcycle (The Oriental Insurance Company) and as such, to the extent of apportioning the negligence on the insured of Suzuki Access vehicle, it had directed the insured and the insurer of the Suzuki Access as well as the owner of the motorcycle to indemnify the award.

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In the light of our finding recorded on point No.1 by arriving at a conclusion that rider of the Suzuki Access was responsible for the accident or in other words had contributed to the accident and restricted her negligence to an extent of 80%, the insured as well as

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insurer of the Suzuki Access vehicle bearing No.KA-22/E-

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0999 would be liable to indemnify to award.

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Hence, we proceed to pass the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) Judgment and award passed in M.V.C. No.1013/2015 by MACT, Belagavi dated 23.01.2017 is hereby modified and in substitution to what has been awarded by tribunal, we hereby

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- Corrected vide Court award a sum of * Rs.10,74,420/- * with Order dated 24/02/2020 interest at 8% per annum from date

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SD/-

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(AKJ) of petition till date of payment or deposit whichever is earlier.

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(iii) Respondent No.2 (insurer of Suzuki Access) shall deposit the compensation awarded with interest before the jurisdictional tribunal within six weeks from the date of receipt of copy of the order. On such deposit, the tribunal shall release 60% of the award amount with

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interest and balance 40% with proportionate interest shall be deposited in any nationalized or scheduled bank of claimant’s choice for a period of three years and she would be entitled to withdraw periodical interest.

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No costs.

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Registry is directed to transmit the records to the

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jurisdictional tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Vnp*/Rsh

Smt.Shanta W/O Veeranna Pattar v. Santosh S/O Shyamsundar Sunagar

Case brief

What is this about?

What did the court decide?

Smt.Shanta W/O Veeranna Pattar v. Santosh S/O Shyamsundar Sunagar

Case brief

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What did the court decide?

What the court decided

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