JUDGMENT - Justice G.G. LONEY, President:---The complainant alleged deficiency in the service of the opposite party viz., the United India Insurance Company for not settling the insurance claim. Shortly stated the facts as alleged are that the complainant is in the business of manufacture, export and import of precious stones. The complainant alleged that it is their regular practice to insure the precious stones during transit for which United India Insurance Company has been granting insurance policies to the complainant to cover the risk during transit. On 17-10-1989, the opposite party granted insurance policy to the complainant to cover one tin box containing cut and polished stones valued at Rs. 3,72,460 at the prevailing rate during transit to Bankok sent by Air Mail. The insurance policy covered all risk clause including theft, pilferage warehouse to warehouse. The complainant alleged that the tin box reached Bankok and it was found that the part precious stones were pilfered during the transit causing loss to the complainant for Rs. 3,28,178/-. The complainant reported the incident on the same day to the Surveyor nominated by the United India Insurance Company and it was investigated by the Surveyor. The Surveyor assessed the loss of 570.54 carots which has been valued at Rs. 3,28,178/-. The complainant alleged that the opposite party, the United India Insurance Company on unjustifiable, frivolous and malicious grounds rejected the complainant's claim and hence the present complaint came to be filed. 2. The opposite party filed its written version opposing complainant's claim on 20-6-1992. The opposite party inter alia stated that the claim is not maintainable as oversea's buyer has no right, title and interest to file the claim. It is also submitted that the rejection of complainant's claim does not fall within the definition of 'deficiency in service'. 3. The complainant filed on record the conditions of the insurance policy in question along with the copy of the policy as well as copy of the survey report and copies of their correspondence with opposite party. The opposite party also filed the delivery receipt of the consignment report of the Surveyor and other correspondence. The complainant has filed his own affidavit. However, opposite party did not file any affidavit. 4. We have heard Shri Prabhawalkar, Advocate for the complainant and Shri A.M. Warnekar, Advocate for the opposite party. The following points arise for our consideration. The opposite party also filed the delivery receipt of the consignment report of the Surveyor and other correspondence. The complainant has filed his own affidavit. However, opposite party did not file any affidavit. 4. We have heard Shri Prabhawalkar, Advocate for the complainant and Shri A.M. Warnekar, Advocate for the opposite party. The following points arise for our consideration. i) Whether the complaint is maintainable as a consumer dispute? ii) Whether this Commission has jurisdiction to decide this complaint? iii) Whether the facts alleged in the complaint constitute deficiency in the service of the opposite party? iv) Whether the complainant have been put to loss due to the negligence in the service of the opposite party? In this complaint, the complainant has alleged that his rightful insurance claim has been rejected by the opposite party on unjustifiable, frivolous and malicious grounds. It is, however, admitted that the complainant was granted insurance policy in question by the opposite party to indemnify the loss or damage caused by theft or pilferage. One of the condition attached to the policy in question is as below : "In consideration of an additional premium, it is hereby agreed that this insurance covers loss or damage to the subject matter insured caused by theft or pilferage or by non-delivery of an entire package subject to always during the exclusion contained in this insurance." The aforesaid clause is not in dispute. Any person who obtains an insurance policy from an insurance company on payment of premium becomes the potential user of the services of the Insurance Company within the meaning of the Consumer Protection Act. Any deficiency in rendering the service including the rejection of the amount claimed under insurance policy arbitrarily, unfairly and lately amounts to deficiency in the service. If the claim is not settled with reasonable expedition, it also amounts to deficiency in the service of the insurer. The National Commission in number of cases have held that an insured is a consumer of the services of the insurer. The latest decisions rendered by the National Commission in Original Complainant No. 42 of 1991 dated 30-1-1992 and another 1992 C.P.J. 169 (Uniplas India Ltd. v. National Insurance Company)1, have laid down the legal proposition of law on the point of deficiencies in the service of the insurance company. The latest decisions rendered by the National Commission in Original Complainant No. 42 of 1991 dated 30-1-1992 and another 1992 C.P.J. 169 (Uniplas India Ltd. v. National Insurance Company)1, have laid down the legal proposition of law on the point of deficiencies in the service of the insurance company. The National Commission has held that the Insurance Company is guilty of deficiency in service towards the insured if the claim payable under the insurance policy has been reduced arbitrarily, unfairly and has not settled with reasonable expedient. In view of the aforesaid legal pronouncements on the basis of facts in this complaint we hold that the complainant is a consumer and hence this consumer dispute is maintainable on the grounds of allegations of deficiencies in the promised services agreed to be rendered by opposite party. 