1. SALMAN HAMID, J.---By this application the defendant No,5 seeks rejection of plaint under Order VII, rule 11, C.P.C. Essentially on the ground that since the plaintiffs have recovered entire amount under the insurance policy and that such losses having been satisfied fully, the plaintiff cannot claim by operation of law any amount as no subsisting right or cause of action to proceed further remains.
2. Such argument of the defendant No,5 basically rests on the provision of section 135-A of the Transfer of Property Act which reads as under:- "135-A Assignment of rights under olic of marine insurance. (1) Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein the assignee of the policy is entitled to see 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,
(3) When the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies or the insured person as from the time of the casualty causing the loss, insofar as the insured person has been indemnified by such payment for the loss.
3. ' In support of their arguments the defendant No,5 have relied upon the case of New Jubilee Insurance Co_ Ltd. Karachi v. American Orient Lines Inc., New York and 2 others reported in PLD 1977 Kar. 569 and the case of New Jubilee Insurance Co., Ltd. Dacca v. The United Oriental Steamship Co., Karachi and another, reported in PLD 1975 Kar.
4. 647.
5. ' In my opinion as far as the case reported in PLD 1977 Kar. 569 is concerned, the same supports the case of the plaintiff rather than that of the defendant No,5 inasmuch as that it was held in that case that the right of indemnity remains to subsist and the plaintiff would be entitled to recover remainder of the amount not covered by the insurance policy. Coming to the case reported in PLD 1975 Kar. 647, it was held that subsection (1) of section 135-A of the Transfer of Property Act provides that on the insurer paying for the loss or damage to the goods insured under marine insurance policy the rights and remedies of the insured person does not extinguish and the plaintiffs would be entitled to take over interest of the insured person in respect of whatever may remain of the subject-matter so paid-for; while subsection (2) outlines that cases where there has been neither a total loss of the whole of the goods or consignment or of any apportionable part of the subject- matter of the goods. Subsection (3) is confined to cases where loss has been partially satisfied. The case in hand attracts the provision of subsection (3) of section 135-A of the Transfer of Property Act and therefore, the case relied upon by the Advocate for defendant No,5 is of no significance.
6. Counter affidavit to the referred C.M.A. Was filed on behalf of the plaintiff, wherein it was categorically mentioned that due to loss of US$ 216,941 suffered by the plaintiff only an amount of Rs,6,620,332 towards compensation was paid by the insurance company as its maximum liability under the terms of the policy and that still substantial amount is due and payable by the defendant to the plaintiff and that after receiving the amount of Rs,6,620,332 the plaintiff, have also, after leave of this Court, preferred amended plaint in the suit whereby the amount after deduction of Rs,6,620,332 was reduced to Rs,108,465 only and that the plaintiff still have to recover this amount after trial of the suit and therefore, the plaint cannot be rejected under Order VII rule 11, C.
7. P.C.
8. After looking at the circumstances of the case and the fact that only a part of the plaintiffs claim has been satisfied in terms of the insurance policy and remaining claim of the plaintiff is yet to be adjudged through trial, the application is meritless and is therefore, dismissed.