UNITED INSURANCE CO LTD Vs. HARJIT SINGH RAINA

JUDGEMENT

(1.) THIS appeal under Section 37 of the Arbitration and Conciliation Act, 1996 has been filed against the judgment dated 9.2.2005 passed by the learned District Judge, Sambalpur rejecting the petition filed by the appellants under Section 34 of the said Act to set aside an arbitral award.

(2.) CASE of the claimant -respondent is that he is the registered owner of a truck bearing registration No.OR -15 -1119 and the said vehicle was insured with the appellants under Policy No.034200/31/ 21/1138/1992 and the policy was valid covering a period from 1.3.1992 to 28.2.1993. The said vehicle met with an accident on 11.7.1992 and the fact of such accident was intimated to the appellants on 13.7.1992. Under the direction of the appellants, a surveyor surveyed the vehicle and submitted his report on 13.7.1992 intimating the damages caused to the vehicle and also stated in the report that further damages, if any, can only be ascertained on dismantling the vehicle during final survey. On 19.8.1992 the claimant -respondent submitted his preliminary claim of Rs. 1,22,131.95. The appellants not being satisfied with the earlier survey report, deputed two more surveyors to make assessment. The claim of the respondent is that the said two surveyors did not dismantle the vehicle to know the actual damages and without proper survey submitted a report. The claimant having found that proper survey has not been done by the two surveyors deputed by the appellants served a pleader's notice on 2.11.1992 claiming Rs. 3,00,000/ - and also requested for appointment of C.P. Singhal as Arbitrator. The appellants did not accede to the request and estimated damages of Rs. 41,371, and in order to settle the amount to the claimant, the respondents prepared final settlement of the claimant. Claimant -respondent did not accept the said amount and relying on the survey report submitted by the first surveyor approached different forums without success and ultimately filed M.J.C. No. 43 of 2000 before this Court for appointment of an arbitrator. This Court disposed of the above application on 29.6.2001 appointing a retired Judge of this Court as an Arbitrator on consent of the parties. Learned Arbitrator entered into the reference and commencement of the proceeding started on 31.7.2001. Learned Arbitrator on completion of the proceeding passed an award directing payment of a sum of Rs. 2,30,000/ - to the claimant -respondent with interest @ 10% per annum from the date of filing of the application for appointment of Arbitrator till payment within one month, failing which the rate of interest would run at 18% per annum thereafter. Challenging the said award the appellants filed an application under Section 34 of the Act before the learned District Judge, Sambalpur and the said petition having been rejected, this appeal has been filed.

(3.) SHRI Dasmohapatra, learned Counsel appearing for the appellants contended that the insurance policy commenced on 3.3.1992 and the vehicle met with an accident on 11.7.1992. On 20.7.1992 the claimant -respondent submitted an application for claim of Rs. 1,22,131.95 or in the alternative prayed for appointment of an Arbitrator. The appellants having not acceded to such claim and having deputed surveyors for assessment of the damages, the claimant -respondent submitted another claim application on 2.11.1992 for a sum of rupees three lakhs. On 12.1.1993 the appellants settled the claim for an amount of Rs. 41,371/ - and this date gave rise to the cause of action for filing an application for appointment of an Arbitrator. According to the learned Counsel though cause of action arose on 12.1.1993 and the application for appointment of Arbitrator should have been filed three years thereafter i.e. by 11.1.1996, the application was filed before this Court only on 18.2.2000 for appointment of an Arbitrator and therefore the application for appointment of an Arbitrator was grossly time barred. Learned Counsel further submitted that since the records clearly indicate that the application filed for appointment of an Arbitrator was beyond the period of limitation, learned Arbitrator should not have passed an award in favour of the claimant -respondent and this being against the law, this Court can entertain the same in an application under Section 37 of the Act. Miss Sabitri Ratho, learned Counsel appearing for the claimant -respondent submitted that after the appellants offered a sum of Rs. 41,371/ - on 12.1.1993, the claimant -respondent approached different forums, such, as State Consumer Disputes Redressal Commission and civil Court and if the time consumed in those Courts are taken into consideration and excluded, the application filed for appointment of an Arbitrator was within the period of limitation. Learned Counsel further submitted that after receipt of offer on 12.1.1993, the claimant -respondent approached State Consumer Disputes Redressal Commission vide C.D. Case No. 200 of 1993 which was disposed of on 3.11.1995 holding that the claimant -respondent is not entitled for any damages or compensation since there is no negligence or deficiency on the part of the insurance company in the matter of settlement of claim. Thereafter the claimant -respondent filed T.S. No. 101 of 1996 on 8.7.1996 in the Court of the learned Civil Judge (Senior Division), Sambalpur for appointment of an Arbitrator, but the same was returned to present in proper Court on 15.7.1998. Again on 10.8.1998 the claimant -respondent filed T.S. No. 2 of 1998 before the learned District Judge, Sambalpur for the very same purpose, but the said suit was also dismissed on 30.4.1999 for want of jurisdiction and therefore the claimant -respondent filed an application before this Court on 18.2.2000 vide M.J.C. No. 43 of 2000 for appointment of an Arbitrator.