Avijit Nandi vs Union Of India And Others

MA 1316/2017

Vide this M.A., the applicant seeks condonation of delay of 860 days in filing the present OA. Keeping in view the averments made in the

application and finding the same to be bonafide and in the light of the decision in Union of India and Others Vs. Tarsem Singh [2008 (8) SCC 6487, we

allow the instant MA and condone the delay of 860 days in filing the OA.

MA No 1316 of 2017 stands disposed of accordingly.

OA 1759/2017

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces Tribunal

Act, 2007 wherein he has sought the following reliefs:-

(a) Quash and set aside the impugned letter No 13016/1C-46277X/A-04/MP-6(b)/100/2013/Appeal/AG/PS-5(Imp-II) dated 26.05.2015.

And/or

(b) Direct respondents to treat the disability of the applicant as attributable to or aggravated by military service and grant him disability

element of pension with the benefits of rounding off and/or

(c) Direct respondents to pay the due arrears of disability pension with interest @,12% p.a from the date of retirement with all the

consequential benefits.

(d) Any other relief which the Hon 'ble Tribunal may deem fit and proper in the fact and circumstances of the case along with cost of the

application in favour of the applicant and against the respondents.

Brief facts of the case are that the applicant was commissioned in the Indian Army on 20.08.1988 and was discharged from service at his own

request on 30.07.2012 in low medical category. The Release Medical Board (RMB) held at Military Hospital, Gwalior on 29.06.2012 assessed his

disabilities, viz., (i) 'Diabetes Mellitus (E-11)' @20%, (ii) 'Hypertension (1-10)' ©30%, (iii) Dyslipidemia (R-76)' ©5% and (iv) 'Hyperuricaemia (E-

79.0)' @5% and composite assessment @ 50% for life. However, the RMB opined that all the four diseases of the applicant were neither attributable

to nor aggravated by military service (NANA). The applicant's first appeal dated 05.07.2013 for grant of disability pension was considered by the

respondents and in this appeal, his fourth disability, i.e., 'Hyperuricaemia (E-79.0), ©5% has been conceded as aggravated, however since this

disability is below 20%, hence it has not helped the applicant to become eligible for disability pension. Hence the instant Original Application.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was commissioned in the Army and any disability not

recorded at the time of enrolment should be presumed to have been caused subsequently. The action of the respondents in denying disability pension

to the applicant is illegal. In this regard, he relied on the decisions of the Hon'ble Supreme Court in Dharamvir Singh V. Union of India and others,

(2013) 7 SCC 316 and Union of India & Another Versus Rajbir Singh (Civil Appeal No. 2904 of 2011, date of decision 13.02.2015) and submitted that

for the purpose of determining attributability of the disease to military service, what is material is whether the disability was detected at the time of

enrolment and if no disability was detected at that time, then it is to be presumed that the disability arose while in service, therefore, the disability of the

applicant is to be considered attributable to or aggravated by service and he is entitled to get disability pension ©50% and the same is to be broad

banded to 75%.

On the other hand, learned counsel for the respondents submitted that though the RMB had assessed composite disability of the applicant @50%, it

has opined that the disability is NANA because it originated in peace area and has no association with HAA/Field/CI Ops. Subsequently the Appeal

Board has conceded ‘Flyperuricaemia (E-79.0)` © 5°/o as aggravated, however since the disability is below 20%, the applicant is not entitled to

disability pension. He pleaded for dismissal of the OA.

Having heard the learned counsel for both the parties and perused the records, the only question that needs to be answered is, whether the first

three disabilities of the applicant are attributable to or aggravated by military service?

We have noted that the only reason for which the first disability, le., `Diabetes Mellitus (E-11)' has been opined as NANA by the RMB is that the

disease has originated in peace area and have no relation to military service. The diseases were first detected in June 2006 whereas the applicant was

commissioned in Army on 20.08.1988 i.e. after about more than 17 years of service. The core issue for us is as to do we give benefit of doubt to the

applicant for this disease and overrule the opinion of the medical board. However, perusal of the medical records reveals that the officer has family

history of diabetes and Col S Kohli, Classified Specialist (Med), Armed Forces Clinic, New Delhi has opined in RMB as under (Page 35):- ""Brief

History. 44 year old officer was detected to have elevated blood sugar and lipid levels and elevated BP. Took Stanlip, Daonil and amlopress-AT on his

own till Jun 07 when he reported to MOPD. Glycemic control was fair but lipid profile was abnormal and BP control was sub optimal. During

evaluation also noted to have elevated Uric acid levels. Family history of diabetes present. It otherwise asymptomatic.

In view of the above observation of the Classified Specialist, we are of the opinion that the officer has a clear family history of diabetes, hence we

are not in a position to give benefit of doubt for the disease ""Diabetes Mellitus (E-11)"" and we agree with the opinion that the disease is NANA.

Additionally, we have noted that the disease 'Dyslipidemia (R-76)' is a disorder of lipid metabolism and being a metabolic disorder, it is related to

dietary habits and discretion and has no relationship to service conditions, hence in this case also we don't find that there are any valid reasons for us

to interfere with the opinion of the RMB declaring this disease as NANA. Moreover, medical board is an expert body and its opinion should not be

over ruled till there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board in terms of Hon'ble Supreme Court

judgement in Civil Appeal No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors. The relevant part of the aforesaid judgment is as

given below:-

Though, the opinion of the Medical Board is subject to judicial review but the courts are not possessed of expertise to dispute such

report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of

the Review Medical Board.

However, as far as the applicant's disease `Hypertension (I-10)' is concerned, it has originated after more than 17 years of joining the service and

RMB has rejected attributability on the ground that the disease has originated in peace station and is not related to Field/HAA/CI area. We don't

agree with this logic that stress and strain is compartmentalised only to HAA/field/CI Ops areas, and the very nature of military duty has its inherent

stress and strain. Thus even military duties in peace area have their own share of stress and strain of military service. In view of the above mentioned

aspects, we would like to extend the benefit of doubt in favour of the applicant. Therefore, we are of the considered opinion that the disability

`Hypertension (I-10)' is to be considered as aggravated by military service in line with the law settled on this matter by the Honible Apex Court in the

case of Dharamvir Singh (supra). Additionally, the applicant will also be eligible for the benefit of rounding off to 50% for life with effect from the

date of discharge, in terms of the decision of Hon'ble Supreme Court in Union of India and others v. Ram Avtar (Civil Appeal No 418 of 2012 dated

10.12.2014).

In view of the above, the Original Application deserves to be partly allowed, hence partly allowed. The impugned order dated 26.05.2015 is set

aside. The second disability of the applicant i.e. ""Hypertension (I-10)"" and the fourth disability, i.e., 'Hyperuricaemia (E-79.0)' is to be considered as

aggravated by military service, composite disability @30% for life. However considering the fact that the 0.A. has been admitted after condoning the

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

AISLJ 371, the financial benefits will be restricted to three years before filing of the OA. Therefore, the respondents are directed to grant disability

element to the applicant @30% for life which would stand rounded off to 50% for life w.e.f. three years preceding the date of filing this Original

Application, i.e., 06.10.2017. Ordered accordingly. To be implemented by the respondents within four months from the date of receipt of a copy of this

order. Default will invite interest @ 6% per annum till actual date of payment.

No order as to costs.

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

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