This case is coming for final hearing on 02-04-2015 in the presence of M/s. Sri C.R.Vasantha Kumar, Advocates for Complainant and M/s.A.Bhanumathi, Advocate for Opposite Parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The present complaint is filed by the Complainant’s 1 to 3 against the Opposite Parties 1 to 3 on 10.09.2014 and requested the Forum to direct the Opposite Parties (1) to adjust personal accident cover amount of Rs.13,80,000/- to the loan amount vide A/c No. 30943528741 and 30943529201 obtained by the husband of the complainant No.1 and father of the complainants 2 & 3. After adjusting the said amount, if any balance amount is there, the said amount should be paid along with 24% p.a. from 26.10.2013 till date of payment (2) to pay compensation of Rs.5,00,000/- for causing negligence, mental agony and deficiency of service and unfair trade practice (3) to pay Rs.20,000/- towards legal expenses..
2. The brief averments are as follows: The Complainant No.1 is the mother of Complainants 2 & 3 and wife of Sri Surisetty Venkata Rao who has obtained 2 housing loans from 2^nd Opposite Party vide A/c Nos. 30943528741 and 30943529201 dt.24.08.2009 for Rs.13,80,000/- (Rs.8,00,000 + Rs.5,80,000). The Complainant submits that Sri S.Venkata Rao i.e husband of Complainant No.1 has obtained two housing loans from the 2^nd Opposite Party for Rs.13,80,000/- which he will be paid regularly to the 2^nd Opposite Party, Bank through his salary savings account No.10756118486. The husband of the Complainant No.1 used to pay the instalments every month from October, 2013 onwards. While so as per the terms and conditions of the loan, the complainant’s husband mortgaged his property with 2^nd Opposite Party, Bank authorities and loan was sanctioned on a condition that the said loan will be adjusted in case of accident risk for the borrower which was clearly mentioned in the loan agreement dt. 24.08.2009 vide clause No.7 stating the loan is covered by free personal accident insurance policy. So as per the said clause, if any unfortunate incident occurs to the borrower the loan amount can be adjusted to the 2^nd Opposite Party bank as there is insurance policy coverage. While so on 26.10.2013 the 1^st complainant’s husband and father of the 2^nd & 3^rd complainant (S.Venkata Rao) met with road accident and he died due to the injuries sustained because of the accident. Thereupon the 1^st complainant addressed a letter to the 2^nd Opposite Party on 26.06.2014 to clear the loan amounts by adjusting the insurance policy amount obtained by her husband. The Opposite Party sent a reply letter dt.28.06.2014 stating that the accident policy will not cover from 1.7.2013 as the policy was discontinued by the bank authorities and thereby she has to pay the amount due for the loan obtained by her husband. On 24.07.2014 the 3^rd Opposite Party sent Notice under Sec.13(2) of the SARFAESI Act to pay an amount of Rs.12,51,920/- which was due as on 30.04.2014. The Opposite Parties also demanded the said payment within 60 days from the date of receipt of notice by them under Sec.13(2) of the SARFAESI Act. Hence alleging negligence, deficiency of service and unfair trade practice on the part of Opposite Parties, the complainants’ 1 to 3 filed the present complaint seeking reliefs as sought for.
3. Along with the complaint the complainant has also filed IA 241/2014 CC 289/2014 u/s 13(3B) of the C.P.Act to direct the Opposite Party Bank i.e. Opposite Parties 1 to 3 to keep in abeyance of the Notice under Sec.13(2) of the SARFAESI Act dt.24.07.2014 pending disposal of the complaint before this Forum. For the said Sec.13(3B) petition notices served to the Opposite Parties 1 to 3 and they have filed counter. The Complainant’s counsel and Opposite Parties’ counsel have submitted their arguments before this Forum and at the time of arguments, the Opposite Party bank’s counsel submitted a case law CC No.721/2013 of Hon’ble National Commission between Standard Chartered Bank Vs.Virendra Rai which is related to the issue involved with the SARFAESI Act i.e. Sec.34 of SARFAESI Act stating that Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter relates to the Debts Recovery Tribunal or Appellate Tribunal.
4. At the time of the arguments only the Counsel for the Opposite Parties filed a Memo dt.28.11.2014 stating that the bank is undertaking to maintain status quo till 16.12.2014. Again at the same time the Counsel for the Complainant filed a Memo dt.19.11.2014 enclosing Possession Notice given by the Opposite Parties dt.6.11.2014 to pay Rs.12,51,920/- which was due by the Complainant’s husband as on 30.04.2014. Along with the said memo Complainant’s counsel has also enclosed a Photograph which shows that the bank authorities has affixed a notice on the suspicious part of the complainant’s flat No.103 stating “this property is under possession of the Authorised Officer of SBI, RACPC, SAR Wing under SARFAESI Act 2002, Ph 9848181098”. After hearing both sides and the version of the complainant and the Opposite Parties this Forum posted the I.A.241/2014 to decide it on merits at the time of the main C.C.
