Rajani Vijayan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** ## **WP(C) NO. 19079 OF 2022** ## **PETITIONERS:** - 1 RAJANI VIJAYAN,AGED 49 YEARS,W/O VIJAYAN, POCKIARTH HOUSE, 2B KESAVAM APARTMENT, ACHUTHAPURAM ROAD, TIRUR DESOM, KILLANNUR VILLAGE, MULAMKUNNATHUKAVU PO, THRISSUR, PIN- 680581. - 2 VIJAYAN POCKIARTH,AGED 58 YEARS,S/O PRABHAKARA MENON, POCKIARTH HOUSE, 2B KESAVAM APARTMENT, ACHUTHAPURAM ROAD, TIRUR DESOM KILLANNUR VILLAGE,MULAMKUNNATHUKAVU PO, THRISSUR, PIN- 680581; MENTALLY UNCONSCIOUS & PHYSICALLY PARALYZED PERSON; REPRESENTED BY HIS WIFE AND GUARDIAN 1ST PETITIONER: VIZ. RAJANI VIJAYAN, 49 YEARS, W/O VIJAYAN, POCKIARTH HOUSE, 2B KESAVAM APARTMENT, ACHUTHAPURAM ROAD, TIRUR DESOM KILLANNUR VILLAGE, MULAMKUNNATHUKAVU PO, THRISSUR, PIN- 680581. BY ADVS.SHOBY K.FRANCIS MISHAL M.DASAN ## **RESPONDENTS:** - 1 STATE OF KERALA,REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, 6TH FLOOR, SECRETARIAT ANNEX II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695 001. - 2 KERALA STATE MENTAL HEALTH AUTHORITY,RED CROSS ROAD, THIRUVANANTHAPURAM, PIN 695035, KERALA; REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. - 3 THE MENTAL HEALTH REVIEW BOARD, THRISSUR, GOVERNMENT MENTAL HEALTH CENTRE, WEST FORT, POOTHOLE, THRISSUR680 004; REPRESENTED BY SUPERINTENDANT OF GOVERNMENT MENTAL HEALTH CENTRE, WEST FORT, POOTHOLE, THRISSUR-680 004. - 4 DISTRICT MEDICAL OFFICER, OFFICE OF THE DMO, ST. THOMAS COLLEGE ROAD, THRISSUR- 680005. **WP(C) NO. 19079 OF 2022** -: 2 :- 5 VARSHA VIJAYAN,AGED 24 YEARS, D/O VIJAYAN POCKIARTH,POCKIARTH HOUSE,2B,KESHAVAM APARTMENT,ACHUTHAPURAM ROAD,TIRUR DESOM,KILLANNUR VILLAGE,MULAMKUNNATHUKAVU P.O.,THRISSUR,PIN 680581 IMPLEADED AS ADDITIONAL RESPONDENT NO.5 VIDE ORDER DATED 28.06.2022 IN IA 2/2022 IN WPC 19079/22 BY ADVS. GP SRI. K.R.RANJITH AMICUS CURIAE SRI.V.RAMKUMAR NAMBIAR, SMT.SATHYASREE PRIYA ESWARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J. ============================== W.P(C) No.19079 of 2022** ## **========================== Dated this the 5[h] day of July, 2022** ## **JUDGMENT** The first petitioner is the wife of the second petitioner. She seeks for her appointment as the guardian of the second petitioner. 2. The second petitioner met with a road accident at Oman on 30.10.2021, which resulted in him being in a “comatose state”. There are two children born to the petitioners, namely Varsha Vijayan aged 24 years and Lakshmi Vijayan aged 14 years. Varsha Vijayan was impleaded in the proceeding as additional fifth respondent, and she appeared in person before this Court on 28.06.2022. The petitioners’ require appointment of 1[st] petitioner as the guardian of the 2[nd] petitioner for the purpose of prosecuting the motor vehicle accident compensation case filed in respect of the accident of the second petitioner in case No. Dhofar Insurance Co.Case No.244/2207/2022 pending at Muscat Primary W.P(C) No.19079 of 2022 -: 2 :- Court, for receiving compensation thereunder, and for managing his assets. 3. With regard to appointment of guardian for a person laying in a “comatose stage”, a Division Bench of this Court has, in _**Shoba Gopalakrishnan v. State of Kerala (2019(1) KLT 801)**_ held that till appropriate statute/enactment is brought in providing for appointment of a guardian for such person, this Court can, in exercise of jurisdiction under Article 226 of the Constitution of India appoint a guardian for a specific purpose. Paragraph 35 of the judgment enumerates the norms/guidelines issued by the Division Bench. In the in the above background that this petition is being considered and ordered. 