- (1.)This is an appeal by the defendant Union of India as owning the concerned railway against a judgment and decree of reversal decreeing the plaintiff's suit. The plaintiff's case is that a consignment of 7 bales of cotton piece goods of which the plaintiff was the owner, was delivered to the railway at Ahmedabad on March 23, 1959 for carriage and delivery to Shalimar. Six bales of goods were delivered but one bale was not delivered to the plaintiff. In these circumstances, the plaintiff on due service of requisite notices instituted the instant suit on June 9, 1960 claiming damages for non-delivery of the goods valuing the suit at Rs. 1062.75 P. as the value of the goods together with the excise duty, freight and higher market price. The suit was contested by the defendant by filing a written statement contending inter alia that the plaintiff has not locus standi to institute the suit and the requisite notices were not legal, valid or sufficient and not properly served.
(2.)In the course of trial before the learned Munsif it transpired that the insurer had compensated the plaintiff for his total loss arising from the loss of the bale for which the suit was instituted long before the institution of the suit. A letter of subrogation was accordingly given by the plaintiff to the insurer the General Assurance Society Ltd. as also a special power of attorney both dated October 5, 1959 whereby the plaintiff assigned, transferred and abandoned to the Insurance Company all his rights against the Railway Company or other persons whatsoever caused or arising by reason of the said damage or loss, giving all powers to the insurance company to take all lawful ways and means in its name or otherwise at its risk and expenses to recover the said damage or loss and subrogating to the Insurance Company the same rights he had in consequence of the said loss. This letter of subrogation was issued in consideration of the sum of Rs. 971.23P paid by the insurer to the plaintiff in full settlement of the plaintiff in full settlement of the plaintiff's claim for non-delivery under he policy issued by the Insurance Company in respect of the said consignment.
(3.)The learned Munsif on a trial on evidence held that by that subrogation the plaintiff divested himself of all rights and remedies available against the railway. It was accordingly held that the plaintiff had no locus standi to institute the suit and the suit as framed was not mentioned her that the Insurance Company was not a party to the said suit, which, in the premises, was dismissed.