Subrogation allows insurers to recover amounts paid to the insured while the insured retains rights to deficiencies; the court clarified distinctions between assignment and subrogation-cum-assignment in dispute resolution.

JUDGMENT

Sanjeev Sachdeva, J. By these petitions under Section 11 (6) of the Arbitration & Conciliation Act, 1996, petitioner seeks appointment of the respondent's nominee on the Arbitral Tribunal to adjudicate the disputes between the parties.

2. In ARB. P. 180/2022 and ARB. P. 181/20220, petitioner seeks appointment of the nominee of the respondent to Arbitral Tribunal pursuant to the Warehousing &Logistics agreement dated 15.03.2019 and 01.11.2018 respectively.

3. The terms and conditions of both the agreements are nearly identical and the factual matrix giving rise to the claims is also identical. The issues arising for consideration in the two petitions are common. Consequently, both the petitions are being disposed of by a common judgment.

4. Petitioner, as well as Respondent, entered into the respective Warehousing & Logistics Agreements whereby respondent was to provide third-party Logistics and Warehousing Services.

5. While providing such services on 08.07.2020, a fire broke down at the warehouse leading to the loss of the petitioner's stocks and assets stored therein.

6. Disputes are alleged to have arisen between the parties. Respondent denied any liability under the agreements for the damage caused and declined to compensate the petitioner because of which the petitioner invoked arbitration in both the agreements by two independent notices.

7. Petitioner requested for reference of the disputes to a Sole Arbitrator. However, respondent denied its liability and declined to consent to appointment of an Arbitral Tribunal and also failed to appoint its nominee arbitrator to the Arbitral Tribunal because of which petitioner has filed these petitions seeking appointment of the nominee arbitrator on behalf of the respondent.

8. The arbitration clause is nearly identical. In agreement dated 15.03.2019, it is numbered as Clause 16 and in agreement dated 01.11.2018, it is numbered as Clause 17. They are in pari materia and as such for the sake of brevity Clause 16 is reproduced herein:

"16. APPLICABLE LAWS AND DISPUTE RESOLUTION

All disputes or differences whatsoever which shall at any time hereafter (whether during the continuance of this Agreement of upon or after its discharge or termination) arise between the Parties, touching or concerning this Agreement or its construction or effect or the rights, duties, obligations, responsibilities and liabilities of the Parties hereto or any of them, under or by virtue of this Agreement or otherwise or as to any other matter in any way connected with or arising out of or in relation to the subject matter of this Agreement, shall be at the first instance be resolved by conciliatory talks between the authorized representatives of the Parties. For any reason if resolution of the same is not achieved through the said conciliatory talks, then, within thirty (30)_ days of such failure, the same shall be referred to resolution through arbitration. The arbitration shall be in accordance with the subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modifications or re-enactments thereof for the time being in force and (unless the Parties concur on the appointment of single arbitration) the Service Provider shall be entitled to appoint one arbitrator at its own cost and the Fresenius entitled to appoint one arbitrator at its own cost. The two arbitrators shall in turn appoint a third arbitrator, at a cost to be shared in equal proportion by both the Parties. The award of the arbitrators' panel shall be final and binding on the Parties. The seat of the arbitration shall