IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 FAO.No. 106 of 2009() --------------------- OPP.6/2006 of SUB COURT,KOTTARAKKARA .................... APPELLANT/PLAINTIFF --------------------------------------- RAGHAVAN, AGED 57, S/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. BY ADV. SRI.P.HARIDAS RESPONDENT(S): RESPONDENTS -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, AYOOR. 3. SUB ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, AYOOR. 4. SHAJI, CONTRACTOR, PATHIVEL COMPANY, CHADAYAMANGALAM. 5. RAMACHANDRAN, SUB CONTRACTOR, PATHIVEL COMPANY, CHADAYAMANGALAM. 6. SANTHA, AGED 55, W/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. FAO 106/09 -2- 7. ANIL KUMAR, AGED 30, S/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. 8. AJITHA, AGED 28, D/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. 9. AJAYAN, AGED 26, S/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. 10. ANITHA, AGED 22, S/O. VELUMBAN, ARATTUKADAVIL MELATHIL, MUTHUPILAKKADU P.O., SASTHAMCOTTA VILLAGE. ADV. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON 24.7.2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.106 OF 2009 -------------------------------------------------------- Dated 24th July 2009 Judgment BHAVADASAN, J. The parents of Ajesh, who was electrocuted while doing the work of shifting the electric line, have instituted the suit before the Sub Court, Kottarakkara for compensation. The compensation claimed was Rs.5 lakhs. The court fee directed to be paid was Rs.48,000/-. The appellants pointed out that they had no means to pay the court fee and hence they may be permitted to institute the suit as indigent persons. A petition to that effect was filed. Notice was served on respondents 1, 2, 3 and 5. Later, the 4th respondent was also served. The case was posted to 28.11.2008. On that day, there was no response from the respondents. They were set ex parte and the matter was posted on the next day i.e., 29.11.2008. FAO 106/09 2 2. It is claimed by the appellants that their counsel informed the court that it was virtually impossible to inform his clients about the posting of the case on the next day because they were residing in a far away place. The learned counsel also filed a petition praying for adjournment of the case, but that was dismissed. On 18.12.2008, a review petition was filed and notice was ordered. On 03.03.2009, the review petition was dismissed for default in taking steps to have the summons issued to the respondents. Based on the said order, OP (Papur) No.6/06 was also dismissed. The plaintiffs were directed to pay the court fee. The said order is challenged in this appeal. 3. The plaintiffs before the court below had pointed out that they were unable to pay the court fee and they did not have the capacity to raise any funds. There was no defect in the petition filed by them and it is seen from the records that notice had been served on almost all the respondents. It is specifically pointed out that the learned counsel for the plaintiffs had prayed FAO 106/09 3 for adjournment of the case on the ground that the time available was too short to inform the plaintiffs. The prayer for adjournment of the case was refused. There was nothing to indicate that the plaintiffs were trying to protract the matter under one pretext or the other. They do not stand to gain by simply dragging on the proceedings. It is to be noted that the suit is one for damages consequent on the death of the son of the appellants due to electric shock. The plaintiffs should have been given an opportunity to adduce evidence to establish their claim for informa pauperis. It may also be noticed that the Government had not filed any report showing that the plaintiffs have assets from which they can generate funds. 4. Considering the above facts, it is felt that an opportunity ought to have been given to the plaintiffs to establish that they have no means to pay the court fee and they are entitled to institute the suit as indigent persons. In the result, this appeal is allowed. The impugned order is set aside. The court below is directed to dispose of the OP (Papur) No.6/06 of the Sub Court, FAO 106/09 4 Kottarakkara, after giving an opportunity to the appellants to adduce evidence in accordance with law and in the light of what has been stated herein above. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 106/09 5