Sani Abraham v. Registrar, University of Kerala; Controller of Examinations, University of Kerala; Sri James Alexander; Dr. Muhammed Ismail Jinnah

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **RFA.No.663 OF 2007** **AGAINST THE JUDGMENT AND DECREE IN OS 8/2006 OF ADDITIONAL SUB COURT, ALAPPUZHA** ## **APPELLANT/PLAINTIFF:** **SANI ABRAHAM, AGED 28 YEARS, D/O LATE ABRAHAM, RESIDING AT CHULLIKKAL HOUSE, ARATTUVAZHY WARD, ALAPPUZHA.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENTS/DEFENDANTSS:** - **1 THE REGISTRAR,UNIVERSITY OF KERALA UNIVERSITY OFFICE, THIRUVANANTHAPURAM.** - **2 THE CONTROLLER OF EXAMINATIONS UNIVERSITY OF KERALA, THIRUVANANTHAPURAM.** - **3 SRI. JAMES ALEXANDER LECTURER (SELECTION GRADE), MAR IVANIOS COLLEGE, THIRUVANANTHAPURAM.** - **4 DR. MUHAMMED ISMAIL JINNAH PROFESSOR, DEPARTMENT OF MATHEMATICS, UNIVERSITY OF KERALA, KARIAVATTOM.** - **R1 BY ADV. SMT.SUSHYA RAJAN** - **R1 BY ADV. SRI.GEORGE POONTHOTTAM SC KERALA UTY. R1-2 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R1-2 BY SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. R3-4 BY ADV. SRI.P.K.MANOJKUMAR R3-4 BY ADV. SRI.N.NANDAKUMARA MENON SR.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-022020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 663/07 2 ## **JUDGMENT** The plaintiff in O.S.No.8/2006, on the files of the Additional Sub Court, Alappuzha, has filed this appeal, impugning the judgment of the Trial Court, to the extent to which it has limited compensation awarded to her at Rs.30,000/-, though she had sought Rs.3 lakhs in the plaint. 2. According to the Sri.S.Sanal Kumar, the learned counsel appearing for the appellant, no reasons have been stated by the Trial Court in awarding a rather exiguous amount of Rs.30,000/-, against the claim for Rs.3 lakhs, which in fact, had been limited to such figure from the original claim of Rs.25 lakhs on account of the inability of the appellant to pay Court Fee on it; and that, the said Court appears to have fixed the compensation at this figure merely stating that 'only a guess work is possible'. RFA 663/07 3 3. Sri.Sanal Kumar, then submits that, pertinently, in a case presenting similar, if not identical, circumstances and factual factors, which was decided by a Division Bench of this Court as early as in the year 1991, namely **University of Kerala v. Sandhya P. Pai [1991 (1) KLT 812],** it has been held that the awarded compensation amount of Rs.36,376/-, against a claim of Rs.1,01,434/- was “ridiculously low”, though the Bench did not interfere with it in the said judgment because the plaintiff therein had not appealed against it. Sri.Sanal Kumar, says that going by the ratio in the afore judgment, the amount of compensation that ought to have been granted to his client should have been much more than the figure now fixed by the Trial Court, particularly because in **Sandhya P. Pai** _(supra),_ the petitioner had approached the Court on account of the delay in revaluation RFA 663/07 4 of her answer papers; while in this case, the appellant had to approach this Court by filing O.P.No.11240/2003 and subsequently, to approach a Division Bench of this Court in W.A.No.884/2003, so as to have her answer sheets revalued. 4. Sri.Sanal Kumar, thus contends that the amount of compensation now fixed by the Trial Court is shockingly disproportionate to the agony and the mental stress suffered by his client, which has been fully recognized by the said Court. He consequently prays that the impugned judgment and decree of the Trial Court, to the extent to which it grants only Rs.30,000/- as compensation, be set aside and that the plaint claim of Rs.3 lakhs be awarded. 5. Sri.Thomas Abraham, learned Standing Counsel appearing for the University of Kerala, submits that the compensation now ordered by RFA 663/07 5 the Trial Court cannot be found to be in error because the admitted fact remains that the appellant, after having been declared passed in the examination in the year 2003-consequent to the revaluation of her papers-did not even apply for or obtain her Degree Certificate of the said examination. He says that, therefore, the lapse of one year or more in declaring the revaluation results - after the original results had been published, as per which, she was declared failed - would be of little consequence since, even after she was declared to have been passed, she has chosen not to even apply for her degree certificate, thus indicating that she had no use for the same. He thus prays that this appeal be dismissed. 