IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 AS.No. 406 of 1997() -------------------------- OS.50/1993 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S): -------------------- A.SUDERSANA KUMAR, S/o ANIRUDHAN, PUTHUVAL VEETTIL, VANDANAM MURI, PUNNAPRA VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.R.VENKITESH RESPONDENT(S): ------------------------ 1) KERALA STATE , REP.BY THE SECRETARY, EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2) THE SECRETARY, BOARD OF PUBLIC EXAMINATION, THIRUVANANTHAPURAM, KERALA. 3) COMMISSIONER FOR GOVERNMENT EAXAMINATION, POOJAPPURA. 4) HEADMISTRESS, KAKKZHAM HIGH SCHOOL, ALAPPUZHA. GOVERNMENT PLEADER SRI.SHYRON P.MANKUZHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No. 406 of 1997 ------------------------------------------- Dated this the 18th day of June, 2009 JUDGMENT This is an appeal filed against the judgment and decree of the Additional Sub Judge, Alappuzha in O.S.No.50 of 1993. The suit was filed by the appellant/plaintiff for the recovery of damages. The suit has been dismissed by the court below and the said judgment and decree are under challenge before me. 2. The plaintiff was a student of Kakkazham High School in 1983-1986. The fourth defendant is the Headmaster of the school. According to the plaintiff, along with his studies, the plaintiff was keeping high standards in extra curricular activities and was participating in the District Foot Ball Junior and Senior Championships from 1986 onwards. He appeared for the SSLC examination of March 1991 and deposited the examination fee for Groups A & B. On 26.2.1991, the third defendant, the Commissioner of Government Examinations sent an urgent letter to the fourth defendant - Headmaster informing her that PFC A.S.No.406/1997 2 Certificate No.76, Sudersana Kumar.A of her school had passed his 'B' Group and that he would be allowed to appear for A-Group only and the fourth defendant accordingly passed on this information to the plaintiff. Immediately, the plaintiff went to the office of the third defendant at Thiruvananthapuram and made enquiries. He was informed that since he was a sports star, he had passed 'B' Group and so, he needed to write only 'A' Group. Though the plaintiff had remitted fees for both A & B Groups, in the admission ticket issued to him on 7.3.1991, he was allowed to appear for only 'A' Group. Though he was prepared to appear for 'B' Group also, he was not allowed to appear for the said group. When the results came, the plaintiff passed 'A' Group, but, his SSLC book was returned with the remark 'failed'. The SSLC book is signed by the second defendant. The plaintiff then made enquiries in the office of the third defendant. He was then informed that if he wanted, he could write the examination again and he could pass. If he went to court, he would never pass the SSLC examination, he is alleged to have been told. It was due to the carelessness and negligence on the part of the defendants that he could not write his SSLC examination in March 1991. A.S.No.406/1997 3 Consequently, he lost one year of his studies and there was uncertainty for his higher studies and consequently for his employment. As a result of the gross negligence of the defendants, the plaintiff and his parents sustained mental agony and loss of reputation. He also had to incur additional expenditure for travelling to Thiruvananthapuram for making enquiries at the third defendant's office. Therefore, he claimed an amount of Rs.50,000/- as compensation for his financial loss. On 28.6.1991, the plaintiff sent a notice demanding compensation. But, nothing was paid. 3. The suit was contested by defendants 1 to 3. The fourth defendant remained exparte. According to him, the enquiries made by the first defendant and the report of the fourth defendant revealed that the plaintiff was not a smart student and that he had not shown any significant talents in his extra curricular activities. The plaintiff had appeared for the SSLC examinations for the first time in 1986. Thereafter, till March 1991, the plaintiff appeared only for four examinations and in all the examinations, he got only very low marks. The plaintiff was not a member of the Foot Ball Team or Coaching Camp of the school during his A.S.No.406/1997 4 school days. There is no evidence to show that he has absented during his school days or that he had sustained injuries while playing. By an over sight, a letter was sent to the fourth defendant for clarification. The fourth defendant was bound to reply to the letter on the same day itself. But, no reply was given. The statement that the plaintiff had contacted the office of the third defendant was denied. The plaintiff, who was aware that he had not passed the 'B' Group, purposefully failed to contact the office of the third defendant or to get the mistake corrected. When the mistake was detected, the plaintiff