ORDER

This application is filed present application under Section 11(6) of Arbitration and Conciliation Act, 1996 seeking appointment of sole Arbitrator in view of Clause 13 of Fire Policy executed between the applicant and respondent.

Applicant - M/s Narsim Bags Private Limited entered into a Contract of Insurance with respondent company by availing Standard Fire & Special Perils Policy from Indore Divisional Office II. The said Policy bearing No. 45080011190100000246 from period of Insurance from 12.05.2019 to 11.05.2020 with total sum insured under the said Policy was Rs. 6,25,00,000/-.

On 09-10.09.2019 loss occurred on the premises of petitioner's factory site at Pithampur due to flood, due to which building, stocks and machinery insured under the aforesaid Policy were severely damaged. The claim/loss was duly intimated to respondent Company.

After the aforesaid intimation, the Insurance Company appointed Shri Bijay Kumar Agrawal, Surveyor to assess the loss caused to the applicant company. The Authorized Surveyor submitted report dated 02.11.2020 by assessing the loss to the tune of Rs. 16,89,585/- and which was offered. The applicant has received the said amount under protest. Since the applicant was not satisfied with the amount so assessed by the Surveyor, therefore, served a notice to the respondent on 14.12.2020 seeking reference of the matter to the Arbitrator. The respondent vide reply dated 13.01.2021 has refused to invoke the aforesaid arbitration clause on the ground that after receiving the said amount of compensation, no dispute can be raised by way of an arbitration. Hence, the present application before this Court.

Shri Rohit Sharma, learned counsel for the applicant submits that the language of Clause 13 is very clear which says that if any dispute or differences so arise as to the quantum to be paid under the policy, such question shall be referred to the decision of Sole Arbitrator to be appointed by the party.

Shri Sudhir Dandwate, learned counsel appearing on behalf of the respondent, Insurance Company submits that Clause 13 is liable to be invoked before settlement of the claim. As the amount has been assessed by the Surveyor and paid to the applicant, therefore, once the settlement has been arrived, no dispute can be raised specially invoking the arbitration clause. The applicant is free to avail the remedy available under the civil law but not by Arbitration. Learned counsel has emphasized on the words "to be paid”, means before payment of compensation. After payment, no question of referring the dispute.

I have heard the learned counsel for the parties and perused the material available on record.

Though the amount of compensation has been accepted but it cannot be said that dispute has been settled. After the accident, under the policy the applicant submitted a claim and in order to assess the loss, the Insurance Company obtained the report from its Valuer who assessed the loss and the amount was offered to the applicant. The applicant has accepted the amount under protest but being dissatisfied with the amount served a notice under Section 11.

It is not in dispute that the applicant received the compensation offered by the Insurance Company under protest and when the amount has been accepted under protest, it cannot be said that it is paid paid by way of settlement with the parties, therefore, it is open for settlement by way of an arbitration.

The Valuer has not been subjected to the cross-examination about the calculation of the loss assessed and that can only be done before the proceedings to be taken before an Arbitrator. The language of Clause 13 specifically provides that in case of any dispute or difference in respect of the quantum which is to be paid under the policy, it is liable to be decided by an Arbitrator. The words "to be paid" means payable to the applicant by the Insurance Company where