Omi vs Union Of India And Others

Aggrieved by the impugned order dated 16.11.1995 denying him disability pension, the applicant has filed the instant O.A. seeking the following

reliefs.

(i) Quash and set aside the impugned letter No 7/566/94/Defence/Pension/Appeal dated 16.11.1995 and pass direction to grant disability

pension (both disability and service element) to the applicant with effect from the date of his invalidment, and or

(ii) Direct respondent to grant invalid pension with effect from the date of his invcdidment, and or

(iii) Direct respondents to grant benefits of broad banding/rounding off of disability pension as per rule, and or

(iv) Direct respondents to pay the due arrears entitled pension with interest @ 12%p.a. with effect from the date of invalidment from service

with all the consequential benefits.

(v) Any other relief which the Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 16.11.1962 and after having rendered 09 years and 63 days

service, he was invalided out of service due to disability ""GS'A' Lt Chest Effect of (E-991)""on 05.02.1972, in low medical category 'CEE'. The

Invaliding Medical Board (IMB) of the applicant was held at Military Hospital, Pune which assessed his disability 16-19% attributable to military

service. Disability pension claim of the applicant was rejected by PCDA (P) Allahabad vide letter dated 12.01.1994 and appeal was also rejected vide

letter dated 16.11.1995 on the ground of disability being less than 20%. Hence the instant O.A.

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

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

applicant is illegal and arbitrary. In this regard, he relied on the decision of the Hon'ble Supreme Court in Deokinandan Prasad vs State of Bihar. AIR

1971 SC 1409, Ex Sep Chain Singh vs Union of India & Ors. Civil Appeal Diary No 30073 of 2017 decided on 11.12.2017 and Union of India & Ors

vs Tarsem Singh,(2008) 8 SCC 648 and submitted that since the IMB had recommended the disability as attributable to military service, the applicant

is very much entitled to disability pension.

While filing counter affidavit, learned counsel for the respondents though conceded that the disability of the applicant was attributable to military

service but submitted that it was assessed below 20% i.e. @ 16-19% for one year. Therefore the applicant's claim for disability pension was rejected

due to non meeting of the primary condition for grant of disability pension as prescribed in Regulation 173 of the Pension Regulations for the Army,

1961 (Part I) i.e. for granting the disability pension, the disability percentage should be assessed at 20% or over. He submitted that the instant O.A.

does not have any merit and the same should be dismissed.

We have carefully considered the arguments advanced on either side. There is no doubt about the fact that the applicant was invalided out of

service in the year 1972 for the ID ""Gun Shot Wound Chest (E-991)"". The gun shot wound was received by the applicant on 06.04.1969 and post

operation of the wound, the percentage of disability was assessed at 16-19% and despite the disability being opined as attributable by IMB. the claim

for disability pension was rejected by the respondents on the ground that the percentage of disability was below 20%.

The respondents, while filing parawise comments have averred that relevant medical documents of the applicant have been destroyed in terms of

Para 595 of Regulations for the Army. 1987 (Revised Edition) but the applicant has produced requisite documents including copy of IMB dated

06.01.1972 which on scrutiny by us is found to be valid and matching with various official letters on the subject addressed to the applicant.

In this case it is not disputed by the respondents that the applicant had sustained Gun Shot Wound (GSW) injury at left chest while performing

military duty in Field Area (J&K) in the year 1969 which resulted in his invalidation from service. In this regard we have perused summary and

opinion of Wg Cdr HM Aga, Specialist in Thoracic and Cardio Vascular Surgeon which makes out that the applicant had received GSW on

06.04.1969 while on military duty. He was operated at Cardio-Thoracic Centre in June 1969 on account of Emephyma Lt Chest. The applicant

continued to serve in low medical category from 1969 till his date of invalidation on 05.02.1972 and the IMB had assessed his disability below 20%

(16-19%) attributable to military service. It is worthwhile to mention that even if the IMB has assessed the disability percentage below 20%, the facts

and circumstances of the case indicate that the applicant's disability arose while serving in Field Area and performing the military duty.

On the point of disability percentage below 20%, the Hontle Apex Court has laid down in Sukhvinder Singh vs. U01 & Ors. (Civil appeal No.5605

of 2010) in which we could see the following passage applicable to the present case.

'We are of the persuasion. therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been

caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in

favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical

Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads

to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorising

the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, wherever

a member of the Armed Forces is invalided out of service, it pedbrce has to be assumed that his disability' was found to be above twenty per

cent. Fifthly, as per the extant Rules/Regulotions, a disability leading to invaliding out of service would attract the grant offifty per cent

disability pension.

9 According to the said dictum, whenever an individual is invalided out from service, the percentage of disability should be considered as more than

20%. The principle of Hontle Apex Court is applicable to the present case also and thus the assessment of disability at 16-19% for one year by the

invaliding Medical Board held in the year 1972 is to be considered as 20% w.e.f. the date of discharge since the applicant has been invalided out from

service.

We have also noted that this is a case where the applicant's iMB is valid only for one year after his discharge. Thus we are of the considered

opinion that the applicant is eligible for disability ;pension (5) 20% w.e.f. the date of his discharge. However, the applicant has approached this

Tribunal after a huge delay of 46 years her.ce the law of limitations for recurring loss as decided by the Hontle Supreme Court in the case of Union of

India & Ors vs Tarsern Singh, AIR (2008) 8 SCC 648 will be applicable in this case. Thus the applicant will be eligible for service element of disability

pension w.e.f. three years before filing this petition. He shall not be entitled to any arrears on disability element of disability pension. His entitlement to

disability element of disability pension will depend on the outcome of a fresh ReSurvey Medical Board (RSMB) which should be conducted by the

respondents

11 Resultantly, the 0.A is partly allowed. The impugned order is set aside. The applicant is entitled to disability pension © 16-19% for life deemed to

be 20% for life w.e.f. date of discharge. However, due to law of limitations as settled by the Hon'ble Supreme Court in the case of Tarsern Singh

(supra) the arrears of disability pension in terms of service element shall be restricted to three years before the date of filing of the instant 0.A. The

date of filing of this 0.A is 01.10.2018 The applicant is not entitled for any arrears of disability element for the one year period for which his IMB is

valid after discharge. His future entitlement to disability element will depend on the outcome of RSMB which the respondents are required to conduct

within 03 months of receipt of this order. For this purpose the 1MB proceedings as attached in the O.A. is to be utik-.z.ed by the respondents. This

order is to be implemented by the respondents within four months from the date of receipt of a certified copy of this order. Default will invite interest

© 8% per annum.

No order as to costs.