The main legal point established in the judgment is that the assessment and settlement of an insurance claim for loss due to burglary of gold and gold ornaments should be based on the net weight of the lost gold, as assessed by surveyors, and that there was no deficiency in service on the part of the opposite party.

ORDER :

Mr. K. Chandradas Nadar, Judicial Member-This is a complaint filed under Section 17 of the Consumer Protection Act. The complainant is a company registered under the Companies Act having licence to conduct financial business from the Reserve Bank of India. The complainant company accepts deposits and lends money against gold through its branches all over India. The complainant has a branch at Shalimar bagh, Delhi. The complainant took policy for Rs. 75 crores from the opposite party. A memorandum of understanding was executed between the complainant and the opposite party. The policy between the parties covered risks among other things from burglary and house breaking covering the gold and gold ornaments pledged and stored in the premises or branches of the insured inside safes or strong room vaults and locked. As per the terms of the memorandum of understanding in case of burglary of gold and gold ornaments the weight of gold for calculating compensation will be the gross weight of gold. It is alleged in the complaint that burglary took place at the Shalimarbagh branch of the complainant company on 29.1,2009. Gold ornaments weighing 11432.30 gms and cash for Rs. 2.30 lakh were stolen from the branch. Immediately complaint was lodged before North West Police Station Delhi on 29.1.2009 and FIR was registered. The police conducted investigation and apprehended the accused. The investigation is going on. The complainant submitted claim for Rs. 1,40, 91,933 on 5.2.2009 with the opposite party. As per the terms of the memorandum of understanding the opposite party appointed M/s.Soni & Company, New Delhi as surveyor for conducting survey. Details and all documents regarding the theft were handed over to the surveyor who filed report to the opposite party. As the customers who have deposited gold and availed loan demanded return of their valuables, under immense pressure frantic communications were sent to the opposite party, but the opposite party took a relaxed attitude. Thereby the complainant was forced to surrender to every demand made by the opposite party. After several demands, the opposite party informed the complainant that Rs. 1,01,68,270 only had been approved by the competent authority and that Rs. 60,00,000. from the said amount would be disbursed immediately. Since the complainant was under immense pressure from the customers, they had no option but to receive the amount disbursed. Subsequently, Rs. 41,68,210 was received by the complainant. The complainant issued letter to the opposite party stating that Rs. 39,23,723 more is due from the opposite party as per the terms of the memorandum of understanding and the same may be disbursed at the earliest. There was no response from the opposite party. The opposite party disbursed amount taking the lesser rate (net weight) as against the gross weight of gold ornaments and against the terms of the memorandum of understanding. The opposite party has taken undue advantage of the situation and they have misrepresented the facts. Thus, they have committed deficiency in service. Hence the complainant seeks to recover an amount of Rs. 39,23,723 with interest from the opposite party.

2. The opposite party filed version raising the following contentions. The complainant is not a consumer as defined under the provisions of the Consumer Protection Act. The complainant has availed the services of the opposite party for commercial purpose. Hence he is not a consumer. This Commission has no jurisdiction to entertain the complaint. The opposite party has admitted that policy was issued to the complainant as alleged for the period from 7.2.2008 to 6.2.2009. But the copy of the memorandum of understanding submitted by the complainant is undated and the stamp paper is seen purchased on 11.3.2010 which would show that the produced memorandum of understanding is not applicable to the policy that expired on 6.2.20009. The allegation that in case of burglary of gold and gold ornaments the