Manmohan Singh Jaswal vs Union Of India And Others

Aggrieved by the decision of the Appeal Medical Board to grant him only 600/o (composite) disability pension for life for the injuries/diseases

sustained by him viz. (i) ""Sensori Neural Deafness (BIL)"" assessed © 20% lifelong; (ii) ""Spondylolethesis with PIVD L5 Si (OPTD) assessed @

20% lifelong; and (iii) ""Cervical Spondylosis with PIVD C5-C6, C6-C7 and C7-D1 PIVD C5-C6 (OPTD)"" assessed @ 20% lifelong, while not

granting him any disability pension for the ID (iv) ""Fracture Shaft Radius"" sustained by him in 1975 during pre-commission training at IMA, Dehradun

and also not granting him 'Battle Casualty' status for Cervical Spondylosis with PIVD C5-C6 reportedly sustained in 1985 during his posting at NEFA

and Cervical Spondylosis with PIVD C5-C6, C6-C7, C7-D1 PIVD C5-C6 sustained in 1999/2000 during his posting at Leh, the applicant, an officer of

Colonel rank commissioned in the Infantry in 1975 and transferred to JAG Branch in 1987, who superannuated from the Army in 2010, has filed the

instant 0.A with a prayer that the impugned letter of IHQ of MoD (Army) (AG P5-4) dated 18.11.2011, which granted him only 60% disability

pension, as also the opinion of Brig. N.L. Arora, Consultant (Surg & Ortho) (the fifth respondent) dated 12.03.2010 and 16.03.2010 and opinion of

Col. A.D. Sud, Advisor (Surg & Ortho) dated 28.06.2011 be quashed and fresh medical examination be conducted for Fracture Shaft Radius with

dislocation of Inferior Radio Ulnar Joint (OPTD) effects of ICD and degenerative changes of elbow joint and grant him increased disability war injury

pension accordingly.

Initially, the applicant had approached the Armed Forces Tribunal, Chandigarh Bench by filing 0.A No. 1142 of 2012, which was subsequently

transferred to this Tribunal and re-numbered as 0.A No. 709 of 2015. Hence the matter is before us.

The facts germane to the case, as stated by the applicant, are that he was commissioned in the Indian Army (Infantry-JAT Regiment) in June 1975

and was transferred to the JAG Branch in 1987 from where he superannuated in 2010. In the meanwhile, he contracted a hearing acuity problem in

November 1981 while conducting trial firing of 84 mm ammunition with extended range from 84 mm Rocket Launcher. The applicant states that he

was hospitalised for ""Vertigo"" and ""Sensori Neural Deafness"" in 1983 after which he was medically downgraded to Category H2. Subsequently, the

applicant was injured at an outpost in NEFA in 1985, for which he was hospitalised for ""Spondylolesthesis LV-5 with Prolapse Disc L5-51"", but battle

casualty status was not granted to him, though he was medically downgraded to H2A2 while serving in a field area. The applicant, on 20.12.1999,

while posted at Leh, was hospitalised for severe pain in his right arm. Subsequently, on 14.07.2000, the applicant underwent surgery for ""Cervical

Spondylosis with PIVD C5-C6, C6-C7, C7-D1 PIVD C5-C6 and was placed in low medical category A3.

The applicant underwent Release Medical Board (RMB) on 08.03.2010, which assessed his composite disability @ 40% for life, which the

applicant felt was less than what should have been rightly granted to him. He submitted an appeal against the assessment of the RMB, consequent to

which he was made to appear before the First Appeal Medical Board on 11.07.2011, which re-assessed his composite medical disability @ 60% for

life. However, the applicant feels that the Medical Board unfairly did not grant him disability pension for Fracture Shaft Radius with dislocation of

Inferior Radio Ulnar Joint (OPTD) effects of ICD and degenerative changes in elbow joint, for which he should have been granted an additional 30-

40%. Further, his spondylosis/spinal problems occurred in field/operational areas and hence, these injuries should have been classified as battle

casualties. Hence the instant O.A.

Heard the learned counsel for both the sides and perused the pleadings and the documents on record.

