ORIENTAL INSURANCE COMPANY LTD Vs. ANJALI GUPTA

JUDGEMENT

(1.) BEING aggrieved by the order dated 12/04/2005 passed by ADJ, Barwaha, District-Khargone in case No.66/2003 whereby the application / objections filed by appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (which shall be referred hereinafter as "A & C Act") was dismissed., the present appeal has been filed.

(2.) Short facts of the case are that the respondent Ku. Anjali Gupta who is also an advocate purchased shopkeeper's insurance policy from the appellant/insurance company on 14/02/2000 in respect of photocopy machine and fixed furniture valuing Rs. 1,75,000/-. Again another policy was obtained by respondent on 30/04/2000 from appellant/insurance company in respect of other stocks of stationery, books, general goods and gift items valuing Rs.1,75,000/-. On 04/05/2000 due to short circuit there was a fire in the shop of respondent at about 11 pm as a result of which respondent sustained loss of property. On 05/05/2000 on the next day a claim was lodged by respondent for Rs.3,70,400/-. One DK Jain was appointed as Surveyor who has submitted the report on 23/06/2000 and assessed the loss of Rs.1,24,500/-. Being dis- satisfied by the amount assessed by Surveyor, a complaint was filed by respondent before District Consumer Forum, Mandleshwar on 15/ 08/2000. The complaint was contested by appellant. Vide order dated 23/03/2001, District Consumer Forum, Mandleswar allowed the complaint of respondent and awarded a sum of Rs.2,72,500/- alongwith interest @ 9% per annum. Being dissatisfied with the amount awarded by District Consumer Forum, Mandleshwar appellant filed an appeal before M.P. State Consumer Grievances Redressal Commission, Bhopal which was allowed in part vide order dated 03/08/2002 and appellant was directed to make the payment of Rs.1,24,500/- as assessed by Surveyor alongwith interest to the respondent and a further direction was given that if the respondent is dis- satisfied with the quantum then respondent may raise the dispute before Arbitrator in terms and conditions of the policy or may institute the civil suit in the Court of competent jurisdiction for redressal of her grievance and for seeking relief. In compliance of this direction, respondent moved an appropriate application under Section 11 (5) of the A & C Act for appointment of Arbitrator before ADJ, Barwaha. Vide order dated 31/03/2004 the application was allowed and one Mr. VS Gavshinde, advocate was appointed as sole arbitrator. Being aggrieved by the order of appointment of Arbitrator writ petition was filed by the appellant before this Court which was numbered as 447/2004 and was dismissed on 30/06/2004 as not pressed. Vide award dated 03/11/2004 the sole arbitrator allowed the claim filed by respondent and awarded a sum of Rs. 1,99,000/ alongwith interest @ 13% per annum with effect from 09/10/2002. Being aggrieved by the award, an application was filed by appellant under Section 34 of the A & C Act which was contested by respondent ans was dismissed by the learned Court below vide order dated 12/04/2001 against which the present appeal has been filed.

(3.) Learned counsel for appellant submits that after availing the remedy available under the Consumer Protection Act, 1986 and having an order in her favour granting compensation respondent cannot have recourse to proceed for arbitration. For this contention reliance is placed on a decision in the matter of M/s Fair Air Engineers Pvt. Ltd. Vs. N.K. Modi AIR 1997 SC 533 wherein Hon'ble the Apex Court has observed as under :-