IMPORTANT POINT
In the event of complaint being dismissed for default, provisions of Order 9, Rule 9 C.P.C. can be invoked by State Commission to restore complaint.

Dr. D.P. Choudhury, J.—Challenge has been made to the order dated 5.7.2011 passed by the State Consumer Disputes Redressal Commission, Odisha, Cuttack (in short “the State Commission”) in Consumer Complaint No. 09 of 2008.

Facts:

2. The factual matrix leading to the petitioner’s case is that the petitioner has got a factory at Chandaka Industrial Estate, Bhubaneswar in the name and style of M/s. Jaya Foods. The petitioner had two insurance policies under New India Assurance Company Limited, opposite party No. 2 and it was effective from 7.3.2007 to 6.3.2008. It is averred that on 18.4.2007 night, there was a fire accident in the factory for which the petitioner claimed damages of plant and machineries to the tune of Rs. 16,56,650 but the surveyor of the Insurance Company made assessment for Rs. 1,57,000. So, the petitioner filed Consumer Complaint No. 09/2008 before the opposite party No. 1 claiming the aforesaid loss along with loss of interest, compensation towards loss sustained for payment of interest, compensation towards payment of salary and other components making total Rs. 27,18,650 payable by the opposite parties 2 and 3.

3. It is also averred that during pendency of Consumer Complaint No. 09/2008, the petitioner filed Misc. Case No. 386/2010 for amendment of the complaint petition which was allowed on 13.4.2010. Another misc. case, i.e., Misc. Case No. 385/2010 came to be filed by petitioner with a prayer to direct the opposite party No. 2 therein not to take any coercive action against the petitioner till disposal of the said consumer complaint case. Be it stated, Misc. Case No. 385/2010 was fixed to 5.7.2011 to be heard in presence of the learned Counsel appearing for the complainant since the learned Counsel for the complainant remained absent on the last date. This misc. case was actually listed on 5.7.2011 under the heading “Orders”. On that date, learned Counsel for the complainant remained absent for which it was dismissed for default. On the same day, the State Commission also dismissed the main consumer complaint which is allegedly illegal. It is averred inter alia that the complainant was not given a notice about the hearing of the main consumer complaint case for which he could not take appropriate steps and the State Commission had committed gross error by dismissing the main consumer complaint case. As such the principles of natural justice has been violated in the instant case as the complainant was not given due opportunity of hearing in the main consumer complaint case, of bemg heard. So, the writ petition came to be filed to quash the order dated 5.7.2011 passed in main Consumer Complaint No. 09/2008.

Submissions:

4. It is submitted by Mr. Bibekananda Nayak, learned Counsel for the petitioner that the State Commission had committed error by dismissing the main Consumer Complaint No. 09/2008 by not following the procedure of law, inasmuch as, Regulation 6 of the Consumer Protection Regulations, 2005 (hereinafter called as “the Regulations, 2005”) duly framed by the National Consumer Disputes Redressal Commission with the previous approval of the Central Government, states, that the cause list of the Consumer Forum for the entire week shall be made ready before the closure of the working hours of the preceding week and displayed on the notice board and accordingly the cause list in the present case does not display about the fixing of the present matter for final disposal. He further submitted that when the learned Counsel for the petitioner was not present, the State Commission ought to have given notice to the petitioner to get ready for hearing of the main consumer complaint case.

5. Mr. Nayak, learned Counsel for the petitioner further submitted that when the misc. case was posted for hearing under “Orders”, the State Commission has committed error by dismissing the main consumer complaint case along with the misc. case. In support of his submission, he has filed the certified copy of the cause