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TMI Blog2000 (2) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... loaded with the consignment did not reach their destination and the consignment was lost. The second respondent made a claim for the value of the consignment upon the first respondent, who had insured it, in the sum of Rs.93,925.55. The claim was settled by the first respondent in the sum of Rs.64,137/- , and that sum was paid to the second respondent. Consequent upon the claim being settled, the second respondent executed in favour of the first respondent, a Letter of Subrogation on 15th June, 1992. It stated : In consideration of your paying to us the sum of Rs.64137/- only say Rupees Sixty four thousand one hundred and thirty seven only in full settlement of our claim for non- delivery/shortage & damage under policy No.2142140400015 Cert. No./decl. No.269240001/54 & 55 issued by you all on the undermentioned goods, we hereby assign, transfer and abandon to you all our rights against the Railway Administration Road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its rights to the first respondent. Upon such assignment, the assignor second respondent had no right left. And the assignee first respondent was not a consumer. For the first respondent, on the other hand, it was submitted that the document was indeed a letter of subrogation and that, therefore, the first respondent and the second respondent were entitled to maintain the complaint. Our attention was drawn by learned counsel for the appellant to the judgments of this Court in Union of India vs. Sri Sarada Mills Ltd., 1972 (2) SCC 877, and New India Assurance Co. Ltd. vs. G.N. Sainani, 1997 (6) SCC 383; the judgments of the Madras and Andhra Pradesh High Courts in Vasudeva Mudaliar vs. Caledonian Insurance Co. & Anr., AIR 1965 Madras 159, and United India Fire and General Insurance Co. Ltd. vs. Pelaniappa Transport Carriers & Anr., AIR 1986 Andhra Pradesh 32; and to the judgments of the National Consumer Disputes Refressal Commission in M/s. Green Transport Company vs. New India Assurance Company Ltd., 1992 (2) CPJ 349, and Transport Corporation of India Ltd. vs. Davangera Cotton Mills Ltd. & Ors., 1998 (2) CPJ 16. Before we proceed to consider the judgments and arguments, it is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce the extent of his liability within limits. (5) Where, therefore, an insurer is subrogated to the rights and remedies of the assured, the former is to be more or less in the same position as the assured in respect of third parties and his claims against them founded on tortious liability in cases of motor accidents. But it should be noted that the fact that an insurer is subrogated to the rights and remedies of the assured does not ipso jure enable him to sue third parties in his own name. It will only entitle the insurer to sue in the name of assured, it being an obligation of the assured to lend his name and assistance to such an action. By subrogation, the insurer gets no better rights or no different remedies than the assured himself. Subrogation and its effect are, therefore, not to be mixed up with those of a transfer or an assignment by the assured of his rights and remedies to the insurer. An assignment or a transfer implies something more than subrogation, and vests in the insurer the assureds interest, rights and remedies in respect of the subject matter and substance of the insurance. In such a case, therefore, the insurer, by virtue of the transfer or assignment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. vs. G.N. Sainani (ibid) this Court was examining a complaint filed by the appellant insurance company under the Consumer Protection Act. The question that arose was whether the assignee could be said to be a beneficiary so as to be able to make the complaint. What had been assigned was found to be the amount of the loss that was suffered by the assured on account of short landing of the concerned goods, meaning thereby that what had been assigned was the right to recover the loss. It was merely the assignment of a right to sue for the loss on account of short landing. It was, therefore, difficult to see how it could be said that the assignee was the beneficiary of any service. While the assignee might have the right to recover the loss from the insurer by filing a suit in a civil court, he could not avail of the remedy under the Consumer Protection Act because he was not a consumer. The Consumer Protection Forum in the case of M/s. Green Transport Company (ibid) analysed the definition of consumer under the Consumer Protection Act and found that it was only the person who had hired a service for consideration or any other person availing of the benefit of such service with his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him his rights against third parties as a condition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assureds rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assureds rights, would be able to recover the extra money for himself whereas an insurer who was confined to rights of subrogation would have to allow the assured to retain the excess. 1132. Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assureds rights under statute should proceed in his own name .. With the distinction between subrogation and assignment in view, let us examine the Letter of Subrogation executed by the second respondent in favour of the first respondent. Its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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