Bombay High Court
United Phosphorous Limited vs Inited India Insurance Company Ltd on 15 February, 2019
Author: S.C. Gupte
Bench: S.C. Gupte
sg arbp430-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.430 OF 2013
United Phosphorous Limited ....Petitioner
vs
United India Insurance Company Ltd. ...Respondent
.....
Mr. Shiraz Rustomjee, Senior Advocate, a/w. Mrs. Shreya Parikh, Mr.
Rahil Jhaveri, Mr. Archit Jayakar and Ms. Bhavika Deora, i/b. Jayakar &
Partners, for the Petitioner.
Mr. A.M. Vernekar, a/w. Ms. Sangeeta Kuhar and Mr. Suraj Ghogare,
i/b. Narichania & Narichania, for the Respondent.
......
CORAM : S.C. GUPTE, J.
DATED: 15 FEBRUARY 2019
ORAL JUDGMENT:
. This arbitration petition challenges an award passed by majority arbitrators in a dispute between the parties arising out of an insurance contract.
2. The short facts of the case may be stated as follows:-
2.1 In 1996-1997, the Petitioner, who is in the business of pesticides and chemicals, purchased a 'Gas Turbine Engine' from GE Packaged Power Inc., Houston, U.S.A. ('GE'). The machine was installed and commissioned at the Petitioner's plant in Jhagadia in Gujarat. The Petitioner had a maintenance and operations contract with General Pg 1 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc Electric Energy Plant Operations LP.
2.2 Sometime in the first quarter of 1999, a lube oil failure in the machine led to its being returned to GE and another Gas Turbine Engine ('GT engine' or 'engine') being delivered and commissioned at the Petitioner's factory in Jhagadia.
2.3 On 22 February 2001, the Petitioner obtained an Industrial All Risk Policy from the Respondent insurer for this GT Engine. The period of the cover was from 22 February 2001 to 20 February 2002, whilst the risks covered were of 'material damage' and 'business interruption' upto the sums mentioned in the policy, the terms 'material damage' and 'business interruption' having been defined and explained in the policy document.
2.4 On 25 April 2001, the GT engine suffered a break-down on account of 'high lube oil temperature' and was sent to Air India Workshop for repairs. After such repairs, the engine was returned on 9 June 2001 and, once again, commissioned at the Petitioner's factory.
Between June 2001 and September 2001, the engine worked smoothly.
2.5 On 16 September 2001, there was a heavy break-down in the engine on account of high lube oil temperature and failure of 4B bearings of the engine in what is known as its sump B area. As a result, the engine tripped and automatically shut down.
2.6 Immediately on the following day, i.e. on 17 September
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2001, the Petitioner informed the Respondent about the accident. The Respondent appointed surveyors/loss adjusters for ascertaining the damage and assessing the costs.
2.7 The suppliers of the engine, GE, required the Petitioner to send it to Houston, Texas, U.S.A. for repairs. The engine was, accordingly, sent to Houston. GE had issued a repair purchase order setting out the initial cost of repairs of the engine. After, however, the engine was received at Houston, Texas and checked and investigated in detail, suppliers GE opined that it would have to be completely overhauled; unless it was so overhauled and necessary repairs were carried out, GE would not guarantee its performance. The Respondent admittedly knew all these developments including the status of the engine and the observations of GE, including its suggestion of overhauling of the engine.
2.8 By its letter dated 18 December 2001, the Petitioner called upon GE to repair the sump B area of GT engine, where the immediate cause of failure of the engine had initiated.
2.9 The Respondent independently caused its surveyors to carry out a survey of the engine at Houston, Texas. After GE carried out some repairs to Sump B area, by their letter dated 5 December 2001, the Respondent informed the Petitioner that the former's surveyors had communicated GE's suggestion that the engine ought to be completely overhauled. The Respondent urged the Petitioner to ensure that overhauling suggested by GE was done, instead of limiting the repairs, Pg 3 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc as was done so far. This was reiterated by the Respondent by its subsequent letter dated 18 December 2001. The Respondent communicated in this letter that according to its surveyors, the entire GT engine would have to be repaired so as to avoid future claims, which would otherwise be imminent. The surveyors had, in the meantime, recommended an ad-hoc payment of Rs.4 crores to the Petitioner towards the damage caused by the accident.
2.10 In keeping with the Respondent's suggestion, the Petitioner decided to overhaul the engine. The Petitioner informed the Respondent about the parts to be replaced and their values and declared its intention to recover the entire cost of repairs payable to GE under the insurance policy. The Respondent took a stand that its liability only extended to the actual damage caused by the accident of 16 September 2001 and it would not be liable to meet the entire overhauling costs. Some correspondence ensued between the parties in this behalf.
