M.THANIKACHALAM, J. - (1.) The opposite parties are the appellants.
(2.) The respondent/ complainant had insured their vehicle, used for transporting the college students, bearing Regn. No.TN 28 A 6999, for the period covering 6.3.2005 to 5.3.2006. The bus used for transporting the students to Jalagandapuram, viz. TN 28 B 7999, on 11.7.2005, undergone repair, while negotiating a curve, thereby allowing the students to stand in the road. In order to avoid further problem, the bus bearing Regn.No.TN 28 A 6999 was used to pick up the students, and unfortunately this vehicle met with an accident, causing extensive damage, injuring students also. Based upon the policy, the complainant lodged a claim with the 2nd opposite party, repudiated, appealed to the 3rd opposite party also, rejected, thereby the insurer have committed deficiency, as well as negligence, causing mental agony. Because of the negligence committed, and causing delay, the complainant is entitled to a compensation of Rs.3 lakhs, as well as, for mental agony Rs.1 lakh. Thus claiming a consumer complaint, was filed before the District Forum. 4. The opposite parties, admitting the insurance taken by the complainant for the vehicle in question, denying the averments in the complaint, opposed the case, interalia contending that the complainant having taken the permit for TN 28 A 6999 to ply within the Namakkal District, against the permit condition, in violation of the policy condition, used the same outside the geographical permit condition, wherein it appears, it had met with an accident, that in order to justify the violation, an imaginary story was invented after repudiation, and as such since the opposite parties have not committed any negligence or deficiency, they are not liable to pay any amount, much less the repair charges, including the mental agony, thereby prayed for the dismissal of the complaint. 5. The District Forum, while evaluating the matter, not approaching the case legally, based upon the insurance contract, approaching the case, more or less on other consideration, came to a conclusion, that there was no willful violation of permit condition, as well as there is no willful misuse of the vehicle by the complainant. In this view, further concluding that the non-settlement of the claim should be construed as deficiency in service, since there was no willful breach of permit condition, the District Forum directed the opposite parties, as per the order dt.19.11.2009 to pay a sum of Rs.77,570/-, being the repair cost, with interest at 7.5% p.a., from the date of repudiation, with compensation of RS.25000/- with cost, which are impugned by the opposite parties, on various grounds. 6. Under Ex.B1, a transport bus used by the college, bearing Reg. No.TN 28 A 6999, was insured with the 2nd opposite party, by the complainant educational institution, for the period covering 6.3.2005 to 5.3.2006. This vehicle, met with an accident on 11.7.2005, on the way to Jalgandapuram, via Edappady, Salem District, for which a case came to be registered. Factum of accident is not very much in dispute before us. The complainant after repairing the vehicle by spending considerable amount, lodged a claim with the opposite party, under Ex.A7. The insurance company also, based upon the claim lodged investigated the matter, and the investigation revealed that the accident was true, but the vehicle involved in the accident had contravened the permit condition. Therefore, the surveyor appointed, or investigating officer appointed, opined that the claim may be refused. On the basis of the investigation report under Ex.B11, the insurance company repudiated the claim, informing that the complainant had violated the terms and conditions of the policy, and therefore they are not entitled to reimburse the cost, if any incurred by the complainant, in repairing the accident vehicle. Thereafter aggrieved by the order of the 2nd opposite party, when the complainant approached the 3rd opposite party, they also took the same view, thereby according to complainant, they were deprived of their legitimate claim by the negligence and deficiency in service committed by the opposite parties. In this way, a consumer complaint came to be filed, claiming Rs.4 lakhs, favouring lesser amount, as stated above, order passed, impugned. 7. The learned counsel for the appellant would contend, that when the complainant had contravened the permit, as well as the conditions of the policy, they are not liable to compensate the damage if any occurred to the vehicle, this being the own damage, not in respect of any 3rd party claim. In support of the above submission, our attentions were drawn not only to the permit condition, but also the policy conditions. 8. Per contra, it is the submission of the learned counsel for the respondent/ complainant, that they have not violated any policy conditions, and infact on humanitarian grounds, when the college students are stranded due to breakdown of the bus, this vehicle was used to transport the stranded students, and unfortunately this vehicle met with an accident, which cannot be brought under the violation of the policy, or permit condition. Thus urging, an attempt was made to confirm the order of the District Forum. In this context we have to see, the permit conditions, as well as the policy conditions. 