was told that if he submits an application, he would be permitted to appear for the next examination without remitting the examination fee. But the plaintiff insisted that it must be declared that he had passed his 'B' Group. Though the enquiry officer had asked the plaintiff to appear before him, he did not appear. There was no carelessness or negligence on the part of the defendants. Therefore, they disputed the claim of the plaintiff and prayed for dismissal of the suit. 4. The evidence in the case consists of Exts.A1 to A12 documents, the oral testimonies of PW1 and DW1 and Exts.B1 A.S.No.406/1997 5 (a) to B1(c) documents. The court below framed four issues and the trial was on the said issues. After a careful consideration of the evidence on record, the court found that the plaintiff was not entitled to got any amount as compensation from the defendants. Therefore, the suit was dismissed. This appeal is filed challenging the said judgment and decree. 5. I have heard the learned counsel for the appellant and the learned Government Pleader who appears for the respondents. 6. The only point that arises for consideration is: Whether the appellant is entitled to recover any amount as compensation from the respondents? 7. According to the appellant, he had remitted the examination fees for both 'A & B' Groups of the SSLC examination of March 1991. However, as per Ext.A1 letter, the fourth respondent/defendant is alleged to have been informed that he had passed his 'B' Group examination and that he would be allowed to write only his 'A' Group. Ext.A1 is dated 26.2.1991. A reading of the letter would show that it is a letter seeking A.S.No.406/1997 6 clarification regarding the query contained therein. The fourth respondent is directed either to clarify the position or to rectify the mistake and to report compliance. There is no evidence to show what action the fourth respondent had taken in the matter. However, it is on record that the information was passed on to the plaintiff. It was the duty of the plaintiff to bring the matter to the notice of the third respondent and to inform the said authority that he had not actually passed his 'B' Group. Though the appellant has contended that he had contacted the office of the third respondent, but that the third respondent's office informed him that he had passed his 'B' Group, since he was a sports man, there is no evidence to show that he had contacted the office of the third respondent, as alleged. According to him, he was informed by the third respondent's office that he had passed the 'B' Group, since he was a sports man. However, it is to be noted that he was not even a member of the school Foot Ball Team, when he was a student there. His certificates, Exts.A10 to A12 are for the period, 1989-1990, long after he had left the school. Ext.A2 Hall Ticket shows that the SSLC examination for the year 1991 commenced only on 30.3.1991. Therefore, if the A.S.No.406/1997 7 appellant was serious about appearing for his examinations, he had sufficient time to clarify the query in Ext.A1, dated 26.2.1991. However, nothing appears to have been done by the appellant to get the mistake rectified. 8. Ext.A3 SSLC book of the appellant shows that he had been appearing for the SSLC examination from March 1986 onwards and that he had failed in all his previous attempts. Page - 5 of the SSLC Book where his achievements in the field of sports, games and cultural activities are to be recorded, bears the entry 'Nil', which shows that he was not involved in any sports or games activities during the period that he was studying in the Kakkazham High School. Therefore, the case of the appellant that somebody from the third defendant's office had told him that he had passed his 'B' Group, since he was a sports man and that he believed the same, is unacceptable. It is clear that if he had been vigilant, he could have submitted the clarification that was sought in Ext.A1 and appeared for the examination in 1991. However, he kept silent without taking any action even after he received Ext.A3 admission ticket. Thereafter, he is blaming the authorities for the mistake. Since prompt action on the part of the A.S.No.406/1997 8 appellant could have rectified the mistake, the entire blame for the mistake cannot be put on the third and fourth defendants. Therefore, the court below is right in holding that in the totality of the facts and circumstances of the case, the appellant is not entitled to realise the compensation claimed, from the respondents. The claim of the plaintiff therefore fails and the court below was right in dismissing the suit. In view of the above, the appeal fails and is dismissed. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.406/1997 9 K.SURENDRA MOHAN JUDGE --------------------------------------- AS.NO.406 of 1997 --------------------------------------- JUDGMENT 18.06.2009