2.11 The Petitioner nevertheless proceeded to have the engine overhauled, as suggested by GE, and as required by the Respondent. The engine was, thereupon, repaired and successfully tested and re-installed at the Petitioner's factory at Jhagadia. Upon its re-installation, the engine soon achieved full load.
2.12 In the meantime, the Petitioner did not receive the adhoc amount of Rs.4 crores recommended by the surveyors and kept pressing the Respondent to release the payment at the earliest. The Petitioner also revised its claim bill on account of material damage caused to the Pg 4 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc engine in the sum of Rs.16,71,61,286/- (the final revised figure being Rs.15,50,10,240/- and loss of business profit at Rs.5,27,83,000/- (finally revised to Rs.8,23,08,525/-).
2.13 The Respondent, by their letter dated 18 December 2003, proposed a total sum of Rs.7,69,69,369/- towards both claims of the Petitioner (without any break-up towards the two).
2.14 By their letter, which was issued on the very next day, the Petitioner informed the Respondent that the amount proposed by the Respondent was being accepted by it 'under strong protest'. The Petitioner, accordingly, enclosed a signed discharge voucher with its letter of protest.
2.15 After the Petitioner, thus, forwarded the signed discharge voucher along with the signature of the bank (there being a bank clause in the insurance policy) along with their covering letter, as noted above, the Respondent forwarded its cheque in the proposed sum to the Petitioner. This cheque was forwarded on 29 December 2003.
2.16 The Petitioner, thereafter, raised its claim for the balance sum payable for both its claims. In the aggregate, the Petitioner claimed a sum of Rs.17,03,49,396/- together with interest.
2.17 Since the Respondent refused to pay this amount, disputes arose between the parties and these were referred to the arbitral tribunal.
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3. The tribunal consisted of three arbitrators. The arbitrators deferred in their award. By their impugned award dated 14 September 2012, the majority arbitrators rejected the Petitioner's claim. The rejection was, firstly, on the ground that the Petitioner had accepted the amount of Rs.7,69,69,369/- in full and final satisfaction of their claim under a signed settlement intimation voucher, and such acceptance amounted to a complete discharge. The arbitrators, secondly, held that overhauling was necessary as various parts/components of the GT engine had deteriorated, deformed or distorted over a period of time due to wear and tear; the use of fuel (naphtha) for running the engine had also resulted in increased break-downs and caused gradual deterioration, deformation and distortion, and increased wear and tear as a result, necessitating such overhauling. The arbitrators held that the insurer was not liable to pay overhauling expenses and was liable to pay only for damage caused by the accident. The arbitrators did not take into account the report of local surveyors appointed by the Respondent on the ground that it had scarce probative value and was merely recommendatory, and not having been proved by examination of its author and not binding on either side, was not required to be considered.
4. The conclusion of the arbitrators that the payment proposed by the Respondent (Rs.7,69,69,369/-) was accepted by the Petitioner in full and final satisfaction under a settlement intimation voucher and such acceptance amounted to a complete discharge, is clearly and directly in contravention of the admitted record of the case and can reasonably be termed as an impossible view of the material placed before the Pg 6 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc arbitrators. When the settlement intimation voucher was issued by the Respondent proposing in the aggregate payment of Rs.7,69,69,369/- towards the Petitioner's claims, the parties were clearly not ad idem on the settlement proposed. The Petitioner had, since inception, made its position clear that overhauling of the machine was necessitated by the accident and the Respondent itself had urged the Petitioner to go in for complete overhauling at the suggestion of GE, the manufacturers of the engine. Accordingly, when the settlement intimation voucher was signed by the Petitioner and its bankers, the Petitioner expressly put the Respondent to notice that the voucher was being signed and the amount being accepted 'under strong protest'. This under protest acceptance was unequivocally conveyed to the Respondent, who issued its cheque of Rs.7,69,69,369/- after intimation of protest was received by it. The cheque is dated 29 December 2003, whereas the settlement voucher was sent on 18 December 2003 and its acceptance under protest was communicated on 19 December 2003. These documents and their dates are not disputed by the Respondent. In the minimum, what these documents clearly suggest is that the Petitioner had offered to accept the payment proposed by the Respondent under protest; such protest was simultaneous with signing of the settlement intimation voucher; its under protest acceptance was duly communicated by the Petitioner to the Respondent; and payment was made by the Respondent only after receiving such communication of under