P. Manjunath vs Union Of India And Others

Aggrieved by the impugned order dated 27.04.2006, denying him disability element of pension, the applicant has filed the instant 0.A seeking the

following reliefs:

(i) To call for the records of all the Medical Board proceeding for your lordships' perusal.

(ii) To set aside the orders of the Directorate of Air veterans, Air Headquarters, vide their letter No. Air HQ/99798/5/TB5/ Appeal/AV-III dated 14

October 2016.

(iii) To direct the Respondents to pay the Applicant the disability pension at the rate of 50% for life.

(iv) 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.

(v) To grant any other relief as the Honble members of the Tribunal may deem appropriate.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Air Force on 05,03.1986 and was discharged from service on

31.03.2006 in low medical category after serving more than 20 years of service. During routine medical examination on 23.10.2000, the applicant was

found to be suffering from ISCHAEMIC HEART DISEASE and HYPERTENSION. His medical board held in February 2001 and CART was done

on 21.02.2001 and underwent CABG on 09.05.2001. The applicant was recommended to continue in LMC CEE for ID 'CAD-SVD, CABG Done

(Old)' and ID Hypertension was excluded from the board by opinion of Categorisation Medical Board. Thereafter, the Release Medical Board (RMB)

assessed his disability 'CAD-SVD, CABG Done (Old)' @ 50% for life. However, the RMB opined that the disease of the applicant was neither

attributable to nor aggravated by military service (NANA). His claim for disability pension was rejected vide letter dated 21.04.2006. Thereafter the

applicant filed his first appeal which was rejected by the competent authority vide order dated 14.10.2016. Hence the instant O.A.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled in service 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. In this regard, he relied on the decision of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India and others (2013) 7

SCC 316 and submitted that for the purpose of determining attributability of the disease to military service, what is material is whether the disability

was detected during the initial precommissioning medical tests 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 as 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 the disability of the applicant @ 50% for life,

it opined that the disability is NANA. As such his claim for disability pension has rightly been rejected by the respondents. He submitted that the

instant 0.A does not have any merit and the same is to be dismissed.

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

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

We have noted that the only reason for which the disability has been opined as NANA by the RMB is that the disease 'CAD-SVD, CABG Done

(Old)' is not connected with service. However, on further scrutiny, we have observed that the applicant developed 'CAD-SVD, CABG Done (Old)' in

October 2000 after completion of more than 14 years of service. Thus this cryptic statement of RMB Not connected with service' is not adequate to

deny attributability. After considering all issues, we are of the view that benefit of doubt goes in favour of the applicant. Thus we are of the

considered opinion that the disability 'CAD-SVD, CABG Done (Old)' is to be considered as aggravated by military service in line with the law settled

on this matter by the Hon'ble Apex Court in the case of Dharamvir Singh (supra). Additionally, the applicant will also be eligible for the benefit of

rounding off to 75%, 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).

Resultantly, the 0.A is allowed. The impugned order is set aside. The applicant's disability 'CAD-SVD, CABG Done (Old)' is to be considered as

aggravated by military service. The applicant is entitled to disability element of disability pension .j, 50% for life, which shall be broad banded to 75%

for life from the date of his discharge from service. However, due to law of limitations settled by the Hon'ble Supreme Court in the case of Shiv Dass

v. Union of India and others (2007 (3) SLR 445), the arrear of disability element will be restricted to three years preceding the date of filing of the

instant O.A. The date of filing of this 0.A is 17.04.2017. The respondents are directed to give effect to this order within four months from the date of

receipt of a copy of this order. Default will invite interest @ 8% per annum till actual payment.

No order as to costs.