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 realized 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 willful 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 Article 226 and 227 of Constitution of India to quash Ext.P3 order contending that as the dismissal was not due to the negligence or willful 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 compliant is to be restored.

3. Learned counsel appearing for petitioner and first respondent Insurance Company were heard.

4. Learned counsel appearing for petitioner argued that though there is no specific provision for restoration of a complaint dismissed for default, District Consumer Redressal Forum has inherent jurisdiction to restore a complaint dismissed for default. Reliance was placed on the decision of the Apex Court in New India Assurance Company Limited v. R. Srinivasan (AIR 2003 SCC 242). It was pointed out that in view of the conflicting decisions a subsequent Bench of the Apex Court, in Rajeev Hitendra Pathan & others v. Achyut Kashinath Karekar & another (2007 (7) SCC 667), referred the question to a larger Bench. The learned counsel argued that in view of the subsequent decision of the Supreme Court and the reference made to larger Bench, it is to be found that District Consumer Redressal Forum has jurisdiction to restore a complaint to file which was earlier dismissed for default. Learned counsel also argued that even if it is found that the petitioner could have challenged the order by filing an appeal or revision, as the writ petition was admitted and is pending before this Court from 2004 onwards, it may not be thrown out compelling petitioner to approach another Forum at this belated stage. Reliance was placed on the decision of the Apex Court in Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) and Thressiamma v. Union of India (1999 (2) KLT 683).

5. Learned counsel appearing for first respondent argued that when under amended Section 22A of Consumer Protection Act, the National Commission was given power to set aside an exparte order, such power was not given either to the State Commission or to the District Consumer Redressal Forum and therefore District Redressal Forum has no jurisdiction to set aside its own order, even if it is an order dismissing the complaint for default. Learned counsel pointed out that Section 15 of the Consum