Judgment:
The Court : Affidavit-of-Service filed in Court is kept on record. It appears that the matter did appear earlier, when none appeared on behalf of the respondent.
Despite service, none appears on behalf of the respondent today when the matter is called on. It is submitted on behalf of the petitioner that following a fire in the market where the petitioner had a shop, a claim was lodged with the Insurance company.
He submitted that the petitioner received an interim payment of Rs.75,00,000/-. A voucher was issued by the Insurance company with a direction to return the same along with undated letter and until the same is returned, no payment can be made.
The petitioner duly signed the said voucher and returned the same. The undated letter indicated the quantum of payment at which the claim had been settled and such payment was in respect of full and final settlement of fire claim.
After receiving the said voucher duly signed by the petitioner, the petitioner received a cheque of Rs.41,28,032/- dated 16/6/2006 which was made over by the Insurance company. Subsequent thereto, the petitioner sought an explanation from the Insurance Company with regard to the amount as to why the claim had been so drastically reduced.
No reply was received, as a result whereof, the petitioner invoked the arbitration agreement. In these circumstances, an application was filed before the Court for appointment of an Arbitrator.
The court considered the decision of the Hon'ble Supreme Court reported in (2009)1 SCC (National Insurance Company Ltd. v. Boghara Polyfab (P) Ltd.) where the Hon'ble Supreme Court sets out five illustrations which were said to be not exhaustive.
The Hon'ble First Court found that the facts can come within the four corners of the third illustrations as stated in the said decision. In the third illustrations, it has been stated that where a person may make a claim and the other contracting party, either orally or in writing, may indicate to the first party that unless a discharge of the balance claim was given, even the amount admitted as payable would not be made over.
Therefore, the Hon'ble Court on the given facts came to the conclusion that the conduct of the insurance company in demanding that the petitioner should sign on the voucher forwarded by them and the same was in most parts filled up on behalf of the insurance company amounting to coerce the petitioner to execute the said document to receive the payment from the insurance company. Of course, this is a prima facie view that is to be restricted for the purpose of the present proceedings and should not have a bearing on the matter in any further proceedings.
The Hon'ble Court further came to the conclusion that there was an element of coercion or pressure exerted by the insurance company on the petitioner in obtaining the voucher prior to releasing the payment.
It further appears that the letter of protest dated June 22, 2006 was addressed by the petitioner within few days of receipt of the cheque dated June 16, 2006. Hence, the Hon'ble Court held that there is a live dispute between the parties and referred the matter to name the Arbitrator.
After considering the facts of the case, it appears to me that an arbitration agreement is still existing which covers the disputes between the parties and, in my opinion, the same is a live one. Therefore, an Arbitrator should be appointed in this matter to adjudicate upon the disputes between the parties. I, therefore, appoint Hon'ble Justice Shyamal Kumar Sen (a retired Chief Justice of the Allahabad High Court) as an Arbitrator to adjudicate the disputes and differences between the parties.
The learned Arbitrator shall be at liberty to fix his remuneration in the meeting of the parties. Such remuneration is to be shared by the parties equally.
The learned Arbitrator shall also be at liberty to appoint Stenographer and Clerk and their remuneration shall be fixed by the Arbitrator in a meeting of the parties and to be paid by the parties in equal share.
The Arbitrator shall also be at liberty to appoint an Interpreter, if occasion so arises, whose remuneration shall also be fixed by the Arbitrator in a meeting of the parties and to be shared equally by the parties.
If the learned Arbitrator requires to have any technical assistance, he will be at liberty to appoint a technical expert to help in the matter and the remuneration of the said technical expert shall be fixed by the learned Arbitrator and to be borne by the parties equally.
The application is thus disposed of.
All parties concerned are to act on a Xerox signed copy of the minutes of this order on the usual undertakings.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.