Partly allowed

Ashrafali Bakasheesab Godekar v. Dadapeer S/O. Saifuddin Torgal

Karnataka HC25 Oct 2024MFA/101668/2015

Case brief

AI extract

What is this about?

Appeals by the owner of a lorry and by an injured claimant against a motor accident award fixing entire liability on the owner due to absence of a valid driving licence. The High Court confirmed the finding of negligence but set aside findings on liability and quantum and remanded both matters to the Tribunal for fresh consideration.

What did the court decide?

Negligence finding confirmed; findings on liability and quantum set aside; matter remitted to the Tribunal for fresh consideration permitting additional evidence from both parties.

Ashrafali Bakasheesab Godekar Vs Dadapeer S/O… — Motor Accident Claims | Karnataka HC (2024)

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MFA No.101668/2015 C/w.MFA No.102088/2015

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD

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AND

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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MISCELLANEOUS FIRST APPEAL NO.101668 OF 2015 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.102088 OF 2015 (MV-I)

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IN MFA NO 101668 OF 2015

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Digitally signed by JAGADISH T R Location: High Court of Karnataka, Dharwad Bench

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BETWEEN

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ASHRAFALI BAKASHEESAB GODEKAR, AGE 40 YEARS, OCC: BUSINESS, R/O. NEAR CHOUKIMATH, GAJENDRAGAD, TQ: RON, DIST: GADAG.

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...APPELLANT

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(BY SRI. B. V. SOMAPUR, ADVOCATE)

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AND

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DADAPEER S/O. SAIFUDDIN TORGAL, AGE: 42 YEARS, OCC: NIL, R/O. KATAGAR ONI, BULDOZER NAGAR, OLD HUBLI, HUBBALLI.

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THE ORIENTAL INSURANCE CO. BY DIVISIONAL MANAGER, II FLOOR, ENKEY COMPLEX, KESHWAPUR, HUBBALLI.

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THE DIVISIONAL CONTROLLER, NEKRTC, KOPPAL DIVISION, KOPPAL.

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…RESPONDENTS

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(BY SRI. RAGHAVENDRA A. PUROHIT, ADV. FOR SRI. DINESH M. KULKARNI, ADV. FOR R1; SMT. PREETI SHASHANK, ADV. FOR R2; SRI. S. C. BHUTI, ADV. FOR R3)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL FOR THE LOWER COURT RECORDS AND SET ASIDE THE

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MFA No.101668/2015 C/w.MFA No.102088/2015

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IMPUGNED AWARD PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, HUBBALLI IN MVC NO.777/2012 DATED 19.02.2015 VIDE ANNEXURE-A AND B.

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IN MFA NO 102088 OF 2015

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BETWEEN

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DADAPPER S/O. SAIFUDIN TORGAL, AGE: 41 YEARS, OCC: NIL, R/O. KATAGAR ONI, BULDOZER NAGAR, OLD HUBLI, HUBBALLI, DIST: DHARWAD.

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...APPELLANT

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(BY SRI. RAGHAVENDRA A. PUROHIT, ADV. FOR SRI. DINESH M. KULKARNI, ADVOCATE)

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AND

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ASHRAFALI S/O. BAKASHEESAB GODEKAR, AGE: MAJOR, OCC: OWNER OF VEHICLE, R/O. NEAR CHOUKIMATH, GAJENDRAGAD, TQ: RON, DIST: GADAG.

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THE ORIENTAL INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, 2ND FLOOR, ENKEY COMPLEX, KESHWAPUR, HUBBALLI, DIST: DHARWAD.

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THE DIVISIONAL CONTROLLER, N.E.K.R.T.C, KOPPAL DIVISION, KOPPAL.

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…RESPONDENTS

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(BY SRI. S. C. BHUTI, ADV. FOR R1 TO R3; SMT. PREETI SHASHANK, ADV. FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.02.2015 PASSED BY II ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, HUBBALLI, IN MVC NO.777/2012 AND ENHANCE THE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.10.2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, VENKATESH NAIK T J., DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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MFA No.101668/2015 C/w.MFA No.102088/2015

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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These two appeals are filed by the owner of the offending

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lorry as well as the claimant challenging the judgment & award dated 19.02.2015 passed in MVC No.777/2012 by the learned II Addl. Senior Civil Judge and Addl. MACT, Hubballi¹ .

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2. MFA No.101668/2015 is filed by the owner of the offending vehicle i.e., Truck bearing registration No.KA-13/9582 challenging the saddling of entire liability to pay compensation on the ground that, driver of the offending lorry had no valid and effective driving license as on the date of the accident, whereas, MFA No.102088/2015 is filed by the claimant seeking enhancement of compensation.