6. Sri.N.Nandakumara Menon, learned Senior Counsel, instructed by Smt.S.Smitha, appearing on behalf of respondents 3 and 4, submits that his clients, who are the original valuers of RFA 663/07 6 the papers of the appellant, have been found by the Trial Court not to be responsible for the agony caused to the appellant, since they had valued the same strictly as per the instructions given to them by the 2[nd] defendant. He says that the Trial Court has found that it was the office of the 2[nd] defendant, namely, the Controller of Examinations of the University of Kerala, which had mixed up the answer papers and therefore, that the valuers are not responsible. He prays that these findings of the Trial Court may not be disturbed. 7. When I examine the afore contentions and evaluate the various materials and evidence on record, I must upfront record that the Trial Court has decided the question of compensation in paragraph 16 of the judgment in merely three sentences as below: There are no data available to fix quantum of damages. Only a guess work is possible. I fix the quantum of compensation at Rs.30,000-. The RFA 663/07 7 compensation has to be paid by the University, i.e., defendants 1 and 2. issues are answered accordingly. 8. As is thus ineluctable, the Trial Court merely took a ballpark figure as compensation, without really assessing the nature of the claim of the appellant. This is crucial because the appellant specifically asserts that had her papers not been mixed up, as has been admitted by the defendants, then she would have been declared passed in March 2002. However, since she says she was confident that her papers may not have been valued properly, she was constrained to approach this Court-initially by filing O.P.No.11240/2003-which was, however, dismissed for the reason there was no provision for evaluation; thus forcing her to file an appeal against the same, which was numbered as W.A.No.884/03, in which, certain interim orders were issued directing the University to revalue her papers, thus enabling her to obtain results RFA 663/07 8 in the manner that she originally expected. She asserts that, as is evident from Ext.A2, which is the judgment in the said Writ Appeal, liberty was also granted to her to seek appropriate legal action against the University and the officials to claim damages and compensation for the loss, if any, suffered by her. 9. The learned counsel for the appellant, Sri.Sanal Kumar, thus contends that the fact that his client lost a year - because admittedly her re-evaluated results were published only a year later – would ipso facto establish that she has suffered agony and mental stress for at least that period and that her life was altered irreparably on account of this. He says that, therefore, by no stretch of imagination can the impugned judgment be sustained, to the extent to which the Trial Court has fixed a small amount of Rs.30,000/- RFA 663/07 9 as damages, which he says, would not even be commensurate to the effort taken by her to have her papers re-evaluated by approaching this Court at least twice. He thus reiteratingly prays that this appeal be allowed. 9. When one examines the impugned judgment and decree, which has been accepted by the University, there can be no doubt that all issues have been found in favour of the appellant; and obviously, therefore, the only germane question in this appeal is as to the quantum of compensation and nothing else. 10. As rightly cited by Sri.Sanal Kumar, in **Sandhya P Pai** (supra), a learned Division Bench of this Court has found that the award of compensation of Rs.36,376/- in the year 1991 was 'ridiculously low'. The facts involved in **Sandhya P Pai** (supra) are more or less similar to the facts involved in this case, except that the appellant herein had to move an extra mile RFA 663/07 10 to have her papers re-evaluated, by approaching this Court at least twice. Obviously, therefore, the compensation now awarded by the Trial Court cannot be found to be equitable or justified, particularly when the impugned judgment has been delivered a decade after ## **Sandhya P Pai** (supra). 