KANJIRAPPILLY AMUSEMENT PARK & HOTELS (P) LIMITED v NATIONAL INSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **AR.No.18 OF 2018** ## **PETITIONER:** **KANJIRAPPILLY AMUSEMENT PARK & HOTELS (P) LIMITED, ATHIRAPILLY ROAD, PARIYARAM P.O, CHALAKUDY, THRISSUR - 680 721, REPRESENTED BY ITS MANAGING DIRECTOR, SIMON K.FRANCIS, S/O K.C.FRANCIS, AGED 53 YEARS, RESIDING AT KUTTIKKADAN HOUSE, THOTTATHIL LANE, CHEMBUKAVU, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, ST.AGUSTINE CHURCH BUILDING, BYE-PASS JUNCTION, AROOR P.O., ALAPPUZHA - 688 534, REPRESENTED BY ITS BRANCH MANAGER.** **R1 BY ADV. SRI.GEORGE CHERIAN (SR.) R1 BY ADV. SMT.LATHA SUSAN CHERIAN R1 BY ADV. SMT.K.S.SANTHI** **THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON** **07.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 AR.No.18 of 2018 ## **P.B.SURESH KUMAR, J.** ## **---------------------------------------------** ## **A.R. No.18 of 2018** ## **-----------------------------------------------** ## **Dated this the 7[th] day of January, 2020.** ## **O R D E R** The petitioner is a company engaged in running an amusement park. On a proposal made by the petitioner, the respondent has insured the assets of the petitioner in terms of Annexure I policy. The insured assets were damaged during July 2007. According to the petitioner, the loss caused to them in this connection is Rs.38,71,105/-. The respondent, however, offered only a sum of Rs.21,19,404/-. It is stated by the petitioner that they have accepted the said amount under protest and instituted a suit thereafter, as O.S.No.233 of 2012 before the Sub Court, Irinjalakuda for recovery of the balance amount due under the policy. The suit aforesaid was dismissed holding that the petitioner has accepted the amount offered by the respondent towards full and final settlement of the liability. 3 AR.No.18 of 2018 The petitioner thereafter instituted proceedings under the Consumer Protection Act for realisation of the balance amount due under the policy, and it is stated that the said proceedings was disposed of permitting the petitioner to invoke the arbitration clause contained in the policy for redressal of the grievance voiced in the proceedings. It is stated by the petitioner that though they have called upon the respondent to take necessary steps for resolution of the dispute by recourse to arbitration, the respondent has not acted upon the said demand. The petitioner, therefore, seeks in this proceedings orders appointing an arbitrator to resolve the dispute between the petitioner and the respondent pertaining to the amount payable under the policy . 2. A counter affidavit has been filed by the respondent, contending mainly that the claim of the petitioner being one arose during July 2007, it is barred by limitation. It is also contended by the respondent that insofar as the suit filed by the petitioner was dismissed holding that the petitioner has accepted the amount offered to them towards full and final 4 AR.No.18 of 2018 settlement of the liability, the petitioner is not entitled to seek a reference for arbitration in respect of the same subject matter. 3. Heard the learned counsel for the petitioner as also the learned Senior Counsel for the respondent. ## 4. Annexure I contains an arbitration clause which reads thus: If any difference shall arise as to the quantum to be paid under this Policy (liability being otherwise admitted) such difference shall independently of all other question be referred to the decision of an arbitrator to be appointed in writing by parties in difference or they cannot agree upon a single arbitrator to the decision of two disinterested person as arbitrators of whom one shall be appointed in writing by each of the parties within two calendar months after having been required so to do in writing by the other part in accordance with the provisions of the Arbitration Act 1940, as amended from time to time and for the time in force in case either party shall refuse or fail to appoint arbitrator within two calendar months after receipts of notice in writing requiring an appointment the other party shall be at liberty to appoint sole arbitrator and in case of disagreement between the arbitrators the difference shall be referred to the decision of an umpire who shall have been appointed by them in writing before entering on the reference and who shall sit with the arbitrators and preside at their meetings. It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided if the Company has dispute or not accepted liability 5 AR.No.18 of 2018 under or in respect of this Policy. It is hereby expressly stipulated and declared that it shall be condition precedent to any right of action or suit upon this Policy that the award by such arbitrator arbitrators or umpire of the amount of the loss or damage shall be first obtained. It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 3 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. (underline supplied) In addition to the contentions taken in the counter affidavit filed by the respondent, the learned Senior Counsel for the respondent has also submitted, placing reliance on the underlined portion of the extracted arbitration clause that the arbitration request is not maintainable also for the reason that the claim is one that is deemed to have been abandoned by the petitioner, for they have not instituted any proceedings within 3 calendar months from the date of the disclaimer. It was also pointed out by the learned Senior Counsel that the claim was one repudiated by the respondent during 2007 itself and the arbitration request is therefore not maintainable on that ground 6 AR.No.18 of 2018 as well. 5. The fact that there is an arbitration clause in the policy of insurance issued by the respondent to the petitioner is not in dispute. As noted, the contentions of the respondent are (1) that the claim is barred by limitation, (2) that the claim has already been adjudicated on merits and found against in the suit instituted by the petitioner and (3) that the claim is one that has been abandoned by the petitioner for having not instituted appropriate proceedings within 3 months mentioned in the arbitration clause. 6. In the light of Sub-section 6-A of Section 11 of the Arbitration and Conciliation Act, 1996, the Apex court has held in **Duro Felguera S.A v. Gangavaram Port Ltd.** [(2017) 9 SCC 729] that the legislative policy and purpose is essentially to minimize the intervention of courts at the stage of appointing the arbitrator and that the power of the court has now therefore, been restricted only to the examination of the question as to whether there exists an arbitration agreement, nothing more, nothing less. In the light of the sub-section 6-A of 7 AR.No.18 of 2018 Section 11 of the Act and the decision of the Apex court referred above, I am of the view that in so far as the existence of the arbitration clause is not disputed, the contentions raised by the respondent are contentions to be considered by the arbitrator. In the result, the arbitration request is allowed and Sri.N.S.Gopakumar, Advocate, Hill Valley Estate, Flat No.A2, Ruby Block, Kakkanad, Thrikkakara P.O., Kochi - 682 021 is appointed provisionally as the Arbitrator to resolve the dispute between the parties. The Registry is directed to obtain disclosure statement under Section 11(8) of the Arbitration and Conciliation Act from the Arbitrator and place the matter before the court for confirmation of the appointment of the Arbitrator. The Registry shall retain the original of the disclosure statement and append a copy of the same to the order. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** YKB 8 AR.No.18 of 2018 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-1 TRUE COPY OF THE POLICY WITH CONDITIONS DATED 7.8.2006. ANNEXURE-2 THE TRUE COPY OF THE LAWYER NOTICE DATED 18.11.2017.** ## **RESPONDENT/S EXHIBITS:** ## **//TRUE COPY//** **PA TO JUDGE**