Meghdoot Picture Palace v. Oriental Fire and General Insurance Co. Ltd.
1988-04-01
S.N.PHUKAN, S.P.RAJKHOWA
body1988
DigiLaw.ai
Phukan, J. — By this common judgment and order we propose to dispose of two Appeals, namely, Appeal Nos. M.A.(F) 5 and 7 of 1978. These Appeals have been filed against the common judgment and order dated 17.11.76 passed by the learned Assistant District Judge No. 1, Guwahati. By the aforesaid order the learned trial Court dismissed the two applications U/S. 20 of the Arbitration Act filed by the present appellant. 2. The appellant owns a cinema hall worth Rs. 6,13,803/-and the cinema hall was insured with two companies. On 26.1.68 damage was caused to the cinema hall by fire and appellant preferred a claim of Rs.2,17,950/-. The appellant valued the cinema hall at Rs 6,13,800/-. The plaintiff/appellant preferred a claim for Rs. 2,17,950/-under both the policies in respect of loss due to fire. Both the Insurance companies sent a surveyor who assessed the loss at Rs. 97.700/-. But he valued the insured property at Rs. 9,50,000/-to which the appellant objected. In view of Clause 17 of the policy which is common to both the insurance policies the respondents offered to pay a proportionate amount of Rs. 40,838.22 out of the total loss of Rs.97,700/- on the ground that the appellant undervalued the property as the appellant refused to accept this amount the appellant asked for a reference for arbitration under Clause 17 of the insurance policy which is also common to both the policies. As the respondents refused to refer the matter, appellant filed two applications U/S.20 of the Arbitration Act and these were rejected by the impugned judgment and order. Hence these two appeals. 3. The learned trial Court considered both the clauses and held that as the appellant admitted the total losses assessed by the surveyor at Rs.97,700/- there was no dispute for a reference and further held that the dispute regarding the valuation of the property is not a dispute to be referred for arbitration under Clause 18 of the Insurance Policy. 4. We quote below the relevant portions of Clauses 17 and 18 of the Insurance Policy : "Clause 17. - If the property hereby insured shall, at the breaking out of any fire, be collectively of greater value than the sum insured shall be considered as being his own insurer for the difference and shall bear a ratable proportion of the loss accordingly.
- If the property hereby insured shall, at the breaking out of any fire, be collectively of greater value than the sum insured shall be considered as being his own insurer for the difference and shall bear a ratable proportion of the loss accordingly. Every item, if more than one, of the policy shall be separately subject to this condition." "Clause 18.- If any difference arises as to the amount of any loss or damage, such difference shall independently of all other questions be referred to the decision of the arbitrator ••••••... It is hereby expressly stipulated and declared that it shall be, a condition precedant 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, if disputed, shall be first obtained." 5. Mr. Sen, learned counsel for the appellant relying on the decision of the Apex Court in Abdul Kadir vs. Madhav Prabhakar, AIR 1962 SC 406 has urged that section 20 of the Arbitration Act, 1940 gives a wide discretion to the Court to consider whether, an order for filing the agreement should be made and reference made> accordingly, and as such, the learned trial Court erred in law in not allowing the petitions. According to Mr. Sen, there is a dispute regarding the amount payable to the appellant for the loss suffered due to fire, and as such, the present cases are covered by Clause 18 of the Insurance Policy. On the other hand, Mr. Sarma, learned counsel for the respondents has urged that there was no dispute regarding the quantum of loss suffered by the appellant due to fire, and as such, the Court cannot refer the matter for arbitration. Mr. Sarma has urged that the present case is a case for apportionment of the total loss between the appellant and respondents, and as such, it is not covered by the present arbitration clause. According to Mr. Sarma, the Court cannot widen the arbitration agreement. 6. The learned trial Court has rightly observed the statement made in paragraph 17 of the applications filed by the appellant which is reproduced below :- "That there was no dispute to the assessment of losses and damages sustained by the plaintiff firm and the amount of Rs. 97.700/- was acceptable to all the parties, including the parties in dispute".
6. The learned trial Court has rightly observed the statement made in paragraph 17 of the applications filed by the appellant which is reproduced below :- "That there was no dispute to the assessment of losses and damages sustained by the plaintiff firm and the amount of Rs. 97.700/- was acceptable to all the parties, including the parties in dispute". In a civil proceeding parties are bound by the averments made in the pleadings. Regarding the present applications in view of the aforesaid admission made by the appellant in his pleading it cannot be urged that there was any dispute regarding the quantum of total losses and damages suffered by the appellant. As the appellant accepted the assessment of Rs. 97.700/- made by the surveyor appointed by the respondents we are constrained to hold that appellant accepted the amount of the total loss to the property in question due to fire, and as such, there is no dispute regarding quantum of compensation. 7. There is no quarrel at the Bar that U/S. 20 of the Arbitration Act, 1940 wide discretion is given to the Court as submitted by Mr. Sen. But there cannot be I reference to an Arbitrator unless the matter is covered by the Arbitration Agreement. So the crux of the matter is whether there was a dispute covered by Clause 18 of the Insurance Policy. 8. The opening words of the arbitration clause, namely, 'if any difference arises as to amount of any loss or damage, such a difference shall ...be referred to the decision of an arbitrator' are clear and unambiguous. The difference between the parties must be regarding the amount of any loss or damage due to fire before a reference can be made to an arbitrator. This arbitration clause is not capable of any other interpretation. 9. In National Fire and General Insurance Company vs. Union of India and another, AIR 1956 Calcutta 11 the same Clause which is a wellknown Arbitration Clause and is a familiar and standard form in numerous insurance policies, came for consideration before the Calcutta High Court and it was held that thorough interpretations of this Arbitration Clause is that the arbitrators who are only to decide the difference as to the amount of loss or damage were to be appointed by the parties differing on the amount of loss or damage.
It was further held that the language of the clause makes it clear that what was intended to be arbitrated upon by that clause was a difference about the "amount of loss or damage" and nothing else. We respectfully agree with the law laid down by the Calcutta High Court and accordingly we hold that to attract the present arbitration clause which is a familiar and standard form in numerous insurance policies, it must be proved that there is a difference between the parties regarding the amount of loss or damage. If it is so proved it will be competent on the part of the Court to refer the matter to the arbitration adjudicate the difference between the parties regarding the amount of loss or damage. 10. Situated thus we find that in the two appeals before us there is no dispute at all regarding the amount of loss or damage suffered by the appellant due to fire in the Cinema Hall in question. The only difference between the parties is that whether the insurance companies are entitled to proportionately reduce the total amount of loss of Rs 97,700/-under Clause 17 of the Insurance Policies in view of the fact that property was undervalued. This in our considered view is not covered by the Arbitration Clause, namely, Clause 18 of the Insurance Policies. 11. From what has been stated above, we hold that both the appeals are liable to be dismissed which we hereby do. In the result, the appeals are dismissed. Considering the facts and circumstances of the ca»e parties to bear their own costs.