Salil K.Roy Chowdhury, J. - (1.) THIS is an application under Section 37 (4) of the Arbitration Act, 1940 for extension of the period to refer the matter to arbitration for a fortnight from the date of the order to be parsed.
(2.) THE facts briefly are as follows: THE petitioners are a common carrier of goods. In course of their business it used to take out Transit Policies of insurance renewable from year to year described as Freight Policies in consideration of the amount of premium mentioned in the Policies of Insurance. It is alleged by the petitioner that between 1959 to 1972 the petitioner has taken out various such Insurance Policies with the respondent and paid the premium thereof and received compensation from time to time thereunder and particulars of the same are set out in paragraph 3 of the petition. It is alleged that in or about January, 1969 the petitioner took out a Freight Policy bearing No. CL/RFP/257 from the respondent. Under the said Policy and in consideration of the premium agreed to be paid thereunder, the respondent insured and agreed to undertake to indemnify the petitioner against all risk of loss or damages to any goods or merchandise during transit and carried by the petitioner on the terms and conditions mentioned in the said Policy. During the currency of the said Policy in or about June, 1971, the petitioner alleged to have received from its various customers consignment of 185 package of general merchandise alleged to be of the total value of Rs. 1,10,000/- (approximately) for transportation of the same from Calcutta to different places in Assam and Tripura. It is alleged that the petitioner informed the respondent of the said consignment of goods and declared the value thereof in terms of the Freight Policy. THE petitioner alleged to have also paid premium on the value of the said consignment of goods. THE petitioner further allege that the said consignment of 185 packages for transportation from Calcutta to Gauhati was carried by Truck No. WGH 8251 on June, 1971. It is alleged by the petitioner that the next day the petitioner was informed by the owner of the said Motor Truck that after the said truck had reached Barasat on the night of 29th of June, 1971 there was a robbery and neither the said vehicle nor the cargo on board could be traced out. On the 1st of July, 1971 and 21st of September, 1971 the petitioner lodged a claim with the respondent in respect of the said loss covered by the Freight Policy referred to above. It is alleged that thereafter various correspondence were exchanged between the petitioner on the one hand and the respondent on the other regarding co-operation of the petitioner in the matter. It is alleged that ultimately on the 16th of February, 1973, the respondent finally rejected the claim of the petitioner and refused to accept any liability for the alleged loss. THEreafter on the 30th of March, 1973, the petitioner wrote a letter to the respondent asking for clarification of the letter dated the 16th of February, 1973 and to know under what conditions or terms of the contract the petitioner's claim has not been admitted. On or about 30th May, 1973 the respondent informed the petitioner that there was nothing further to add to its letter dated the 16th of February, 1973. THEreafter, it is alleged that the petitioner handed over the papers to their Solicitor in the first week of June, 1973 for taking necessary action for reference of the disputes to arbitration in terms of the arbitration clause and thereafter the Solicitor of the petitioner considered the position and gave a written opinion on or about 15th of June, 1973 and was advised to take Counsel's opinion on the question. A copy of the said opinion of the Counsel was obtained on the 18th of July, 1973 as alleged by the petitioner and thereafter after making all diligent efforts the notice of motion of this application was taken out on the 17th of August, 1973. It also appears that a complaint was lodged with the Barasat Police Station. The Police after starting investigation arrested some persons but ultimately they were discharged. It is alleged that the said consignment has been lost and could not be recovered. The Insurance Policy contained clauses and I am setting out those which are relevant for the purpose of this application, "1. Notice of any accident, loss or damage affecting this insurance shall be given to the Company, identifying the property and giving particulars of the damage at the earliest possible date and not later than 30 days from the date of such accident, loss of damage with full particulars supported by manifests and/or such other evidence as may be required. Nothing aforestated shall absolve the Insured from intimating any loss or damage in excess of Rs. 500/- any one consignment or series of consignments immediately upon its discovery. 2. In the event of any loss or damage covered by this insurance the Insured shall produce and give to Company when, where and to whom and in the manner required by the Company and at the expense of the Insured all such books of accounts, vouchers, invoices, documents, records, proofs and information as may reasonably be required and shall satisfy the Company by such evidence as the Company may reasonably require that the loss or damage in respect of which the Insured claims indemnity has actually arisen from one of the risks insured against and that the property in respect of which such claim is made is not merely temporarily mislaid or missing. 9. If the Insured shall make any claim knowing the same to be false or fraudulent as regards amount or otherwise, this insurance shall become void and all claim thereunder shall be forfeited. 11. All differences arising out of this contract shall be referred to the decision of an Arbitrator to be appointed in writing by the parties in difference or, if they cannot agree upon a single Arbitrator, to the decision of two Arbitrators, one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or, in case the Arbitrators do not agree to the decision of an Umpire appointed by the Arbitrators in writing before entering upon the reference. The Umpire shall sit with the Arbitrators and preside at their meetings and the making of an award shall be a condition precedent to any right of action against the Company and 12. If the Company shall disclaim liability to the Insured for any claim hereunder and such claim shall not within three calendar months from the date of such disclaimer have been preferred to Arbitration under the provisions herein contained, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder."
(3.) AS it is an admitted position that the petitioner on 1st July, 1971 and 21st September, 1971 informed the respondent of the said loss, it appears that by a letter dated the 3rd of July, 1971, the respondent requested the petitioner to send copies of manifest and lorry challan and the particulars of the said lorry and its driver and khalasies. It is alleged that the petitioner did not furnish the said information to the respondent as such a reminder dated the 20th of September, 1971 the respondent asked for the same and also asked for a police investigation report about the incident reported. Thereafter the petitioner by its letter dated the 21st of September, 1971 alleged that such informations were supplied to the respondent's office to one A. L. Chopra on the 5th of July, 1971 which appears to have been supplied verbally on that date. It further appears that the petitioner has instituted a suit against the owner of the Truck in or about July, 1972 and the said suit is still pending. It is admitted that there were various discussions and correspondence between the parties' representatives and also by the respondent's letter dated the 9th of October, 1971 and 5th of May, 1972. It is alleged by the respondent that the petitioner did not furnish the informations and police investigation reports to the respondent. In spite of such facts the petitioner by its letter dated the 24th of July, 1972 and 7th of August, 1972 asked for settlement of the claim involved. It is alleged by the respondent that from the copy of the final investigation report of Barasat Police Station which was forwarded to the respondent by the petitioner it appeared that the claim has been declared by the police us false, whereupon the respondent wrote a letter dated the 24th of August, 1972 that in the circumstances the theft of the cargo has not been proved and asked the petitioner to send the investigation report of Jorabagan Police and of Lalbazar Police Authority. It is alleged that no such report was supplied to the respondent. Thereafter it is alleged by the respondent that upon review of all the circumstances the respondent by its letter dated the 16th of February, 1973 lawfully rejected the claim of the alleged loss of the cargo of the petitioner. The said letter dated the 16th of February, 1973 is set out hereunder : JUDGEMENT_193_AIR(CAL)_1974Html1.htm;