4. Ext P2 is the certificate issued by the consultant neuro surgeon at the Elite Mission Hospital, Koorkkenchery, Thrissur certifying that the 2[nd] petitioner is in a comatose state and needs ventilator support. Ext.P3 is the certificate issued by a medical W.P(C) No.19079 of 2022 -: 3 :- board under the chairmanship of the District Medical Officer of Health, Thrissur regarding the physical and mental status of the second petitioner. It is in tune with Ext.P2 certificate. This Court in _**Shobha Gopalakrishnan’s case** (supra)_ _**,**_ had specified that, the person for whom the guardian is sought to be appointed shall be got assessed by a medical board which shall consist of a qualified neurologist. Since the Board did not contain a neurologist, this Court as per Order dated 21.06.2022 directed examination of the subject by a Neurologist. 5. Pursuant thereto, the Superintendent, Medical College Hospital, Thrissur made appropriate arrangements for the services of a qualified Neurologist for examination of the second petitioner. On such examination conducted on 23.06.2022, a report has been prepared and submitted before this Court. The report fortifies the claim of the first petitioner that the second petitioner is in a “comatose state”. W.P(C) No.19079 of 2022 -: 4 :- 6. As ordered by this Court on 28.06.2022, the Tahsildar, Thrissur has filed a report with regard to the details of the assets of the second petitioner. The relevant portion of the report reads thus: _“Smt. Rajani Vijayan lives with her husband Sri.Vijayan and two children on the second floor of Keshavam Apartment 2B(1127 Sq ft) on Achuthapuram Road near Tirur belonging to Kuttur Village. As per the document No.5373/1/2021 the flat in which they resides, are jointly owned by Smt.Rajani and her husband Sri.Vijayan. There are two accounts in Bank of Baroda in the name of Shri.Vijayan. According to bank pass book, account number 08350100010773 and account number 08351000010774 has a balance of Rs.143 and Rs.6911 respectively. Sri.Vijayan owns a wagoner car with registration number KL 08 BK 5947. Sri.Vijayan, who is in a very serious condition is being treated at home.”_ 7. The first petitioner has filed an affidavit before this Court, swearing to the matters as required W.P(C) No.19079 of 2022 -: 5 :- in paragraph 35 of the judgment in Shobha Gopalakrishnan's case cited supra. The affidavit dated 14.06.2022 filed in the said regard is accepted. 8. It is found that it is necessary to appoint a guardian for the 2[nd] petitioner, that the 1[st] petitioner is competent to act as the guardian and also that the 1[st] petitioner has no interests adverse to that of the 2[nd] petitioner. Hence the 1[st] petitioner could be appointed as guardian of the 2[nd] petitioner. 9. Accordingly, the first petitioner-RAJANI VIJAYAN is hereby appointed as the guardian of the second petitioner-VIJAYAN POCKIARTH, for dealing with the assets of the 2[nd] petitioner as mentioned in paragraph (4) of the affidavit dated 14.06.2022 sworn to by the 1[st] petitioner along with I.A.1 of 2022, and for the purpose of prosecuting the motor vehicle accident compensation case No. Dhofar Insurance Co.Case No.244/2207/2022 pending at Muscat Primary Court, filed in respect of the accident of the second petitioner and W.P(C) No.19079 of 2022 -: 6 :- for receiving compensation thereunder. 