An insurer's payment is not in discharge of the obligation of the railways to the plaintiff, and does not, therefore, preclude the plaintiff from maintaining a claim against the railways.

KUNHAMED KUTTY, J. : The plaintiff, Sri Sarada Mills Ltd., whose suit for damages against the Union of India, as owning and representing the Central and Southern Railways, was dismissed by the court below, is the appellant, They had consigned through their agents Ranjit Ginning and Pressing Factory Ltd., 100 bales of F. P. Cotton from Nagpur to Podanur under a railway receipt issued by the Central Railway (the first defendant). The goods had to pass through several stations along the two railways. Central and Southern, before it arrived at Podanur, and when it arrived 87 bales out of 100 were burnt and charred and 13 bales were found loose and short. The plaintiff applied for open delivery and the railway authorities at Podanur got the damage surveyed, and issued a certificate of damage and shortage. But when the plaintiff's made a claim for damages the Chief Commercial Superintendent, Southern Railways, informed them that the consignment was involved in a fire accident at Sirpur Nagaznagar on the Central Railway, that the cause of the fire was unknown and that the railways were not liable for the damages caused to the goods as there was no negligence or misconduct on their part. The plaintiff, on the other hand, had alleged that the damage and shortage were occasioned only by the acts and negligence on the part of the Administration and misconduct of the employees and they were bound in law to indemnity for the loss sustained by the plaintiff. The plaintiff, therefore, instituted the suit on the above allegations when the second defendant-railway in its written statement (which was adopted by the first defendant railway) further stated that a Committee of Enquiry, constituted for the purpose of finding out the cause of the fire had found that the cause of the fire was unknown, that the certificate of damage and shortage was not final or conclusive or exempted the plaintiff from proving the extent of damages suffered by the mills and that the plaintiff, having realised damages from the Insurance company, had no right to claim any amount from the defendants.

2. The contentions raised by the defendants gave rise to as many as seven issues. The learned Subordinate Judge, who tried the suit had before him the evidence of two witnesses examined on the side of the plaintiff, one on Commission at Nagpur and the other before the court, and the testimony of as many as 25 witnesses. 18 examined on commission, 15 at Nagpur, 3 at Hyderabad and 7 before the court. A number of documents were also before the court marked before the Commissioners and before it. On a consideration of the entire evidence in the light of the case law, the learned Subordinate Judge was inclined to hold, on issue 2, that the fire which caused loss to the goods of the plaintiff was not due to any cause beyond the control of the defendants and, on issue 3, that the damage was due to the negligence of the defendants', he further found that the damages caused to the plaintiff by the fire accident was only to the tune of Rs. 15534 but the plaintiff had no right to file the suit since it had already realised a sum of Rs. 32254-6-9 from the Indian Globe Insurance Co., with whom the goods in question had been insured, on executing a letter of subrogation, with the result he dismissed the suit directing the parties to bear their respective costs.

3. Mr. Gopalaswami Iyengar for the appellant urged before us that a right to sue for damages for breach of contract is only a bare right to sue which cannot be assigned and the learned Subordinate Judge was wrong in concluding that S. 6(e) of the Transfer of Property Act is subject to the provisions of S. 135-A(4) of the Act. He also contended that a right of subrogation will not entitle the Insurance Company to enforce the right in its own name as a deed of subrogation could not amount to any assignment of the subject matter of insurance; but could give the insurer only what they would have under S. 135-A(3) of the Transfe