Bangalore District Court
M S Bajaj Allianz General Insurance ... vs Ms Cobra Carbide Private Limited on 23 August, 2024
KABC010168102016
IN THE COURT OF XXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU
Dated this the 23rd day of August 2024
Present : SRI.VEDAMOORTHY B.S., B.A.(L)., LL.B.,
XXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH-14)
A.S.No.104/2016
PLAINTIFF : M/s. Bajaj Allianz General
Insurance Company Limited
GE Plaza, Airport Road, Yerawada
Pune 411 006.
Represented by its Deputy Manager.
(By Sri.K.Nagaraja, Advocate)
V/s
DEFENDANT : M/s. Ceraitzit India Pvt., Ltd.,
No.54, Bommasandra Jigni
Link Road, Industrial Area Phase
IV, Bengaluru - 560 099.
Represented by its Managing Director.
(By Sri.S.Shivaswamy, Advocate)
Date of institution of the suit. 21.07.2016
Under Section 34 Rule of
Nature of the suit Arbitration and Conciliation
Act, 1996.
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A.S.No.104/2016
Date on which the Judgment
23.08.2024
was pronounced
Years Months Days
Total duration
08 01 02
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The respondent in Arbitration proceedings before Arbitral Tribunal filed this suit under Section 34 of Arbitration and Conciliation Act, 1996 challenging the award passed by the Sole Arbitrator Sri.S.M.Prashanth Chandra vide dated 24.03.2016.
2. Before the Arbitral Tribunal, the plaintiff herein was the respondent and the defendant herein was the claimant. For the sake of convenience and clarity, the ranks of the parties herein is referred as referred before the Arbitral Tribunal.
3. The case of the claimant before the Arbitral Tribunal was that the claimant is a factory and it was subscribed for burglary insurance policy with the respondent against the 3 A.S.No.104/2016 burglary for the period between 04.09.2008 and 03.09.2009 under Policy No.OG-09-1701-4010-00000535. On 07.02.2008, there was alleged incident of burglary in the factory of the claimant. On 09.02.2008, the claimant intimated it to the respondent. On the same day, about the said incident, a crime in Crime No.43/2009 was registered before the jurisdictional Bannerugatta Police Station for the offences punishable under Sections 457 and 380 of the Indian Penal Code in Crime No.43/2009. After investigation, the jurisdictional police filed 'C' report on 04.07.2009. The respondent conducted the inspection and surveyor. The estimated value of the materials stolen/burglary was Rs.30,12,571/-. Due to the said incident, the claimant could not expose the full quantity of goods which resulted in initiating the proceedings by the Commissioner of Central Excise in No.67/2013. After enquiry, the said authority directed the claimant to pay Excise Duty of Rs.8,08,386/- and penalty of Rs.8,08,386/-. This made the claimant to claim Rs.73,86,746/- which includes the interest from 07.03.2009 to 10.04.2014 with interest at the rate of 18% 4 A.S.No.104/2016 p.a. from the respondent.
4. Before the Arbitral Tribunal, the respondent appeared and filed his statement of objections contending that the Arbitral Tribunal has no jurisdiction to conduct Arbitration proceedings in the subject matter. The claim of the claimant is bad of mis-joinder and non-joinder of necessary parties i.e., the Security Agency who was involved in the theft. There was no forcible entry and exit by the thief/burglar. The whole incident is an intentional act with sole and ulterior motive of extraction of public money through vexatious and malafide a practice by the claimant. The story of the theft/burglary by the claimant is false and concocted story. The respondent after received the claim for of the claimant, appointed R.A.Rajagopal, Surveyor who conducted the surveyor and assessed the loss. He filed his report which is not satisfying the policy condition to pay the claim amount of the claimant. Therefore, the respondent is not liable to pay the claim of the claimant.