protest acceptance proposed by the Petitioner. At any rate, whatever else they may or may not suggest, what these documents do not suggest is that the payment was accepted by the Petitioner in full and final settlement of its claims. The arbitrators' conclusion, therefore, that the payment was in full and final Pg 7 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc satisfaction and that acceptance under the settlement intimation voucher amounted to a complete discharge, is clearly an impossible view to take. The arbitrators appear to have come to their finding of full and final satisfaction and complete discharge on the basis that the payment of the settlement amount was purportedly processed, routed and accepted/received by the Petitioner before it communicated its acceptance 'under protest'. The arbitrators observed that the Petitioner could well have refused the payment and returned the cheque to the insurer but instead it "accepted the payment, pocketed the money, and then protested". The arbitrators observed that use of expression such as 'under strong protest' at a belated stage could be of no consequence. The arbitrators appear to have based this part of their award on the equitable doctrine that a party cannot be allowed to 'approbate and reprobate'. They held that having "given the insurer to believe that the claim is finally settled, and thereby induces (induced, sic?) the insurer to send the voucher for payment, it (i.e. the Respondent) cannot spring a surprise which sets the process and the previous election of having agreed to settle, fully and finally, in the reverse setting it at naught for the sum offered and that too after pocketing the money." The arbitrators appear to have either plainly overlooked the actual sequence of events disclosed by the documents referred to above or clearly and unjustifiably misread the sequence of events. The arbitrators' view on accord and satisfaction or discharge of the Petitioner's claims, thus, being an impossible view as either plainly contrary to the record or such that no fair or judiciously minded person could, or, at any rate, should take of the record, clearly merits interference under Section 34 of the Arbitration and Conciliation Act, 1996.
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5. The arbitrators not only appear to have missed or misread the sequence of events leading to acceptance of payment by the Petitioner, they seem to have even disregarded the voluminous case law placed before them on the subject. The Petitioner had relied on the Supreme Court case of Chairman and MD, NTPC Ltd. vs. Reshmi Constructions, Builders & Contractors1 and High Court decisions in Amar Nath Chand Prakash vs. Bharat Heavy Electricals Ltd. 2, Union of India vs. Gangaram Bhagwandas3 and Union of India vs. Navilakha and Sons4 amongst others. The Supreme Court in Reshmi Constructions had noted that courts could not shut their eyes to the ground reality that in a case where a contractor has made huge investment, he could not afford not to take from the employer the amount under the bills, for various reasons which might include discharge of his liability towards banks, financial institutions and other persons; in such situations, public sector undertakings would have an upper hand; they would not ordinarily release money unless a no demand certificate was signed. The court held that accordingly each case was required to be considered on its own facts. The court referred to the age-old maxim of necessitas non habet legem meaning 'necessity knows no law'; a person might sometimes have to succumb to the pressure of the other party to the bargain who was in a stronger position. In Navilakha and Sons' case (supra) our court had held that merely because a cheque was sent along with a covering letter claiming that the payment was in full and final settlement of the claim and that the cheque should be sent 1 (2004) 2 SCC 663 2 AIR 1972 Allahabad 176 (V 59 C 46) 3 1977 SCC OnLine MP 24 4 1997 SCC OnLine Bom 95 Pg 9 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc back if this was not acceptable to the payee and yet the cheque was encashed, even then it might not amount to accord and satisfaction. The court relying on Gangaram Bhagwandas (supra) held that accord and satisfaction implied an agreement to take the money in satisfaction of the claim for which it was sent. If a person sending a sum of money did so on the term that it should be taken, if so desired, in satisfaction of the larger claim and if the money was kept, it does not at all events amount to accord and satisfaction; such question has to be decided in the light of the particular facts of the case. The important part of the issue, as noticed in the case of Day vs. Mclea5 (a decision noted by the Supreme Court in Kapur Chand Godha vs. Mir Nawab Himayatalikhan Azamjah6) and Allahabad High Court in the case of Amar Nath Chand Prakash (supra), was that accord being a question of agreement, there must be either two minds agreeing on it or one of the two acting in such a way as to induce the other to think that the money is taken in satisfaction of the claim and to cause him to act upon that view; in either case it is a question of fact. Nothing of this appears to have been considered by the learned arbitrators whilst deciding the issue.
