Rapti Contractor Vs. Executive Engineer and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - clause 25 except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship, of materials used on the work or as to any other questions, claim, right matter or thing whatsoever in any way arising out of or relating to the contract designs, drawings specifications, estimates, instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the chief engineer, telecommunication/postal department incharge of the work at the time of dispute or if there be no chief engineer the administrative head of the said telecommunication/postal department at the time of such appointment. the decision of the superintending engineer regarding the quantum of reduction as well as justification thereof in respect of rates or sub standard work which may be decided to be accepted will be final and would not be open to arbitration.orderprafulla c. pant, j.1. heard learned counsel for the parties.2. this petition is moved under section 11 of the arbitration and conciliation act, 1996, for appointment of arbitrator. clause 25 of the agreement between the parties, provides the arbitration clause, which reads as under:clause 25 except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship, of materials used on the work or as to any other questions, claim, right matter or thing whatsoever in any way arising out of or relating to the contract designs, drawings specifications, estimates, instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the chief engineer, telecommunication/postal department incharge of the work at the time of dispute or if there be no chief engineer the administrative head of the said telecommunication/postal department at the time of such appointment. it will be no objection to any such appointment that the arbitrator so appointed is a government servant, that he has to deal with the matters to which the contract relates and that in the course of his duties as government servant he has expressed views on all or any of the matters in dispute or difference. the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such chief engineer or administrative head as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the contract. such persons shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. it is also a term of this contract that no person other than a person appointed by such chief engineer or administrative head of the telecommunication/postal as aforesaid should act as arbitrator and if for any reason, that is not possible, the matter is not to be referred to arbitration at all. in all cases where the total amount of all the claim in dispute is rs. 75,000/- (rs. seventy five thousand only) and above, the arbitrator shall give reasons for the award.subject as aforesaid the provisions of the arbitration act, 1940, or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.it is also a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such disputes.it is also a term of the contract that the contractor(s) do/does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation froru the govt. that the final bill is ready for payment, the claim of the contractor(s) will be deemed to have been waived and absolutely barred and the govt. shall be discharged and released of all liabilities under the contract in respect of these claims.the arbitrator(s) may from time to time with consent of the parties enlarge the time, for making and publishing the award.the decision of the superintending engineer regarding the quantum of reduction as well as justification thereof in respect of rates or sub standard work which may be decided to be accepted will be final and would not be open to arbitration.3. there is no dispute as to the claims of the petitioner, mentioned in para 24 of this petition, are covered under clause 25, quoted above.4. there is no agreement on particular name between the parties to whom the arbitration should be referred. from annexure-2 to the counter affidavit, it appears that after the petition under section 11 of the aforesaid act is moved before this court, the respondent has appointed shri d.k. gupta, chief engineer (civil), department of posts, bangalore, as sole arbitrator. after the petition has been moved before the court, the respondent cannot appoint arbitrator as of right. however, considering the fact that aforesaid person being acquainted with the minutes of the work under contract, appears to be a fit person, who can be appointed sole arbitrator by this court. since the petitioner has his office in uttaranchal and the respondent has its headquarter in lucknow and new delhi, it does not appear to be just and proper to make the parties run to bangalore for settlement of the dispute.5. in the above circumstances, shri d.k. gupta, chief engineer (civil), department of posts, bangalore, is appointed as sole arbitrator with the condition that his place of sitting would be new delhi or the place fixed by him in uttaranchal. and the travelling allowance of the arbitrator shall be borne by the respondent department of post of telegraph, new delhi. the arbitrator shall enter into arbitration within one month from today into the dispute raised by the petitioner, and deliver his award within six months thereafter. the arbitration petition for appointment of arbitrator and objections thereto stand disposed of.

Judgment:
ORDER

Prafulla C. Pant, J.

1. Heard learned Counsel for the parties.

2. This petition is moved under Section 11 of the Arbitration and Conciliation Act, 1996, for appointment of Arbitrator. Clause 25 of the agreement between the parties, provides the Arbitration Clause, which reads as under:

Clause 25 Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship, of materials used on the work or as to any other questions, claim, right matter or thing whatsoever in any way arising out of or relating to the contract designs, drawings specifications, estimates, instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Chief Engineer, Telecommunication/Postal Department incharge of the work at the time of dispute or if there be no Chief Engineer the administrative head of the said Telecommunication/Postal Department at the time of such appointment. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant, that he has to deal with the matters to which the contract relates and that in the course of his duties as Government servant he has expressed views on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Chief Engineer or administrative head as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such persons shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by such Chief Engineer or administrative head of the Telecommunication/Postal as aforesaid should act as arbitrator and if for any reason, that is not possible, the matter is not to be referred to arbitration at all. In all cases where the total amount of all the claim in dispute is Rs. 75,000/- (Rs. Seventy five thousand only) and above, the arbitrator shall give reasons for the award.

Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.

It is also a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such disputes.

It is also a term of the contract that the contractor(s) do/does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation froru the Govt. that the final bill is ready for payment, the claim of the contractor(s) will be deemed to have been waived and absolutely barred and the Govt. shall be discharged and released of all liabilities under the contract in respect of these claims.

The arbitrator(s) may from time to time with consent of the parties enlarge the time, for making and publishing the award.

The decision of the Superintending Engineer regarding the quantum of reduction as well as justification thereof in respect of rates or sub standard work which may be decided to be accepted will be final and would not be open to arbitration.

3. There is no dispute as to the claims of the petitioner, mentioned in para 24 of this petition, are covered under Clause 25, quoted above.

4. There is no agreement on particular name between the parties to whom the arbitration should be referred. From Annexure-2 to the counter affidavit, it appears that after the petition under Section 11 of the aforesaid Act is moved before this Court, the respondent has appointed Shri D.K. Gupta, Chief Engineer (Civil), Department of Posts, Bangalore, as sole Arbitrator. After the petition has been moved before the Court, the respondent cannot appoint Arbitrator as of right. However, considering the fact that aforesaid person being acquainted with the minutes of the work under contract, appears to be a fit person, who can be appointed sole Arbitrator by this Court. Since the petitioner has his office in Uttaranchal and the respondent has its Headquarter in Lucknow and New Delhi, it does not appear to be just and proper to make the parties run to Bangalore for settlement of the dispute.

5. In the above circumstances, Shri D.K. Gupta, Chief Engineer (Civil), Department of Posts, Bangalore, is appointed as sole Arbitrator with the condition that his place of sitting would be New Delhi or the place fixed by him in Uttaranchal. And the Travelling Allowance of the Arbitrator shall be borne by the respondent department of Post of Telegraph, New Delhi. The Arbitrator shall enter into arbitration within one month from today into the dispute raised by the petitioner, and deliver his award within six months thereafter. The Arbitration petition for appointment of Arbitrator and objections thereto stand disposed of.