Case Law Details

Case Name : Mankind Pharma PVT. LTD. Vs New India Assurance Co. Ltd. (NCDRC Delhi)
Appeal Number : Consumer Case No. 73 of 2008
Date of Judgement/Order : 26/09/2023
Related Assessment Year :
Courts : NCDRC/SCDRC

Mankind Pharma PVT. LTD. Vs New India Assurance Co. Ltd. (NCDRC Delhi)

Conclusion: In present facts of the case, the National Commission observed that where the Final Surveyor’s Report credibility becomes doubtful and at the same time no assessment have been made by the Insurance Company casts a severe shadow on their inaction indicating towards a deficiency in service on the part of the Insurance Company as well.

Facts: In present facts of the case, the Complainant is a Pharmaceutical Public Limited Company engaged in the business of manufacturing and trading pharmaceutical products of different descriptions. The complaint arises out of a denial of the liability by the Insurance Company in respect of the loss suffered and claim raised by the Complainant which has not been formally repudiated.

The brief facts were that a truck carrying a consignment of medicines that was dispatched on 10.9.2005 while on its way from the Meerut godown of the Complainant to its godown at Hisar and Jaipur met with an accident near Hansi due to incessant rain. The road had become slippery and while negotiating a curve, the vehicle carrying the consignment skid from road and fell into the adjoining canal. Resultantly, the consignment was drenched in water and substantial part of the vehicle was submerged that caused complete damage to the consignment. The Complainant intimated the said accident to the Insurance Company. The goods were assured under a total coverage of Rs. 75.00 lakhs with a limit per transit of Rs. 50.00 lakhs.

The Insurance Company appointed many Surveyor and Investigators. The Investigation pertaining to the accident have continued till 2.5 years.  The Complainant issued a Legal Notice to the Insurance Company questioning the very appointment of the Investigator and the credibility of their Report, and also complaining that no decision has been taken by the Insurance Company to finalize the claim.

The National Commission observed that there was no final assessment by the Insurance Company or repudiation of the claim of the Complainant. The Spot Surveyor’s Report dt. 29.9.2005 records witnessing of the status of the vehicle on 12th and 13th of September, 2005 immediately after the accident on 10.9.2005 lying inside the Canal. Photographs were also taken and the final Surveyor in its Report dated 10.3.2008 states that looking to the photographs, there was no damage to the barricade and since the tarpaulin over the truck was intact in the photograph, therefore, an inference was drawn that no accident had taken place. The Report of the Final Surveyor is after 21/2 years of the accident and is based only on inferences drawn from the photographs but at the same time without contradicting the recording of the Spot Surveyor regarding the status of the truck and its positioning in the Canal in the report dated 29.9.2005. Final Surveyor nowhere discusses the photographs that have been mentioned in the Report of the Spot Surveyor and he has selectively picked up a couple of photographs to make out a case on the basis of his own inferences that such an accident may not have taken place.

What the Final Surveyor has further evaluated is the speculative and imaginary speed of the vehicle as 40 kms not being prone to any such skidding or over-turning. It is not understood as to on what basis and logic of driving skill, this inference has been drawn by the Final Surveyor. The Surveyor was neither an eyewitness nor does his report reflect any such evidence or fact. The very foundation of his conclusion, therefore, appears to an imagination and purely fictional without any facts having been collected by him. The Report nowhere indicates any such material and to the contrary prefers to lay the blame that there was something to doubt about preventing the driver from giving his statement. An inference of an accident on one’s own imaginative assessment cannot be made the basis for negating the entire incident when the previous Spot Surveyor and the Assessor had nowhere indicated any such doubt, alteast about the happening of the accident.

Thus, in a totality of circumstances, the Final Surveyor’s Report credibility becomes doubtful nonetheless at the same time no assessment having been made by the Insurance Company also casts a severe shadow on their inaction indicating towards a deficiency in service on the part of the Insurance Company as well.

Further, it was observed that this is a very old case relating to an insurance claim but in the background above and there being no repudiation by the Insurance Company, it is desirable that it be now considered by the Insurance Company within a specified period for resolving the dispute in as much as the same would require a first-hand assessment by the Insurance Company itself which has not yet repudiated the claim and has expressed its intention and anxiety to assess the claim provided there are appropriate answers to the objections as entailed above. This deficiency has caused delay in the decision making process that was clearly unacceptable.