11. The principles governing compensation are now well settled through a catena of judgments of this Court and that of the Hon'ble Supreme Court. In fact, most of such principles have been succinctly stated in **Sandhya P Pai** (supra). The observations of the learned Division Bench on this aspect is available in paragraph 16 of the said judgment, which makes very interesting reading and is, therefore, extracted as under: 16. It is unnecessary in this case to launch on a discussion about the origin, growth and flourishing of the great Universities from early times. Nor is it necessary even to sketch their position in modern India. An effort was made in India, in early days, 'to raise the standard of RFA 663/07 11 higher education'. The first five Universities of Culcutta, Madras, Bombay, Lahore and Allahabad undertook instruction and supervision as well as examination. The senates of the Universities of the early days took in 'High Court Judges, Bishops, Members of Executive Counsels, the Provincial Directors of Public Instruction and Professors of Government and missionary colleges. (See 'The New Spirit in India' by Henry W. Nevinson, pages 4 & 5). It is not without reason that a University is thought about us 'a place of light of liberty and of learning'. (See the Governance of England by Sioney Low, page 146). Time was when the University and its academic bodies had received the greatest of respect from cords. (See University of Mysore v. Govinda Rao, AIR 1965 S.C.491). The large number of cases in which the Courts have been forced to interfere even in matters of academic character, is a sad but striking feature of the current functioning of many of the Universities. The disinclination of a Court to disturb the normal functioning of these institutions of learning, cannot dissuade the Court from meting out justice to a student who had suffered much. In our administration set up, the University is a constitutional instrumentality and the state coming within Article 14 of the Constitution. It cannot act arbitrarily, unfairly or unreasonably. A citizen injured by a neglect on the part of such a statutory instrumentality would be entitled to be indemnified in respect of damages sustained by it. Old notions about cases where no duty of care was found to be owed by a University (as in Thorne v. University of London,(1966)2 Q.B.237 and Sammy v. Birkbeck College, The Times, May 20, 1965) cannot then be invoked to disown liability of the University. No RFA 663/07 12 such attempt was made in the present case. The two decisions were not relied on by the University. It is also doubtful whether the summary of the legal position on this aspect as given by Charlesworth on Negligence 7[th] Edition, para 2-13a;Page 31, is very precise). In the present case, there is a positive representation by the University under Ext.B2 of its obligation in supplying the revalued marks within a normal period of 45 days. That is yet another ground for distinguishing cases in which no such a representation had been made to the student community. 12. After saying as afore, the learned Division Bench made their observations regarding the compensation in paragraph 18 of the judgment which is extracted as under: 18. On the question of quantum of compensation, the Court below, if at all, has erred in favour of the University. The award as appeared to be ridiculously low. However, as there is no appeal by the student, it is necessary for us to go into the details of claims. 13. The learned Division Bench, thereafter, went on to record that the damages granted by the Trial Court was not excessive because the student chose not to challenge it. I am, therefore, certain that had a challenge been launched by the student against the quantum of RFA 663/07 13 damages awarded at that time, the learned Division Bench would have enhanced the said amount to at least three times, going by the various other observations in the judgment, including those which are extracted as afore. 14. In the afore scenario, when I see that the Trial Court has only granted Rs.30,000/- in this case and that too nearly 12 years after **Sandhya P Pai** (supra), I am certain that the said amount cannot obtain the imprimatur of this Court. Even though I am certain that the claim made by the appellant in her plaint is justified, taking note of the circumstances and the lapse of time, I am of the view that the requirements of justice will be satisfied if compensation is enhanced to Rs.1 Lakh. This amount, along with the interest accrued, would certainly provide sufficient succour to the appellant and I am certain in my opinion that this Court will be justified in ordering this RFA 663/07 14 appeal on such terms. Resultantly, this appeal is allowed to the extent of enhancing the compensation awarded by the Trial Court from Rs.30,000/- to Rs.1 Lakh; but confirming all other conclusions and findings therein, including the rate of interest. In the result, the suit is decreed, allowing the plaintiff/appellant herein to recover an amount of Rs.1 Lakh, along with interest at the rate of 6% per annum from the date of suit till the date of realisation, along with the costs throughout, from the defendants 1 and 2. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE**