Mr. Justice G.G. Sohani, President — This is a complaint under Section 17(a)(i) of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act').

2. Briefly the complainant's case is that the complainant had taken a comprehensive insurance policy in respect of his truck from the Opponent and that during the period the policy was in force the truck was stolen. The complainant accordingly reported the matter at the Police Station and lodged a claim with the Opponent. It was averred that the Opponent wrongfully repudiated the claim of the complainant on the ground that it was not a case of theft of the truck but of criminal breach of trust by the driver of the complainant. The complainant therefore filed this complaint claiming compensation on account of deficiency in service on the part of the Opponent.

3. The claim is resisted by the Opponent. It is admitted that the truck was insured with the Opponent and that during the period the policy of insurance was in force, the truck was stolen. The claim is however contested mainly on the ground that as the truck was under the control and custody of the driver of the complainant when the loss occurred, it was not a case of theft but of criminal breach of trust by the driver of the complainant and hence the Opponent is not liable to pay any amount under the terms of the Insurance Policy.

4. In view of the contentions raised by the parties, the questions that arise for consideration in this case are as follows :—

(i) Whether there has been any deficiency in service on the part of the Opponent?

(ii) Whether the complainant is entitled to any relief under the Act ?

5. The facts that the truck was insured with the Opponent and that it had been stolen were not disputed before us. Under the terms of the policy of insurance, the Opponent had undertaken to indemnify the insured against loss of the vehicle on account of theft. The learned Counsel for the Opponent invited our attention to Clause (d) of the proviso to Section 2 of the terms of policy and contended that the Opponent was not liable to pay any amount by virtue of that clause. The said clause is as follows:

"Section 2 — Liability to third parties

(d) The Company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insured's household or being conveyed by the Motor Vehicle."

We fail to appreciate as to how the aforesaid clause can be invoked in the instant case when there is no question of any liability to third parties. The policy of insurance stipulates that the Insurance Company would indemnify the insured against loss caused by theft. There is no provision stipulating that the Insurance Company would not be liable to indemnify the insured against loss caused by theft if "theft had been committed by an employee of the insured. Moreover, it has been held by the National Commission in S. Bhagat Singh v. The Oriental Insurance Co. Ltd., reported in II (1991) CPJ 700 (NC), that even if the driver dishonestly took away the vehicle, the case would be covered by illustration (d) appended to the definition of 'theft' given in Section 378 of the Indian Penal Code and the driver would be deemed to have committed theft of the vehicle. In view of this decision, it must be held that the claim of the complainant could not be repudiated on the ground that theft had been committed by the driver of insured. The repudiation of claim by the Opponent, in the circumstances of the case was arbitrary and as there has been deficiency in service on the part of the Opponent, the complainant would be entitled to relief under the Act.

6. The next question that arises for consideration is what relief can be granted to the complainant under the Act. The complainant has produced documents showing that the vehicle was purchased by the complainant on 8.1.1990 for a sum of Rs. 1,88,904/-. He has filed an affidavit with supporting documents to prove that he had in