5. The Sole Arbitrator considered the jurisdiction of the Arbitral Tribunal as preliminary issued and answer it holding 5 A.S.No.104/2016 that the Arbitral Tribunal has jurisdiction to conduct the Arbitral Proceedings. Thereafter, during enquiry, on behalf of the claimant, Baskar B. was examined as CW1 and the claimant has produced the documentary evidences Ex.C1 to Ex.C14. On behalf of the respondent, Krishna Sheernali was examined as RW1 and Dr.R.A.Srinivas was examined as RW2. On behalf of the respondent, Ex.R1 to Ex.R16 are produced as documentary evidences.
6. After conducting the Arbitral Proceedings, the Sole Arbitrator passed the Award on 24.03.2016 as follows:-
(a) The claim petition filed by M/s., Cobra Carbide Pvt. Ltd., is hereby partly allowed;
(b) The claimant is entitled to Rs.30,12,571/-
(Rupees Thirty Lakhs Twelve Thousand Five Hundred Seventy One only) from the respondent, M/s. Bajaj Allianz General Insurance Company Ltd.,
(c) The claimant is further entitled to Rs.8,08,836/- (Rupees Eight Lakhs Eight Thousand Eight Hundred and Thirty Six only) from the respondent, M/s. Bajaj Allianz General Insurance Company Ltd., 6 A.S.No.104/2016
(d) The claimant is entitled to interest on (b) and
(c) above at 12% p.a. from 07.02.2009 till this case, qualified and rounded off to Rs.32,00,000.00 (Rupees Thirty Two Lakhs only) from the respondent, M/s. Bajaj Allianz General Insurance Company Ltd.,
(e) The claim of the claimant for Rs.8,08,836/-
(Rupees Eight Lakhs Eight Thousand Eight Hundred and Thirty Six only) towards penalty is disallowed;
(f) The respondent shall further pay Rs.25,000/- (Rupees Twenty Five Thousand only) to the claimant towards cost of Arbitration;
(g) The claimant is entitled to future interest on
(b) and (c) above at 10% p.a. from the date of Award till date of realization, from the respondent, M/s. Bajaj Allianz General Insurance Company Ltd.,
7. Challenging the said Arbitral Award, the respondent before the Arbitral Tribunal filed this Arbitration Suit on the following grounds.
(a) Under Clause 3 and 3.2 of the Insurance Policy, the terms and conditions between the parties were as follows:-
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A.S.No.104/2016 (3) No indemnity is available hereunder for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:
(3.2) 'In which the insured, any employee or any other person lawfully on or about the insured premises is or is alleged to be in any way concerned or implicated'. On the basis of the above mentioned clause, the respondent rightly repudiated the claim of the claimant. The learned Arbitrator with utter disregard to the terms and conditions of the policy has wrongly interpreted the policy and even awarded consequential cost incurred by the claimant as Excise Duty of a sum of Rs.8,08,836/- has been burdened on the respondent. The Hon'ble Supreme Court in the case between United India Insurance Co. Ltd. V/s M/s Orient Treasures Pvt. Ltd. (Civil Appeal No.2140/2007) at para 42 has specifically held that "It is a settled rule of interpretation that when the words of a stature are clear plain or unambiguous, i.e., they are 8 A.S.No.104/2016 reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences." Thus, the Court has adopted strict interpretation in interpretation of clauses in insurance contract. The learned Arbitrator has gone beyond the framework of the binding agreement, in the instant case the policy. As such, this cost of excise the duty cannot be burned on the respondent.
(b) The respondent in its written statement/ objections had taken specific plea that the Arbitrator has no jurisdiction to decide the dispute as the matter relates to serious allegations of fraud and malpractice. The Hon'ble Supreme Court in the case between N.Radhakrishna V/s Maestro Engineers in para 7 held and observes that "The High Court in its impugned judgment has rightly held that since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in court through furtherance of detailed evidence by either parties and such a situation cannot be properly gone into by the Arbitrator." Thus, cases wherein there is 9 A.S.No.104/2016 serious allegations of fraud and malpractices the arbitrator has no jurisdiction to decide the dispute as the matter.
