ORDER

The non-settlement of insurance claim by the respondent made under the insurance policies purchased by the petitioner, has lead to the present Arbitration Request.

2. The petitioner purchased two insurance policies from the respondent to insure its stocks of rice at its factory against “Loss” and “Damage” arising out of inter alia “... Flood and Inundation...”. Claims were raised by the petitioner alleging damage of stocks on account of flooding. According to the petitioner, the respondent company satisfied only a part of the claim and the balance remain unsatisfied. The terms of the agreement between the parties provides for dissolution of disputes by arbitration. The respondent has not co-operated for the appointment of an Arbitrator. It is on the said allegations that the petitioner has approached this Court seeking appointment of an Arbitrator.

3. The respondent has filed a counter affidavit.

4. Heard the learned counsel on either sides.

5. The arbitration clause in the agreement reads thus:

“If any dispute or difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference stand independently of all other questions be referred to the decision of a sole arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators, comprising of two arbitrators, one to be appointed by each of the parties to the dispute/difference and the third arbitrator to be appointed by such two arbitrators and arbitration shall be conducted under and in accordance with the provisions of the Arbitration and Conciliation Act, 1996. It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the company has disputed or not accepted liability under or in respect of this policy. It is hereby expressly stipulated and declared that it shall be a condition precedent to any rights of action or suit upon this policy that the award by such arbitrator/ arbitrators of the amount of the loss or damage shall be first obtained.

6. The objections of the respondent are mainly three fold; firstly, that the damages as assessed by the Surveyor has been paid and the claim was satisfied by the company on 06.02.2019; secondly, the respondent disputes the very liability for the claim now sought to be urged by the petitioner and not the quantum. The arbitration clause relied on by the petitioner provides for arbitration only on disputes on the quantum payable; and thirdly, in terms of clause 6(b) of the contract, the claim is to be made within twelve months. The present claim having been raised beyond twelve months from the date of happening of the alleged event, is barred by limitation.

7. All the above are matters to be urged by the respondent before the Arbitrator.

8. Thus, leaving open the rival contentions of the parties, the Arbitration Request is ordered as hereunder:

(a) Rtd. District Judge Sri.K. George Oommen, Kalamannil, 11/281-(1) Crash Road, (Near) Noel Touchstone Apts, Vazhakkala, Thrikkakara P.O, Kochi – 682 031, Mobile No. - 9995195146, is provisionally nominated as the Sole Arbitrator to adjudicate upon the disputes between the parties.

(b) A copy of this order shall be communicated to the learned Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Sole Arbitrator by the Registry.

(c) The Arbitrator is requested to forward his statement of disclosure under Section 11(8) r/w Section

12(1) of the Arbitration and Conciliation Act, 1996. (d) The registry shall place the disclosure statement before this Court, for confirmation of the appointment of the Arbitrator.

(e) The Arbitrator's fees shall be payable as per Schedule IV to the Arbitration and Conciliation Act, 1996.

Sd/-

Sathish Ninan, Judge

vdv

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