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3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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4. Brief facts of the claimant’s case before the Tribunal are as under:

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On 29.03.2011, at about 11.45 p.m., the claimant was coming from Kushtagi to Hubballi in NWKRTC bus bearing

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1 ‘Tribunal’ for short

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MFA No.101668/2015 C/w.MFA No.102088/2015

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registration No.KA-37/F-284, when the bus was moving on Gajendragad-Gadag road, near TTD Kalyan Mantap, the driver of Truck bearing registration No.KA-13/9582 came from opposite direction in a high speed, rash and negligent manner and dashed against right side of the bus, near emergency exit window. Due to which, the claimant sustained grievous injuries on his right upper arm and sustained multiple injuries on his entire body. Immediately, he was taken to Community Health Centre, Gajendragad for first aid treatment and later, he was shifted to KIMS Hospital, Hubballi, wherein he was an inpatient for more than thirty days. Prior to the alleged accident, the claimant was working as Gas Welder at Ilkal and earning a sum of Rs.10,500/per month. Due to the grievous injuries sustained in the accident, he became permanently disabled. Hence, the claimant filed claim petition under Section 166 of the MV Act, 1988 claiming compensation of Rs.30,51,000/-.

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5. After service of notice before the Tribunal, respondents No.1 to 3 appeared through their respective counsels and filed separate statement of objections denying the entire averments of the claim petition. The claimant in support of his case examined himself as PW1 and examined one doctor as PW2 and got marked the documents as Ex.P1 to P16. The

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MFA No.101668/2015 C/w.MFA No.102088/2015

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respondents examined two witnesses as RW1 and RW2 and got marked 6 documents as Ex.R1 to R6.

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6. On appreciation of entire oral and documentary evidence on record, the Tribunal allowed the claim petition in part, awarding a sum of Rs.3,53,000/- with interest at 6% per annum from the date of petition till realization, with a direction to respondent No.1/owner of the offending vehicle to pay entire compensation to the claimant. Being aggrieved by the same, the owner of the offending vehicle has preferred an appeal in MFA No.101668/2015. The claimant also filed an appeal in MFA No.102088/2015 seeking enhancement of compensation.

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7. Heard the learned counsel for the claimant, owner of the offending vehicle, respondent-Insurance Company and respondent-Corporation.

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8. Sri. B.V. Somapur, learned counsel appearing for the appellant/owner of the offending vehicle in support of his appeal vehemently contends that the Tribunal without appreciating the material evidence on record has wrongly recorded a finding that the driver of the offending lorry caused the accident and thereby fixed the entire liability for payment of compensation on the owner, which has resulted in miscarriage of justice. The Tribunal without looking into the evidence on record in a proper

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MFA No.101668/2015 C/w.MFA No.102088/2015

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perspective has wrongly held that the driver of the offending Truck was not holding valid and effective driving license as on the date of the accident and therefore, fixed the liability on the owner. The Tribunal also failed to take note of the fact that there was contributory negligence on the part of the driver of the KSRTC bus and it ought to have saddled equal liability on the driver of KSRTC bus also. He further contended that the award of compensation by the Tribunal is on the higher side and the same requires to be reduced by awarding just and reasonable compensation, taking note of the injuries sustained by the claimant.

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9. The appellant/owner of the offending vehicle filed IA No.1/2022 under Order XLI Rule 27 read with Section 151 of CPC to permit the appellant/owner of the offending vehicle to produce additional documents i.e., attested copy of Driving License of one Nabisab Ramatala, in order to show that the driver of the lorry was having effective driving license as on the date of the alleged accident. The said document is very much necessary to adjudicate the matter and thus, prayed to permit him to produce the document. The counsel also prayed to allow the appeal and remand the matter to the Tribunal for fresh consideration.

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MFA No.101668/2015 C/w.MFA No.102088/2015

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10. Sri. Raghavendra A. Purohit, learned counsel appearing for the appellant/claimant in support of his appeal contends that the Tribunal committed an error in assessing the income of the claimant at Rs.4,500/- per month, inasmuch as the claimant was working as Gas Welder and earning a sum of Rs.10,500/- per month. The Tribunal further committed an error in assessing the disability of the injured at 40%, which is contrary to the evidence of doctor (PW2), who assessed the disability of the injured at 80%. The Tribunal without appreciating the oral and documentary evidence on record has wrongly fastened the liability on the owner of offending lorry, only on the ground that, the driver of the lorry was not having valid and effective driving license. He further contended that the quantum of compensation awarded by the Tribunal under each heads is on the lower side and same requires to be enhanced appropriately, taking note of nature of injuries sustained by the claimant and also period of treatment taken by him. Thus, he prays for allowing the appeal.

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11. Sri. S.C. Bhuti, learned counsel for respondent/NWKRTC and Smt. Preeti Shashank, learned counsel for respondent/Insurer would support the impugned judgment and award of the Tribunal and submit that the quantum of compensation awarded by the Tribunal is just and proper, which

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MFA No.101668/2015 C/w.MFA No.102088/2015

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does not call for interference at the hands of this Court. Both the appellants have not made out any ground for interference with the impugned judgment and award of the Tribunal and thus, sought for dismissal of the appeals.

