REJU THOMAS Vs. NATIONAL INSURANCE CO LIMITED

JUDGEMENT

(1.) Whether a Consumer Redressal Forum has power to restore a complaint which was dismissed for default, and if not, whether a petition under Article 226 or 227 of Constitution of India would lie, challenging the order dismissing an application filed for restoration of the complaint.

(2.) Petitioner filed a complaint before District Consumer Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It was dismissed for default on 18.5.2004. Petitioner filed I.A. 414 of 2004 (Ext.P2) to restore the complaint. In Ext.P2 petition, petitioner contended that he was ready to proceed with the complaint and had filed an affidavit in lieu of chief examination and on 18.5.2004 he was ready to give evidence and was instructed by his counsel to answer the roll call and inform the Forum that he is ready to give evidence but unfortunately due to his inexperience, he missed the roll call and only after arrival of the counsel at 12 a.m. when enquiries were made, it was realised that the complaint was dismissed for default. It was contended that this fact was brought to the notice of District Forum on the afternoon session and dismissal of the complaint was not due to his negligence or wilful laches and therefore it is to be restored. Under Ext.P3 order, the petition was dismissed for the reason that case of the petitioner that he was present in Court on 18.5.2004 and that fact was brought to the notice of the Forum cannot be accepted as the order sheet does not reflect the same and as no sufficient reason was shown to restore the complaint, complaint cannot be restored. This petition is filed under Articles 226 and 227 of Constitution of India to quash Ext.P3 order contending that as the dismissal was not due to the negligence or wilful laches on the part of the petitioner, District Consumer Redressal Forum should have restored the complaint and considered the complaint on merit, after affording opportunity to the petitioner and therefore the order is to be quashed and complaint is to be restored.

(3.) Learned Counsel appearing for petitioner and first respondent Insurance Company were heard.