Karnataka High Court
V G Palaniswamy vs D Pushpalatha on 20 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
M.F.A. No.9543/2008 (MV) C/W
M.F.A. No.9770/2008 (MV)
In M.F.A. No.9543/08
BETWEEN:
V.G.Palaniswamy,
S/o Ganapathi Gounder,
Aged about 56 years,
Occ: Agriculturist,
Residing at Adivala Farm,
Hiriyur Taluk-577 143.
Now Resident of Near Stadium Road,
Chitradurga. .....Appellant
[By Sri.S.C.Vijaya Kumar, Advocate]
AND:
1. D.Pushpalatha,
W/o K.P.Srinivasa,
Aged Major,
Owner of Hero-Honda,
Bearing Regn.No.KA-06/R-8890,
Residing at Lakshmi
Venkateshwara Nilaya,
Jyothi Nagar, Sira-572 137.
Tumkur District.
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2. Branch Manager,
The New India Assurance Co.Ltd.,
Branch Office,
Near Taluk Office,
Chitradurga-571 501. ....Respondents
[By Sri.C.R.Ravishankar, Advocate for R-2;
Notice to R-1 is dispensed with vide order dated
20.7.2010]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 13.6.2008 passed in MVC No.198/2004 on
the file of II Additional Civil Judge (Sr.Dn) and Additional
Motor Accident Claims Tribunal, Chitradurga, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
In M.F.A. No.9770/08
BETWEEN:
The New India Assurance Co.Ltd.,
Branch Office, Near Taluk Office,
Chitradurga,
Represented by Divisional Office-12,
Mayur Complex, KIADB Main Road,
Peenya, Bangalore-560 058.
By its Senior Divisional 571 501. ...Appellant
[By Sri.C.R.Ravishankar, Advocate]
A N D:
1. Sri.V.G.Palaniswamy,
S/o Sri.Ganapathi Gounder,
Aged about 56 years,
Residing at Adivala Farm,
Hiriyur Taluk-577 143.
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Now Resident of Near Stadium Road,
Chitradurga Town.
2. Smt.D.Pushpalatha,
W/o Sri.K.P.Srinivasa,
Aged Major,
Owner of Hero-Honda
No.KA-06/R-8890,
Residing at Lakshmi
Venkateshwara Nilaya,
Jyothi Nagar,
Sira-572 137. ...Respondents
[By Sri.S.C.Vijayakumar, Advocate for R-1;
Respondent No.2 is served]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 13.6.2008 passed in MVC No.198/2004 on
the file of II Additional Civil Judge (Sr.Dn) and Additional
Motor Accident Claims Tribunal, Chitradurga, awarding a
compensation of Rs.1,48,200/- with interest at 6% per
annum from the date of petition till deposit.
These Appeals coming for hearing on this day, the
court delivered the following:
JUDGMENT
These two appeals one by the claimant and other by the insurer of the offending vehicle are directed against the judgment and award dated 13.06.2008 passed by the II Additional Civil Judge (Sr.Dn.) & Additional MACT, Chitradurga, in MVC No.198/2004.
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2) For the purpose of convenience, I shall refer the parties with reference to their ranking before the Tribunal.
3) The claimant filed claim petition under Section 166 of the Motor Vehicles Act (for short, 'MV Act') seeking compensation for the personal injuries said to have been sustained by him in the motor vehicle accident that occurred at about 10.00am. on 20.02.2003.
4) According to the claimant, on the said date and time, when he was standing on the side of the road near K.R. Halli Gate, Hiriyur-Sira Road, N.H.4, to go to his garden land, the motor cycle bearing registration No. KA.06.R.8890 ridden by its rider in a rash and negligent manner came from Sira side and dashed against him, as a result, he sustained severe injuries. It was his further case that he was immediately taken to Government Hospital at Hiriyur and from there he was referred to NIMHANS and thereafter, he took treatment as inpatient in Varalakshmi Nursing and Maternity Hospital in Rajajinagar, Bangalore. According to him, in spite of the 5 best treatment, he has suffered permanent disability, which has affected not only the enjoyment of his future life but also his future earning capacity. Therefore, the claimant sought compensation of Rs.10 Lakhs under different heads.