(c) The Learned Arbitrator has without any basis accepted the valuation of the material loss to the claimant to the tune of Rs.30,12,571/- to the benefit of the claimant and awarded the said amount, whereas on the contrary the loss has been valued at Rs.23,900/- by the Jurisdictional Police in their 'C' Report and Rs.2,38,746/- was the valuation of the materials loss as per the valuation of the valuator appointed by the respondent. The learned arbitrator has overlooked the terms and conditions of the policy and the valuation of the valuator of the respondent in much as to support the claim of the as claimant. The Award is liable to be ground alone.
(d) The learned Arbitrator has ignored the exclusion clauses of the policy in unduly favoring the claimant. This is patently illegal, as a clear reading of the Clause (3) Sub-Para (2) of the Policy cannot be interpreted in any other manner. It is trite that any agreement or a contract should be read to harmonize 10 A.S.No.104/2016 the conditions and not create conflict. The learned arbitrator has failed to recognize the principles of interpretation of contract ignoring the specific agreed terms. The award passed by the learned arbitrator is beyond the scope of the arbitration agreement, which is the policy of insurance in the instant case.
Hence, the award is liable to be set aside.
(e) The learned arbitrator under para-22 of the award has stated that the repudiation by the respondent was wrong since the 'C' report filed by the Police rests the suspicion of involvement of any employee or the security guard and has held that the loss of the goods to be Rs.30,12,571/-. The learned Arbitrator has partly read the 'C' report in as much as to only derive that there was no involvement of any insider but does not approve the value of loss as Rs.23,900/- which has not been disputed/appealed by the claimant. But, the learned arbitrator has chosen to apply that the value of the goods lost/burgled as Rs.30,12,571/- which is as per the claim of the claimant.
(f) On account of an implausible interpretation of the contract as can be prima-faciy seen 11 A.S.No.104/2016 that the award suffers from patent illegality as it is against the terms and conditions of the Policy and in contravention with the fundamental policy of Indian law.
(g) Under para-24 of the award, the learned arbitrator has stated that the surveyors report admits the valuation as Rs.30,12,571/-. On the contrary, the surveyors report values the loss of materials/goods as Rs.2,38,746/- having been taken into account the profit and loss and computed the profit margin to an extent of 36.60% and after deduction the said profit margin and also the maximum weight of tools that might have been pilfered during the incident as 25 Kgs. Hence, the maximum amount that can be awarded is Rs.2,38,746/- towards value of loss. It is absolutely illegal to award the loss as Rs.30,12,571/- since the policy does not cover pilferage only but covers theft/burglary. The Learned Arbitrator has failed to appreciate that on the day of the alleged incidence of theft, the CCTV footage clearly displays that there was only one person entering the store room that had only 'ONE', which was in the custody of the 12 A.S.No.104/2016 security and that the incident lasted for about 3 Minutes 54 Seconds. Hence, the maximum weight and value of goods that could have been burgled is about 25 Kgs and that the value of 25 Kgs is Rs.2,38,746/-. Hence, the award passed by the learned Arbitrator is in conflict with the most basic notions of morality and justice and as such liable to be set aside.
(h) The learned arbitrator has wholly misunderstood the terms and conditions of the policy, wherein Clause (3.7) "Any consequential losses of any kind, be they by way of loss of profit, business, interruption, market loss or otherwise, and any other legal liability of any kind". It clearly states that the respondent was not liable for any consequential loss during the currency of the Policy. In the instant case, the learned Arbitrator has saddled the Excise Duty of a sum of Rs.8,08,836/- on the respondent. At a juncture where the whole alleged burglary have been committed by one single person in a time span of 3 minutes and 54 seconds and that the value of the loss is valued at Rs.23,900/- by the jurisdictional police in their 'C' Report and the value of loss as 13 A.S.No.104/2016 assessed by the surveyor as Rs.2,38,746/-, the question of saddling the respondent with a sum of Rs.8,08,836/- is wholly unjustified. Under such a circumstance, the awarding the consequential logs of Rs.8,08,836/- as against the respondent would be patently illegal.