Reiterating the contentions raised by the applicant, Mr. Ankur Chhibber, learned counsel for the applicant stated that the applicant had sustained

Fracture Shaft of Radius (Left) with dislocation of Inferior Ulnar Joint on 03.03.1975 while under training at IMA and was admitted in MH Dehradun,

where he was treated with POP Cast for eight weeks. On the removal of POP Cast, it was observed that the fracture was mal-united resulting in

continuous pain in the left wrist and restriction in the movements of left hand. The applicant underwent surgery on 04.05.1976, where the lower end of

Ulnar was excised at Indian Naval Hospital Ship (INNS) Ashvini, Bombay, thereby shortening the length of his left hand. The disability existed at the

time of Release Medical Board and should have been 30-40%, which had not been assessed properly. Further, the RN1B incorrectly assessed the

composite disability 40% as aggravated by Military service for Sondylolesthesis LV-5 with Prolapse Disc L5-S1 (OPTD) (20%) though it should have

been recorded as 30-40% as per Para 30 of Chapter VII of amendment to Chapter VI and VII Guide to Medical Officers (Military Pensions),

Ministry of Defence, Government of India, New Delhi 2008. No disability was sanctioned for ""Sensor' Neural Deafness (Bilateral) though he was

placed in Medical Category H2, which should have been H3. Aggrieved by the decision of the RMB, the applicant filed an appeal, in which the First

Appeal Medical Board re-assessed his composite medical disability @ 60% for life. According to learned counsel, the applicant should have been

granted disability for Fracture Shaft Radius with dislocation of Inferior Radio Ulnar Joint (OPTD) effects of 1CD and degenerative changes in elbow

joint granting him additional 30-40%.

In order to justify his arguments, learned counsel for the applicant placed reliance on a number of decisions rendered by the Hon'ble Delhi High

Court and various Benches of the Tribunal, notably Maj. Arvind Kumar Suhag v. Union of India and others (W.P (C) No. 4488 of 2012) dated

21.02.2013; Ex Nk Sultan Singh v. Union of India and others (W.P (C) No. 7941 of 2003 dated 18.08.2008; Smt. Pawandeep Kaur v. Union of India

and others (T.A No. 139 of 2011 dated 14.11.2014); Maj (Retd) Arun Kumar Panda v. Union of India and others (0.A No. 532 of 2014 decided on

17.08.2015), etc., whereby battle casualty status and war injury pension were granted to the petitioners/applicants therein.

Learned counsel for the respondents, on the other hand, have controverted the claims and arguments made on behalf of the applicant. The

respondents have averred that the Appeal Medical Board conducted on 11.07.2011 had very fairly increased the assessment of composite disability

from 40% lifelong to 60% lifelong for three disabilities sustained during his service. However, with regard to the fracture injury, the respondents have

contended that the applicant sustained the injury Fracture Shaft of the Radius in 1975 while undergoing pre-commission training at IMA, Dehradun,

which was treated adequately, operated at around wrist joint, and once the applicant was cured and found fit, he was upgraded to Shape I in 1976 and

the applicant remained medically fit in the same medical category for over 34 years thereafter.

It has also been pointed out that at the time of RIMB, the applicant reported pain and stiffness and a clear opinion had been endorsed. In view of

the clinical status, he was considered fit in Shape Classification Al for the same and, therefore, the problem raised was not included for assessment,

As regards the claim of the applicant for the disablement at elbow, which showed degenerative changes, there was no record of any injury to elbow

during service in medical documents. There was no bias against the applicant as he was repeatedly examined, treated and then recommended and

granted 60% composite disability pension. Further, during the Appeal Medical Board, a detailed examination was carried out and the Medical Board

did not find the claim of the applicant for the elbow injury tenable.

According to learned counsel for the respondents, the hearing loss was reported in February 1983 when the applicant reported with complaint of

Vertigo with Nausea, which persisted for four days and gradually disappeared. He was detected to have hearing loss. He was able to hear

conversational voice at 18 ft. There was no history of Otorrhoea (ear discharge injury or any drug intoxication). However, he gave history of exposure

to gun firing. His ear drums were found intact. He proceeded on sick leave for eight weeks and the disability was considered neither attributable to

nor aggravated by service by the Medical Board held on 21.03.1983. After the sick leave, he was reviewed at MH Jalandhar and was placed in the

medical category H2 (T24). At the time of his retirement, the RMB, giving due consideration on the history of exposure to gun fire, conceded

aggravation by service. This view of the RMB was further upheld by the Appeal Medical Board.