5) The owner of the motor cycle in spite of service of notice, remained absent and he was placed ex-parte by the Tribunal. The insurer of the motor cycle arraigned as Respondent No.2 contested the petition.
6) The insurer denied the whole case of the claimant with regard to the occurrence of the accident and involvement of the motor cycle in question. It also disputed the nature of the injuries said to have been suffered by the claimant.
7) In the light of the pleadings of the parties, the Tribunal framed the following issues:-
i) Whether the petitioner proves that, he sustained injuries in the road traffic accident occurred on 20.02.2003 at about 10.00 am.,near K.R.Halli Gate on N.H.4, on Hiriyur-6
Sira Road on account of actionable negligence on the part of the rider of the Hero Honda motor cycle bearing registration No. KA.06.R.8890?
ii) Whether the petitioner is entitled for compensation? If so, what is the quantum of compensation?
8) The claimant examined himself on commission as CW.1 and two more witnesses as CWs. 2 & 3. The Dr.Dayananda, who said to have treated the claimant, was examined before the Court as PW.1. The claimant placed reliance on documentary evidence marked as Exs.P.1 to P.138. On behalf of the insurer-Respondent No.2, two witnesses were examined RWs.1 & 2 and reliance was also placed on documentary evidence marked as Exs. R1 to R6.
9) After hearing both sides and on assessment of oral as well as documentary evidence, the Tribunal answered Issue No.1 regarding actionable negligence in the affirmative in favour of the claimant holding that the claimant has proved the occurrence of accident at about 7 10.00 am. on 20.02.2003 near K.R. Halli Gate on Hiriyur- Sira Road of NH.4, as a result of Motor cycle owned by Respondent No.1 dashing against him and consequent injuries. The Tribunal rejected all the contentions of the insurer. Having regard to the nature of the injuries suffered by the claimant, the duration of the hospitalization, etc., the Tribunal awarded the total compensation of Rs.1,48,200/- under different heads as under:-
Pain and Agony : Rs. 10,000/- Future unhappiness : Rs. 2,000/- Medical expenses : Rs. 75,000/- Travelling expenses : Rs. 15,000/- Loss of future earning on Account of permanent disability : Rs. 43,200/- The Tribunal has awarded total compensation of
Rs.1,48,200/-. The insurer of the offending vehicle was directed to pay the said amount with interest at 6% pa from the date of petition till the date of payment. Dis- 8 satisfied with the quantum of compensation the claimant has presented appeal in MFA No.9543/2008.
10) I have heard the learned counsel appearing on both sides and perused the records secured from the Tribunal.
11) Learned counsel for the claimant contended that the compensation awarded by the Tribunal under different heads is grossly inadequate having regard to the nature of the injuries as well as the length of hospitalization, etc. It is his further contention that though the claimant has produced medical bills to the tune of Rs.1,18,614.82, the Tribunal has committed error in scaling down the said amount to Rs.75,000/- without any basis. He further contended that the medical evidence on record clearly establishes that the claimant has suffered functional disability to the extent of more than 35% and in spite of the same, the Tribunal has assessed the functional disability only at 10%. It is also his submission that the income of the claimant has been 9 erroneously determined by the Tribunal at Rs.3,000/- pm. though the evidence on record show that the claimant was earning more than Rs.15,000/- to 20,000/-pm. He further contended that the compensation paid towards pain and agony, future unhappiness, etc. are grossly inadequate and by no stretch of imagination, the quantum of compensation awarded under these heads could be termed as just and proper. He further contended that the Tribunal has failed to notice that the claimant was treated as inpatient in the hospital for nearly six months and during this period, he has undergone great amount of pain and sufferings, which is required to be adequately compensated. It is his further submission that during this prolonged treatment as inpatient in the hospital, the claimant has spent huge money towards attendant charges, conveyance, nourishing food, etc., whereas the Tribunal has awarded a meager sum of Rs.15,000/-. Therefore, learned counsel contended that the compensation under each of the heads required to be enhanced.
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12) On the other hand, learned counsel for the insurer contended that the finding of the Tribunal on Issue No.1 is perverse and is illegal and in this regard the Tribunal has failed to take into consideration the evidence led by the insurer. According to the learned counsel, the evidence of RWs. 1 & 2 as well as the documentary evidence produced by the respondent-insurer clearly establishes that there was no accident as alleged by the claimant on 20.02.2003 involving the motor cycle in question, as, it is evident from the fact that, on 18.02.2003 itself the claimant has visited the hospital at Hiriyur and an x-ray had been taken on that day, as indicated in the x-ray register-Ex.R5. It is the contention of the learned counsel for the insurer that the Tribunal has not properly appreciated the entries found in Ex.R5 and the reasonings adopted to discard Ex.R5 are not sound, as such, the finding recorded by the Tribunal on Issue No.1 is liable to be set aside. He contended that the evidence on record clearly establishes that there was no accident on 20.02.2003 involving the motor cycle in 11 question, therefore, the Tribunal ought to have dismissed the claim petition. Alternatively, he contended that the total compensation awarded by the Tribunal is just and reasonable having regard to the injuries suffered by the claimant and therefore, there is no ground to enhance the compensation.
13) In the light of the submissions made on both sides, the points that arise for my consideration are,-
i) Whether the Tribunal is justified in answering Issue No.1 regarding actionable negligence in the affirmative?
ii) Whether the claimant is entitled for enhancement of compensation? If so, to what extent?
14) As noticed supra, the Tribunal, on perusal of the oral and documentary evidence has held that the claimant has proved the occurrence of the accident on 20.02.2003 involving the motor cycle in question and sustaining grievous injuries in the said accident. The Tribunal has elaborately considered the evidence led by the insurer in support of its contention that there was no 12 accident as alleged by the claimant on 20.03.2003 involving motor cycle in question. The Tribunal has assigned cogent reasons to discard the entries found in the register said to have been maintained in the General Hospital at Hiriyur and marked as Ex.R5. The Tribunal has held that perusal of register-Ex.R5 indicates that it was not maintained during the discharge of the official duty in the natural course and the entries appears to be highly manipulated and therefore no reliance can be placed on the entries found in Ex.R5. As the learned counsel for the insurer has seriously challenged this finding of the Tribunal, I have carefully perused the records secured from the Tribunal.
15) As noticed supra, the owner of the motor cycle arraigned as Respondent No.1 before the Tribunal, in spite of service of notice, remained absent and he had been placed ex-prate. Thus, the owner of the motor cycle did not dispute the accident alleged by the claimant. It was the insurer of the motor cycle, who disputed the accident. The claimant examined as CW.1, in the examination-in- 13 chief filed by way of affidavit, has reiterated the case that, on 20.03.2003 at about 10.30 am., he was standing by the side of the Hiriyur-Sira Road near K.R.Halli Gate and at that time, the motor cycle in question ridden by its rider, came in a rash and negligent manner and dashed against him, as a result, he sustained injuries. According to him, the rider of the motor cycle after the accident, fled from the scene. According to the evidence of the claimant, his son-in-law-Rajendra, who was with him and other persons, who were there, shifted him to General Hospital, Hiriyur, in a vehicle. According to him, after the first aid, he was referred to NIMHANS, Bangalore, and from NIMHANS he was admitted to Varalakshmi Nursing and Maternity Home at Rajajinagar in Bangalore. In the cross- examination of the claimant it is elicited from him that in respect of the accident, he lodged a complaint to the police. According to him, when he was in the hospital, the police obtained complaint from him. Ex.C.1 is the copy of FIR registered by the jurisdictional police in Crime No.90/2003. Perusal Ex.C.1 indicates that it was 14 registered on 20.03.2003 on the basis of the statement of the claimant recorded in the General Hospital in Hiriyur at 12.30 pm. on the same day. In the statement said to have been made before the police, as found in Ex.C.1, the claimant has clearly stated as to how the accident occurred. According to this statement, while he was standing by the side of the road near K.R. Halli Gate, Hiriyur-Sira Road at about 10.00 am., the motor cycle in question ridden by its rider came in a rash and negligent manner and dashed against him, as a result, he sustained injuries. The case was registered against the rider of the motor cycle. Ex.C.2 is the wound certificate issued by the General Hospital at Hiriyur. As per the contents of this wound certificate, the injured was brought to the hospital at about 11.30 am., on 20.03.2003 with the history of road traffic accident, namely hit by motor cycle bearing registration No. KA.06.R.8890 at about 10.30 am on 20.03.2003. On that day, on examination, he was found having sustained several injuries including,- 15
i) fracture of both bones of the left leg, fracture of lat.
Condyle left tibia;
ii) right sided brachlial plexes injury monoplegia right upper limb; and
iii) contusion 2x4inch on right arm (no fracture seen) Ex.C.4 is the certified copy of the mahazar under which the motor cycle in question was seized by the police on 27.02.2003. Ex.C.6 is the copy of the charge sheet filed against the rider of the motor cycle. Ex.C.7 is the reference letter dated 20.03.2003 from the General Hospital at Hiriyur, while referring the injured claimant to NIMHANS in Bangalore. Ex.P8 is emergency case records issued by the NIMHANS, Bangalore. According to the contents of Ex.P8, the claimant was brought to the said hospital at 10.30 pm on 20.03.2003 with the history of road traffic accident at about 10.00am. on the same day near K.R. Halli Gate on Hiriyur-Sira Road, and he alleged to have been hit by the motor cycle while he was standing by the side of the road. Ex.P.10 is the discharge note issued by Varalakshmi Nursing and Maternity Home in 16 Bangalore, which indicated that he was admitted to the said hospital on 20.03.2003 and discharged on 08.03.2003. There is no serious challenge to the contents of these documents. Thus, the contents of these documents clearly establish that the claimant met with an accident at about 10.00am on 20.03.2003 near K.R. Halli Gate on Hiriyur-Sira Road, as a result of the motor cycle bearing registration No. KA.06.R.8896 dashing against him.
The defence put-forth by the insurer, was sought to be substantiated on the basis of two documents namely, Ex.R5-x-ray register maintained in the General Hospital at Hiriyur and the medical record marked as per Ex.C.15 issued by Lajpatrai Mehra Neurotheraphy Ashram ( Hospital), Seva bharati, Tamil Nadu Center. As per Ex.C.15, the claimant was examined in the said hospital on 27.04.2003, wherein he said to have furnished the history of accident on 19.02.2003. The insurer had summoned the case sheet from the General Hospital, Hiriyur and the same is marked as Ex.R3. Even as per 17 the entries found in Ex.R3, the claimant was brought to the said hospital at about 11.30 am., on 20.03.2003 with the history of road traffic accident at about 10.00 am, on the same day and later about at 3.00 pm, he was referred to NIMHANS. The OPD Slip available in the case sheet- Ex.R3 would further indicate that on the same day, i.e, on 20.03.2003, x-ray of the left leg was taken under No.444.
