Jitendra Singh vs Union Of India And Others

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) To set aside the order of respondent rejecting the first appal for grant of disability pension dated 31.03.2017.

(b) To grant the disability pension with effect from 01.12.2009.

(c) To grant benefit of rounding off of disability pension from 40% to 50% wef 01,12.2009.

(d) To direct the respondent to pay 12% interest on the arrears of pension and other benefits.

Brief facts of the case are that the applicant was enrolled in the Indian Air Force on 24.11.1989 and was discharged from service on 30.11.2009 in

low medical category due to 'Bipolar Affective Disorder F-31, Z-09.0' having rendered 20 years of service The RMB of the applicant was held on

16.03.2009 at 12 Wing, Air Force which had assessed his disability @ 40% for life and considered as neither attributable to nor aggravated by military

service (NANA). Disability pension claim of the applicant was rejected vide order dated 25.04.2016. Thereafter First Appeal was preferred which

has also been rejected vide order dated 31.03.2017. It is in this perspective that this O.A. has been filed.

Ld. Counsel for the applicant pleaded that the applicant was enrolled in the Indian Air Force in medically and physically fit condition. It was further

pleaded that a member is to be presumed in sound physical and mental condition upon entering service if there is no note or record to the contrary at

the time of entry. In the event of his subsequently being invalided out from service on medical grounds, any deterioration in his health is to be

presumed due to service conditions. He pleaded that the applicant was under stress and strains due to rigors of service conditions which may have led

to occurrence of the disability. The action of the respondents in denying disability pension to the applicant is illegal. In this regard, he relied on the

decisions of the Honible 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 @400/0 and the same is to be broad banded to 50%. The Ld. Counsel for the

applicant pleaded for grant of disability pension to the applicant.

On the other hand, Ld. Counsel for the respondents submitted that since the RMB has opined the disability as NANA, the applicant is not entitled to

disability pension. He further accentuated that the applicant is not entitled to disability pension in terms of Rule 173 of Pensions Regulations for the

Army 1961 (Part-I) which stipulates that, ""unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided

out of service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over but in the instant case

the disability of the applicant has been assessed at 40% for life and NANA and the applicant also has family history of the disease, therefore the

applicant is not entitled to disability pension. He pleaded the O.A. to be dismissed.

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

of the applicant is attributable to or aggravated by military service?

On careful perusal of the medical documents, it has been observed that the applicant was enrolled on 24.11.1989 and the disease had first started in

Nov 2001 i.e. after rendering 12 years of service. The applicant was prescribed Bupropion by a civilian practitioner for two months and did well. He

also reported to military psychiatric care in Jun 2002 but was not placed in low medical category. The Release Medical Board considered the disease

of the applicant as NANA on the grounds that the disease is a psychiatric ailment due to several endogenous and exogenous factors having no casual

relation with military service and the onset of disability in peace station. Perusal of medical records also reveals that the applicant has family history of

the disease. Summary and opinion of Classified Specialist (Psychiatry), Command Hospital (Western Command) Chandimandir reads as under:-

There was a family h/o similar illness in his brother since the past 10 years. Brother still remains ill periodically. There were no other

significant stressors. No h/o substance abuse was present.

It is well known fact that mental disorders can escape detection at the time of enrolment hence benefit of doubt cannot be given to the applicant

merely on the ground that the disease could not be detected at the time of enrolment. Additionally, in Civil Appeal No 7672 of 2019 in Ex Cfn

Narsingh Yadav vs Union of India & Ors it has again been held by the Hon'ble Supreme Court that mental disorders cannot be detected at the time of

recruitment and their subsequent manifestation (in this case after about 12 years of service) does not entitle a person for disability pension unless there

are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. Relevant part of the aforesaid judgment is as given

below:-

In the present case, clause 14 (d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability

pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related

to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the

time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental

disorder, therefore, it cannot be said that 'Paranoid Schizophrenia (F 20.0)' is presumed to be attributed to or aggravated by military

service.

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. The Invaliding Medical Board has categorically held that the appellant is not fit for further service and there is

no material on record to doubt the correctness of the Report of the Invaliding Medical Board.

In the instant case, the applicant has family history of the disease and the applicant also suffered from the disability just after serving for about 12

years service while posted in peace station with no visible stress and strain of service, it can safely be concluded that the disability is of genetic nature

and has no casual connection with the service and, therefore the Release Medical Board has rightly considered the disability as NANA.

In view of the above, the O.A. is devoid of merit and deserves to be dismissed. It is accordingly dismissed.

No order as to costs.

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

Pronounced in the open court on 13th March 2020.