5. Notice served to the Opposite Parties.On behalf of Opposite Parties, 3^rd Opposite Party filed detailed counter and stated as follows: The Complainants No.1 to 3 are the legal heirs of the late Sri Surisetti Venkata Rao who has obtained housing loan for Rs.13,80,000/- (Rs.8,00,000/ + Rs.5,80,000/-) on 24.08.2009. The Complainant No.1 is the wife of Sri Venkata Rao and Complainants 2 & 3 are the sons of deceased S.Venkata Rao. Though the Insurance Policy i.e. Free Group Personal accident Insurance (in death only) offered by the Opposite Party Bank, the said Group Personal Accident Policy is in force till 1.7.2013 only and thereafter on 1.7.2013 the policy will not be valid and the borrowers of the Housing Loan from the Opposite Parties or any car finance from the Opposite Party bank has to pay the loan amount without relying upon the insurance coverage as it will not be valid from the midnight of 1.7.2013. That too as the service of the issuing group personal accident insurance policy was given with free of charge of the Complainant’s husband. The complainants’ cannot file any complaint before this Forum as it does not comes within the purview of the Sec.2(1)(o) of the C.P.Act. Though the 1^st Complainant’s husband has obtained policy on 24.08.2009 which is valid only for the period of one year and it will be renewed for every year and thereafter as the bank has withdrawn the insurance policy scheme, the Complainants’ cannot claim any amount from the Opposite Parties towards Insurance claim. The Opposite Parties informed its car and home loan customers at large by affixing the notice in the Notice Board of the 2^nd Opposite Party bank premises and also given publication in leading newspapers. So there is no fault on part of the Opposite parties in withdrawing the Insurance policy scheme. Since the complainant’s has not paid the instalments even after receiving the Notice under Sec.13(2) of SARFAESI Act 2002, they became defaulters. As on 30.04.2014 the total amount due from the side of the deceased husband Sri S.Venkata Rao is Rs.12,51,920/-. As the complainants’ are the legal heirs of Sri S.Venkata Rao, they are bound to pay the due amounts to the Opposite Parties. As there is no negligence or deficiency of service or unfair trade practice on part of the Opposite Parties, the complaint is liable to be dismissed with costs.
6. On perusing the entire pleadings of both sides the Forum has framed the following issues for consideration: a) Whether the complaint is maintainable before this Forum under C.P.Act; b) Whether there is any deficiency of service and unfair trade practice on part of the Opposite Parties; c) To what relief.
7. The 1^st Complainant as PW-1 her Evidence Affidavit narrating the entire facts mentioned in the complaint and on part of her Ex.A1 to A9 were marked. On behalf of the Opposite Parties the employee of the 3^rd Opposite Party Sri K.V.Krishnaiah in capacity of Chief Manager and Authorised Officer filed E.A. reiterating the entire facts mentioned in the counter and on behalf of Opposite Parties 1 to 3 Exs.B1 to B6 were marked. The complainant and Opposite Parties submitted their written arguments as well as oral arguments. At the time of the oral arguments on 2.4.2015, the Opposite Parties’ counsel stated that they have not filed any complaint or any case before the Debts Recovery Tribunal as on till date. Along with the Written arguments of the Complainant, the counsel for Complainant submitted 11 case laws (1) III (1995) CPJ 1 (SC), Indian Medical Association Vs. V.P.Shantha & Ors (2) III (1999) CPJ 15 (SC) Delhi Electric Supply Undertaking Vs Basanti Devi & Anr (3) II (2001), CPJ 419 of Gujarat State Commission, Post Master, Thaltej Road Post Office & Anr Vs. Patel Hasmukhbhai Govindbhai (4) I (2001) CPJ 443 of Delhi State Commission, L.R.Gupta & anr Vs. Singapore Airlines Ltd. (5) I (2000) CPJ 1 (SC), M/s.Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. (6) II (2005) CPJ 307 of Delhi State Commission, Sudha Gargia Vs Delhi Development Authority(7) III (2002) CPJ 165 of UP State Commission, Canbank Financial Services Ltd., Vs Dr.Nar Singh Narain Sharma & ors (8) III (1996) CPJ 1 (SC), Fair Air Engineers Pvt. Ltd & anr Vs N.K.Modi(9) IV (2012) CPJ 705 (NC) Bank of Baroda Vs. Geeta Foods (10) I (2013) CPJ 31B(NC) (CN), Indian Overseas Bank Vs P.S.Bawa & anr (11) I (2004) CPJ 1 (SC) Secretary, Thirumurugan Coop Agricultural Credit Society Vs. M.Lalitha (Dead) through L.Rs. & Ors.
8. The Opposite Parties at the time of arguments on 2.4.2015, submitted one case law decided by Chattisgarh State Commission CC No.10/2009 between M/s.Sukhajeet Kaur Sidhu Vs City Bank and 2 others which is related to granting of the compensation. Wherein, in an insurance claim case while deciding the unfair trade practice under C.P.Act.