Learned counsel for the respondents further stated that the assessment for the deafness was done based on the ability to hear conversational

voice and not on the basis of medical classification. At the time of initial detection of hearing loss, he was able to hear conversational voice at 18 ft i.e.

about 550 cm. Later his hearing was slightly deteriorated and he was found to be able to hear conversational voice at 500 cm in 2007. The same level

of hearing was found at the time of RMB. Subsequently, he was found to have conversational voice at 300 cm at the time of Appeal Medical Board in

April 2011. He was, therefore, assessed to a disablement of 20% in terms of the policy guidelines in Para 20 of Chapter VII of the Guide to Medical

Officer and granted disability pension accordingly.

Denying the contention of the applicant that the hearing loss should be termed as Battle Casualty since it was detected in February 1983 while

posted near Burma border, learned counsel for the respondents pointed out that there was no acute trauma or exposure immediately prior to his

exposure to the loud sound of back blast of ammunition, which affected his hearing, therefore, the claim to grant disability for hearing loss as Battle

Casualty is baseless. It is also submitted by learned counsel for the respondents that assessment for cervical and lumbar spine disability was carried

out as per Para 31 of Chapter VII of Guide to Medical Officer. As per Guideline 31(a)/32, deterioration was assessed © 20-40%, which was

considered as aggravated by service. There was no mention of stiff spine, but only weakness of Rt Shoulder abduction movement and elbow flexion

of 3/5, rest other groups were within the normal limits. According to the Specialist opinion at the time of Reclassification Medical Board of 2004 and

2006, he had no deformity of spine, no spasm and movements were found. He had only shoulder abduction restricted with grade 4 power (noise power

is taken as 5). Therefore, according to learned counsel for the respondents, the assessment of disablement by the RMB was done fairly and correctly.

Learned counsel for the respondents further asserted that the claim to consider disability ""Spondylosis PIVD L5-S1 (OPTD): and ""Cervical

Spondylosis with PIVD C5-C7 (OPTD) as battle casualty is not sustainable as it is an administrative issue. The disability PIVD L5-51 was detected

when the applicant got hurt while doing PT while conducting promotion cadre on 15.05.1985, which was justly and fairly considered as attributable to

service. However, it was not considered as Battle Casualty by the Brigade Commander, 192 Mountain Brigade as there was no enemy action or

relation to any operational activity. The applicant was placed in low medical category in December 1999 while serving at high altitude but not in

proximity to the enemy.

While concluding his arguments, learned counsel for the respondents pointed out that as per the history given and recorded by the Neurosurgeon

on 27.12.1999, the applicant stated that he was detected with spondylosis in 1991 but remained in Shape I for the same. He reported this problem in

1999 with complaint of pain at right shoulder for seven days' duration. He was investigated, treated and placed in low medical classification. The

disability was accepted as aggravated by service. However, there is nothing to consider the disability Cervical spondylosis with PIVD C5-C7 (OPTD)

as Battle Casualty. Therefore, according to learned counsel for the respondents, the instant 0.A deserves to be dismissed as devoid of merit.

We have given careful consideration to the rival contentions made by both the sides and find that the primary issue before us is, whether the

applicant, who has already been granted 75% disability pension for life after broad banding it from 60%, should, instead, be granted 100% disability

pension by taking into consideration his claim for adding 30-40% disability for a fracture injury he sustained in 1975 (the year of his commissioning, for

which he was not medically downgraded during his service, and further, whether he should also be given the benefit of war injury pension for his

disabilities, which were sustained in field/operational areas or in training. We also take note of the fact that the applicant has made allegations of bias

against the Specialist Orthopaedic Surgeon (Respondent No. 5) for his not having conceded to include the purported effects of old Fracture Shaft

Radius with dislocation of Inferior Radio Ulnar Joint (OPTD) (of 1975-76) as an additional medical disability during the RMB conducted in

March/April 2010.

We find that in the RMB conducted in March/April 2010, the applicant was granted only 40% composite disability as the degree of disablement of

his medical condition ""Sensor' Neural Deafness (B/L)"" was assessed as ""Nil"". However, based on the appeal preferred by him, the Appeal Medical

Board conducted a year later in August 2011, assessed the degree of disablement for ""Sensor' Neural Deafness"" @ 20%, and increased the

composite disability pension to 60%, which becomes 75% after broad-banding. But the applicant was still not satisfied and is claiming firstly that the

disability element of his pension be increased further by granting him disability for an additional medical condition related to an old fracture injury of

1975-76 vintage, which he had brought to the notice of the RMB in 2010 and again before the AMB in 2011, but not granted. Further, the applicant

has claimed that his medical disabilities be classified as battle casualties to enable benefits of war injury pension being granted to him, which are at

higher scales as compared to disability pension.