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12. Having heard the learned counsel for the parties and on perusal of the appeal papers including the original records, the points that would arise for our consideration in these appeals are:

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a) Whether the Tribunal has rightly justified in saddling entire liability on the owner of the offending lorry to pay compensation to the claimant?

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b) Whether the claimant is entitled for enhanced compensation?

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c) Whether the appellant/owner of offending lorry made out ground for remand?

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13. So far as negligence is concerned, the Investigating Officer filed charge sheet against driver of the offending lorry, wherein at Column No.17 of the charge sheet, it is alleged that the accident occurred due to rash and negligent driving of the driver of the lorry. The Tribunal considering the oral evidence of PW1, Ex.P13-FIR, Ex.P14-complaint and Ex.P15-Spot Mahazar came to the conclusion that the accident was occurred due to rash and negligent driving of the driver of the lorry, who dashed

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MFA No.101668/2015 C/w.MFA No.102088/2015

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his lorry to KSRTC bus. The Insurance Company/insurer of offending vehicle has not placed any contrary material before this Court. Therefore, the finding of the Tribunal with regard to negligent act of driver of lorry cannot be found fault with. This observation does not require any interference. Under such circumstances, it is just and necessary to ascertain whether the insured or insurer of offending lorry is liable to pay compensation or not is the question before us.

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14. It is not in dispute that the claimant met with road traffic accident on 29.03.2011 and sustained grievous injuries. Due to the injuries sustained in the accident, he became permanently disabled.

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15. Now, the appellant/owner of the offending vehicle has filed IA No.1/2022 under Order XLI Rule 27 of CPC to produce additional documents viz., Driving License of driver of the offending vehicle.

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16. In the last and in the alternative, the learned counsel has argued that if at all this Court found the want of requisite evidence, the proper course is to exercise the power of remand under the provisions of Order XLI Rule 23-A CPC. The learned counsel has contended that this Court being the first Court of Appeal, must give an opportunity to the appellant/owner of the

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MFA No.101668/2015 C/w.MFA No.102088/2015

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offending vehicle to adduce proper additional evidence, considering the fact that the finding of the Tribunal was against him and entire liability has been saddled upon him, for not possessing valid and effective driving license of the offending vehicle.

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17. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the real questions in controversy between the parties finally.

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18. It is only in such cases where the decree/award in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. In this case, as the appellant/owner of the offending vehicle has furnished the driving license of the driver, which was not produced at the time of trial. Under such circumstances, retrial is considered and necessary because of production of additional document, and more particularly for the reason that adequate opportunity of leading substantive evidence to a party is requisite. Hence, the matter requires to be remanded

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MFA No.101668/2015 C/w.MFA No.102088/2015

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to the Tribunal for consideration afresh after giving reasonable opportunity to both the parties to adduce their respective evidence in support of their claims.

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19. So far as appeal filed by the claimant is concerned, the Tribunal awarded a sum of Rs.3,53,000/- as compensation to the injured/claimant. The claimant is before this Court seeking enhancement of compensation. From the perusal of the impugned judgment and award, the Tribunal has awarded compensation on the lower side on all heads. Hence, we are of the considered view that instead of answering the question regarding quantum of compensation, which is under challenge by the claimant, it would be just and appropriate to remand the matter to the Tribunal including the case of the claimant to be decided by the Tribunal afresh, reserving liberty to the claimant to adduce his further/additional evidence, if any, regarding quantum of compensation before the Tribunal.

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20. Hence, we proceed to pass the following:

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ORDER

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a) Both appeals are allowed in part .

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b) The impugned judgment and award of the Tribunal insofar as negligence is concerned, is confirmed. So far as the quantum of compensation and liability to pay the same,

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MFA No.101668/2015 C/w.MFA No.102088/2015

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the finding of the Tribunal is hereby setaside.

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c) The matter is remitted back to the Tribunal for fresh consideration after giving reasonable opportunity to both the parties to adduce their respective additional/further evidence in support of their claims, as to liability and quantum of compensation.

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d) The parties shall appear before the Tribunal on or before 19.11.2024 without awaiting further notice from the Tribunal.

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e) The parties shall co-operate in speedy disposal of the case.

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f) The Tribunal shall consider the case of the parties and dispose off the matter at the earliest, considering the age of the claim petition.

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g) The amount in deposit be transmitted to the Tribunal along with TCR forthwith.

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h) All the contentions of the parties are kept open.

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Sd/(H.T.NARENDRA PRASAD) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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JTR

Ashrafali Bakasheesab Godekar v. Dadapeer S/O. Saifuddin Torgal

Case brief

What is this about?

What did the court decide?

Ashrafali Bakasheesab Godekar v. Dadapeer S/O. Saifuddin Torgal

Case brief

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What did the court decide?

What the court decided

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