Prakash Kanwar vs Union Of India & Ors

The appellant's husband was enrolled in the Territorial Army (TA) on 01.10.2002 for a period of seven years in colour service and 10 years in Reserve Liability. He died in an accident while he was a co-driver on 01.10.2008. He was on bonafide military duty in a counter insurgency operational area (OPERATION RAKSHAK). The vehicle, in which he was travelling, met with an accident when it fell in a deep gorge which is approximately 70 meters below the road axis Krishna Ghati-Poonch.

The Court of Inquiry held that the death of appellant's husband was attributable to military service.

The OIC records also forwarded the case of the appellant's husband for notifying his death as 'Battle Casualty' since he died in an operational area when performing bonafide military duty.

The Director General, Territorial Army vide order dated 24.05.2010 held that the death of the appellant's husband does not qualify for grant of battle casualty status. The order passed by the Director General was upheld by the Armed Forces Tribunal, Regional Bench, Jaipur.

Ms. Chitrangda Rastravara, learned counsel appearing for the appellant submits that the appellant's husband was recommended to be treated as a battle casualty by the Court of Inquiry and the OIC records. There is no doubt that the appellant's husband was on duty when he died in an accident. She relied upon on instructions issued in 2003 to submit that accidental injuries and deaths which occur in action in an operational area qualify as battle casualties.

In Kanchan Dua vs. Union of India and another 2019 SCC OnLine SC 1246, this Court dealt with the Rules/Regulations concerning pensionary benefits payable to the Armed Forces Personnel, which were modified on 31.01.2001. On a detailed consideration of all the points connected to entitlement of liberalised family pension, this Court held as follows:

"8. The basis of the claim of the Appellant for Liberalised Family Pension flows from the Instructions dated 31.01.2001. There is no doubt that Operation Rakshak is a notified Operation falling under Clause 9 of Category 'E' thereof. There is also no dispute that those covered in Category 'E' are entitled for Liberalised Family Pension. However, the notification issued by the Government extending concessions to the Armed Forces personnel deployed in Operation Rakshak provides that Liberalized Pensionary Awards are extended only to those troops in active Operations against militants in terms of para I of the letter dated 24.02.1972. A bare perusal of para I of letter dated 24.02.1972 would make it clear that only personnel killed or disabled on account of injuries in action are eligible for Liberalized Pensionary Awards. Therefore, we are in agreement with the Respondent that the Appellant is not entitled for Liberalised Family Pension.

We have examined the judgments of the High Courts cited by Mrs. V. Mohana, learned Amicus Curiae in Manju Tewari v. Union of India, Preeti Sidhu v. Union of India, K.J.S. Buttar v. Union of India, Major Arvind Kumar Suhag v. Union of India, J. P Bhardwaj v. Union of India, Radhika Devi v. Union of India and Pushpa Devi v. State of Haryana. Though relief of Liberalised Family Pension was granted by the High Courts in those judgments, the High Courts have not examined the letter dated 24.02.1972 and the notification dated 07.05.1990. Therefore, no relief can be given to the appellant on the basis of the said judgments. The judgments relied upon by Mrs. V. Mohana, leaned Amicus Curiae have to be considered to have been determined on the particular facts of those cases.

This case is squarely covered by the said judgment of Kanchan Dua (supra). Therefore, the judgment of the Tribunal does not call for any interference.

The appeals are dismissed.