Judgment 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. 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. 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. 3. MR. Pain who supported these two Rules contended that the Insurance Company is entitled to maintain the suits in its own name by virtue of subsections (1) and (2) of section 135a of the Transfer of Property Act which has been incorporated by an amending Act, 1944. Sub-sections (1) and (2) of section 135a run in the following terms: "135a (1). Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein, the assign of the policy is entitled to sue thereon in his own name; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by or on behalf of whom the policy was effected. (2) Where the insurer pays for a total loss, either of the whole, or, in the case of goods of any apportionable part, of the subject matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject matter so paid for, and he is thereby subrogated to all the rights and remedies of the insured person in and in respect of that subject matter as from the time of the casualty causing the loss." 4. THE learned judges of the Full Bench who disposed of the new trial application in Suit No. 3449 of 1951 were of opinion that the insurance policy which is the foundation of the claim in that suit (Ext. 5 of the trial court) is not a marine insurance policy at all. The learned judges of the other Full Bench held, on the other hand, that the policy on which the suit dealt with by them is based is a marine insurance policy (Ext. 3 of the trial court. I may mention here that the two policies are in exactly similar terms under which the Insurance Company undertook to carry the goods to the places of destination by railway, motor, and lorry etc. covering various risks including non-delivery. 3 of the trial court. I may mention here that the two policies are in exactly similar terms under which the Insurance Company undertook to carry the goods to the places of destination by railway, motor, and lorry etc. covering various risks including non-delivery. A marine insurance policy has not been defined in the Insurance Act (Act IV of 1938), but "marine insurance business" has been defined in section 2 (13-A) which runs as follows; " (13-A. "marine insurance business" means the business of effecting contracts of insurance upon vessels of any description, including cargoes, freights and other interests, which may be legally insured, in or in relation to such vessels, cargoes and freights, goods, wares, merchandise, and property of whatever description insured for any transit by land or water, or both, and whether or not including warehouse risks or similar risks in addition to or as incidental to such transit, and includes any other risk customarily included among the risks insured against in marine insurance policies;" If the insurance policies involved in the present suits are read in the light of that definition then there can remain no room for doubt that by issuing these policies the petitioner Company intended to do marine insurance business within the meaning of section 2 (13-A) of the Insurance Act and so the policies must be regarded as marine insurance policies and so they must be governed by the provisions of section 135a of the Transfer of Property Act. 5. THE next and the crucial question which arises for my determination is whether the petitioner company is entitled to maintain these suits in its own name without using the name of the insured. Mr. Pain contended on behalf of the petitioner that the company is so entitled both under sub-sections (1) and (2) of section 135a of the Transfer of Property Act. I shall deal with the applicability of these two sub-sections one after another. Sub-section (1) of section 135a of the Transfer of Property Act confers an independent right of suit on the assignee of a marine insurance policy. It was contended on behalf of the petitioner that the policies with which I am dealing were virtually assigned to the petitioner by a document of assignment in each case executed by the policy-holder upon receipt of the value of the non-delivered goods. This document was marked Ext. It was contended on behalf of the petitioner that the policies with which I am dealing were virtually assigned to the petitioner by a document of assignment in each case executed by the policy-holder upon receipt of the value of the non-delivered goods. This document was marked Ext. 6 in Suit No. 5299 of 1953 and Ext. 9 in the other suit. They are couched in similar terms. They have been written on a stamped paper of Rs.3 each They are styled as "letters of subrogation." Paragraphs 1 and 2 of the letters of subrogation are relevant for our purpose and they may be quoted here. "in consideration of your paying to us a sum of Rs. 899-5 in respect of the under mentioned goods insured with you under Policy No. 4859 (open), we hereby assign and transfer to you all our right, title and interest in respect of the said goods, and all rights or claims against any person or persons in respect thereof. And we also authorise you to use our name in any action or proceedings you may bring in relation to any of the matters hereby assigned and transferred to you, and we undertake for ourselves to concur in any matters or proceedings which you may deem expedient or necessary in any such action or proceedings, and to execute all documents which may be necessary, and generally to assist therein by all means in our power." 