S.P.Mitra, J. - (1.) THIS is an application for setting aside the award of an umpire. The petitioner took, out an Insurance Policy from the New India Assurance Co. Ltd. in respect of an International Harvester or Motor Tractor Crane. The Policy was issued on June 4, 1959. On December 19, 1959, the petitioner informed the Insurance Co. that the Harvetser had met with an accident. The claim forms were sent by the Insurance Co. and were submitted by the petitioner duly filled in There were disputes and differences between the parties as to the quantum of loss suffered by the petitioner. The Insurance policy contained an arbitration clause. In terms of the arbitration agreement, the petitioner appointed its arbitrator. The respondent failed to appoint its arbitrator within time. An application was made to this Court and ultimately, through the intervention of the. Court, another arbitrator was appointed. The two arbitrators thereupon selected their umpire. The present application is directed against the umpire's award. The umpire, it appears, has awarded: (a) Rs. 12,200/- on account of costs of repairs; (b) Rs. 16,500/- in respect of the claim made in paragraph 17 of the Statement of Claim; and (c) Rs. 11,300/- for costs of and incidental to the reference,
(2.) THE award of Rs. 16,500/- arises out of a claim for hiring cranes to replace the damaged crane while the sanction for repairs was being withheld by the insurer. Mr. A. C. Sircar, learned counsel for the petitioner, has urged before me that this award of Rs. 16,500/- should never have been made by the umpire. Firstly, this is an award with regard to a dispute which never arose before reference to arbitration, and, secondly under the policy of insurance (Section I), the Company had no liability for consequential damages.
(3.) LEARNED counsel for the respondent does not dispute that the claim arising out of hiring charges was made only in the Statement of Claim submitted to the arbitrator appointed by the insured, In other words, the dispute with respect to this claim did not arise before the single arbitrator entered into the reference. The same Statement of Claim, was also filed before the two arbitrators and the umpire subsequently. LEARNED counsel's main contention is that it is no longer open to the petitioner to object to the award of Rs. 16,500/- inasmuch as the petitioner allowed the claim to be raised before the arbitrators and the umpire without objection and participated in the adjudication of this dispute by the arbitrators and the umpire (vide paragraph 20 of the affidavit-in-opposition of Satish Chandra Gupta affirmed on the 20th April 1964).;