6. In fact in Wolrdfa Exports Pvt. Ltd. vs. United India Insurance Co. Ltd.7, a case to which the present respondent itself was a party, Delhi High Court has specifically noted that insurance companies had developed an unfair trade practice of insisting on a signed discharge voucher/no claim certificate as a pre-condition for payment of the assessed amount to the insured. The necessary safeguards, which are 5 (1889) 22 QBD 610 6 AIR 1963 SC 250 7 2015 SCC OnLine Del 13951 Pg 10 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc prevalent in other foreign jurisdictions with regard to enforcement of strict timelines, payment within a prescribed time period, payment of interim amount, are, in fact, practically non-existent in our country. The practice of signing of a pre-prepared discharge voucher as a pre- condition for receiving payment has been commented upon in a number of judicial pronouncements. The courts have consistently held that furnishing of such discharge vouchers did not come in the way of the insured's right to seek adjudication of unpaid/wrongfully denied claims through arbitration or by taking recourse to consumer courts or civil courts. Various judgments in this behalf have been noted in Wolrdfa Exports. The court also noted the dicta of Supreme Court in National Insurance Company Limited vs. Boghara Polyfab Private Limited 8 that the procedure of insurance companies requiring the claimant to issue an undated receipt (acknowledging receipt of a sum smaller than his claim) in full and final settlement as a condition for releasing and admitting lesser amount was unfair, irregular and illegal. The court noted that IRDA had issued a circular advising insurance companies not to withhold the claim amounts where the liability or quantum of claim under a policy was established and that execution of any voucher prior to such establishment should not foreclose the rights of the policy holder to seek higher compensation before any judicial or other fora established by law.
7. In the face of this law, the arbitrators' conclusion that the payment amounted to a complete satisfaction and discharge of the claim of the insured does not even indicate a reasonable view of the law. The arbitrators have, in the first place, as noted above, not even applied their 8 (2009) 1 SCC 267 Pg 11 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc mind to the case law and considered the question of accord and satisfaction either by plainly overlooking the documents or misreading them altogether.
8. Coming now to the assessment of the Petitioner's claims on merits, what is apparent or rather, writ large, on the face of the award is that there is no discussion whatsoever in the award of the extensive evidence led by the parties on merits. What we are concerned with in the present case are claims of the insured of material damage and business loss caused by an accident, which was admittedly an insured event. It was nobody's case that there was no loss caused by reason of the event. The real question before the arbitrators was of the quantum of such loss. The Petitioner's case was that repairs in the nature of overhauling of the engine were necessitated as a result of the accident. The Petitioner claimed that such extensive repairs were necessary to bring the engine back to the same condition in which it was just before the accident occurred and its claim for material damage correctly represented the charges for these repairs. On the other hand, it was the case of the Respondent insurer that the only damage that could be paid for was what was proposed by the insurer as the repair cost necessitated by the accident. Whereas the insured had claimed a sum of Rs.16,50,10,240/-, the insurer had proposed Rs.5,01,41,230/- towards the cost of repairs. The arbitrators had to determine what was truly the cost of repairs, which were necessitated as a result of 'material damage' caused by the insured event, namely, the accident, which admittedly led to the breakdown of the engine. The issues, in this behalf, were formulated as follows :-
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(i) Whether the Respondent proves that the claim raised in the Statement of Claim or any part thereof falls under any of the "Exclusion" or "Special Exclusion" Clauses of the Insurance Policies?
(ii) Whether the claim raised in the Statement of Claim or any
part thereof has been rightfully rejected by the
Respondent under the Terms and Conditions, Warranties and Clauses of the Insurance Policies?
(iii) Whether the claim raised in the Statement of Claim or any part thereof is payable under the Terms and Conditions and Scope of the Insurance Policies?
9. On the technical aspect of 'material damage' caused by the accident and 'repairs cost' incurred as a result thereof, the Petitioner led evidence of two witnesses, namely, one V.L. Patel, who was an expert witness, having vast experience in the field, and one Kumar Phatnani, who was involved in actual operations of the engine and who was even present at site when the incident occurred and also at GE works in Houston, Texas, when the engine was overhauled. Patel inter alia deposed that the GT engine was not due for overhauling at the time of the accident of 16 September 2001; such overhauling was not required for any wear and tear, but solely on account of the accident of 16 September 2001. In support of this deposition, he also testified to the sound running condition of the engine. He affirmed that it was running Pg 13 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc at an optimum level; and it gave the desired output results prior to the accident. He even testified that the engine had been suitably modified by GE to run on naphtha and the nature of the fuel used in the machine (namely, naphtha) did not cause, and could not have caused, any damage to, or affected, 4B bearings or Sump B area where the initial damage occurred as a result of the accident. He testified that metal chips found in 4B Bearing/Sump B area were not the result of rust, wear and tear and/or corrosion. He deposed that old bearings had been replaced by new bearings during the repairs at Air India Workshop and there was no possibility of deterioration in these bearings within a short period of four months