We have taken note of the opinions rendered by the Consultant/Specialists (Surg & Ortho), which are reproduced as under:

Opinion of Brig. N. C. Arora, Consultant (Surg & Ortho) on 16.03.2010

The officer aged 57 years has reported for RMB with following disabilities

(a) PIVD C5-C6 (Operated)

(b) PIVD LVS-S1 (Operated)

(c) Obesity

(d) Sensori neural hearing loss - bilateral

He has been recommended to be released in H2P2.

The officer complains of

(a) Pain (L) elbow joint

(b) Pain (L) wrist

(c) Restricted movements (L) elbow

since last 02 years. The officer has no documentary evidence of any treatment taken from any service hospital for the same in last two

years.

Past history reveals that he sustained fracture shaft of (L) radius with dislocation of inferior neuro vascular joint in Mar 75 as a cadet at

IMA.

He was managed conservatively with reduction & POP cast immobilisation for 08 weeks at MH Dehradun. Subsequently he c/o pain and

restriction of movements (L) wrist, for which he underwent surgery (excision distal end of ulnar) on 04 May 76 at INNS Aswini. He was

upgraded to SHAPE - 1 in Jul 76. The officer has remained in Al for this disability since 1976.

Now he has reported to OPD for inclusion of this disability in addition to the above mentioned disabilities.

On Exam (L) elbow, forearm and (L) wrist

Operation scar over ulnar aspect of distal forearm well healed. No swelling or tenderness over joints. No muscle wasting of (L) forearm

muscles. There is evidence of old Darrach's procedure. No crepitus. No effusion. FFD (L) elbow 30'

ROM

(L) elbow 30-' to 120)

(L) wrist - full & painless Pronation & Suspiration - full

X-ray plate no. 2109 dated 08 Mar 2010 shows excision of ulnar herd, old consolidated fracture of radius & old fracture radial heal and

degenerative changes in elbow joint. There is no injury report of old fracture head of radius in the officers medical documents. The officer

has good functional range of movements of (L) elbow. There are no fresh changes for Galeazzi's fracture. The elbow functional range is

good. There is no muscle waste. Recommended Al for the complaints the officer has presented with CTC

Opinion of A.D. Sud, Col, Sr Advisor (Surg & Ortho), Trained in Joint Replacement on 28.06.2011

A case of old Fracture Shaft of Radius (L) with Dislocation of Inferior Radio Ulnar joint (L) old optd DOI-03 Mar 1975 in 1MA. Fall

during Trg in 1MA Managed with POP Cast for 8 weeks. Was on low med cat A3 (T24) and underwent distal ulnar resection. On 04 May

76, he was upgraded to Cat Al subsequently for the same in Jul 76.

He sustained injury to left elbow in 1988 due to slip & fall while on duty. Had pain & was managed with rest and mobilisation for the same.

He did not regain full range of movements of the elbow and presently complains of stiffness of elbow. There is no record of the fact that the

injury was sustained while on duly.

He retired last year iii Aug 2010 in Al cat for left upper limb.

He complains of pain 017 & off & restriction of left elbow movements. On

Exam of average built & nourishment

Lt Upper limb

Has no local swelling or tenderness

Has well healed operation scar over distal ulnar.

Wrist & forearm movements full & free

Has300-1200elbow movements

No neuro vascular deficit Grip is good

He is left handed

X ray of (xxx not & forearm & elbow xxx Plate No 53227 dt 22 Jun 11 shows excision of head of ulnar, old healed fracture of distal third

radial shaft and neck of radius with anterior angulation of radial shaft. There are degeneration changes in neuro vascular joints.

5d/-

A D Sud

Col

Sr Advisor (Surg & Ortho)

Trained in Joint Replacement

We find no evidence of bias in the aforesaid opinions rendered by the Medical Specialists. In our view, mala fide cannot be ascribed to a medical

specialist only because he or she provides an opinion contrary to the applicant's expectation.

