Case BriefsHigh Courts

Himachal Pradesh High Court: L. Narayana Swamy, CJ., while allowing the present petition under Section 11 of the Arbitration and Conciliation Act, 1996, appointed Arun Kumar Goel, Former Judge of Himachal Pradesh High Court, as a sole arbitrator in the instant matter.

Rajesh K. Sharma, Assistant Solicitor General of India, raised an objection that since a technical issue is involved in the present dispute, therefore, the same is required to be considered and adjudicated by a technical person only and not by a retired Judge of the High Court. In support of his objection, reliance was placed on General Condition No. 70 of the Arbitration Clause of Contract which said;

“Arbitration – All disputes, between the parties to the Contract (other than those for which the decision of the Commander Contract or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an [Serving Officer having degree in Engineering or equivalent or having passed final/direct final Examination of sub-Division II of Institution of Surveyor (India) recognised by the Govt. of India.] to be …”

 Rejecting the aforementioned contention, Court acknowledged that the arbitral issue involved between the parties can be adjudicated by a retired judge and must not be awaited for the want of technical expertise.[S.P. Singla Constructions v. Chief Engineer, 2021 SCC OnLine HP 1, decided on 01-01-2021]

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Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member) while addressing the instant first appeal upheld the State Commission’s Order in regard to a claim filed by the insured with the insurance company.

The instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 challenging the Order passed by the State Consumer Disputes Redressal Commission, Maharashtra.

Complainant Firm took an insurance policy to cover its plant and machinery, electrical installations and stock-in-trade. The premium was paid for the valid policy. In 2005, an incident of fire took place and the insurance company was intimated after which survey was conducted.

The complainant had claimed an amount of Rs 17,00,000 but the surveyor assessed the loss at Rs 1,54,500. Since the Complainant Firm failed to submit the relevant record for verification, as mentioned in the Surveyor’s Report. Hence, Insurance Company filed the claim as ‘no claim’.

State Commission vide its impugned Order dated 22-09-2015 allowed the Complaint at the loss assessed by the Insurance Co.’s Surveyor i.e. at Rs 1,54,500 and awarded the said amount with interest at the rate of 9% per annum.

Complainant Firm appealed before this Commission for enhancement in compensation, specifically for accepting its claimed loss of Rs 17,00,000.

Analysis and Decision

Investigation and Survey by an insurance company are fundamental in determining the amount payable to the insured.

Bench observed that an insurance company is duty-bound to appoint its surveyor in accordance with the provisions of the Insurance Act, 1938 (Section 64 UM Surveyors or loss assessors specifically refers). A Survey cannot be disregarded or dismissed without cogent reasons.

Further, the Commission also observed that the onus,

[a] of showing that the Report of the Surveyor appointed by the Insurance Co. was flawed and

[b] of showing that actually, in fact, the loss was Rs 17,00,000, was on the Complainant Firm, which onus it failed to discharge.

Hence, in view of the above discussion, the Commission held that the State Commission had passed a reasoned order.

State Commission’s impugned order was upheld and confirmed.[Wilson Home Appliances v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 493, decided on 10-12-2020]

Advocates who appeared for the matter:

For the Appellant:  Ms Manisha T. Karia, Advocate

For Respondent 1: Mr S. M. Tripathi, Advocate

For the Respondent 2: Ex parte

Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J., disposed an original petition challenging the competency of the Commissioner in measuring the land.

The present case challenges a direction passed by the present court wherein the court directed the Commissioner to measure the property with the assistance of the Surveyor using the TST method.

The advocate representing the petitioner, B. Krishna Mani submitted that it does not challenge usage of TST method for measuring the property. It submitted that it is for the surveyor deputed by the court to decide the method for measuring the property and it is up to his discretion.

Respondent’s Counsel also had no objection in leaving the matter to be decided by the Surveyor.

The Court upon perusal of the facts and circumstances observed that the parties are raising allegations against the Commissioner and they have further alleged that the Commissioner was not an experienced individual for measuring the land. The Court stated that these allegations do not stand, particularly when the duty of the Advocate Commissioner is to measure the property with the assistance of the Surveyor, who is admittedly an experienced person. The Court modified the previous order and ordered that the Surveyor may choose any of the approved methods, including the TST method, to measure the property. Thereafter, the Court also directed the Commissioner and the Surveyor to complete the measurement of the property as expeditiously as possible. [Koshy George v.  Abraham T. Varghese,  2020 SCC OnLine Ker 1145,  decided on 04-02-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. dismissed the petition application by the petitioner.

In the present case, the petitioner filed an application seeking restoration of her rights to Lot 2 in the Preliminary Plan by way of amending the Judgment and the Interlocutory Decree entered thereon and to permit her to file a statement of claim and proceed with the case. In the original case, the plaintiff had filed a partition application before the District Court to partition a land between plaintiff and defendants. At the preliminary survey, Pinhamy, the mother of the petitioner had claimed before the surveyor that she was unaware regarding the partition, regarding which the petitioner had filed a petition contending that her mother, Pinhamy, was unaware of the partition action. However, the learned District Judge in his own handwriting had written that Pinhamy was present in Court and journal entry to that effect had disclaimed any right to the corpus is erroneous.

It was noted that a  party could not appeal in dispute what the Judge had written in his own handwriting in a case record unless he had first taken up that matter before the lower Court. Here, the petitioner was not even a party to the case and  Pinhamy did not even make such an allegation against the Judge. Relevance was placed on Chaminda v. Republic of Sri Lanka, [2009] 1 Sri LR 144, in which it was held that litigant could not make a convenient statement in court and contradict a judicial record. After trial, the Judgment had been entered and the appeal filed against the said Judgment had been dismissed by the Court in 2001. Thereafter a commission had been issued to prepare the final scheme of partition. The petitioner said that, when the surveyor came to the land for final survey, Pinhamy along with two others obstructed the surveyor to execute the commission as a part of a different land claimed by them was being surveyed, and until the surveyor showed her the Preliminary Plan and informed her of the purpose of his visit, she was unaware of the partition case; which meant that in 2003 after surveyors came she became aware of the partition case. However, the petitioner went before the Court of Appeal, 7 years after her mother became aware of the partition action. The Court noted that a person who sought restitutio integrum must act promptly.

As the petitioner did not act with the utmost promptness and was not right indirectly appealing to the Court of Appeal, the application of the petitioner was dismissed.[Bandaranayaka Liyanaarachchilage Pemawathi v. Coranelis Wickremasinghe Arachchi, 2019 SCC OnLine SL CA 4, decided on 02-05-2019]