9. Point No.1: The present complaint is filed by the Complainant under Sec.12 of C.P.Act seeking reliefs for adjusting the amount of Rs.13,80,000/- (Rs.8,00,000/- + Rs.5,80,000/-) Insurance coverage policy amount to the loan amount pertaining to the two A/c Nos. 30943528741 and 30943529201  dt.24.08.2009 for Rs.13,80,000/- (Rs.8,00,000 + Rs.5,80,000) which were obtained by the husband of the 1^st Complainant and the father of the 2^nd & 3^rd Complainants. The Opposite Parties filed a detailed counter stating that the Insurance policy was withdrawn by the Opposite Parties and it will be in force till 1.7.2013 only. As the 1^st complainant’s husband Sri S.Venkata Rao died on 26.10.2013 the policy coverage will not be applicable to this case and thereby the present complaint is not maintainable before this Forum as the said insurance policy was given to the 1^st complainant’s husband i.e. Sri S.Venkata Rao as free of charge which does not comes under the Sec.2(1)(o) “Service” of the C.P.Act.
10. The Sec.2(1)(o) of the C.P.Act 1986 defines as “Service” means service of any description which is made available to potential users and includes, but not limited to the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loding or both (housing construction), but does not includerendering of any service free of charge or under a contract of personal service. The Sec.2(1)(r), 3 & 3(a) of restrictive trade practice which defines as follows: (3) permits – (a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole; (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, (3A) withholding from the participants of any scheme offering gifts, prizes of other items free of charge, on its closure the information about final results of the scheme. Explanation: For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspapers in which the scheme was originally advertised.
11. As per case law III (1995) CPJ 1 (SC), Indian Medical Association Vs. V.P.Shantha & Ors, the Hon’ble State Commission held that service rendered by the Doctors and hospitals falling in category (iii) irrespective of the fact that part of the expression “service” as defined in Sec.2(1)(o) of the Act. Further the beneficiariesof the free service are also entitled for the claim and they can claim the relief as a Consumer under Sec.2(1)(d) of the C.P.Act. As per I (2001) CPJ 443 L.R.Gupta & anr Vs. Singapore Airlines Ltd, the Hon’ble Delhi State Commission observed that “the Consumer who had hired the services, post consideration for any service is consideration for service which the Consumer hires or avails”.
12. Hence even observing the principle of case law I (2001) CPJ 443 referred above we hold that though the Opposite Party state that the policy was given on free of charge, the complainants 1 to 3, are entitled for the reliefs from the Opposite Parties as beneficiaries for the insurance policy given by the 2^nd Opposite party vide Ex.A1 & A2 loan agreement mentioned in Cl.7.
13. Though the Opposite Parties stated at the time of arguments that the complainants’ has to approach DRT as the 1^st complainant’s husband i.e. deceased S.Venkata Rao died while the loan amount was not cleared and also the policy was withdrawn by the Opposite Parties w.e.f. 1.7.2013 onwards and sending the Ex.A6 Notice dt. 3.7.2014 for paying the balance amount of the loan amount of Rs.12,51,920/- we opine that firstly the provisions of the SARFAESI Act has to be observed.
14. The SARFAESI Act is enacted in the year 2002. As per Sec.2 (z) of the Act Securities means “acquisition of financial assets by any securitization company or reconstruction company from any originator, whether by raising of funds by such securitization company or reconstruction company from qualified institutional buyers by issue of security receipts representing undivided interest in such financial assets or otherwise”. As per Sec.2(1)(n) Hypothecation means “a charge in or upon any movable property, existing or future, created by a borrower in favour of  a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property”. As per Sec.2(1)(f) “borrower” means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge a security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitization company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance. As per Sec.2(1)(zb) Security agreement means “an agreement, instrument or any other document or arrangement under which security interest is created in favour of the secured creditor including the creation of mortgage by deposit of title deeds with the secured creditor”. As per Sec.2(1)(ze) secured debt means “a debt which is secured by any security interest”. As per Sec.2(1)(j) default means “non-payment of any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified as  non-performing asset in the books of account of the secured creditor”. As per Sec.13(2) of the Act “any borrower, who is under liability to pay any loan amount to the secured creditor (i.e. Opposite Parties 1 to 3) in this matter under a Security agreement, if makes any default in repayment of the secured debt of any instalment, the secured creditor (i.e. Opposite Party bank) are entitled to exercise all or any of the rights under Sub section(4). As per Sec.13(4) of the Act, “if the borrower fails to discharge his liability in full within the period specified in sub-section (2), the Opposite Party Bank’s may take recourse to one or more of the following measures to recover his secured debt. They take possession of the secured assets i.e. mortgaged property of the complainant’s husband which was mortgaged by him for taking the loan of Rs.13,80,000/- vide Ex.A1 & A2. Here observing the Sec.13(1 to 4) clauses, if the borrower is in defaulter under Sec.13(2) Notice can be given to the Borrower for paying the balance amount.
