Uttarakhand High Court
Narayan Singh Bisht vs Divisional Manager United India ... on 20 April, 2017
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Arbitration Application No. 18 of 2014
Narayan Singh Bisht ... Petitioner
Vs
Divisional Manager, United India
Insurance Company Ltd. ... Respondents
Mr. Deen Dayal Bhatt, Advocate, present for the petitioner.
Mr. Tarun Pande, Advocate holding brief of Mr. Prabhat Pande, learned counsel for the
respondent.
Hon'ble Sudhanshu Dhulia, J. (Oral)
1. The petitioner had entered into a contract with Uttarakhand Jal Vidyut Nigam for certain work related to Micro Hydro Project at Dharchula, District Pithoragarh. One of the conditions in the contract was that the work done by the petitioner must be insured with the Insurance Company. Consequently, the work, which was executed by the petitioner, was insured with the respondent i.e. United India Insurance Company Ltd. (in short "Insurance Company).
2. Admittedly the Insurance Company had an arbitration clause in the policy, which reads as under:-
"Clause 7. If any dispute or difference shall arise as to the quantum to be paid under this Policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of a sole arbitrator, to be appointed in writing by the parties to or, if they cannot agree upon a single arbitrator within 30 days of any party invoking Arbitration, the same shall be referred to a panel of three Arbitrators comprising of two Arbitrators one to be appointed by each of the parties to the dispute/difference, and the third Arbitrator to be appointed by such two Arbitrators and arbitration shall be conducted under and in accordance with the provisions of the Arbitration and Conciliation Act, 1996."
3. According to the petitioner, a part of the constructed work was washed out in a flood and landslide took place in the year 2008 and thereafter he had to reconstruct the entire project work. Learned counsel for the petitioner further submits that the petitioner suffered total loss of `49,96,340/- (Rupees Forty Nine Lakh Ninety Six Thousand Three Hundred 2 and Forty Only) in the said natural calamity, which he wanted to recover from the Insurance Company.
4. From the perusal of the record it appears that the petitioner had earlier field an application under Section 11(6) of the Arbitration & Conciliation Act before this Court, being Arbitration Application No. 18 of 2011, which was dismissed as withdrawn vide order dated 16.09.2011, which reads as under:-
"Withdrawal Application is allowed and, accordingly, the application made for appointment of arbitrator is permitted to be withdrawn with liberty to the applicant to file a similar application in future as and when cause therefor will arise.
2. Accordingly, the present Arbitration Application is dismissed as withdrawn."
5. The Insurance Company surveyed the site and the Surveyor of the Insurance Company assessed the total loss of `10,23,557/- (Rupees Ten Lakh Twenty Three Thousand Five Hundred and Fifty Seven Only). Consequently, the Insurance Company offered the petitioner an amount of `10,23,557/- (Rupees Ten Lakh Twenty Three Thousand Five Hundred and Fifty Seven Only) towards full and final payment and admittedly, the petitioner received the said amount on 28.09.2012 by singing settlement intimation voucher. The settlement intimation voucher reads as under:-
"Settlement Intimation Voucher Claim No. 080903/44/08/0390000006 Srl. No. 1"
DEV. OFFICER: 60/Direct Business AGENT 39011/Hem Chandra Patni RECEIVED From UNITED INDIA INSURANCE COMPANY LIMITED the sum of RUPEES TEN LAKH TWENTY THREE THOUSAND FIVE HUNDRED FIFTY SEVEN ONLY which I/we agree to accept in full and final discharge of my/our claim upon the Company Under Policy No. 080903/44/07/03/60000023 in respect of SH. N.S. BISHT."3
6. It is also admitted by the petitioner that he was the signatory to the above settlement intimation voucher, but after accepting the full and final payment in the year 2012, he has raised the demand for appointment of an arbitrator, as provided under the policy, on 01.08.2013. Since the Arbitrator has not been appointed, the petitioner has filed the present arbitration application under Section 11(6) of the Arbitration & Conciliation Act before this Court.
7. Learned counsel for the petitioner would plea that there is an arbitration agreement between the parties and consequent to the dispute, which arose between the parties, the amount which was accepted as full and final settlement was done under stress and duress, as the petitioner was in great financial difficulty at the relevant time, and he had no other option but to accept the amount. Therefore, merely because an amount has been accepted by the petitioner would not debar the petitioner from moving an arbitration application under Section 11(6) of the Arbitration & Conciliation Act.
8. On the other hand, learned counsel for the Insurance Company has argued that the dispute is not an arbitral dispute. All liabilities, as per the contract, have been discharged by signing of the settlement intimation voucher by the petitioner, and therefore, there is question for an appointment of an Arbitrator, as the dispute, which is being raised by the petitioner, is not arbitral dispute.
9. After hearing learned counsel for the parties, this Court is in agreement with the objection raised by the learned counsel for the respondent. It is admitted by the petitioner that he had signed the settlement intimation voucher and accepted the full and final payment way back in the year 2012. The plea of duress and pressure and that he was forced to sign the 4 voucher is a plea, which has not been established in any manner by the petitioner, accept by making a bald averment in para 10 to the writ petition.
10. Moreover, it also appears that the petitioner had earlier filed an arbitration application before this Court, which was withdrawn by the petitioner and after withdrawal of the said arbitration application, the petitioner had signed the settlement intimation voucher in the year 2012. Now, after a lapse of almost one year, the petitioner has moved the present arbitration application under Section 11(6) of the Arbitration and Conciliation Act for appointment of an Arbitrator. This is nothing but an abuse of the process of court.
11. In view of the above facts, this Court is of the opinion that there is no arbitral dispute and the arbitration application stands dismissed.
(Sudhanshu Dhulia, J.) 20.04.2017 Aswal