(i) The learned Arbitrator in para 28 has assessed remote damages including the interest computed at 12% per annum from 07.03.2009 till 10.04.2014 on the value of loss of goods as Rs.30,12,571/-, claim of Excise Duty of Rs.8,08,836/- and future interest at 10% per annum. All these are remote to the contract and not in terms of the contract where only an amount of Rs.2,38,746/- is payable as per the surveyors report.
(j) The Learned Arbitrator has failed to appreciate the fact that the basic principle of a Policy of Insurance is utmost good faith. In the instant case the basic principle of utmost good faith has been breached by the claimant because, a plain reading of the facts of the case unravels a doubt in one's mind and exposes us to the fact that there is an 14 A.S.No.104/2016 element of fraud that has been played by the claimant on the respondent to usurp and illegally enrich themselves by creating a scene replicating a case of burglary. The evidentiary material on hand for appreciation clearly reveals that it is a case of 'fence eating the crop', wherein it was humanely impossible for any person to single handle burgle goods weighing 220 Kgs in a span of 3 minutes 54 seconds and that too in the pitch dark of the night without even breaking open the security seal, let alone the locks. As the award of the learned Arbitrator suffers from contravention with the basic notions of morality and justice and as such liable to be set-aside.
(k). Thus on all the claims awarded finally, it is submitted that this amount of Rs.70,46,407/- is patently illegal and against the agreed terms and conditions of the Insurance Policy for the reasons stated above and hence, the award is liable to be set aside.
8. Along with the petition, the plaintiff filed I.A.No.1 under Section 34(3) of Arbitration And Conciliation Act, 1996 seeking an order to condone the delay of 29 days in filing this 15 A.S.No.104/2016 Arbitration Suit.
9. In support of I.A.No.1, the authorized signatory of the plaintiff filed his affidavit stating that on 24.03.2016, the plaintiff received the Award from the Arbitral Tribunal. The plaintiff ought to have been filed the suit within 24.06.2016. The plaintiff sent the Arbitration Award to the Head Office seeking the opinion. On 30.06.2016, the opinion was received by the plaintiff. Therefore, the delay has been caused in filing the present suit.
10. After registering this case, the notice was issued to the defendant. The defendant has appeared before this Court and filed the objections to the main application stating that the present application is not maintainable. The plaintiff has not issued notice to the defendant before initiating the present proceedings as required under Section 34(6) of the Arbitration and Conciliation Act, 1996 which is a per- requisite ingredient before filing the present application. The Arbitral proceedings were commence and the Arbitrator was appointed by way of an order of the Hon'ble High Court of 16 A.S.No.104/2016 Karnataka in C.M.P.No.6/2011 dated 04.02.2014. The grounds urged in the application are not permissible under Section 43 of the Arbitration and Conciliation Act, 1996. The Arbitral Tribunal had jurisdiction to try the dispute as there was no allegation of fraud and serious malpractice as found in the objection statement filed by the plaintiff before the Arbitral Tribunal. A mere sweeping statement does not constitute an allegation of fraud of malpractice. Therefore, the Arbitral Tribunal had jurisdiction to try the proceedings. The conduct of Arbitral Tribunal and the Award passed by it are not in contravention with the public policy of India. Hence, prayed to dismiss the application.
11. The defendant has not filed any objections I.A.No.1.
12. The learned Counsels for the plaintiff and the defendant have filed their written arguments along with the citations.
13. The learned Counsel for the plaintiff filed the following Judgments/Orders:-
1. The judgment of the Hon'ble Supreme 17 A.S.No.104/2016 Court of India in the case between United India Insurance Company Limited V/s Harchand Rai Chandan Lal (2005 ACJ
570).
