BIJOY KUMAR DEBNATH Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) The order dated 24.5.1994 passed by the learned Assistant District Judge No.1., West Tripura, Agartala, in Case No. T.S. (Arb.) 18 of 1993 setting aside the award dated 8.2.1993 given by the learned Arbitrators and the Umpire is the subject matter under challenge in this appeal under Section 39(1) (vi) of the Arbitration Act, 1940.

(2.) The facts of the case in a short compass are as follows: The plaintiff/appellant namely Srii Bijoy Kumar Debnath has a permanent business of purchasing and selling of clothes under relevant valid licence issued by the Sub-Divisional Officer, Sadar, West Tripura, Agartala on and from 14.4.1985-at Amtali Bazar in a rented premise owned by Sri Tarani Mohan Ghosh with an initial capital of Rs.30,000/- (Rupees thirty thousand) only. In the said business, he insured the goods of all kinds of clothes and the readymade garments etc. stored in his shop premises with the defendant-respondent, namely the New India Assurance Co. Ltd. for a sum of Rs. 1,50,000/- and accordingly the respondent-Company issued a valid policy of insurance under No. 1153060500467 for a period of one year commencing from 5th March, 1990 upto 4th March, 1991, subject to the conditions laid down under the said Policy with an assurance that the Respondent- Company would pay to the Appellant-Plaintiff the value of the insured properties in the event of loss or damage by fire as per Policy. Unfortunately the shop premises of the plaintiff-appellant was gutted by fire on 14.10.1990. The Surveyor of the Respondent-Company, namely Sri A.K. Upadhaya, made official verification for the purpose of making assessment of damages, loss caused to the appellant-plaintiff; and thereafter, the respondent-Company offered Rs. 80,150/- being the full and final settlement of the claim under its office letter dated 25.9.1991. But the appellant-Plaintiff expressed his inability to accept such an offer on the ground that the amount was much below the actual damages and informed the respondent-Company, stating inter alia, that the stock-in-trade in his shop was valued at Rs. 1,48,265/- and the furniture was valued at Rs.5,800.10p. and the total was Rs.l,57,459.68p. and he also claimed that he is entitled to full amount covering the policy. As the respondent-Company did not make full and final settlement of the claim of the plaintiff, he served a notice on 26.12.1991 upon the respondent-Company under Clause 11 of the Policy of the Insurance to appoint a Sole Arbitrator or constitute a Board of Arbitrators with an Umpire at head and to refer the dispute and difference to the Sole Arbitrator or to the Board of Arbitrators as to the quantum of the damages to be paid under the said policy and, in response to the said notice, the respondent-Company under its letter dated 26.6.1992 informed the appellant-plaintiff that one Mr. B.B. Dutta was appointed as Arbitrator by the respondent-Company. Likewise the plaintiff- appellant also appointed Sri D.K. Biswas, learned Advocate, as Arbitrator, and both the learned Arbitrators appointed Mr. P. Bhattacharjee, learned Advocate, as Umpire. The appellant-plaintiff submitted his statement of facts and likewise the respondent-company also submitted its counter statements before the Board of Arbitrators. According to the respondent-defendant, the claim of the plaintiff- appellant is not at all maintainable in law and the defendant rather disputed the claim of the plaintiff and denied most of the allegations and statements made by the plaintiff, but the defendant-respondent admitted that the claim was settled at an amount of Rs. 80,150/- on 25.9.91, which was refused by the claimant- plaintiff. It is also the case of the respondent-defendant that the claimant-plaintiff cannot be entitled to any amount beyond the amount already offered. In the said counter claim, the defendant contended that the illegal action of the claimant-plaintiff had caused damage to the defendant-Company to the extent of Rupees one lakh, i.e. loss and damages of reputation and other losses of the time of the officials of the defendant-Company. According to the respondent, one Sri P.L. Bakshi, Chartered Accountant, Jail Road, Silchar, was appointed to review the entire claim and re-assess the entire loss and the said Sri P.L. Bakshi, in pursuance of it, submitted his report dated 18.7.1991 by quantifying the total loss at Rs.57,395/- only, but, the defendant-company upon consideration of the report of Sri P.L. Bakshi, and other relevant papers settled the claim at Rs.80,150/- only. After hearing the parties the relevant arbitration proceeding was disposed of with an Award dated 8.2.1993 fixing the award/compensation to the tune of Rs. 1,34 lacs and such interest as may be found due calculating at the rate of 12% p.a. for the period from the date of offer of Rs.80,150/- made by the defendant-Insurance Company till the date of payment and also the cost of arbitration to the tune of Rs.6,427/- only. Thereafter the plaintiff-appellant filed a petition being case No. T.S. (Arb.) 18 of 1993 to make the said award, which was published by the learned Arbitrators and the Umpire on 8.2.1993, a Rule of the Court, to which an objection petition was filed by the defendant-respondent over the award under Section 33 read with Section 30 of the Arbitration Act. After hearing the parties the learned Assistant District Judge No.1, West Tripura, Agartala set aside the award dated 8.2.1993 by his judgment/order dated 24.5.1994 passed in case No. T.S.(Arb.) 18/1993. Being aggrieved by the said judgment/ order dated 24.5.1994 passed by the learned Assistant District Judge No.l, West Tripura, Agartala, the present plaintiff-appellant filed this appeal.

(3.) At the very outset Sri D. Chakraborty, learned counsel for the appellant, submitted that the impugned judgment/order dated 24.5.1994 is an illegal order inasmuchas there is no material for establishing the alleged biasness of the learned arbitrators, rather such findings of the learned Court below is based on no evidence. There is mo erroneous legal proposition in the award so as to enable the learned Court below to set aside the award, Sri D. Chakraborty contended. It is also submitted by Sri Chakraborty that even if the learned Court below found certain errors arising from the accidental slip or omission or whether the award contains any obvious error, the learned Court below aught to have amended the award without effecting such decision as required under Section 15 of the Arbitration Act, but the learned trial Court below without considering the existing facts and circumstances of the case as well as the important materials available on record abruptly passed the impugned judgment/order. At the hearing Sri S. Roy, learned counsel for the defendant-respondent, argued that if the award is suffering from patent errors, the party can raise objection under Section 30 of the Arbitration Act for setting aside the award, and as such the respondent- defendant raised objection under Section 30 of the Act. Sri Roy, further, submitted that the plaintiff-appellant claimed Rs.5,800/- for loss of furniture due to fire accident but the learned arbitrators considered the said claim of the plaintiff and awarded Rs.6,000/-. Therefore, it is a misconduct of the arbitrators ; and as such, the said award suffers from patent errors. That being the position the learned Court below rightly set aside the award Sri Roy con/tended. In support of his contention Sri Roy drew my attention to the decision of the Apex Court rendered in M/s Chahal Engineering and Construction Co. - Appellant -Vs- Irrigation Department, Punjab Sirsa - respondent - reported in AIR 1993 S.C. 2541.