15. In this particular matter, the borrower of the loan (Surisetty Venkata Rao) obtained loan for Rs.13,80,000/-(for 2 loans) is not a defaulter. After taking the loan he has paid some amount to the Opposite Party bank’s and then all of a sudden on 26.10.2013 as he has met with an accident on the road he died. Ex.A8, Death Certificate and Ex.A9 Charge sheet reveals that the 1^st complainant’s husband (S.Venkata Rao) died in road accident near Chaitanya College Steel Plant Main Branch road, Visakhapatnam. So, the Opposite Parties cannot take a stand that the 1^st complainant’s husband is a defaulter of the loan. If at all he is alive he might have cleared the loan amount from his salary. But here in this case viewing the Insurance Policy given by the Opposite Party under clause 7 of the Ex.A1 & A2 Loan agreement, the complainant has filed the present complaint before this Forum. So observing the section 2(1)(z),(t), (n), (zb) h(a), j, Sec.13(1 to 4) as the 1^st Complainant’s husband has died on the road accident on 26.10.2013, confronted by Ex.A8, Death Certificate the Opposite Parties cannot issue Notice to the Complainants’ as loan defaulters under Sec.13(2) of SARFAESI Act.
16. Section-3  of the C.P.Act defines as follows: The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In the case of 2005 (5) ALT 468 & II (2009) CPJ 348 NC between HUDA Vs.Dr.Maya observing Section 3 of the C.P.Act (alternative remedy) it was held that the Consumer is having alternative remedy to file case before the Consumer Forum. As per case law II (2006) CPJ 318 NC Manipal Soubhagya Nidhi’s case it was held that the Petition held before Company Law Board or High Court, Consumer can file the complaint before the Forum. As per case law I (2011) ALT 702 (Division Bench) Narne Constructions Pvt. Ltd Vs. Union of India, it was held that the Opposite Party cannot compel the Complainant to take recourse only to the Civil Court when he has chosen the Consumer Forum.
17. Even observing the arguments of the Opposite Party counsel on 2.4.2015 as no case was filed before any DRT as on that date and also observing the Memo dt.28.11.2014 given by Opposite Parties undertake to maintain status quo till 16.12.2014 it seems the Opposite Parties have not filed any case before the DRT or any other Forum with regarding to the recovery of the loan amount due by the Complainant’s deceased husband vide 2 loan agreements dt.24.08.2009. Even if assuming for a while that the Opposite Parties has filed any complaint before any other Forum, observing the Cl.7 of the Ex.A1 & A2 Loan agreements for providing free insurance policy for coverage of the amount in case of the death of the Borrower, as seen from 2003 CPJ 85 SC (CP) State ofKarnataka Vs Viswabharathi House Building Coop. Society, the Hon’ble State Commission stated that, the provisions of the said Act which require to be interpreted as particularly as possible and the Fora under the C.P.Act have jurisdiction to entertain the complaint despite the fact that other Fora, Courts would also have jurisdiction to adjudicate upon the lis pendency.
18. Observing the I (2004) CPJ 1 (SC) Secretary, Thirumurugan Coop Agricultural Credit Society Vs. M.Lalitha (Dead) through L.Rs. & Ors., the Hon’ble Supreme Court held that “the rights and liabilities created between members and the management of Society under 1983 Act, cannot exclude the jurisdiction under C.P.Act 1986, the complaint is maintainable and the case is remanded to State Commission for fresh adjudication on merits. Hence observing the principles of case law I (2004) CPJ (1) SC, and II (2006) CPJ 318 NC, 2003 CPJ 85 (SC) (CP), we are of opinion that the complainant’s can file the complaint before this Forum seeking their reliefs.
19. Hence observing the entire facts and circumstances discussed above, we are of conclusive opinion that the complainant’s are consumers and they can file the complaint before this Consumer Forum for seeking the reliefs as sought for and if they are really entitled for the same the Forum can entertain the complaint with a specific direction. Accordingly point No.1 is answered.
20. Point No.2: As per the Point No.1 we have confronted that the complainant can file the consumer case before this Forum. The present case is filed by the Complainants 1 to 3 against the Opposite Parties 1 to 3 claiming the relief for adjusting Rs.13,80,000/- (Rs.8,00,000/- + Rs.5,80,000/- i.e. Free Personal Accident Insurance Policy amount to the loan amount obtained by the 1^st Complainant’s husband i.e. Sri S.Venkata Rao. The Opposite Party in their counter stated that though the Free Personal Accident Insurance Policy has been given to the complainant’s husband it has been withdrawn as on 1.7.2013 by way of intimation to the all loan borrowers including car and housing loans vide Notification and Paper publication i.e. Exs.B3 to B5. The complainant’s contention is that as the intimation was not given to the complainant while he was alive by way of proper communication as the 1^st complainant’s husband died in accident on 26.10.2013, as the beneficiaries for the insurance policy amount, the complainants’ 1 to 3 are entitled for the reliefs as sought for in the complaint.