On basis of the above, the claim was disposed off without any assessment of damage, loss or compensation and it was directed that the Complainant would be at liberty to respond to the stated objections in the Reply of the Opposite Party after assessing the objections may proceed to finalize the claim by an appropriate reasoned order.

FULL TEXT OF THE JUDGMENT/ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

The Complainant is a Pharmaceutical Public Limited Company engaged in the business of manufacturing and trading pharmaceutical products of different descriptions. The complaint arises out of a denial of the liability by the Insurance Company in respect of the loss suffered and claim raised by the Complainant which has not been formally repudiated.

1. Counsel for the Respondent-Insurance Company insisted that at internal page of Para 1 of the Rejoinder filed by the Complainant, it has been stated that the claim has been repudiated through some letter and therefore in the absence of any action/objection raised to such repudiation letter, the complaint cannot proceed. He raises this technical argument, but at the same time has been unable to point out the existence of any repudiation letter from the records or otherwise. The argument therefore begs the question itself and hence appears to be unsustainable in as much as if the Rejoinder of the Complainant incorrectly states about repudiation taking the formal shape of a letter, no advantage can be taken of, as a fact not in existence cannot be presumed to exist on the argument of the Ld. Counsel for the Insurance Company. What seems to be the intent and purport of the recital contained in the Rejoinder is that the claim of the Complainant has not been accepted, and which is obviously under dispute in this complaint on the ground that the Insurance Company by not taking a decision, has registered a clear deficiency in service and hence the complaint deserves to be allowed.

3. Having cleared this web, the facts in brief giving rise to this claim are that a truck carrying a consignment of medicines that was dispatched on 10.9.2005 through Shree Transport Company while on its way from the Meerut godown of the Complainant to its godown at Hisar and Jaipur met with an accident near Hansi due to incessant rain. The road had become slippery and while negotiating a curve, the vehicle carrying the consignment skid from road and fell into the adjoining canal. Resultantly, the consignment was drenched in water and substantial part of the vehicle was submerged that caused complete damage to the consignment.

4. The consignment is said to be covered under the Insurance Policy where the risk covered was for the period 15.4.2005 to 14.4.2006. The accident occurred on 10.9.2005 which is within the said duration of the Policy.

5. The Complainant intimated the said accident to the Insurance Company on 12.9.2005 and the claim was lodged on 28.9.2005. The risks covered under the Policy are pharmaceutical products. The goods are assured under a total coverage of Rs. 75.00 lakhs with a limit per transit of Rs. 50.00 lakhs.

6. A Surveyor was deputed by the Insurance Company namely, M/s. Anil Kumar Sehgal, who conducted a Preliminary Spot Survey stating therein that the Surveyor visited the site of accident. The said Preliminary Survey Report dated 29.9.2005 at Item No. 17 records that the packages were found in wet and damaged condition and at Item No. 22 it categorically records the description of survey which is both at the site of the accident on 12th & 13th September, 2005 and then at the godown at Hisar on 14.9.2005.

7. The Preliminary Survey Report in its ‘’Remarks and Recommendations” describes the entire event of survey witnessing the accidental condition of the vehicle lying in the Canal and also the material that had inter-mingled with the water flowing in the Canal that was recovered with help of fishermen by using their nets. In order to appropriately proceed with facts, it would be apt to quote the said “Remarks and Recommendations”, extracted here as under –

REMARKS AND RECOMMENDATIONS

In accordance with the instructions received from Hisar Divisional Office on 12.09.2005, I, the undersigned proceeded to the site of accident. There I met with insured’s representative Mr. Kaushik and inspected the vehicle, carrying the questioned medicines in accidental condition as it was lying in the canal which was full of water. I, the undersigned advised the insured’s representative to make arrangement to retrieve the vehicle from the canal. The crane was called, but that failed to retrieve the vehicle due to torrential rain and slippery condition nearby the road. Then it was decided to take help from the Highway police with their cranes in the next morning.

In the early hours of next morning, I again reached the site of accident and the whole material was removed/lifted from the vehicle with the help of labour and vehicle was retrieved with help of crane. As the material was remove, it was segregated and observed that most of the cartoons were intermingle and were flowing with the flow of water (as the tarpaulins of the vehicle was cut-torn out), as the same were recovered with the help of fishermen by using their jaal. The whole consignment was photographed. After segregation, it was observed that out of 402 cases, 110 cases were apparently seems safe and 13 cases were partially damaged.

