IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 MACA.No. 1434 of 2006() ----------------------- OPMV.734/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S)/PETITIONER ---------------------------------- RAJALAKSHMI, W/O.GOPALAN NAIR, KUZHIKKATTIL HOUSE, MADAYIKONAM, MUKUNDAPURAM TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENT: --------------- 1. A.V.SURESH, S/O.VIJAYAN, ARUMPULLY HOUSE, KARALAM, THRISSUR DT. 2. SHAMEER, S/O.ABDUL RAHIMAN, ULLISSERY HOUSE, MOORKANAD, PORATHISSERY, THRISSUR DT. 3. THE MANAGER, UNITED INDIA INSURANCE CO., IRINJALAKUDA. 4. SRI.K.SIVAKUMAR, KARAPURATH HOUSE, 226/6, PALLISSERY P.O., ARATTUPUZHA, THRISSUR. 5. SRI.RAJAGOPALAN, S/O.GOPALAN NAIR, KUZHIKATTIL HOUSE, MADAYIKONAM, THRISSUR DT. 6. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. PERINCHERY BUILDINGS, ROUND NORTH, THRISSUR. ADV. SMT.T.C.SOWMIAVATHY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 1434 OF 2006 --------------------------------------------------------- Dated this the 12th day of November, 2008 JUDGMENT Ramachandran Nair, J. Appeal is filed against the order of the Motor Accidents Claims Tribunal, Irinjalakuda dismissing the claim petition filed by the appellant as abinitio void. We have heard counsel appearing for the appellant and Standing Counsel appearing for the Insurance Company. 2. The appellant suffered head injury in an accident which led to brain damage and instability of the mind leading to her resignation. The Motor Accidents Claims Tribunal, Irinjalakuda proceeded with the claim petition and relying on the medical evidence came to the conclusion that the appellant had completely turned a mental patient incapable of understanding what she is doing and consequently the claim petition was dismissed abinitio void. The appellant's husband though filed an M.A.C.A. NO.1434/2006 2 application to get himself impleaded to represent the appellant for prosecuting the claim petition, the same was also rejected on the ground that a petition found to be abinitio void cannot be corrected by amendment. We are unable to uphold the order of the Tribunal because the claim petition was filed through a counsel who obviously was satisfied that his client was in a position to understand and sign the claim petition. Even though medical evidence proved that the injury sustained by the appellant led to brain damage and she was unable to continue her employment in the office and had to resign does not mean that she was incapable of filing the claim petition. The appellant was not examined in court to prove that she was incapable of prosecuting the case. In any case, when the husband of the appellant filed an application to get himself impleaded in the petition, the Tribunal should have allowed the application as it is only a case of the claimant being unable to pursue the claim petition later through evidence. We, therefore, set aside the judgment in O.P.(MV) No.734 of 1999 and remand the case to the Tribunal for reconsideration. The Tribunal is directed to allow the claim petition to be continued by the husband of the appellant representing her. Since the matter is delayed for long, we direct M.A.C.A. NO.1434/2006 3 the Tribunal to take up the case out of turn and dispose of the same within a period of three months from the date of receipt of a copy of this judgment. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NO.1434/2006 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NO. 1434/2006 JUDGMENT 12th November, 2008 M.A.C.A. NO.1434/2006 5