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Wednesday, December 12, 2012

whether the insurer is obliged under law to indemnify the owner of a goods vehicle when the employees engaged by the hirer of the vehicle travel with the owner of the goods on the foundation that they should be treated as “employees” covered under the policy issued in accordance with the provision contained under Section 147 of the Motor Vehicles Act, 1988 (for brevity “the Act”). The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads as follows:- “The Policy does not cover : 1. Use for organized racing, pace-making reliability trial or speed testing 2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle. 3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen’s Compensation Act, 1923.” On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum. 26. In view of the aforesaid analysis, we repel the contentions raised by the learned counsel for the appellant and as a fall-out of the same, the appeals, being sans merit, stand dismissed without any order as to costs.


                                                                 Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  8925  OF 2012
              (Arising out of S.L.P. (Civil) No. 17272 of 2006)

Sanjeev Kumar Samrat                        ... Appellant

                                  Versus
National Insurance Co. Ltd. and others        ... Respondents
                                    WITH
                       CIVIL APPEAL NO.  8926  OF 2012
              (Arising out of S.L.P. (Civil) No. 17273 of 2006)

Sanjeev Kumar Samrat                        ... Appellant

                                  Versus
National Insurance Co. Ltd.                          ... Respondent

                               J U D G M E N T

Dipak Misra, J.

      Leave granted.

   2. The centripodal issue that emanates for consideration in these appeals
      is whether the insurer is obliged under law to indemnify the owner  of
      a goods vehicle when the employees engaged by the hirer of the vehicle
      travel with the owner of the goods on the foundation that they  should
      be  treated  as  “employees”  covered  under  the  policy  issued   in
      accordance with the provision contained under Section 147 of the Motor
      Vehicles Act, 1988 (for brevity “the Act”).

   3. The expose’ of facts are that a truck bearing HP/10/0821 was hired  on
      12.4.2000 for carrying iron rod and cement by one Durga Singh who  was
      travelling with the goods along with two of his labourers.   When  the
      vehicle was moving through Khara Patthar to Malethi, 1.5 KM  ahead  of
      Khara Patthar,  about  4.30  p.m.,  it  met  with  an  accident  as  a
      consequence of which the labourers, namely, Nagru Ram and Desh Raj and
      also Durga Singh, sustained injuries and eventually succumbed  to  the
      same.

   4. The legal heirs of all  the  deceased  persons  filed  separate  claim
      petitions under Section 166 of the  Act  before  the  Motor  Accidents
      Claims Tribunal (II), Shimla (for short “the tribunal”).   Before  the
      tribunal, respondent No. 3, namely, National Insurance  Company  Ltd.,
      apart from taking other pleas, principally took the stand that it  was
      not liable to indemnify the labourers  employed  by  the  hirer.   The
      owner of the truck, the present appellant, admitted the fact of hiring
      the truck but advanced the plea  that  the  insurer  was  under  legal
      obligation to indemnify the owner.

   5. On consideration of the evidence brought on record, the tribunal  came
      to hold that the legal representatives of Nagru Ram and Desh Raj  were
      covered as per the insurance policy, exhibit RW-2/3/A, as  the  policy
      covered six employees and  accordingly  fixed  the  liability  on  the
      insurer.  As far as the legal representative of Desh Raj is concerned,
      the tribunal treated him as the owner of the goods who was  travelling
      along with the goods and accordingly saddled the liability on the  3rd
      respondent therein.

   6. Being grieved by the  awards  passed  by  the  tribunal,  the  insurer
      preferred FAO (MBA) Nos. 175, 176 and 178  of  2003  before  the  High
      Court of Himachal Pradesh at Shimla.  In appeal,  the  learned  single
      Judge, by order dated 13.1.2006, allowed FAO Nos. 175 and 176 of  2003
      wherein the legal representatives of the deceased employees  were  the
      claimants.  
As far as FAO No. 178 of 2003 is concerned, the High Court
      concurred with the finding recorded by the tribunal that  
Durga  Singh
      was the owner of the goods and travelling along with  the  goods  and,
      therefore, the insurer was liable to pay  compensation  to  his  legal
      representatives.  
It is worthy to note that as the  insurance  company
      had already deposited the amount  of  compensation,  the  High  Court,
      placing reliance on the decision in National Insurance Company Ltd. v.
      Baljit Kaur and others[1], directed that the insurance company  having
      satisfied the award shall be entitled to recover the same  along  with
      interest from the owner-insured by  initiating  execution  proceedings
      before the tribunal.  
Hence, the present appeals at  the  instance  of
      the owner of the vehicle.

   7. We have heard Mr. Rajesh Gupta, learned counsel for the appellant, and
      Mr. M. K Dua, learned counsel for respondent No. 1.

   8. It is submitted by Mr. Gupta that the High Court has committed serious
      error in coming to hold that an employee of the hirer is  not  covered
      without appreciating the terms of the policy which covers  the  driver
      and six employees.
Learned Counsel has laid  emphasis  on  the  words
      “any person” used in Section 147 of the Act.  Referring  to  the  said
      provision, it is urged by him that the term “employee” has to be given
      a broader meaning keeping in view the language employed in the  policy
      and also in view of the fact that the Act is  a  piece  of  beneficial
      legislation.  It is his further submission that there is a distinction
      between “passenger” in a goods vehicle and an “employee” of the  hirer
      of  the  vehicle  but  the  High  Court  has  gravely  erred  by   not
      appreciating the said distinction in proper perspective.

   9. Mr. M.K. Dua, learned counsel for the first respondent, combating  the
      aforesaid proponements, contended that the decision  rendered  by  the
      High Court is absolutely flawless inasmuch as the  entire  controversy
      is covered by many a dictum of this Court  some  of  which  have  been
      appositely referred to by the High Court.  It is urged by him that the
      extended meaning which is argued to be given to the term “employee” by
      the appellant is not legally acceptable as the employee has to be that
      of the insurer.  It is canvassed by  him  that  there  is  a  manifest
      fallacy in the argument propounded on behalf of the appellant that the
      policy covers such kinds of employees though on the  plainest  reading
      of the policy, it would be vivid that the same  does  not  cover  such
      categories of employees.   It  is  his  further  submission  that  the
      policy in question is an “Act  Policy”  and  in  the  absence  of  any
      additional terms in  the  contract  of  insurance,  the  same  can  be
      broadened to travel beyond the language  employed  in  the  policy  to
      cover the employees of the owner  of  the  goods  making  the  insurer
      liable.

  10.  To appreciate the controversy, it is necessary to  refer  to  certain
      statutory provisions.   Section  146  of  the  Act  provides  for  the
      necessity for injuries against third party risk.  On a reading of  the
      said provision, there can be no trace of doubt that the owner  of  the
      vehicle is statutorily obliged to obtain an insurance for the  vehicle
      to cover the third party risk, apart from the  exceptions  which  have
      been carved out in the said provision.  Section 147 of the  Act  deals
      with requirements of policies and limits of liability.   The  relevant
      part of Section 147 (1) is reproduced below:-
      “147. Requirements of policies and limits of liability.- (1) In  order
      to comply with the requirements of this Chapter, a policy of insurance
      must be a policy which-


           (a) is issued by a person who is an authorised insurer; or


           (b) insures the person or classes of persons  specified  in  the
           policy to the extent specified in sub-section (2)—


              (i) against any liability which may be  incurred  by  him  in
              respect of the death of or  bodily  [injury  to  any  person,
              including owner of the goods or his authorised representative
              carried in the vehicle] or damage to any property of a  third
              party caused by or arising out of the use of the vehicle in a
              public place;


              (ii) against the death of or bodily injury to  any  passenger
              of a public service vehicle caused by or arising out  of  the
              use of the vehicle in a public place:


      Provided that a policy shall not be required—


           (i) to cover liability in respect of the death, arising  out  of
           and in the course of his employment, of the employee of a person
           insured by the policy or in respect of bodily  injury  sustained
           by such an employee arising out of and  in  the  course  of  his
           employment other than a liability arising  under  the  Workmen's
           Compensation Act, 1923 (8 of 1923) in respect of the  death  of,
           or bodily injury to, any such employee—


               (a) engaged in driving the vehicle, or


               (b) if it is a public service vehicle  engaged  as  conductor
               of the vehicle or in examining tickets on the vehicle, or


               (c) if it is a goods carriage, being carried in the  vehicle,
               or


        (ii) to cover any contractual liability.”


  11. Be it noted, before Section 147(1)(b)(i) came into  existence  in  the
      present incarnation, it stipulated that a policy of insurance must  be
      a policy which insured the person or classes of persons to the  extent
      specified in sub-section (2) against the liability incurred by him  in
      respect of the death of or bodily injury to any person  or  damage  to
      any property or third party caused by or arising out of the use of the
      vehicle in public place.
  12. Regard being had to the earlier  provision  and  the  amendment,  this
      Court in New India Assurance Co. Ltd. v. Satpal Singh[2], scanned  the
      anatomy of the provision and also  of  Section  149  of  the  Act  and
      expressed the view  that  under  the  new  Act,  an  insurance  policy
      covering the third party risk does not exclude gratuitous passenger in
      a vehicle, no matter that the vehicle is of any type or class.  It was
      further opined that the decisions  rendered  under  the  1939  Act  in
      respect of gratuitous passengers were of no  avail  while  considering
      the liability of the insurer after the new Act came into force.
  13. The correctness of the said decision came up for consideration  before
      a three-Judge Bench in New India Assurance Co. Ltd. v. Asha  Rani  and
      Others[3].  The learned Chief Justice, speaking for himself  and  H.K.
      Sema, J. took note of Section 147(1) prior to the  amendment  and  the
      amended  provision  and  the  objects  and  reasons  behind  the  said
      provision and came to hold as follows:-
        “The objects and reasons of clause 46 also state that  it  seeks  to
        amend Section 147 to include owner of the goods  or  his  authorised
        representative carried in the vehicle for the purposes of  liability
        under the insurance policy. It is no doubt true that  sometimes  the
        legislature amends the law by way of amplification and clarification
        of an inherent position which is there in the statute, but  a  plain
        meaning being given to the words used in the statute,  as  it  stood
        prior to its amendment of 1994, and as it stands subsequent  to  its
        amendment in 1994 and  bearing  in  mind  the  objects  and  reasons
        engrafted in the amended  provisions  referred  to  earlier,  it  is
        difficult for us to construe that the expression “including owner of
        the goods or his authorised representative carried in  the  vehicle”
        which was added  to  the  pre-existing  expression  “injury  to  any
        person” is either clarificatory or amplification of the pre-existing
        statute.  On  the  other  hand  it  clearly  demonstrates  that  the
        legislature wanted to bring within the  sweep  of  Section  147  and
        making it compulsory for the insurer to insure even  in  case  of  a
        goods  vehicle,  the  owner  of  the   goods   or   his   authorised
        representative being carried in a goods vehicle  when  that  vehicle
        met  with  an  accident  and  the  owner  of  the   goods   or   his
        representative   either   dies   or    suffers    bodily    injury.”
                   [Emphasis supplied]

14.   S.B. Sinha, J., in his concurring opinion, stated thus: -

        “Furthermore, sub-clause (i) of clause (b)  of  sub-section  (1)  of
        Section 147 speaks of liability which may be incurred by  the  owner
        of a vehicle in respect of death of or bodily injury to  any  person
        or damage to any property of a third party caused by or arising  out
        of the use of the vehicle in a public place, whereas sub-clause (ii)
        thereof deals with liability which may be incurred by the owner of a
        vehicle against the death of or bodily injury to any passenger of  a
        public service vehicle caused by or arising out of the  use  of  the
        vehicle in a public place.


            An owner of a passenger-carrying vehicle must pay  premium  for
        covering the risks of the passengers. If a liability other than  the
        limited liability provided for under the Act is to be enhanced under
        an insurance policy, additional premium is required to be paid.  But
        if the ratio of this Court's decision in New India Assurance Co.  v.
        Satpal Singh[4] is taken to its  logical  conclusion,  although  for
        such passengers, the owner of a goods carriage need not take out  an
        insurance policy, they would be deemed to have  been  covered  under
        the policy wherefor even no premium is required to be paid.”
                                                         [Emphasis supplied]
Being of the aforesaid view, the three-Judge Bench  overruled  the  decision
in Satpal Singh (supra).
15.   In Baljit Kaur (supra) and National Insurance  Co.  Ltd.  v.  Bommithi
Subbhayamma and Others[5], the aforesaid view was reiterated.

16.   In New India Assurance  Co.  Ltd.  v.  Vedwati  and  Others[6],  after
referring to the scheme of the Act and the earlier  pronouncements,  it  has
been held that the provisions  of  the  Act  do  not  enjoin  any  statutory
liability on the owner of a vehicle to  get  his  vehicle  insured  for  any
passenger travelling in a goods  carrier  and  the  insurer  would  have  no
liability therefor.

17.   In National Insurance Co. Ltd. v. Cholleti Bharatamma  and  Others[7],
the Court laid down that the provisions engrafted under Section 147  of  the
Act do not enjoin any statutory liability on the owner of a vehicle  to  get
his vehicle insured for any passenger travelling  in  a  goods  vehicle  and
hence, any injury to any person in  Section  147(1)(b)  would  only  mean  a
third party and not a passenger travelling  in  a  goods  carriage,  whether
gratuitous or otherwise.

18.   At this juncture, we may refer with profit to the decision of a three-
Judge Bench in National Insurance Co. Ltd. v. Prembati Patel  and  Others[8]
wherein the legal representatives of the driver of the truck  had  succeeded
before the  High  Court  and  were  granted  compensation  of  Rs.2,10,000/-
repelling the contention of the insurer that the  liability  was  restricted
as provided under the Workmen’s Compensation Act, 1923 (for short “the  1923
Act”).  After discussing the schematic  postulates  of  the  provision,  the
Court ruled that where a policy is taken by the owner of the goods  vehicle,
the liability of the insurance company would be  confined  to  that  arising
under the 1923 Act in case of an employer.  It  further  observed  that  the
insurance policy being in the nature of a contract, it  is  permissible  for
an owner to take such a policy whereunder the entire  liability  in  respect
of the death of or bodily injury to any such employee  as  is  described  in
Sub-Sections (a), (b) or (c) of the proviso  to  Section  147(1)(b)  may  be
fastened upon the insurance company and the insurer  may  become  liable  to
satisfy the entire award.  But for the said purpose, he may be  required  to
pay additional premium and the policy must clearly show that  the  liability
of the insurance company is unlimited.

19.   Keeping in view the aforesaid enunciation of law, it  is  to  be  seen
how the term “employee” used in Section 147 is required  to  be  understood.
Prior to that, it is necessary to state that as  per  Section  147(1)(b)(i),
the policy is required to cover a person including the owner  of  the  goods
or his authorised representative  carried  in  the  vehicle.   As  has  been
interpreted by this Court, an owner of the goods or his authorised agent  is
covered under the policy.  That is the statutory requirement.  It  does  not
cover any passenger.  We are absolutely conscious that  the  authorities  to
which we have referred to hereinbefore lay down the principle regarding non-
coverage of passengers.  The other principle that has been  stated  is  that
the  insurer’s  liability  as  regards  employee  is   restricted   to   the
compensation payable under the 1923 Act.   In  this  context,  the  question
that has been posed in the beginning to the effect whether the employees  of
the owner of goods would come  within  the  ambit  and  sweep  of  the  term
“employee” as used in Section 147(1), is to be answered.  In  this  context,
the proviso to Section 147(1)(b)  gains  significance.   The  categories  of
employees which have been enumerated in the sub-clauses (a), (b) and (c)  of
the proviso (i) to Section 147(1) are  the  driver  of  a  vehicle,  or  the
conductor of the vehicle if it is a public service vehicle or  in  examining
tickets on the vehicle, if it is a goods  carriage,  being  carried  in  the
vehicle.  It is submitted by the learned counsel for the appellant that sub-
clause (c) is of wide import as it covers  employees  in  a  goods  carriage
being carried in a vehicle.  The  learned  counsel  for  the  insurer  would
submit that it should be read in the context of the entire  proviso,  regard
being had to the schematic concept  of  the  1923  Act  and  the  restricted
liability of the insurer.  It is further urged that contextually  read,  the
meaning  becomes  absolutely  plain  and  clear  that  employee   which   is
statutorily mandated to be taken by the insured only  covers  the  employees
employed or engaged by the employer as per the policy.

20.   It is the settled principle of law that the liability  of  an  insurer
for payment of compensation either could be statutory or contractual.  On  a
reading of the proviso to Sub-Section (1) of Section 147 of the Act,  it  is
demonstrable that the insurer is required  to  cover  the  risk  of  certain
categories of  employees  of  the  insured  stated  therein.  The  insurance
company is not under statutory obligation to cover all  kinds  of  employees
of the insurer as the statute  does  not  show  command.   That  apart,  the
liability of the  insurer  in  respect  of  the  said  covered  category  of
employees is limited to the extent of the liability that  arises  under  the
1923 Act.  There is also a stipulation in Section 147 that the owner of  the
vehicle is free to secure a policy of insurance  providing  wider  coverage.
In that event, needless to  say,  the  liability  would  travel  beyond  the
requirement of Section 147 of the Act, regard being had to  its  contractual
nature.  But, a pregnant one, the amount of premium would be different.

21.   At this stage, we may usefully refer to Section 167 of the  Act  which
reads as follows: -

         “167.  Option regarding claims for compensation in certain cases.-
         Notwithstanding anything contained in the  Workmen’s  Compensation
         Act, 1923 (8 of 1923) where the death of, or bodily injury to, any
         person gives rise to a claim for compensation under this  Act  and
         also under  the  Workmen’s  Compensation  Act,  1923,  the  person
         entitled to compensation may without prejudice to  the  provisions
         of Chapter X claim such compensation under either  of  those  Acts
         but not under both.”

From the aforesaid provision, it is  quite  vivid  that  where  a  death  or
bodily injury to any person gives rise to a claim under the Act as  well  as
under the 1923 Act,  the said  person  is  entitled  to  compensation  under
either of the Acts, but not under both.

22.   Coming to the scheme of the 1923 Act, it is worth noticing that  under
Section 3 of the said Act, the employer is liable  to  pay  compensation  to
the workman in respect of personal injury or death  caused  by  an  accident
arising out of or in the course of his employment.  Section 4  provides  the
procedure how the amount of compensation is  to  be  determined.    In  this
context, we may usefully quote a passage from Oriental  Insurance  Co.  Ltd.
v. Devireddy Konda Reddy and Others[9]: -

        “....Section 147 of the Act mandates  compulsory  coverage  against
        death of or bodily injury  to  any  passenger  of  “public  service
        vehicle”. The  proviso  makes  it  further  clear  that  compulsory
        coverage in respect of drivers and  conductors  of  public  service
        vehicle and employees carried in goods vehicle would be limited  to
        liability under the Workmen’s Compensation Act, 1923 (in short “the
        WC Act”).  There  is  no  reference  to  any  passenger  in  “goods
        carriage.”                   [Underlining is ours]

23.   In Ved Prakash Garg v. Premi Devi and Others[10], after  referring  to
the scheme of the 1923 Act in the context of payment of penalty for  default
by the insurer under Section 4-A of the Act, this Court held thus: -

        “On a conjoint operation of the relevant schemes of  the  aforesaid
        twin Acts, in our view, there is no escape from the conclusion that
        the insurance companies will be liable to make good  not  only  the
        principal amounts of compensation payable by insured employers  but
        also interest thereon, if ordered by the Commissioner to be paid by
        the insured employers. Reason for this conclusion is obvious. As we
        have noted earlier the liability  to  pay  compensation  under  the
        Workmen's Compensation Act gets foisted on the employer provided it
        is shown that the workman concerned suffered from personal  injury,
        fatal or otherwise, by any motor accident arising out of and in the
        course of his employment. Such an accident is also covered  by  the
        statutory  coverage  contemplated  by  Section  147  of  the  Motor
        Vehicles Act read with the  identical  provisions  under  the  very
        contracts of insurance reflected by the policy which would make the
        insurance company liable to cover all such claims for  compensation
        for which statutory liability is  imposed  on  the  employer  under
        Section 3 read with Section 4-A of the Compensation Act.”
                                           [Emphasis supplied]