5. The complainant has claimed Rs. 6,80,619/- as compensation for the loss suffered by him for not settling his insurance claim by the opposite party. The claim is arising out of the insurance policy admittedly issued by the opposite party in favour of the complainant. The complainant's claim having been denied by the opposite party, the consumer dispute arises within the meaning of section 13(1)(b) of the Consumer Protection Act, 1986. The claim is below Rs. 10,00,000/- and, therefore, this Commission has jurisdiction to decide this consumer dispute. That takes us to the next point as to whether the allegations made in the complaint constitutes deficiency in the service of the opposite party. The allegations in the complaint precisely relates to the rejection of complainants' claim on unjustifiable, frivolous and malicious grounds. The admitted facts are that complainant's tin box containing cut and polished stones bearing No. 020200/85/1/02447/89 was insured by opposite party to cover the risk of theft and pilferage during transit. A complaint lodged by complainant to settle the claim arising out of policy on allegations of pilferage has been rejected by the opposite party. According to the complainant, the opposite party was bound to settle his claim in terms of the insurance policy. According to the complainant he has been regularly obtaining such policies to cover the risk in transit and the opposite party was bound to settle his insurance claim on the basis of the facts appearing in this case. According to the complainant, the opposite party was bound to settle his claim in terms of the insurance policy. According to the complainant he has been regularly obtaining such policies to cover the risk in transit and the opposite party was bound to settle his insurance claim on the basis of the facts appearing in this case. According to Shri Vernekar, the learned Advocate for the opposite party, the tin box in question was delivered in good condition at the destination and, therefore, there has been no deficiency in the service. In order to appreciate the nature of deficiency in this case it is necessary to understand the facts alleged by the complainant. According to complainant, when the tin box reached the destination the package was accepted without minute examination and receipt was given about its delivery. Thereafter, the package was opened by the customer. On examination the customer found that the tin box was tampered and atillfully, the pilferage was done by removing some precious stones. According to complainant, there were no apparent visible signs on the package of tampering when the packet was delivered. In absence of apparent signs, the receipt dated 20-10-1989 was issued by the customer acknowledging receipt of the package. On perusal of Ex. 'A' the receipt filed by opposite party, which is in the printed form, at the bottom of the receipt it is mentioned consignee "handed to securior by and signed". There is no column in the receipt as to whether the package was to be opened and examined to ascertain the pilferage at the time of delivery. It is a normal practice that when any package is sent through any courier agency a receipt is obtained at the time of delivery and thereafter the package is opened. It is not the routine practice that any package received through a courier service is carefully examined in presence of the person who delivers and then the receipt is given. Particularly in case of a package containing precious stones the receiver of such package will not take the risk of opening the package in presence of a stranger who makes the delivery. It will be unwise and unsafe act on the part of receiver to open the package in presence of the person who delivers it. Particularly in case of a package containing precious stones the receiver of such package will not take the risk of opening the package in presence of a stranger who makes the delivery. It will be unwise and unsafe act on the part of receiver to open the package in presence of the person who delivers it. On the next page 6 of Surveyor's report it is stated "The emerald was packed in ten paper packets which were contained in a tinplated steel box similar to a biscuit box. Free space within the box was stuffed with cotton wool. The box was sealed with transparent adhesive tapes and wrapped with thick paper. The inner side of which was lined with cotton gauze. The package was then tied with a piece of string and the latter was sealed with sealing wax at six locations. We examined the packing closely and noted that it has been tampered with as follows: a) The string had been cut and re-joined with glue. b) The Swissair label on the package showed marks of having been removed and reglued. c) The cotton gauze lining on the inside of the wrapping paper and wrapping paper itself had been cut with a razer or a cutter and the opening had to be re-glued. d) There were two layers of transparent adhesive tapes on the metal box. e) In view of the above sings of tampering of the package, it appears that :--- 1) The string under item a) had been cut at one end of the package where it had not been sealed. 2) The Swissair label under item b) had been removed. 3) The wrapping paper under item c) had been cut with a razor or a cutter. 4) The metal box had been removed from the wrapping paper through the cut opening without tearing the paper. 5) The transparent adhesive tapes were cut. 6) Someone had then removed the lid of the box, stole the six packets of emerald and re-sealed the box with another layer of transparent adhesive tapes. The box had then been inserted into the paper wrapper through the cut opening and the opening glued. The string under item a) had also been glued to cover-up the theft. 6) Someone had then removed the lid of the box, stole the six packets of emerald and re-sealed the box with another layer of transparent adhesive tapes. The box had then been inserted into the paper wrapper through the cut opening and the opening glued. The string under item a) had also been glued to cover-up the theft. The theft could have been made in a hurry as we see no reason why the thief or thieves could not have taken all ten packets of emerald instead of only six." We are unable to state where and when the theft had occurred. Photographs of the box and packing materials are attached herewith." It is concluded that "out of 10 packages of emerald 6 were removed due to the act of pilferage." The reading of the Surveyor's report clearly explains as to how the tin box containing emerald was tampered with to commit theft. The report has been submitted by world famous surveyors and we have no doubt in our minds to disbelieve the observations made by the Surveyor in their report. In our view, the Surveyor, 'Lloyd's' has been nominated by the opposite party and, therefore, the opposite party cannot disown the findings in the report of Surveyors. We accept the report of Surveyor 'Lloyds' showing true and correct situation and we accept it as a strong evidence in support of complainant's claim that the package was found tampered and precious stones are pilfered. The schedule of conditions mentioned in the original policy at Sr. No. 5 shows that the insurance covers the risk of loss or damage to the subject matter insured. As stated earlier, the policy also covers the loss or damage to the subject matter insured caused by theft or pilferage. The manner of theft which occured in this case has been fully established through the surveyor's report. It is further supported by the affidavit filed by the complainant. Thus, there is no doubt in our mind that there has been pilferage of six packets containing precious stones. It is also to be noted that out of 10 packages, 6 packages were removed leaving four packages intact. This fact supports the act of pilferage. Had it been a got up case, the receiver could claim the loss of entire precious stones. It is also to be noted that out of 10 packages, 6 packages were removed leaving four packages intact. This fact supports the act of pilferage. Had it been a got up case, the receiver could claim the loss of entire precious stones. The insurance policy in question carries a stipulation that in case of pilferage, the insurer will indemnify the losses. It is, therefore, obvious that since the act of pilferage has been fully established by the complainant, he is entitled to claim compensation for the loss caused to him. In the Oxford Reference Dictionary, 1986, the meaning of word, 'pilferage' which is in the form of transistive verb means to steel especially in small quantities. Therefore, the opinion of the Surveyor in its report is that the care was taken by the person removing the six packages to cover up the theft. The conduct of the customer after the pilferage was noticed also supports the complainant's claim. The moment the package was opened and the pilferage was noticed the incident was reported on the same day to the Surveyor nominated by the United India Insurance Company. Similarly, the loss has been duly reported to the police which has been accepted by the Surveyor. Thus, the customer has done every possible attempt on his part to report occurance of the theft immediately after he noticed. Repudiation of the true claim of complainant by the opposite party under the proved circumstance of theft of precious stones is nothing but a blatant act to deny the true and genuine claim of complainant. The opposite party has been proved to be deficient in its service by its failure to deny the complainant's claim arbitrarily and without any valid reasons. In view of the decisions of the National Commission in the case of M/s. Uniplas India Ltd. v. National Insurance Company, mentioned above, the opposite party has been guilty of deficiency in its service towards the complainant. The deficiency in the service of opposite party is found due to the negligence in the service. 6. The loss caused to the complainant is apparent due to wrongful rejecting the complainant's claim irrelevantly and unfairly. In our view, the complainant has proved the allegations and, therefore, this complaint is allowed. Hence, we pass the following order : ORDER 7. Although the complainant claims Rs. 6. The loss caused to the complainant is apparent due to wrongful rejecting the complainant's claim irrelevantly and unfairly. In our view, the complainant has proved the allegations and, therefore, this complaint is allowed. Hence, we pass the following order : ORDER 7. Although the complainant claims Rs. 6,80,619/- towards this claim, but in his affidavit dated 23-9-1992 the complainant claimed the corrected value of compensation at Rs. 3,28,178/- which has been agreed by the opposite party in their written version. Hence, we direct the opposite party United India Insurance Co. Ltd., Bombay Branch No. 2 to settle the complainant's claim for Rs. 3,28, 178/- within 30 days from the receipt of this order. The aforesaid amount shall be paid to the complainant together with 18% p.a. interest from 7-12-1989 till realisation. The complainant also be paid Rs. 500/- as costs. Order accordingly. *****