10. The 1[st] petitioner shall comply with the following directions:- (i) File periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions done by the Guardian in respect of the person and property of the patient in comatose state, besides showing the utilization of the funds received and spent by him/her. (ii) The Registrar General shall cause an entry to be made with regard to the appointment of Guardian as ordered in this case, in the register maintained by this Court in terms of the directions in _**Shobha Gopalakrishnan's case**_ (supra). (iii) The Guardian shall, along with a copy of this judgment, intimate the Social Welfare Officer having jurisdiction of the place of residence, about the order of appointment as Guardian. W.P(C) No.19079 of 2022 -: 7 :- (iv) The transaction in respect of the assets of the second petitioner shall be strictly in accordance with the provisions of law. (v) It shall be open for any relative or next friend of the 2[nd] petitioner to approach this Court for removal of Guardian if neglect, abuse of powers or such other grounds at the hands of the Guardian is noticed. (vi) The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the 2[nd] petitioner from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise. Writ Petition is ordered as above. Sd/- **Sathish Ninan, Judge** vdv ## **APPENDIX OF WP(C) 19079/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF TRANSLATED COPY OF THE FINAL REPORT ON TRAFFIC ACCIDENT ISSUED BY THE ROYAL OMAN POLICE DATED 16-1-2022. Exhibit P2 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY THE DEPARTMENT OF NEUROSURGERY ELITE MISSION HOSPITAL, THRISSUR FOR THE 2ND PETITIONER DATED 9-3-2022. Exhibit P3 TRUE COPY OF MEDICAL CERTIFICATE DATED 31-5-2022 ISSUED BY THE CHAIRMAN MEDICAL BOARD TO THE 2ND PETITIONER. Exhibit P4 TRUE COPY OF THE EMAIL COMMUNICATION OF ADVOCATE .AND LEGAL CONSULTANT APPEARING ON BEHALF OF THE PETITIONERS DATED NIL. Exhibit P5 TRUE COPY OF THE OP (MH) FILED BY THE 1ST PETITIONER BEFORE THE HON'BLE DISTRICT COURT, THRISSUR DATED 23-5-2022. Exhibit P6 TRUE COPY OF RELEVANT PORTION OF THE DOCKET OF THE CASE FILE DATED 31-5-2022. Exhibit P7 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 8-2-2021 ISSUED BY THE 2ND RESPONDENT FOR THE ESTABLISHMENT OF THE MENTAL HEALTH REVIEW BOARD. Exhibit P8 TRUE COPY OF APPLICATION DATED 30-5-2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT UNDER SEC. 14 (4) OF THE MENTAL HEALTH CARE ACT, 2017. Exhibit P9 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 1-6-2022. Exhibit P10 TRUE COPY OF THE COLOR PHOTOGRAPH OF THE PRESENT PETITIONER. STAGE OF THE 2ND PETITIONER. Exhibit P11 TRUE COPY OF THE TITLE DEED NO REGISTERED SALE DEED NO.5373/1/2012 OF SRO THRISSUR DATED 25.10.2012 Exhibit P12 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING REG.NO. KL-08-BK-5947 LMV DATED 17.10.2016 Exhibit P13 TRUE COPY OF BANK PASS BOOK OF BANK OF BARODA, THRISSUR BRANCH WITH ACCOUNT NO 08350100010774 WITH IFSC CODE BARB0TRICHU UPDATED 14.6.2022 Exhibit P14 TRUE COPY OF BANK PASS BOOK OF BANK OF BARODA, THRISSUR BRANCH WITH ACCOUNT NO 08350100010773 WITH IFSC CODE BARB0TRICHU UPDATED 14.6.2022 Exhibit P15 TRUE COPY OF THE EMAIL COMMUNICATION DATED 05/06/2022