2. The judgment of the Hon'ble Supreme Court dated 22.08.2016 passed in Civil Appeal No.1130/2007 in the case between M/s. Industrial Promotion and Investment Corporation of Orissa Limited V/s New India Assurance Company Limited and another.
3. Order of the National Consumer Disputes Redressal Commission, Circuit Bench at Ahemdabad, Gujarat dated 17.02.2011 passed RP No.1081/2008 Paresh Mohanlal Parmar V/s National Insurance Co.Ltd., and others.
14. The learned Counsel for the defendant filed the following Judgments/Orders:-
1. The judgment of the Hon'ble Supreme Court of India in the case between Markfed Vanaspati and Allied Industries V/s Union of India (2007) 7 SCC 679.
2. The Order of the Hon'ble High Court of Karnataka in the case between Karnataka State Cricket Association, Chinnaswamy 18 A.S.No.104/2016 Stadium, M.G.Road, Bengaluru [2017 (3) Kar. L.J. 125].
3. The judgment of the Hon'ble High Court of Karnataka in the case between The Karnataka Hand loom Development Corporation Limited V/s Mandya District Central Co-operative Bank Limited (ILR 2009 KAR 3838).
4. The judgment of the Hon'ble High Court of Karnataka in the case between Smt.Siddamma V/s Bangalore Development Authority (2011 (1) KAR L.J.23).
15. Perused the materials available on record.
16. The following points that have been arisen for my consideration;
1. Whether the plaintiff has shown sufficient cause that he was prevented from making the application within the period of 3 months from the date of receipt of the Arbitral Award ?
2. Whether the present suit is not maintainable for non-compliance of Section 34(5) of the Arbitration and Conciliation Act, 1996 ?
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A.S.No.104/2016
3. Whether the plaintiff has shown sufficient reasons to set aside the Arbitral Award dated 24.03.2016 passed by the Sole Arbitrator ?
4. What order?
17. My answers to the above points are as follows;
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : In the Negative;
Point No.4 : As per final order for the following;
REASONS
18. POINT No.1 :- The date of Arbitral Award under
challenge in this suit is dated 24.03.2016. In the affidavit filed by the plaintiff in support of I.A.No.1, he has stated that on the same day, the copy of the Arbitral Award passed by the Sole Arbitrator was served on him. Under Section 34(3) of the Arbitration and Conciliation Act, 1996, the time specified to file an application to setting aside the Arbitral Award is 3 months from the date on which, the party making that application had received the Arbitral Award. If the Court is satisfied that the applicant was prevented by sufficient cause 20 A.S.No.104/2016 from making the application within the said period of 3 months, it may entertain the application within a further period of 30 days, but not thereafter. In the present case on hand, the time specified for making the application i.e., 3 months will be concluded on 24.06.2016. The present application is filed on 27.01.2016. Therefore, there is delay of 29 days in filing the present application.
19. The reason assigned by the plaintiff for the cause of such delay is that after the Arbitral Award was passed, it was sent to the Head Office for an opinion. On 30.06.2016, the opinion was received and therefore, the delay has been caused in filing the present application. The said reason assigned by the applicant is not disputed by the defendant. Therefore, the reasons assigned by the plaintiff is hereby accepted as sufficient cause as required under Section 34(3) of the Arbitration and Conciliation Act, 1996. Under these circumstances, the plaintiff has shown sufficient cause that he was prevented from making the application within the period of 3 months from the date of receipt of the Arbitral Award. Hence, I answer Point No.1 in the Affirmative. 21
A.S.No.104/2016
20. POINT No.2 :- In the statement of objections filed by the defendant to the present application of the plaintiff, it is contended that the present application is not maintainable for non-compliance of Section 34(5) of the Arbitration and Conciliation Act, 1996. Section 34(5) of the Arbitration and Conciliation Act, 1996 reads as follows :-
(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
21. In the light of the above, I verified the entire records. It appears that the plaintiff has not produced any materials to show that before filing the present application, the plaintiff issued a prior notice to the defendant and the plaintiff has not filed an affidavit accompanying the present application endorsing the compliance of the said requirement as required under Section 34(5) of the Arbitration and Conciliation Act, 1996. There are no pleadings in the present application with regard to the compliance of under Section 34(5) of the Arbitration and Conciliation Act, 1996. The said compliance 22 A.S.No.104/2016 is mandatory. In the absence of such compliance, the present application is not maintainable. Hence, I answer Point No.2 in the Affirmative.