9. As evidenced by Ex.A4, the complainant had obtained permit for the vehicle TN 28 A 6999 "to ply all over Namakkal District with headquarters at Thiruchengode", not in dispute. This policy being a commercial vehicle package policy, there is a specific clause, under general exceptions, which reads "the company shall not be liable under these policy, in respect of (1) any accidental loss or damage, and or liability caused or sustained or incurred outside geographical area", i.e., outside the permit area, which is restricted in the permit, as said above, as Namakkal District. Therefore, as per the permit condition, as well, as per the policy condition, if the owner of the vehicle, or the insured had violated the policy condition, as well as the permit condition, then the company cannot be held responsible for the accidental damage, and accordingly alone they have repudiated the claim, in which we are unable to find any error of law, the further fact being conditions of the educational institution vehicle permits clause 11 reads, "the vehicle shall be used only in the area or on the route specified in the permit". Therefore, there is no question of willful use of the vehicle anywhere, or intentional use of the vehicle anywhere, offending the permit, that cannot be the consideration for the Forum, to decide the case in respect of the own damage, on humanitarian grounds, or something like that, for which no jurisdiction was given under the Act. The terms and conditions of the policy, as well as the permit being the terms of the contract agreed between the parties, that should be construed strictly and there is no question of elongating the conditions or substituting the conditions, or stretching the condition, to fit in with the circumstances, to favour the insurer, as did by the District Forum erroneously. Therefore, as per the policy conditions, as well, as per the permit conditions, the vehicle met with an accident, was not used, whereas it met with an accident outside the geographical area, insured is not bound to compensate or not bound to pay compensation. Even on factual aspect also, the complainant is not entitled to any mercy, as did by the District Forum, unnecessarily showing misplaced sympathy, who has not come to the Forum with clean hands/ case. 10. In the complaint under what circumstances this vehicle bearing Regn. No.TN 28 A 6999 was used are described, as if it was used unavoidably to help the students, which proved to be false. Whereas this vehicle should have been used, on regular basis, to transport the students, violating the permit conditions, that can been seen even from the documents relied on by the complainant. After the accident, when the claim was lodged, it is not the case of the complainant, that originally the bus bearing No.TN28 B 7999 was used and because of its breakdown, this vehicle was used to transport the students. On the other hand it is the case of the complainant in the claim petition, that on 11.7.2005, the bus was taking the students from the college, proceeding towards Jalagandapuram via Edappady, and met with an accident at the bus stop Avinoorkottai at 5.15 p.m. Immediately, the driver of the bus by name Anbalagan had given a statement to the insurance branch office, as evidenced by Ex.A9, there also it is not the case of the driver, that this bus was used as a substitute for the breakdown bus, whereas it is the case of the driver that he transported the student in this bus, i.e., TN28 A 6999 from Sengunthar Collage, Jalagandapuram via Edappadi, and the vehicle met with an accident. Even the complainant also informed to the insurance company, as per the communication dt.8.8.2010, that this bus was proceeding from College on 11.7.2005, transporting the students to Jalagandapuram, met with an accident, and it is not the case, that this bus was used as a substitute or spare bus for breakdown bus TN28 B7999, as contended, as an after thought, after repudiation. If really this bus was used as a substitute or spare bus, after breakdown of the regular bus, nothing would have prevented the complainant to project the same, which they failed. Admittedly, the complainant having obtained permit for TN28 A6999, plied the vehicle outside the permit area viz. Salem District, near Edappady, where accident had taken place. Investigation conducted by the opposite party also revealed, this fact as stated supra. On these basis alone, under Ex.A7, repudiation was made, and only thereafter a new case was invented by the complainant, as if this vehicle was used to pickup the students, who stranded due to breakdown of another bus, justifying their act under Ex.A12, which itself is an monumental proof for the violation of the permit, as well as policy condition. 11. The learned counsel for the opposite party, inviting our attention to the decision of the Hon?ble High Court of Madras, urged before us, even if there was any violation of the permit or policy condition, that will not give leverage to the insurance company, to repudiate the claim, here repudiated on the basis of the policy condition, that should be construed as deficiency in service. In the case relied on by the learned counsel for the complainant, National Insurance Company Vs. T. Elumalai, reported in AIR 1990 MADRAS 71, the Hon?ble High Court, considering the effect of Sec.96(2) of the Motor Vehicle?s Act, as well as 3rd party risk, has come to the conclusion, as against the liability of the insured to the 3rd parties, the insurer cannot take this kind of defense, further observing "if there is a breach of contract on the part of the insured the insurer could proceed against the insured, but as far as the third party risks are concerned, the liability having been created by the statute, cannot be over-ridden by the terms of the contract of insurance between the parties. S.96(2) of the Act, does not include violation of the terms of the permit relating to plying in certain geographical area". This principle cannot be extended to the present case, since it is not a 3rd party risk, or claim, whereas own damage for the vehicle, which had violated the terms and conditions, as well as the policy condition. As pointed out by us supra, when the policy itself has specifically stated, that the company shall not liable, if there was a violation of the permit, then there was no question of ordering compensation, on the ground of bonofide or willful intention or malafide intention, as the case may be, as unnecessarily travelled by the District Forum. For the above said reasons, there is no deficiency on the part of the opposite parties, is our definite conclusion, and on this ground, the order of the District Forum is liable to be upset, for that appeal is accepted. 12. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.1/2008 dt.19.11.2009, and the complaint is dismissed. There will be no order as to cost throughout. Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.;