21. Ex. A1 is the loan agreement in between 1^st complainant’s husband Sri S.Venkata Rao and the 1^st Opposite Party dt.24.08.2009 in clause No.7 of Ex.A1 is details regarding personal accident cover of New India Assurance Co. is defined as “The loan is covered by Free Accident Insurance Policy and the insurance certificate issued by the bank to you should be preserved carefully for use in case of need”. Ex.A2 is the loan agreement for Rs.5,80,000/- between 1^st complainant’s husband S.Venkata Rao and the 2^nd Opposite Party dt.24.08.2009. Ex.A3 is the letter dt.29.11.2013 served to the 2^nd Opposite Party for claiming of Free Personal Accident Insurance Policy amount of Rs.13,80,000/- by enclosing the death certificate of 1^st complainant’s husband, FIR copies and Postmortem Report. Ex.A4 is the request letter served by the 1^st complainant to the 2^nd Opposite Party dt 26-06-2014 to clear the insurance claim at the earliest basing upon the clause 7 of the loan agreement i.e. Ex.A1 & A2. Ex.A5 is the letter dt.28.06.2014 served to the 1^st complainant stating that the Free Personal Insurance Accident policy coverage is withdrawn by notification giving in leading newspapers/bank notice boards and thereby the claim is rejected also the 2^nd Opposite Party directed the 1^st complainant to regularize the both housing loans immediately, otherwise account will be initiated under SARFAESI Act. Ex.A6 is the letter dt. 3.7.2014 issued to the 1^st Complainant by the 2^nd Opposite Party stating that they have received the Ex.A4 letter dt.26.06.2014 and advised the 1^st complainant that the Free Personal Accident Insurance coverage for home loan borrowers was withdrawn w.e.f. 1.7.2013. Also the same was informed to the 1^st complainant  that to repay the 2 housing loans at the earliest. Ex.A7 is the Notice under Sec.13(2) of the SARFAESI Act served to the Complainant No.1 to 3 dt 24.07.2014 stating that as on 13.04.2014, the amount of Rs.12,51,920/- is due towards 2 housing loans obtained by Sri S.Venkata Rao i.e. husband of the 1^st complainant and father of 2^nd & 3^rd complainants. Ex.A8 is the Death Certificate of the 1^st complainant’s husband which reveals that the place of death is near Chaitanya College Steel Plant main branch road, Visakhapatnam. Ex.A9 is the charge sheet under Sec.304A of IPC stating that 1^st Complainant’s husband died on road accident on 26.10.2013 and thereby Charge sheet is hereby issued. Ex.B1 is the details of the Policy No.56-0000-02 which shows that the only accident death benefits are entertained. The Policy schedule mentioned along with Ex.B1 reveals that the claim settlement under this Policy will be clear within 30 days from the date of receipt of necessary documents. Annexure-A of the Ex.B1 reveals that the policy basis is unnamed and for accidental death coverage, it covers for all. In insurer details it was mentioned as “home loan and car loan borrowers only cover”. The terms and conditions of the Group Personal Accident Insurance Policy is also enclosed along with Ex.B1. In the policy conditions, the renewal conditions are defined as “The policy may be renewed with our consent by the payment in advance of the total premium specified by us, which premium shall be provided. In terms and conditions, clause No.4 in the expiration date under clause No.2, it was mentioned as “we may cancel this policy at any time by giving you fifteen days notice delivered to you or “mailed to your last address as shown by our records,” stating when such cancellation shall be effective. Such cancellation will be on grounds of mis-representation, fraud, non-disclosure of material facts or non-cooperation of the insured. In the event of such cancellation, pro-rata unearned portion of any premium will be returned. If you cancel the policy, the earned premium shall be computed in accordance with our short rate table for the period the Policy has been in force, provided no claim has occurred upto the date of cancellation.
22. Ex.B2  is the undated proceedings for SBI Group Personal Accident Insurance to the Home and Car loans. The said proceedings defines as discontinuation of the power w.e.f. 1.7.2013. The Free Group Personal Accident Insurnace Cover (death only) for Home and Car loan customers has been distoninued on the expiry of current Master Policy on 01.07.2013. Ex.B1 is attested by the Chief Manager & Authorised Officer of the SBI i.e. Opposite Party No.3. Ex.B3 is the paper publication given in Eenadu newspaper dt.8.4.2013 in Page No.7. The said matter with regarding to the cancellatioin of the Free Personal Accident Policy (death) cases only will be withdrawn w.e.f. 1.7.2013. As per Notification given by the Opposite Parties bank the free Accident Policy scheme is withdrawn. Ex.B4 is the Intimation with regarding to the cancellation of the Free Group Personal Accident policy scheme in death case only w.e.f. 1.7.2013, as per the Notification given by the banks. Ex.B5 is the Intimation with regarding to the withdrawl of the Free Group Personal Accident Insurance cover for the home and car loan customers w.e.f. 1.7.2013 by way of notification and on bank’s website of the Ex.B3 to B5 intimation which given in general pattern as if it was a news to the general public. It is not mentioned as if it is a special notification given to the common public including the home and car loan customer. In Ex.B3 to B5 Paper Publication, it reveals that there is a “notification” of the bank in the website. Ex.B6 is the Certificate of Insurance, which is revealing about the coverage of policy stating “It is only valid for one year and Insurance coverage is a complementary and bank may cancel the same without any notice.  But in the Ex.B6 there is no endorsement of Branch Manager or any other higher official either to display in the notice board or it has been calculated to all Housing Loan customers indivudally. 
23. Except the Ex.B2 undated the proceedings attested by the Chief Manager, RACPC, Visakhapatnam. The Opposite Parties has not furnished the actual “notification” given by the banks for cancellation of the Free Accident Policy Scheme from 1.7.2013.