The applicant is making a claim for increase in composite disability pension that tantamounts to seeking 100% disability pension by including a

medical condition that he claims to be affected with, by his own admission, for almost his entire service, more so for the last 25 years. Such a delayed

claim throws up the question as to how did the applicant continue to serve in the Army if his degree of disablement was so high. Thus, considering that

the applicant did not, during his service, make any such claim, we find his claim for further increase in the disability pension to be bereft of bona fides

and thus liable to be dismissed.

With regard to the claim of the applicant that his medical disabilities should be classified as 'battle casualties' in view of the circumstances/locations

where these medical conditions were contracted, we refer to the related provisions of the extant policy, which is reproduced as under:

Special Army Order 8/5/85

EXTRACT

Paragraph 4 Battle Casualties Battle Casualties are those sustained in action against enemy forces or whilst repelling enemy air attacks.

Casualties of this type consist of the following categories:-

(a) Killed in action

(b) Died of wounds

(c) Wounded or injured (other than self-inflicted)

(d) Missing

Notes

(1)Air raid casualties are those sustained as a direct or indirect result of enemy air raid. These will be treated as battle casualties.

(2) Casualties in fighting against armed hostiles and those whilst in aid of civil power to maintain internal security are classified as physical

for statistical purposes but are treated as battle casualties for financial purposes.

(3) Casualties due to encounter with troops or armed personnel or border poke of a foreign country, or during fi ghting in service with

peace keeping missions abroad under government orders will be classified as battle casualties.

(4) Accidental injuries and deaths occurring in action in an operational area will be treated as battle casualties.

(5) Accidental injuries which are not sustained in action and are not in proximity to the enemy, if these have been caused by fixed apparatus

(e.g land mines, booby traps, barbed wire or any other obstacle) laid as defences against the enemy, as distinct from those employed for

training purposes and if the personnel killed, wounded or injured were on duty and are not to blame will be classified as battle casualties

notwithstanding the place of occurrence or agency laying those viz, own troops or enemy, provided the casualties occur within the time

limits laid down by the government.

(6) Saboteurs, even of own country will be treated as enemy for the purposes of classifying their actions as enemy action, and encounters

against them as encounters against the enemy.

(7) All casualties during peace time as a result of fighting in war like operations or border skirmishes with a neighbouring country will be

treated as battle casualties.

(8) Accidental deaths/injuries sustained due to natural calamities (such as floods, avalanches, land slides and cyclones) or drowning in

river crossings at the time of performance of operational duties/movements whilst in action against enemy forces will be treated as battle

casualties.

(9) Reports regarding personnel wounded or injured in action will specify the nature of the wound or injury and will also state whether the

personnel remained on duty.

(10) Reports on personnel missing in action will indicate if possible, their likely fate, e.g believed killed, believed prisoner of war, believed

drowned.

(11) Casualties occurring while operating on the international border or line of control due to natural calamities and illness caused by

clunatic conditions will be treated as physical casualties for statistical purposes and battle casualties for financial purposes (Added vide

Corrigendum to SAO 8/5/85 on 15 May 1991).

(12) Casualties taking place while carrying out battle inoculation/training will be treated as physical casualties for statistical purposes and

battle casualties for financial purposes (Added vide Corrigendum to SAO 8/5/85 on 15May 1991).

From the above, it is clear that for a medical condition to be classified as a 'battle casualty', it should have been sustained 'in action' against enemy

forces or armed hostiles. Accidental injuries, while fixing land mines or booby traps or due to live mine training or during 'action' can also qualify as

battle casualties. In this context, we find that none of the medical conditions were contracted by the applicant while 'in action' or in 'battle inoculation'

involving use of live ammunition. Just because an injury was sustained while doing physical training (PT) in a post in an operational area cannot qualify

as a battle casualty. Significantly, the Brigade Commander also did not think it proper to classify it as a battle casualty. Similarly, spondylosis

aggravated by serving in a high altitude area (Leh) cannot qualify as a 'battle casualty' unless it was contracted in operational circumstances involving

enemy action.

The decisions cited by learned counsel for the applicant are very much different and, therefore, they are not applicable to the case at hand. Hence,

we find no need to increase the disability element of disability pension in respect of the applicant beyond 60% for life already granted to him, broad

banded/rounded off to 75%.

In the result, the 0.A lacks merit and is dismissed. No order as to costs.

Pronounced in open Court on the 26th day of August 2019.