6. MR. Pain contended that paragraph 1 of the letter of subrogation substantially effects an assignment of the insurance policies. I cannot agree with this contention because all that was transferred under paragraph 1 was the right, title and interest in such of the goods as had not been delivered by the railways concerned. This cannot amount to an assignment of the interest of the insured in the policies in question So the petitioner, in my judgment, is not entitled to come under sub-section (1) of section 135a of the Transfer of Property Act. I next proceed to consider whether by paying for a total loss of an apportionable part of the goods, the insurance company has become entitled to bring these suits for recovery of the amounts so paid to the insured from the carrier. I next proceed to consider whether by paying for a total loss of an apportionable part of the goods, the insurance company has become entitled to bring these suits for recovery of the amounts so paid to the insured from the carrier. I have already observed that it was not disputed before me that those amounts have been actually paid to the holder of the insurance policies, nor is it disputed that the amounts paid represent the real value of the lost goods. The argument proceeded in this court on the footing that petitioner company would get decrees in these two suits provided the suits are maintainable at its instance. Sub-section (2) of section 136a of the Transfer of Property Act lays down that by paying for a total loss of any goods the insurer shall be subrogated to all the rights and remedies of the insured person in and in respect of that subject matter as from the time of the casualty causing the loss. 7. MR. Bose appearing on behalf of the Union of India submitted that this subrogation does not confer a right of action on the insurer. In support of this contention he drew my attention to paragraph 701 of Halsbury's Laws of England, Vol. 18, second edition, page 469. It has been stated there that in the absence of a formal assignment of a right of action, the insurers cannot sue the third party in their names; they must bring the action in the name of the assured. He also drew my attention to Art. 1231 of the Treatise Arnould on Marine Insurance, Vol. 2, 12th edition where it has been stated that the underwriter is only entitled to the benefit of such remedies, rights, or other advantages, as the assured would himself be able to enjoy. The underwriter has no independent right of his own and cannot even sue in his own name. This is no doubt the English law, or rather the English procedure, for enforcing the right of an underwriter who pays for a total loss against a third party. Vide in this connection the case of James Nelson and Sons, Limited v. Nelson Line (Liverpool), Limited (1) reported in 1906, 2 K. B. p. 217, the relevant passage occurring at pp. 222 and 223. Vide also the case of King v. Victoria Insurance Company (2) (1896 A. C., P. C. 250. Vide in this connection the case of James Nelson and Sons, Limited v. Nelson Line (Liverpool), Limited (1) reported in 1906, 2 K. B. p. 217, the relevant passage occurring at pp. 222 and 223. Vide also the case of King v. Victoria Insurance Company (2) (1896 A. C., P. C. 250. 8. THE law courts in England have come to adopt this peculiar form of procedure because the right of action of the insured is considered to be a personal right, which is not capable of being transferred to the insurer merely by legal subrogation. I need quote two paragraphs from the judgments of two learned judges of the House of Lords reported in 1877 A.C. Vol. 3. p. 279 (Simpson and Co. v. Thompson Burrell) (3). One of these passages is reported at p. 286 and it runs as follows: "my Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it is for this reason that (according to the English mode of procedure) they would have to make it in his name, and if this is so, it cannot of course be made against the insured himself." The other passage occurs at. p. 293 and it runs as follows: "in England, the action must be in the name of the ship owner, not of the underwriters. I think this material, as shewing that it is the personal right of action of the ship owner, the benefit of which is transferred to the underwriters. In other systems of jurisprudence, or it may be in our own as altered hereafter, the assignee of such a right may be able to sue in his own name." 9. THERE is, however, no reason why the above peculiar form of English procedure should be engrafted on the procedure prevailing in our law courts. The word 'subrogation' has not been defined in the Transfer of Property Act but it means substitution. If an insurer is subrogated to all the rights and remedies available to the insured, there is no reason why he should be denied the right of enforcing such rights and remedies by a suit. Section 92 of the Transfer of Property Act confers a right of subrogation on the redeemer of a mortgage under certain circumstances. If an insurer is subrogated to all the rights and remedies available to the insured, there is no reason why he should be denied the right of enforcing such rights and remedies by a suit. Section 92 of the Transfer of Property Act confers a right of subrogation on the redeemer of a mortgage under certain circumstances. There is no doubt that in our law courts such a subrogee can enforce his right by a suit without using the name of the mortgagee whose mortgage he has redeemed. A subrogee under section 135a (2) of the Transfer of Property Act should not be placed in a more