since those repairs. He gave comprehensive evidence in regard to events preceding the accident, the accident itself and the fall- out of the accident. He was extensively cross-examined by the Respondent. No part of Patel's testimony finds a place in the entire discussion in the majority award on the Petitioner's claim of material damage. Ditto for Kumar Phatnani, who had also testified to the efficacy of the fuel (naphtha) for use in the engine, particularly whether it had anything to do with the shelf life or working of the engine or the cause of the accident, which had occurred on 16 September 2001; whether the accident had anything to do with choice of fuel at all. He extensively testified to the condition of the engine vis-a-vis the act of overhauling as also the accident itself and its preceding events. There is no discussion in the award of Phatnani's evidence save and except one particular aspect of his evidence, where he had testified to the decision of overhauling the GT engine. Phatnani had deposed that the decision to overhaul was taken in Houston in the meeting of 17/18 December 2001, after GE had informed that mere repairs would not work and unless the engine was Pg 14 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc overhauled, there would be no warrantee/guarantee cover available. This, anyway, had nothing to do either with the accident or the damage caused by the accident or the cost of repairs necessary for undoing the damage and bringing the machine back to its pre-accident condition. It was relevant only for assessing whether or not the decision to overhaul was taken at the behest of the Respondent. Even the Respondent, for its part, had led expert evidence; its witness had deposed to the requirement of limited repairs with respect to the bearing failure zone (sump B area) and what would have been sufficient to rectify the engine and whether complete overhauling of the machine was necessary to bring the engine back to its pre-accident condition. Even he was cross-examined in detail by the Petitioner's Counsel. There is no reference at all to even his evidence in the award whilst discussing the claim of material damage.
10. The two small paragraphs in the impugned award, which are all that the arbitrators had to say on the merits of the claim, simply put the matter thus : (i) The statement of defence showed the following : (a) the engine was an old used engine; (b) during 8-3-1999 and 31-3-2000 it was running at varying speeds of 535 to 738 hours; (c) in May 1999, its coupling had failed and had to be replaced; after boroscopic inspection (test), nozzles were replaced; in December 1999, when HPC blades failed, 65 of them had to be replaced; (d) all this did not improve performance, since blades and nozzles were further damaged due to high temperature corrosion attributable to the use of naphtha as fuel, which reduced the life expectancy of the engine; (e) the use of naphtha resulted in increased break-downs and caused gradual deterioration, deformation and distortions and increased wear and tear necessitating overhauling;
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and (ii) These facts, being within the special knowledge of the insured, ought to have been disclosed. The contract, being uberrima fides, cast a duty to disclose and there was failure on the part of the Petitioner to do so. In the first place, this was merely the Respondent's case. These statements are only taken from its statement of defence. There is no consideration whether these were made out as true statements at the trial. Secondly, and at any rate, these facts, save and except the case of inappropriate use of naphtha as fuel, are all of a prior date i.e. earlier to the subject cover of insurance and have no bearing on the insurance contract we are concerned with here. The insurance cover was indeed for an old used engine, its running speeds or failures or replacements, etc., referred to by the arbitrators, are all events prior to the insurance cover. How could these possibly be said to have led to the accident or the damage that ensued because of it. And where was the proof of uberrima fides character of the contract having been breached by the Petitioner. And what impact did any such breach have on the 'material damage' claim made in the reference. There is absolutely no consideration of all these matters in the award.
11. As for the Petitioner's claim of business interruption loss caused by the accident, the less said the better, since, anyway, nothing at all is said in the award in that behalf. It is as though the issue simply did not exist.
12. In the premises, on crucial issues of merit, the award shows complete non-application of mind. Insurance claims are highly complex technical matters. More so in the present case, as the matter relates to Pg 16 of 17 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 17/03/2019 14:04:17 ::: sg arbp430-13.doc an accident caused to a sophisticated old gas turbine engine and damage caused as a result and repairs necessitated by such damage so as to bring the engine back to its pre-accident condition. The parties having led extensive evidence on all these highly technical issues, even through expert witnesses, the arbitrators were in the least expected to discuss, however briefly, the rival evidence and assess the extent of damage caused by the accident and repair costs that were required to be incurred to restore the engine to its pre-accident condition. That really was the mandate of the arbitrators and it appears to have been completely lost sight of by the arbitrators. There is clearly a woeful want of application of mind to the most crucial aspects of the matter. It is a fundamental policy of our law that any award, containing as it does, or at least, should, a fair and judicious determination of disputes, must, in the minimum, contain application of mind on the part of the tribunal; and such application must be disclosed in the reasons stated therein, however briefly. This award shows none. The award cannot be, accordingly, sustained. It is in unmitigated breach of public policy of India.
13. In the premises, the petition is allowed and the impugned award dated 14 September 2012 is set aside.
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