22. POINT No.3 :- The grounds urged in the present application shall be considered keeping in mind the follwing principles of law laid down by the Hon'ble Supreme Court in the judgment relied by the learned Counsel for the defendant in the case between Markfed Vanaspati and Allied Industries V/s Union of India [(2007) 7 SCC 679];
"17. Arbitration is a Mechanism or a method of resolution of disputes that unlike court takes place in private, pursuant to agreement between the parties. The parties agree to be bound by the decision rendered by a chosen arbitrator after giving hearing. The endeavor of the court should be to honour and support the award as far as possible."
23. On perusal of the grounds urged by the plaintiff in the application, it appears that the plaintiff has urged several grounds to set aside the Arbitral Award of the sole Arbitrator. Under Section 34(2) of the Arbitration and Conciliation Act, 1996, an Arbitral Award may be set aside by the Court only 23 A.S.No.104/2016 on following circumstances :-
(a) If the party making the application established on the basis of the record of the arbitral tribunal that -
(i) A party was under some incapacity, or
(ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters no submitted to arbitration may be set aside; or 24 A.S.No.104/2016
(v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this part from which the parties cannot derogate, or failing such agreement, was not in accordance with this part; or
(b) The Court finds that :-
(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) The arbitral award is in conflict with the public policy of India.
24. Under Section 34(2A) of the Arbitration and Conciliation Act, 1996, an arbitral award arising out of arbitrations may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
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A.S.No.104/2016
25. After reading the above, I once again read the grounds urged by the plaintiff in the present application. One of the grounds urged in the present application relying the judgment of the Hon'ble Supreme Court in the case between N.Radhakrishna V/s Maestro Engineers is that the Arbitrator had no jurisdiction to decide the dispute as it relates to serious allegation of fraud and malpractice. In the said case, as the dispute arose between the parteners of the Partnership Firm, the suit was filed before the Civil Court for declaration and permanent injunction in which, the defendant filed application under Section 8 of the Arbitration and Conciliation Act, 1996 which was rejected by the Court. The said order was challenged before the Hon'ble High Court of Karnataka and thereafter, to the Hon'ble Supreme Court. In the said facts and circumstances, the Hon'ble Supreme Court laid down the above principles of law. The facts and circumstances under which, the said findings of the Hon'ble Supreme Court are not similar to that of the facts and circumstances of the present case on hand. In the present case on hand, before constitution of the Arbitral Tribunal, 26 A.S.No.104/2016 C.M.P.No.6/2011 was filed before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka vide its order dated 04.02.2014 appointed Sri.S.Prashanth Chandra has sole Arbitrator to adjudicate the dispute between the parties. It was the first instance where, the plaintiff could raise such contention. When the sole Arbitrator was appointed through the order of the Hon'ble High Court of Karnataka and the Arbitral Tribunal was constituted in view of the said order, the plaintiff is estopped from taking the jurisdiction of the sole Arbitrator to decide the dispute on the ground that the dispute relates to serious allegations fraud and malpractice. Therefore, there is no merits in the said ground urged by the plaintiff to set aside the Arbitral Award dated 24.03.2016 passed by the sole Arbitrator.
