ALLIANCE ASSURANCE CO LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) A common question of law has arisen in these two Rules, namely, whether an insurer who has paid for a total loss of an apportionable part of some goods carried for transit by land by a railway administration can maintain a suit in his own name against the carrier for reimbursement of the amount paid to the insured for the loss. In order to appreciate how this question of law has arisen it is necessary to state the following facts: the Alliance Assurance Co. , Ltd. which would henceforth be designated as the Insurance Company instituted two suits against the Union of India as representing some railways for recovery of some specified amounts as compensation for non-delivery of some rubber goods. In both the cases the consignor and consignee of the goods were a reputed limited company manufacturing rubber goods, namely, The Goodyear Tyre and Rubber Co. , (India) Ltd. , opposite party No. 2 of these two Rules. The goods were made over to the railways concerned in each case in the railway siding of the Company at Bansberia. The place of destination was Luck now in suit No. 3449 of 1951 out of which Civil Revision No. 3020 of 1955 has arisen and in the other suit, namely, Suit No. 5299 of 1953 out of which Civil Revision No. 954 of 1956 has arisen, the place of destination was Madras. The consignments were covered against all losses including non-delivery under policies of marine insurance taken out by the Goodyear Tyre and Rubber Co. , (India) Ltd. from the petitioner. Insurance Company. In each case there was non-delivery of a part of the consignments. The Insurance Company had to pay a sum of Rs. 1,237-12 for non-delivery of a part of the consignment mentioned in Suit No. 3449 of 1951 and a sum of Rs. 899-5 for the consignment mentioned in the other suit. These two suits were instituted because the Railway Administrations concerned refused to pay these amounts to the Insurance Company on being served with requisite notices.

(2.) VARIOUS defenses were taken by the Union of India as representing the railways concerned, including a defence that the suits were not maintainable in the name of the Insurance Company. All these defenses excepting the defence regarding the maintainability of the suite were rejected in Suit No. 3449 of 1951 with the result that the suit was dismissed as being not maintainable. On an application being made for new trial under section 38 of the Calcutta Small Cause Courts Act the Full Bench affirmed the decision of the trial judge and rejected the application. Suit No. 5299 of 1953 was decreed by the trial judge who held in favour of the plaintiff on the question of maintainability of the suit and also decreed the suit on merits. This decision was reversed by the Full Bench which held that the suit was not maintainable at the instance of the Insurance Company.

(3.) THESE two Rules are directed against the above two Full Bench decisions of the Court of Small Causes, Calcutta. It was not disputed before me that the findings arrived at by the trial judges on the merits of the suits are correct, namely, that the petitioner Company would get decrees as claimed, provided these suits are found to be maintainable at the instance of the petitioner Company and in its own name. Beth the Full Benches have answered this last question against the petitioner Company.