24. In the counter vide Para No.8, the Opposite Party stated that with regarding to the cancellation of the Free Accident Policy scheme it was affixed in the Notice Board of the bank at the branch including Steel Plant Branch i.e. in 2^nd Opposite Party premises and by way of publication in leading newspapers. In the Ex.A5 vide Para No.1 it is mentioned as the cancellation/withdrawl of the accidental policy coverage is mentioned in bank’s notice board. At the time of arguments when it was point out to the counsel for the Opposite Parties, that “with regarding to the filing of the endorsed copy of the final proceedings which was in the display of Notice Board of the bank, the counsel stated that the copy of the final proceedings for display in the Notice Board by the concerned Branch Manager is not filed and they have not followed that step. Even observing the entire documents of the both sides also except the Ex.A1 to A9 and Ex.B1 to B5 there is no official proceedings issued from the concerned Bank Manager of any other higher authorities with an endorsement to display in the Notice Boards. Even there is document to prove that not only to the complainant’s husband and also to other home loan borrowers also the Notice has been served and the said copy was furnished before this Forum. Here in this matter except the Ex.B6 and Ex.B2 undated endorsement document from 3^rd Opposite Party for withdrawing the accident coverage policy scheme along with the 3 Paper publications no document is furnished to show that notice was intimated to the Complainant’s husband with regarding to cancellation of the free accident policy. As seen from the terms and conditions of the Policy enclosed with the Ex.B1 i.e. “in Clause 4(ii) when the Opposite Parties are so cautious to cancel free accident policy condition No.15 days time with a notice delivered to the address of the customers and mailed address of the customers of the loan if there is fraud on part of the customers” when the Bank has taken so much precaution to cancel the pre accident policy when there is on fault on the part of the customer, the question arise that for the bank has not opted for issuing notice to the 1^st complainant’s husband Sri S.Venkata Rao and to other home and car loan customers while withdrawing the Policy. Observing the present issue in this matter, it seems the pre accident policy scheme which was withdrawn by the Opposite Parties w.e.f. 1.7.2013 is a crucial one. For that the bank might have taken utmost care to cancel the pre accident insurance policy scheme by way of sending personal notices and through the Email IDs to the persons who obtained home and car loans from the Opposite Party bank’s. Hence observing the act of the Opposite Parties in cancelling the Personal Accident Policy scheme w.e.f. 1.7.2013 without serving personal notices to the customers amounts to gross negligence on part of the bank’s. As per II (2005) CPJ 307 Delhi State Commission Sudha Gargia Vs Delhi Development Authority  it was held that due notice regarding deferred instalment published in newspaper not acceptable. However every Consumer has independent entity.
25. As per III (2002) CPJ 165 UP State Commission, Canbank Financial Services Ltd., Vs Dr.Nar Singh Narain Sharma & ors, it was held that mere publication is not sufficient, notice should have been given to the unit holders.
26. As per II 2001 PJ 419  of Gujarat State Commission, Post Master, Thaltej Road Post Office & Anr Vs. Patel Hasmukhbhai Govindbhai it was held that the cheques issued by the Complainant in favour of Builders dishonoured. Negligence in performance of banking service by opponents established. Contention, clearance of such service offered free of charge and the opponents and jointly and severally liable to pay damages along with interest. As per I (2001) CPJ 443 of Delhi State Commission, L.R.Gupta & anr Vs. Singapore Airlines Ltd., wherein while deciding the case related to the facility of wheel chair is provided free of charge, it was held that as the consideration was already paid was also included in the broad definition of the consumer who had hired the services. The post consideration of any consideration is consideration for service which consumer hires or avails. In the case of III (1999) CPJ 15 SC Delhi Electric Supply Undertaking Vs Basanti Devi & Anr, it was held that under agreement between the appellant and the LIC, the premium was payable to the appellant to be deducted from the employees under salary savings scheme. There is a valid payment of the premium by the deceased employee. The appellant DESU, agent of the LIC were collecting premium on its behalf. It was fault of the agent of the LIC i.e. DESU (Appellant) in not remitting premium in time. LIC wrongly discharges of its liability under Insurance Policy taken by the widow of the deceased could not be deprived of her right.
27. Here observing the principle of the Case Law III (1999) CPJ 15 SC and the contention of the Opposite Parties that the Free Accident Policy scheme was withdrawn by the Opposite Parties w.e.f. 1.7.2013 by giving paper publications in newspaper and by way of Ex.B2 proceedings, when the intimation was not given to the 1^st complainant’s husband Sri S.Venkata Rao for cancelling the Insurance policy scheme, observing the principles of case law II (2005) CPJ 307 & III (2002) CPJ 165 (referred in para 24, 25 supra), we are of conclusive opinion that the widow of the deceased S.Venkata Rao i.e. the 1^st complainant and the father of 2^nd & 3^rd complainants cannot be deprived of their rights for claiming the free accident insurance policy from the Opposite Parties.