disadvantageous position than a subrogee under section 92 of the same Act. If any doubt still remains about the right of suit of an insurer under section 135a (2) of the Transfer of Property Act, it is dispelled by sub-section (4) which lays down that nothing in clause (e) of section 6 shall affect the provisions of sub-section 135a. Clause (e) of section 6 of the Transfer of Property Act provides that a mere right to sue which includes a personal right of action cannot be transferred. By removing this bar, sub-section (4) of section 135a of the Transfer of Property Act makes a deliberate departure from the English rule of procedure which lays down that an insurer who pays for a total loss cannot sue independently in his own name. Sub-section (2) of section 135a is based on equitable principles of reimbursement which is contained in section 69 of the Indian Contract Act which runs in the following terms: "69. A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other." 10. IN the case of loss of insured goods the primary liability is the liability of the carrier. The insurer steps into the shoes of the insured by paying for a total loss. If a subrogee insurer is deprived of an independent right of action his rights and remedies would be rendered useless in many cases. IN the case of loss of insured goods the primary liability is the liability of the carrier. The insurer steps into the shoes of the insured by paying for a total loss. If a subrogee insurer is deprived of an independent right of action his rights and remedies would be rendered useless in many cases. For instance, if the holder of a marine insurance dies without any heir or leaves the country or becomes untraced, or if, being a company, it ceases to exist, then the remedies of the insurer would become completely useless because it would not be possible for the insurer to sue in such cases in the name of the insured. It seems to me that our legislature has considered these contingencies and deliberately given a right of suit to the subrogee by enacting subsection (4) of section 135a of the Transfer of Property Act and making clause (e) of section 6 of the same Act inapplicable to all the remaining subsections of section 135a. Mr. Bose on behalf of the Union of India raised yet another contention that because sub-section (1) of section 135a specifically confers a right of suit on the assignee of a marine insurance policy and sub-section (2) confers no such right on the subrogee, it should be held that such a right has been denied to the latter by implication. This argument does not appear to me to be of any substance. Sub-section (2) of section 135a is much more complex than sub-section (1). In sub-section (1) it is easy to say that the assignee of a policy of a marine insurance would be entitled to sue thereon in his own name. Sub-section (2) is divisible into two parts In the first part it is said that by paying for a total loss either of the whole, or, in the case of goods, of any apportionable part, of the subject matter insured, the insurer becomes entitled to take over the interest of the insured person in whatever may remain of the subject matter so paid for. In the second part it is said that by such payment the insurer is subrogated to all the rights and remedies of the insured person in and in respect of that subject matter as from the time of the casualty causing the loss. In the second part it is said that by such payment the insurer is subrogated to all the rights and remedies of the insured person in and in respect of that subject matter as from the time of the casualty causing the loss. It is difficult, if not impossible to draft sub-section (2) on the same lines as sub-section (1. But, as I have already pointed out, if any doubt remains about the right of suit of an insurer under section 135a (2) it is dispelled by sub-section (4) which makes clause (e) of section 6 inapplicable to all the sub-sections of section 135a. So I repeal Mr. Bose's contention that an insurer has no independent right of action under sub-section (2) of section 135a of the Transfer of Property Act and I hold that the two suits out of which these two Rules have arisen are maintainable at the instance of the petitioner company. As the claims of the petitioner company are otherwise good, these suits must be decreed and the orders complained of must be set aside. 11. MR. Pain also argued before me on behalf of the petitioner company that the insurer has acquired an independent right of suit by purchasing the interest of the insured in the undelivered goods and also by way of reimbursement under section 69 of the Indian Contract Act. But in view of my interpretation of sub-section (2) of section 135a of the Transfer of Property Act, I consider it unnecessary to enter into the merits of this argument in these cases. In the result these two Rules are made absolute. The orders of the courts below passed in connection with Suit No. 3449 of 1951 out of which Civil Revision Mo. 3020 of 1955 of this court has arisen are hereby set aside and that suit is decreed with costs against defendant No. 1 of the trial court. The order of the Full Bench passed in connection with Suit No. 5299 of 1953 out of which Civil Revision No. 954 of 1956 has arisen is hereby set aside and the decree passed by the trial judge in that suit is restored and maintained. The petitioner company will get its costs throughout from opposite party No. 1 of these two Rules, the costs of this court being assessed at two gold mohurs in each Rule.