16) On perusal of Ex.R5, I am of the opinion that the learned Member of the Tribunal is justified in discarding the said document on the ground that it has not been maintained in the regular course of discharge of the official duty. As could be seen from the entries in Ex.R5, the entries have not been made regularly. To illustrate this, the entries found at the end of the pages 21 and 22 relate to 06.02.2003. Thereafter, in page 23, the entries starts from 11.02.2003. Then there was one entry pertaining to 16.02.2003 and thereafter from 17.02.2003, the entries start from Sl. No.385 and it ends at Sl. No.405 at page 23. Thereafter, the entries from 406 upto 418 18 relate to 18.02.2003. Thereafter, the entries from 419 upto 436 are related to 19.02.2003. Once again, the entries from 437 shown to have been entered on 18.02.2003. Again entries from Sl. No.453 upto to 461 relates to 19.02.2003. From this it is clear that the officials who said to have maintained this register have not made entries regularly as and when x-rays were taken. Therefore, on the basis of the entries found in Ex.R5, it cannot be said that the x-ray pertaining to the claimant was taken on 18.02.2003. To suit the convenience, the concerned officials appears to have made entries in the register. Therefore, in my opinion, the Tribunal has not committed any error in not placing reliance on Ex.R5. The very document summoned at the instance of the insurer from the General Hospital at Hiriyur itself make it is clear that the claimant came to the General Hospital at Hiriyur only on 20.03.2003, therefore, the x-ray of left leg of the claimant could not have been taken in the said hospital on 18.02.2003. The official who made entries in Ex.R5 has not been examined by the insurer. However, the Doctor 19 working in the hospital at Hiriyur at the relevant point of time has been examined as RW.1 and RW.1, who produced Ex.R5 on being directed to produce, was not the person who had knowledge about Ex.R5 and therefore marking of Ex.R5 does not prove the entries found therein. Even the evidence of RW.1 clearly indicate that the claimant came to the said hospital at about 11.30am. on 20.03.2003 and not earlier. Having regard to the oral and documentary evidence placed by the claimant, I am of the considered opinion that the Tribunal is justified in holding that the claimant has proved the occurrence of the accident at about 10.30 am. on 20.02.2003 near K.R. Halli Gate on Hiriyur-Sira Road as a result of the motor cycle in question dashing against him. A stray entry in Ex.C.15 regarding the date of the accident as 19.02.2003 by itself cannot be a ground to doubt the occurrence of the accident on 20.03.2003. The entry in Ex.C.15 appears to have been made on 27.04.2003 i.e., nearly about two months after the accident. Therefore, much reliance cannot be placed on the entry found in Ex.C.15. The 20 finding recorded by the Tribunal in this regard is sound and reasonable and it is supported by voluminous evidence available on record. Therefore, the said finding does not call for interference by this Court. Hence, I hold that the Tribunal is justified in answering Issue No.1 in the affirmative.
17) As noticed supra, immediately after the accident, the claimant was taken to General Hospital at Hiriyur and on the same day at about 3.00 pm. he was referred to NIMHANS, consequently, he was brought to NIMHANS and later he was admitted in Varalakshmi Nursing and Maternity Home in Bangalore. Ex.C.10- Discharge notes issued by the Varalakshmi Nursing Home clearly indicates that the claimant had suffered Traumatic right Brachial Plexus injury, fracture of the left tibia upper 3rd and he was treated in the said hospital upto 08.03.2003. Ex.C.11 is the report issued by the Elbit Diagnostic Center regarding MRI of CervicalSpine and Brachial Plexus Dated 28.02.2003.
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18) Ex.C.17 is the discharge summary issued by Hosmat Hospital. According to this, the claimant was admitted into the said hospital on 04.06.2003 and was discharged on 14.06.2003. Ex.C.17 further indicates that ORIF with inter-locking nail with bone grafting with fibular osteotomy was done in the said hospital. Exs.C.21 to C.111 are the bills regarding purchase of medicines, hospital charges and bills regarding the payment to taxi services availed etc. Exs.C113 to C.137 are the x-ray films. Thus, from the above documentary evidences, the claimant has proved that he suffered fracture of the left tibia-upper 3rd with traumatic fractural injuries, for which, he was treated initially in the General Hospital in Hiriyur and NIMHANS, Varalakshmi Nursing Home as well as Hosmat Hospital in Bangalore. The evidence of PW.1- Dr. Dayananda indicates that on 04.06.2003, he saw the claimant in Hosmat hospital and on that day, he had paralysis of the right side upper limb. There was mal- union of tibia and fibula on the left side. According to him, 22 on 07.06.2003, he conducted surgery for the reduction of the fractures of the left leg. According to him, for the injury in the right upper limb, the patient was referred to Neuro Surgeon. However, the Neuro Surgeon opined that there is no possibility of the claimant getting back the sensation in his right upper limb.
19) According to PW.1, he noticed shortening of the left leg by 4cm and the mal-union of tibia and fibula. According to him, there was restriction of movement in the left leg coupled with wastage of muscles. He has opined that there is 100% disability in the right upper limb and 35% to 40% disability in the left lower limb. According to him, he has issued Disability Certificate as per Ex.P131. The witness has been cross examined at length. However, there is nothing to discredit his testimony with regard to the nature of the injuries suffered by the claimant and the disability incurred by him.