28. The provisions of Sec.2(1)(r) and Cl=1(vi), 7(i)(ii), ix and x and Explanation of Cl.X of 2(1)(r)(i) of unfair trade practice defines as follows: Any deceptive practice including any of the following practices, falsely represents that the goods are of a particular standard, quality, quantity or grade. Sec.2(1)(r) Cl.1(vi) “makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;   Sec.2(1)(r) vii Cl (i) “a warranty or guarantee of a product or of any goods; or services”; Sec.2(1)(r)vii Cl(ii) “a promise to replace, maintain or repair an article or any part thereof or to repeat or continue the service until it has achieved a specified result; Sec.2(1)(r)(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided. Sec.2(1)(r)(i)(x) “gives false or misleading facts disparaging the goods, services or trade of another person. Explanation: For the purpose of clause (1), a statement that is (a) expressed on an article offered or displayed for sale, or on its wrapper or container; or (b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; (c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public.  As seen from the policy condition mentioned in the Clause-7 of the Ex.A1 & A2 i.e. “personal accident insurance cover of New India Assurance Co. Ltd. - The loan is covered by Free Accident Insurance Policy and the insurance certificate issued by the bank to you should be preserved carefully for use in case of need. So observing Cl.7 of the Ex.A1 & A2 Loan agreement and the principles of Sec.2(1)(r) (mentioned above), though the Opposite Party has provided the insurance policy with free of charge, the Opposite Parties has to stick on for the said commitment and they cannot take back step at the later stage stating the policy is withdrawn. The issue of the liability under the free of charge  is also discussed detailed in III (1995) CPJ-1 (SC) Indian Medical Association Vs. V.P.Shantha’s case. That too the object of the C.P.Act, 1986 itself reveals that “the rights of the Consumers are to be protected and under Sec.3 of the Act there is Alternative Remedy for the Consumers to approach the Consumer Fora.
29. Observing the principles of Sec.2(1)(r) unfair trade practice, (referred in para 28) supra and the act of the Opposite Parties in not giving proper intimation to the complainant’s husband at the time of withdrawing the free accident policy and then letter on rejecting the claim of the complainant vide Ex.A5 & A6 amounts to unfair trade practice on part of the Opposite Parties 1 to 3.
30. As per Case law I (2013) CPJ 31(B) NC (CN) Indian Overseas Bank Vs. P.S.BAWA and another, it was held that Sec.3 of the C.P.Act is an alternative remedy to the Consumers and the C.P.Act shall be in addition to and not in derogation of the provisions of the other law for the time being in force. Here in this case on hand the claim under Sec.3 of the C.P.Act, it was held rights and liabilities created between Members and Management of Society under 1983 Act cannot exclude jurisdiction of the Consumer Fora and the complaint is maintainable. In the present matteras the Opposite Parties has provided Free Accident Insurance Policy scheme to the Complainant’s husband at the time of taking 2 loans for Rs.13,80,000/- (Rs.8,00,000 + Rs.5,80,000) and thereupon Free Accident Insurance Policy has been provided to him vide Policy No.56000002, which was admitted by the Opposite Parties vide Ex.B1. Ex.A1 & A2 also confronts that there is a Free Accident Insurance Policy for the complainant’s husband. That too the Opposite Parties are also admitted at the time of the arguments that they have not filed any case in any other Forum till date i.e. as on 2.4.2015.
31. As per Cl.7 of Ex.A1, A2 (2 Housing Loan agreements) there is coverage of “Free Personal Accident Policy” for the two loans which amounts to Rs.13,80,000/- and the certificate/bonds meant be preserved in case of claim. Ex.B6 does not reveals that, it was served to the any of the Housing Loan Customers or to deceased Surisetty Venkata Rao.At the time of arguments, the Opposite Parties’ counsel stated that, the Complainants has not filed the “Certificate/Bond” of the Free Personal Accident Policy. But at the same time Opposite Parties’ are admitting the Ex.A1 and A2, the Complainants stated that, no Policy Bond was given to the said 2 Housing Loans (for Rs.8,00,000/- + Rs.5,80,000/-) to deceased Surisetty Venkata Rao i.e. Husband of 1^st Complainant & father of 2^nd and 3^rd Complainant. As the Opposite Parties are admitting the Ex.A1 and Ex.A2 Loan Agreements, there is no necessity to enclose the Certificate of the Free Personal Accident Policy (mentioned in Ex.A1 & A2). The Complainants can claim the amount Rs.13,80,000/- from the Opposite Parties’ as per Ex.A1 and A2 Loan agreements as Surisetty Venkata Rao died in Accident on 26.10.2013 confronted by Ex.A9 & A8. Observing clause-4 of Ex.B1, when the opposite parties are taking so much care for cancellation of policy in case of fraud by serving personal letters.Why the opposite parties has not taken proper care and due process at the time of cancelling the Free Personal Accident Policy w.e.f. 01.07.2013.
32. As seen from very recent news in Eenadu Newspaper dt.11.4.2015 “it reveals that the A.P.Chief Minister took decision to serve personal letters to each and every farmer regarding “waiver of crop loans”. Though the Forum cannot rely upon the news dt.11.4.2015, observing the principles of case laws (1) II (2005) CPJ 307 Delhi SC (2) III (2002) CPJ 165 (UP SC), referred in Para 24 and 25 supra we are of opinion that the Opposite Parties has to follow the due process of serving personal letters/notices to each and every Housing Loan customers (including Surisetty Venkat Rao) to reveal the fact that the Free Personal Accident Policy is withdrawn or cancelled. When it was not communicated individually by way of letters Opposite Parties cannot rely on their stand that the Free Personal Accident Policy has been withdrawn full pledgely by following all the due process. The Opposite Parties cannot rely upon the Ex.B3 to B5 publications that too viewing Ex.B2 it is not in the form of a Notification and there is no date mentioned on it. So we feel that Ex.B2 to B6 are not valid, unless due process for cancelling the policy has to be followed.