26. In the written arguments, the learned Counsel for the plaintiff has relied another judgment of the Hon'ble Supreme Court in the case between United India Insurance Company Limited V/s Harchand Rai Chandan Lal (2005 ACJ 270). Though, the facts of this case are relating to the burglary insurance contract between the insurer and the insured, it 27 A.S.No.104/2016 appears that the challenge before the Hon'ble Supreme Court was not with regard to the Award of the Arbitrator. On the other hand, the United India Insurance Co. Ltd. challenged the order of the National Consumer Disputes Redressal Commission passed in Revision Petition No.2159/2022. The question before the Hon'ble Supreme Court was that whether the terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. In the present case on hand, Proviso to Section 34(2A) of the Arbitration and Conciliation Act, 1996 do not permit this Court to set aside the Arbitral Award on the said ground. Therefore, the Arbitral Award of the sole Arbitrator under challenge in the present application cannot be appreciated as considered by the Hon'ble Supreme Court in the above judgment relied by the learned Counsel for the plaintiff. Therefore, the said judgment relied by the learned Counsel for the plaintiff is cannot be applied to the present case on hand.
27. I have also read the judgment of the Hon'ble Supreme Court in Civil Appeal No.1130/2007. In the said Appeal, the 28 A.S.No.104/2016 order of MRTP Commission dated 17.08.2005 was under
challenge. The said judgment is purely based on the facts and circumstances of the said case. Though the facts and circumstance of the said case and the contentions of the plaintiff herein are similar, the power of this Court under Section 34(2) and (2A) of the Arbitration and Conciliation Act, 1996 is limited to the extent enumerated therein and this Court cannot interfere with the Arbitral Award of the sole Arbitrator by reappreciating the evidences produced by both parties before it. Therefore, the said judgment relied by the learned Counsel for the plaintiff is also cannot be applied to the present case on hand.
28. As far as the Order of the National Consumer Disputes Redressal Commission, Circuit Bench at Ahmedabad, Gujarat is concerned, it has not binding effect to this Court. Therefore, the said order relied by the learned Counsel for the plaintiff cannot be made applicable to this case on hand.
29. On reading the other grounds urged in the application, it appears that they are with regard to the reappreciation of 29 A.S.No.104/2016 the evidences by the sole Arbitrator which is not permissible under Proviso to Sub-Section (2A) of Section 34 of the Arbitration and Conciliation Act, 1996. On careful reading of Sub-Section (2) and Sub-Section (2A) of Section 34 of the Arbitration and Conciliation Act, 1996, it appears that the grounds urged in the present application are not fit into the circumstances under which the Court may set aside the Arbitral Award as contemplated therein. Therefore, the plaintiff has not shown sufficient reasons to set aside the Arbitral Award dated 24.03.2016 passed by the Sole Arbitrator. Hence, I answer Point No.3 in the Negative.
30. POINT No.4 :- In view of the findings on Point No.1, I.A.No.1 filed by the plaintiff under Section 34(3) of the Arbitration and Conciliation Act, 1996 is liable to be allowed and the delay of 29 days in filing the present application is liable to be condone. In view of the findings on Points No.2 and 3, the present application filed by the plaintiff is liable to be dismissed with cost. In the result, I proceed to pass the following;
30
A.S.No.104/2016 ORDERS I.A.No.1 filed by the plaintiff under Section 34(3) of the Arbitration and Conciliation Act, 1996 is hereby allowed.
The delay of 29 days in filing the present application is hereby condone.
The applications filed by the plaintiff under Section 34 of the Arbitration and Conciliation Act, 1996 is hereby dismissed with cost.
(Dictated to the Stenographer and typed by her in the Court Computer, printout taken by her and corrected then pronounced by me in the open court today on this the 23 rd day of August 2024) (VEDAMOORTHY.B.S) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
Digitally signed by
VEDAMOORTHY VEDAMOORTHY
BS BS
Date: 2024.08.23
17:48:00 +0530