20) No doubt from the very contents of Exhibit C7 it is clear that claimant was known to be diabetic 23 patient. On the basis of this, it is contended by the learned counsel for the insurance that all the complications during the treatment and the monopleogia of the right upper limb was only due to his diabetic conditions therefore the claimant is not entitled for compensation for the disability if any in the right upper limb and is also not entitled for the reimbursement of the whole of the medical expenses. I find no substance in this contention.
21) No doubt as per Exhibit C7 claimant is said to be a diabetic patient aged about 57 years as on date of accident. The injury suffered by the claimant in the accident appears to have aggravated his condition and on account of the diabetic condition, there was infaction and this has lead to complications. The cause for such complications was the injuries suffered in the accident and it got aggravated on account of diabetic from which he was suffering. Therefore, the claimant is entitled for just compensation for the sufferings undergone as also 24 the disability incurred on account of said accident and is also entitled to reimbursement of whole of the medical expenses. Having regard to the nature of injury suffered by the claimant, long treatment and the permanent disabilities suffered by him, I am of the opinion the compensation awarded by the Tribunal both under pecuniary and non-pecuniary heads are grossly inadequate and by no stretch of imagination the quantum awarded by the Tribunal can be termed as just and reasonable. Therefore compensation payable under all the heads deserves to be enhanced. Taking into consideration the nature of the injuries suffered by the claimant, duration of treatment, the consequent disabilities suffered by the claimant, I am of the opinion that the claimant is entitled for compensation for Rs.30,000/- towards pain and sufferings and Rs.40,000/- towards loss of amenities.
22) The medical bills, as noticed by the Tribunal, produced by the claimant though were to the extent of 25 Rs.1,18,61.82/- the Tribunal without any reasons has scaled it down to Rs.75,000/-. When the documents produced by the claimant regarding the medical expenses are not suspicious, there are no reasons for the Tribunal to scale it down to Rs.75,000/-. Having regard to the nature of the injury and duration of the treatment, the say of the claimant that he has spent Rs.1,18,61.82/- towards medical expenses deserves to be accepted. Therefore claimant is entitled for the said amount. In addition he must also have spent some more amount for treatment subsequent to his discharge from the hospital. Therefore I deem fit to award Rs.1,25,000/- towards medical expenses.
23) The Tribunal has not awarded any compensation towards attendance charges though
claimant was treated as impatient in Varalakshmi Hospital as well as Hosmat Hospital. The travelling expenses Rs.15,000/- awarded is on the lower side. Taking into consideration the duration of the treatment 26 as inpatient in the hospital, and the amount spent towards travelling expenses, I deem fit to award sum of Rs.30,000/- towards attendant charges, conveyance, etc. The Tribunal by assessing the functional disability to 10% has awarded Rs.43,200/- towards loss of future earning. Claimant was aged about 57 years, was a known diabetic patient, therefore in my opinion the compensation awarded by the Tribunal towards loss of future earning is just and proper and does not warrant enhancement. In the light of the above the claimant is entitled for following amounts under different heads as under:
a) Pain and sufferings - Rs. 30,000/-
b) Medical expenses - Rs.1,25,000/-
c) Attendance charges - Rs. 30,000/-
d) Loss of future income
on account of permanent
disability - Rs. 43,200/-
e) Loss of amenities - Rs. 40,000/-
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TOTAL - Rs.2,68,200/-
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To the extent indicated above the appeal deserves to be allowed. Accordingly appeal filed in MFA 27 No.9543/2008 is allowed in part. Compensation awarded by the Tribunal is enhanced to Rs.2,68,200/- from Rs.1,48,200/-. The respondent insurer is directed to deposit the enhanced compensation of Rs.1,20,000/- with interest at 6% per annum from the date of petition to the date of payment within 8 weeks from today.
Appeal filed by the insurer in MFA No.9770/2008 is dismissed. Amount if any deposited in MFA No.9770/2008, is ordered to be transferred to the Tribunal concerned.
SD/-
JUDGE KGR/DR*