The whole consignment was inspected batch No. wise verified and in the evening, the whole consignment was shifted to the insured C&F at Hisar. In the next morning, I again visited at the insured’s C&F and prepare the complete list…… .”

8. The Insurance Company appointed Mr. Rajeev Sharma, another Surveyor and Loss Assessor vide Instructions dated 20.10.2005 to verify the declarations made by the Complainant falling within the period of the Policy. The said Assessor visited the office of the Complainant and on 22.10.2005 intimated the Branch Manager of the Insurance Company about his observations regarding the consignment covering the transit at that time. The said Chartered Accountant verified the declarations and observed that purchases were declared for Insurance purpose.

9. It appears that the Regional Office of the Insurance Company had also appointed A.K. Govil & Associates, Insurance Surveyors & Loss Assessors, in September, 2005 who visited the godown at Hisar of the Complainant on 16.9.2005 and then at Meerut on 28.9.2005. They appeared to have taken photographs, and collected information from sources as mentioned therein and they submitted a Report to the Insurance Company on 12.12.2005.

10. In their “Observations and Remarks”, it is stated that the Surveyor was informed about the accident but in support thereof no Police Report has been submitted till date. They also mentioned certain items which remained undamaged or affected by the accident and advise was also given for getting the damaged medicines inspected by the State Drug Controller Department, who according to the Complainant, had already inspected the medicines. Information was sought about the outcome thereof. It was also observed that the consignment was completely wet and external water had penetrated the individual packs and were affected by environmental dust. Ultimately, the observation was that the said consignment may not be meant for human consumption and therefore a total loss was observed. Since the loss as assessed would be above Rs. 50.00 lakhs, the claim of the Complainant could not exceed the same as the upper liability fixed in the Policy is Rs. 50.00 lakhs only.

11. The Respondent Company seems to have again appointed M/s. Alka Gupta & Associates, Surveyors & Loss Assessors, to verify the declarations who submitted the Report dated 3.5.2006 indicating that there were some transactions which were in violation of the Insurance Policy, however, it was concluded that the Insured had been following the system of declaration of all consignments except the storage of one dry syrup that had exceeded 06 months which was not in accordance with the Policy. The opinion expressed by M/s. Alka Gupta & Associates is extracted herein under –

“6. OUR OPINION

To conclude, we are of the opinion that the subject consignment had been declared and the insured has been following the system of declarating all the consignments at the time of receipt at their godown. The fact has been discussed in detail at the Regional Office on 17.4.06 following which it has been opined that the policy condition as to declaration is being followed on the grounds that the Insured Godown is a storage point for all the transits.

The maximum storage period as mentioned in the policy of Manforce- More strips had been renewed by declaration of Goods Returned and it does not exceed six months, whereas the storage of Moxkind Dry Syrup has exceeded six months which is not in accordance with policy stipulations.

Report issued without prejudice.”

12. After these multiple investigations and the process of survey and assessment, the Opposite Party-Insurance Company appointed M/s. Joe & Joel, Mumbai, as Investigators to submit their Report. This exercise of investigation was conducted at the instance of the Insurance Company to find out the credibility and genuineness of the claim. The said Investigation Report is dated 10.3.2008. They described that their investigation was carried out from 16.7.2007 to 6.3.2008.

13. This investigation, therefore, is clearly almost after two years of the accident and the claim of the Complainant.

14. The said Investigator in its Report states that the transporter kept the driver of the truck away from their direct contact by not giving any contact phone number. They also observed that the owner of the truck had not made any claim in respect of damage of the vehicle from the coverage granted to the vehicle from National Insurance Co. Ltd., for which they relied on the letter of the Branch Manager of that Company.

15. It was, further, observed that the Spot Surveyor performed a casual job without going into the details of the accident and did not take the statement of the truck driver. It was also observed that the invoiced consignment did not tally with the actual quantity of the consignment that was being carried by the truck. Thus, there were willful omissions on the part of the Complainant and the goods carrier.

16. There is yet another peculiar observation about Mr. D.K. Jaju, Assistant Drugs Controller, Meerut, who had issued a Certificate in respect of the consignment. The Investigator infers that since the said Drug Controller, Mr. D.K. Jaju, was later found to be a corrupt officer who was suspended from service, the Certification given is suspected.

17. The most peculiar part of the observation made by this Investigator is in respect of the visit to the spot of accident after 21/2 years of the incident on 16.1.2008. The dimensions of the Canal, its construction and its location were almost measured by the Investigator and it was then observed that the South-end portion of the barricade of the bridge which was on the West side, was found damaged and repaired by bricks. However, the barricade did not indicate any damage as per the photographs taken by the Spot Surveyor. The conclusion, therefore, drawn was that the damage to the barricade was caused subsequent to the said survey. On this ground, the accident itself was doubted.

18. It has been further observed that if a vehicle is running on an average safe speed of 40 kms p. h. the wheels will never get enough grip on the ground for a vehicle to take sudden and sharp turn at perpendicular direction to the main road. The accident was further doubted on the ground that no damage was caused to the front portion of the vehicle or the grill or even the front indicator lamps and the vehicle was brought safely to the side of the Canal on a kaccha road running between the Canals. Consequently, the incident was described as not having happened due to any natural cause and was a pre-planned and artificial accident.

19. He has further doubted the consignment part also by relying on some portion of the information stating therein that since there was an incentive offer with regard to the medicines that were being supplied, three out of four bottles would be free and therefore there was no loss to that extent. He, further, goes on to conclude that the medicine was nearing to the expiry date and was to be destroyed within four to six months, therefore, it would have lost its value and hence the claim was artificial and was in respect of medicines that were likely to expire and hence the claim was not genuine.

20. The Complainant issued a Legal Notice to the Insurance Company questioning the very appointment of the Investigator-M/s. Joe & Joel and the credibility of his Report, and also complaining that no decision has been taken by the Insurance Company to finalize the claim. It is in this background that on 30.5.2008, the present complaint was instituted to which a counter/written reply was filed in August, 2008 and the Rejoinder was exchanged thereafter.

21. On repeated queries, Ld. Counsel for the Insurance Company clearly stated that there is no order of repudiation but still it is maintained that the present complaint is neither maintainable nor entertainable. The Affidavit of Evidence has been filed by both the parties which states and restates the averments made in their complaint and affidavit in response thereto. In the brief Written submissions on behalf of the Opposite Party, it has been categorically stated that no final decision has been taken and the said recital in the brief Written submissions dated 7.9.2016 is extracted here as under-

“….It is submitted that the final decision in respect to settlement of insurance claim in question by the respondent could not be taken because of the facts and circumstances as mentioned in para No. 30 of the reply and further the complainant without waiting for any communication regarding the decision of respondent in respect to the insurance claim in question, filed the present Complaint before the Hon’ble Commission….”

22. The reason given for this non-disposal of the claim was the absence of response from the Complainant to the queries that have been indicated in Para 30 of the Written Statement. Since that is the sheet anchor of the defense taken for not having taken a decision, it is apt to quote the same as under-

“30. It is submitted that the respondent is anxious to consider this claim for admission but certain objections need to be answered by the complainant and the following areas are ought to be looked into:-

v. The provenance of the lot under claim is to be traced as it is returned stock from an earlier purchase.

vi. The authentication of destruction is not adequately supported by documents and/or factual/circumstantial evidence.

vii. During the same period there was a scam reported in the Drugs Control Department, Meerut that cast serious doubts on admissibility.

viii. The transit location, nature of fall and the photographs give room for significant and reasonable grounds warranting further and detailed enquiry.

ix. The above is buttressed by the fact that the vehicle under consideration has reported no own damage claim on the insurer during the effective policy period.

x. The nature of damage without any significant soaking in water or exposure to the elements clearly denies the possibility of the value of the loss as claimed.

xi. The consignor’s records relating to central excise and sales tax debits for the relevant period need to be looked into in depth to establish the extent of loss and/or the monetary consequence as claimed.

xii. The residual shelf life for such market products is clearly indicative of the dispatch being beyond the ‘effective’ expiry date. The consignor should be put to strict proof of residual market value.

xiii. The consignor has clearly breached the duty of assured clause by not even making a perfunctory attempt to ameliorate the extent of loss and is attempting to exploit an occurrence (which itself is of a suspicious nature and denied by the underwriter) by ‘effectively’ abandoning the goods.

xiv. The above in any case has to be verified to establish what could be considered in the event of the occurrence turning out to be genuine and the insurance cover existing, which is disputed by the respondent, versus what is aggravated by their breach of even minimum due diligence.

xv. It has also been observed that the stock has been valued at least four times higher than actual as incentive being offered by the complainant in the ratio of 1:3 would mean that the effective value of the material would be a maximum of 1/4th only.

xvi. The spot surveyor has observed that seals of some of the bottles had rust. If water damage had occurred on 11/12 September, 2005 and the inspection by the surveyor having been done immediately, such rust would have not developed within 1 day and that too inside the covered cap seal area. This indicates that at least some of the medicines were unfit for human consumption.

xvii. Though the reported incident is said to have resulted into heavy losses, no report to the police was made despite reportedly taking help from police for attempting to pull back the vehicle by crane.”

The same has been replied to and denied in the Rejoinder generally reiterating the stand taken in the complaint.

23. It is in this background that the Report of the Investigator dated 10.3.2008 has been castigated by the Ld. Counsel for the Complainant to contend that firstly the Investigator submitted his Report after more than 21/2 years commenting upon the status of the accident and doubting it by drawing inferences which are imaginary and based on surmises.

24. It is also urged that the said Report is contrary to the Spot Survey Report and the Report of the two other Investigators where no doubt had been expressed at least about the accident taking place on 10.9.2005 and the truck having skid and entered alongwith the consignment into the Canal and submerged in water. Thus, by discarding these Reports, the Investigator has completely tried to steer the entire story in favour of the Insurance Company so as to deny the entire liability and is, therefore, a tailor-made report.

25. It is urged that the Insurance Company by its inaction, admittedly, has refused to act upon for no valid reason, and this clearly is a gross deficiency in service. It is also urged that the appointment of multiple Investigators and Surveyors is contrary to the Principles of Law on this subject as laid down in judgments, hence, the action of the Opposite Party is arbitrary, malicious and clearly establishes deficient service. The complaint therefore, deserves to be allowed with compensation and costs as prayed for.

26. Counsel for the Insurance Company, however, on the basis of the narrative set out in the counter Affidavit and Evidence Affidavit, argued that the Report of the Investigator dated 10.3.2008 was after full investigation and taking into consideration the Spot Survey Report. The doubt expressed about the accident is therefore based on material on record and as such deserves credit. He contends that in such a state of affairs, and there being no material supplied by the Complainant in relation to such doubts, there is a clear breach of the Policy by the Complainant themselves and hence deficiency on the part of the Insurance Company is nowhere made out.

27. The steps taken of identifying, verifying and certifying the loss at every step has been taken as per rules and, thus, to allege non-performance by the Insurance Company is not only unjustified but completely untenable. It is submitted that neither the accident nor the loss has been established with any clinching evidence and therefore the terms of the Policy do not permit any such admissibility of the claim. Thus, on facts as well as on legal principles, the claim cannot be sustained and the Complainant does not make out any case for award of any damages or compensation. It is urged that the complaint deserves to be dismissed.

28. Having considered the submissions and having perused the record, there is no final assessment by the Insurance Company or repudiation of the claim of the Complainant. The Spot Surveyor’s Report dt. 29.9.2005 records witnessing of the status of the vehicle on 12th and 13th of September, 2005 immediately after the accident on 10.9.2005 lying inside the Canal. Photographs were also taken and the final Surveyor in its Report dated 10.3.2008 states that looking to the photographs, there was no damage to the barricade and since the tarpaulin over the truck was intact in the photograph, therefore, an inference was drawn that no accident had taken place. It is worth noting that the Report of the Final Surveyor is after 21/2 years of the accident and is based only on inferences drawn from the photographs but at the same time without contradicting the recording of the Spot Surveyor regarding the status of the truck and its positioning in the Canal in the report dated 29.9.2005. Final Surveyor nowhere discusses the photographs that have been mentioned in the Report of the Spot Surveyor and he has selectively picked up a couple of photographs to make out a case on the basis of his own inferences that such an accident may not have taken place. The report dt. 12.12.2005 of M/s. A.K. Govil, the second Surveyor also under the heading “Evidence of Loss” has categorically mentioned the photographs of the Spot Surveyor and 28 photos taken by them of the damaged consignment.