Thereafter, the Bench proceeded to state thus:-


        “So far as interest  is  concerned  it  is  almost  automatic  once
        default, on the part of the employer  in  paying  the  compensation
        due, takes place beyond the permissible  limit  of  one  month.  No
        element  of  penalty  is  involved  therein.  It  is  a   statutory
        elongation of the liability  of  the  employer  to  make  good  the
        principal amount  of  compensation  within  permissible  time-limit
        during which interest may not run but otherwise liability of paying
        interest on delayed compensation will ipso facto follow.”

Though the said decision was rendered in a different context,  yet  we  have
referred to the same only to highlight  the  liability  of  the  insurer  in
respect of certain classes of employees.

24.   It is worthy to note that sub-clause (i)(c) refers to an employee  who
is being carried in the vehicle covered by the policy.  Such  vehicle  being
a goods carriage, an employee has to be covered  by  the  statutory  policy.
On an apposite reading of  Sections  147  and  167  the  intendment  of  the
Legislature, as it appears to us, is to  cover  the  injury  to  any  person
including the owner of the goods or his  authorised  representative  carried
in a vehicle and an employee who is carried in the said vehicle.  It is  apt
to state here that the proviso commences in a different way.   A  policy  is
not required to cover the liability  of  the  employee  except  an  employee
covered under the 1923 Act and that too in respect of  an  employee  carried
in a vehicle.  To put it  differently,  it  does  not  cover  all  kinds  of
employees. Thus,  on  a  contextual  reading  of  the  provision,  schematic
analysis of the Act and the 1923 Act, it is quite limpid that the  statutory
policy only covers the employees of the insured, either employed or  engaged
by him in a goods carriage.  It does not cover any other  kind  of  employee
and therefore, someone who travels not being an authorised  agent  in  place
of the owner of goods, and claims to be an employee of the owner  of  goods,
cannot be covered by the  statutory  policy  and  to  hold  otherwise  would
tantamount to causing violence to the  language  employed  in  the  Statute.
Therefore, we conclude that the insurer would not  be  liable  to  indemnify
the insured.

25.   Presently, for the  sake  of  completeness,  we  shall  refer  to  the
policy.  The policy, exhibit R-2/3/A, clearly states that insurance is  only
for carriage of goods and does not cover use of  carrying  passengers  other
than employees not more than six in number coming under the purview  of  the
1923 Act.  The language used in the policy reads as follows:-

        “The Policy does not cover :

           1.    Use for organized racing, pace-making reliability trial or
           speed testing

           2. Use whilst dwaing a trailer except the towing (other then for
              reward) or any one disabled mechanically propelled vehicle.



           3.    Use for varying passengers in the vehicle except employees
           (other than driver) not exceeding six in number coming under the
           purview of Workmen’s Compensation Act, 1923.”


      On a bare reading of the aforesaid policy, there can  be  no  iota  of
doubt that the policy relates to the insured and  it  covers  six  employees
(other than the driver, not exceeding six in number) and it is statutory  in
nature.  It neither  covers  any  other  category  of  person  nor  does  it
increase any further liability in relation to quantum.

  26. In view of the aforesaid analysis, we repel the contentions raised  by
      the learned counsel for the appellant and as a fall-out of  the  same,
      the appeals, being sans merit, stand dismissed without any order as to
      costs.


                                      ……………………............J.
                                       [K. S. Radhakrishnan]






                                                             ……………………………….J.
                                                               [Dipak Misra]
New Delhi;
December 11, 2012.

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[1]    (2004) 2 SCC 1

[2]    (2000) 1 SCC 237

[3]    (2003) 2 SCC 223

[4]    (2000) 1 SCC 237

[5]    (2005) 12 SCC 243
[6]    (2007) 9 SCC 486
[7]    (2008) 1 SCC 423
[8]    (2005) 6 SCC 172
[9]    (2003) 2 SCC 339
[10]   (1997) 8 SCC 1



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