Ashan Chhetri vs Union Of India And Others

M.A. 1451 OF 2017

For the reasons carved out in the application, the delay of 4118 days in filing of OA is condoned. MA stands disposed of.

M.A. 2084 OF 2018

For the reasons carved out in the application/ order dated 20.04.2018 is recalled and the Counter Affidavit filed by the respondents is taken on record.

MA stands disposed of.

O.A. 1916 OF 2017

The applicant, Ex. Rfn. Ashan Chhetri, through the medium of the instant Original Application is seeking the following reliefs:

(i) To call for the records of all the Medical Board Proceedings for your Lordship's perusal.

(ii) To direct the Respondents to pay the Applicant the disability pension at the rate of 50% for life with effect from the date of his discharge,

01.08.2003,

(iii) To direct the Respondents to pay the Arrears of disability pension with 18% interest with effect from the next day of release of the applicant.

(iv) To grant any other relief as the Hon'ble members of the Tribunal may deem appropriate.

Briefly stated facts of the case are that the applicant was enrolled in 9 Gorkha Riflesin in the Indian Army on 25.03.1997 and was discharged on

12.06.2003 in Low Medical Category. At the time of discharge from service, the Release Medical Board (RMB) held at Command Hospital(Eastern

Command), Kolkata on 12.06.2003 assessed his disability 'Inv CNS (Seizure) G 40.0' @20% for life and opined the disability to be neither attributable

to nor aggravated (NANA) by service as it is electrochemical disturbance in the brain and not connected to service condition. The applicant

approached the respondents for grant of disability pension and its rounding off but the same was rejected by the CDA (P), Allahabad on 14.06.2004.

The applicant preferred application on 08.05.2017 but of no avail. It is in this perspective that the applicant has preferred the present Original

Application.

Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found mentally and physically fit for service in the Army

and there is no note in the service documents that he was suffering from any disease at the time of enrolment in Army. The disease of the applicant

was contacted during the service, hence it is attributable to and aggravated by Military Service. He pleaded that various Benches of Armed Forces

Tribunal have granted disability pension in similar cases, as such the applicant be granted disability pension as well as arrears thereof, as such the

applicant is entitled to disability pension and its rounding off to 50%.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant @20% for life has been regarded as NANA by the

RMB, hence applicant is not entitled to disability pension. He pleaded for dismissal of the Original Application.

The law on attributability of a disability has already been settled by the Hon'ble Supreme Court in the case of Dharamvir Singh Versus Union of

India & Others, reported in (2013) 7 Supreme Court Cases 316. In this case the Apex Court took note of the provisions of the Pensions Regulations,

Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same.

In view of the settled position of law on attributability, we find that the RMB has denied attributability to the applicant only by endorsing that the

disability 'Inv CNS (Seizure) G 40.0' is neither attributable to nor aggravated (NANA) by service as it is electrochemical disturbance in the brain and

not connected to service condition. This reasoning of RMB is not convincing and doesn't reflect the complete truth on this matter. The applicant was

enrolled in Indian Army on 25.03.1997 and the disability has started after more than two years and nine months of Army service i.e. on 19.01.2000.

Further, in reply to para 41.1 to 4.3 the respondents have stated that ""No. 5849674X Ex Rfn Ashan Chhetri of ex 9 GR was enrolled in the Army on

25 Mar 1997. After completing of training period. The applicant was posted with 2/9 GR which was deployed at filed area (i.e. J&K). On 19 Jan

2000. When the applicant near at post jiten, he slipped and fell on the hard ice. He was later admitted to 92 Base Hospital and further tfr to Command

Hospital, Northern Command. He as downgraded to medical category P2 for his disability INV CMS (SIZURE) G 40.0"". This shows that the onset of

the said disease may be due to slipping of the applicant on the hard ice because this disease can be trigged by head injury. We are therefore of the

considered opinion that the benefit of doubt in these circumstances should be given to the applicant in view of Dharamvir Singh vs Union of India &

Ors (supra) and the disability of the applicant should be considered as attributable to military service.

In view of Hon'ble Supreme Court judgment in the case of Union of India and Ors Vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on

10th December 2014) the applicant is entitled for rounding off of the disability pension from @20% to @50%.

In view of the above, the Original Application No. 1916 of 2017 deserves to be allowed, hence allowed. The disability of the applicant i.e. 'Inv CNS

(Seizure) G 40.0' is to be considered as attributable to military service. However considering the fact that the O.A. has been admitted after condoning

the delay and laches, therefore, in view of the decision of the Hon'ble Supreme Court in Union of India Vs. Tarsem Singh, reported in 2009 (1) AISIJ

371, the respondents are directed to grant disability element to the applicant @20% for life which would stand rounded off to 50% for life w.e.f. three

years preceding the date of filing this Original Application. The date of filing of the Original Application is 13.11.2017. The respondents are directed to

give effect to this order within a period of four months from the date of receipt of a certified copy of this order. Default will invite interest @ 6% per

annum till actual payment.

No order as to costs.

Pending application(s), if any, also stand disposed of.

Pronounced in the open court on 6th March, 2020.