33. Hence as the Opposite Parties has not followed the due process for cancelling the Free Accident Insurance Policy scheme and cancelled the said scheme with effect from 1.7.2013 without issuing notices to the Complainant’s husband confronted by the principles of case law II (2005) CPJ 2007, III (2002) CPJ 165 we are of conclusive opinion that there is negligence, deficiency of service and unfair trade practice on part of the Opposite Parties for rejecting the claim of the Complainants. Accordingly Point No.2 is answered.
34. Point No.3: As we have confronted that there is deficiency of service and unfair trade practice and negligence on part of the Opposite Parties for rejecting the claim of the 1^st complainant stating that the Free Accident Policy insurance scheme was cancelled w.e.f. 1.7.2013 without issuing proper notices to the complainant, in the light of the facts and circumstances along with documents furnished by both parties, we hold that the complainants’ 1 to 3 are entitled for the relief of adjusting of the Rs.13,80,000/- for the two housing loans No. 30943528741 and 30943529201 obtained by Sri S.Venkata Rao i.e. 1^st complainant’s husband and father of 2^nd & 3^rd Complainants.
35. As the main C.C. is disposed of on merits the I.A. 241/2014 filed by the Petitioner is accordingly closed.
36. In this matter the Complainants requested the Forum to adjust the Rs.13,80,000/- amount to the two loans obtained by deceased S.Venkata Rao and to return the balance amount along with interest. Observing Ex.A7 dt.24.07.2014 Notice given to the Complainants 1 to 3 for payment of Rs.12,51,920/- it was due as on 30.04.2014 for the two loans obtained by deceased S.Venkata Rao, we are of opinion that as on till date of passing the order the interest for the amount which was due as on 30.04.2013 might be increased. So we hold that the only remedy available to the Complainants 1 to 3 is direction has to be given to the Opposite Parties to adjust the amount of Rs.13,80,000/- to the two housing loans obtained by deceased S.Venkata Rao vide 30943528741 and 30943529201. After adjusting the said amount, opposite parties have to give No Due Certificate to the complainants 1 to 3. The case law filed by the Opposite Parties, C.C.No.10/09 between M/s.Subhajit Kaur Siddu Vs Citi Bank and 2 others which is related to the Insurance claim wherein in the said case as the code of Citi Bank Maestro Platinum card is valid only till June 2006, it was held that the complainants are not entitled for any compensation and the complaint is dismissed without any costs. Observing the principle of that of the aforementioned case filed by the Opposite Parties along with the case law II (2005) CPJ 307, III (2002) CPJ 165 and the Ex.B2, B3 to B5 (Paper Publications) as the Opposite Parties has not followed due process for intimation about the withdrawal of the free accident policy scheme to the complainant’s husband i.e. deceased Sri S.Venkata Rao as on 1.7.2013, the Opposite Parties cannot rely upon the case law in CC 10/09. Viewing the facts and circumstances of the case, we are of opinion that the Complainants 1 to 3 are not entitled for the compensation and only entitled for costs for legal expenditure of Rs.15,000/-.
37. Viewing Section-14(1)(f) of C.P.Act 1986 and viewing the facts and circumstances on perusal of record of both sides, we feel that, it is necessary to direct the opposite parties to issue personal notices to the customers who availed loans either Home or car loans in future, in case of any cancellation or any modifications to curtail the future complications and liabilities.                           Accordingly, Point No.3 is answered.
38. In the result, the Complaint is allowed in part.The Opposite parties 1 to 3 are directed (1) to prepare an update detailed Statement regarding the two Housing Loans 30943528741 and 30943529201 pertaining to deceased Surisetty Venkat Rao. Thereafter the Opposite Parties has to adjust the Free Personal Accident Policy benefit of Rs.13,80,000/- (Rs.8,00,000/- + Rs.5,80,000/-) (Rupees Thirteen lakhs eighty thousand) to the two housing loans and shall give ‘No Due Certificate’ to Complainants 1 to 3.(2) The opposite parties 1 to 3 are also jointly and severally liable to pay Rs.15,000/- (Rupees Fifteen thousand) to the complainants 1 to 3 towards legal expenditure.(3) Under Sec.14(1)(f) the Opposite Parties 1 to 3 are directed to serve personal notices to the customers who availed car and home loans in case there is any modification or any cancellation in terms and conditions of the scheme, to avoid future consequences and liabilities. Time for compliance is 30 days from the date of receipt of this Order.                     Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum on this the 20^th day of April, 2015.

Sd/-                                                             Sd/-

President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                              Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:        

      Sd/-                                                              Sd/-

President (FAC)                                                        Member                               

                                                                   District Consumer Forum – I,

                                                                              Visakhapatnam

//GLR//