29. What the Final Surveyor has further evaluated is the speculative and imaginary speed of the vehicle as 40 kms not being prone to any such skidding or over-turning. It is not understood as to on what basis and logic of driving skill, this inference has been drawn by the Final Surveyor. The Surveyor was neither an eyewitness nor does his report reflect any such evidence or fact. The very foundation of his conclusion, therefore, appears to an imagination and purely fictional without any facts having been collected by him. The Report nowhere indicates any such material and to the contrary prefers to lay the blame that there was something to doubt about preventing the driver from giving his statement. An inference of an accident on one’s own imaginative assessment cannot be made the basis for negating the entire incident when the previous Spot Surveyor and the Assessor had nowhere indicated any such doubt, alteast about the happening of the accident.

30. It is also alleged that no Police Report was available. The Spot Surveyor in his Report has categorically stated that information had been given to the Highway Police and the vehicle was thereafter pulled out of the Canal and then sent to Hisar. The Final Surveyor has stated that there was no damage to the grill and front lights and signals of the vehicle. The Surveyor appears to be under the impression that the vehicle had dashed against something and there was no physical impact on the front side of the vehicle and hence it could be inferred that there was no accident. The said assumption excludes the possibility of a vehicle skidding and entering into the Canal at a slower speed and it may be possible or otherwise that no impact may have been caused to the front side of the vehicle. Thus, in a totality of circumstances, the Final Surveyor’s Report credibility becomes doubtful nonetheless at the same time no assessment having been made by the Insurance Company also casts a severe shadow on their inaction indicating towards a deficiency in service on the part of the Insurance Company as well.

31. The Surveyors report seems to project probabilities but what has to be assessed is a preponderance of probability, and not a mere possibility. Probability is that which is likely to have occurred. An occurrence or supposition is probable when we mean, that taking into account all available evidence, we may reasonably expect it to happen or prove to be true. It should be reasonably satisfying. Such occurrences are generally qualified as probable. A preponderant probability is that which is heavier, weighty and can outweigh other options of occurrence. No sifting of the other reports and their preponderant probability has been assessed by the Surveyor who just thought about the speed of some vehicle and then spun a calculation based on hardly any evidence, rather his own permutation and combination of driving and vehicular movements to arrive at a conclusion as if no such incident much less an accident had taken place.

32. The defense taken is that the Complainant did not supply the correct information to the objections and queries raised and therefore the Insurance Company is still anxious to consider the claim for admission. There was no injunction from this Forum to assess the liability. Ld. Counsel for the Insurance Company submitted that since the matter was sub-judice, therefore, any such claim could not be considered. This argument cannot be appreciated in as much as the responsibility of assessing a claim is ordained as an obligation on the Insurance Company in terms of the Insurance Act, 1938 and IRDA Regulations and Guidelines which are in force since 2002. A perusal of such regulatory measures would indicate the timeline provided for consideration and final assessment of a claim which does not appear to have been adhered to by the Insurance Company. May be the Insurance Company was itself in doubt with the several reports before it, still it had the option to take a call.

32. This is a very old case relating to an insurance claim but in the background above and there being no repudiation by the Insurance Company, in my opinion, it is desirable that it be now considered by the Insurance Company within a specified period for resolving the dispute in as much as the same would require a first-hand assessment by the Insurance Company itself which has not yet repudiated the claim and has expressed its intention and anxiety to assess the claim provided there are appropriate answers to the objections as entailed above. This deficiency has caused delay in the decision making process that is clearly unacceptable.

33. In this background, the claim deserves to be disposed off without any assessment of damage, loss or compensation at this stage as, in this peculiar circumstance the claim is yet to be assessed by the Insurance Company.

35. Consequently, the Complainant is at liberty to respond to the stated objections in Para 30 of the Reply of the Opposite Party quoted herein above, within a period of one month from today and the Insurance Company after assessing the objections may proceed to finalize the claim by an appropriate reasoned order preferably within a period of 03 months from today. The decision will be intimated forthwith by the Insurance Company to the Complainant and it shall be open to the Complainant to proceed accordingly. The Consumer Complaint stands disposed of with the above directions and observations and liberty to the parties.

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