Judgment

RAY, J. :- (on behalf of himself and Dua, J.) We have had the advantage of reading the judgment written by our learned brother Mathew.

2. The question which falls for determination in this appeal is whether the respondent mill on recovering Rs. 32,254-6-9 from the Indian Globe Insurance Co. Ltd. and assigning all rights against the Railway Administration in favour of the insurance company as a subrogee was competent to institute and maintain the suit against the Railway Administration.

3. We agree with the reasoning and conclusion of our learned brother Mathew that subrogation does not confer any independent right on underwriters to maintain in their own name and without reference to the persons assured an action for damage to the thing insured. The right of the assured is not one of those rights which are incident to the property insured.

4. Counsel for the appellant contention that by reason of the assignment to the insurance company of all rights against the Railway Administration the respondent mill did not have any cause of action against the Railway Administration. In aid of that contention the decisions in King v. Victoria Insurance Co. Ltd., 1896 A.C. 250 and Compania Colombiana De Seguros v. QB 101 were relied on.

5. In the Victoria Insurance Company s case, 1896 AC 250 (supra) the Bank of Australia effected an insurance with the insurance company of certain goods to be shipped to London. Before the cargo left Australia it was damaged or destroyed through the negligence of the defendent King, an employee of the Queensland Government. The bank claimed a sum from the company which was duly paid. The company took an assignment by deed of all the rights of the bank against King subject to a stipulation that the bank s name should not be used in legal proceedings. The questions raised on appeal in that case were : (1) the plaintiffs have no rights of action at all; (2) they have no right of action in their own name. The SC of Queensland held that mere payment by the insurance company did not subrogate them to the rights of the bank to the extent that they could sue in their own names. The SC of Queensland held that the assignment was covered by the Queensland Act which corresponded to the English Judicature Act of 1873. The Queensland SC construed the term legal chose in action to include all rights the assignment of which a Court of Law or Equity would before the Act have considered lawful. On that ratio, the right covered by the assignment in Victoria Insurance Company case, 1896 AC 250 (supra) was held to be a right of that kind. The Judicial Committee upheld the decision and said :

"They rested their judgment on the broader and simpler ground that a payment honestly made by the insurers in consequence of a policy granted by them and in satisfaction of a claim by the insured is a claim made under the policy which entitles the insurers to the remedies available to the insured".

The Judicial Committee on this view said that "the highly artificial defence of the Queensland Government fails".

6. It should be noted here that the phrase legal chose in action was said in the Victoria Insurance Co. case, 1896 AC 250 (supra) to mean lawfully assignable chose in action. A legal chose in action is something which is not in possession, but which must be sued for in order to recover possession of it. A legal chose in action does not include a right of action, such as, for instance, a right to recover damages for breachd of contract, or for a tort, for if that were so such a right would be assignable. They would materially affect the law of champerty and maintenance.

7. In the Public Steam Navigation Company case, (1965) 1 QB 101 (supra), the Pacific Steam Navigation Company by a bill of lading acknowledged the shipment of 183 drums of electric cable at Liverpool for carriage to and delivery at a port in Colombia to the Colombiana Telephone Co. The electric cable was insured on behalf of the Telephone Company. The insurance co