R.K. Munshi vs Union Of India And Others

Aggrieved by the denial of disability pension, the applicant has filed the instant 0.A seeking the following reliefs:

(i) Petitioner, hence, prays for grant of disability pension in accordance with the applicable Rules and as held by the Hon'ble Supreme Court vide

Annexures A-1 to A-5 and The Entitlement Rules, 1982, by setting aside that part of the medical Board (Annexure A-6) and the negation (Annexure

7) wherein the disabilities have been opined to be neither attributable to, nor aggravated by military service on the pretext that they are metabolic or

constitutional disorders not only in conflict with the Rules but also in direct contravention of series of decisions of the Hon'ble Supreme Court (supra);

(ii) That the Respondent's may be directed to grant the benefit of broad banding of the fresh percentage of disability element henceforth applicable to

the Applicant;

(iii) With a further prayer that the Respondents may be directed to release the disability pension as per (i) and

(ii) above, and its arrears with heavy costs and compensation and interest within a time-bound manner;

(iv) Any other relief which the Hontle Tribunal may deem fit in the interest of justice and in favour of the Petitioner.

The brief facts, as averred by the learned counsel for both the parties are that the applicant was initially enrolled in the Indian Air Force on

20.04.1972 and thereafter commissioned in the Indian Army on 12.06.1982 and retired from service on 10.08.2008 in low medical category after

rendering more than 36 years of service. The Release Medical Board (RMB) held at Military Hospital, Ambala on 19.06.2008 assessed his disabilities

(i) `GOUTY ARTHRITIS M-10' @ 6-10 %, (ii) 'OBESITY E-66.9' @ Nil% and (iii) 1IHD 1-25.9' @ 20%, composite @ 20% for life. However, the

RMB opined that the disease of the applicant was neither attributable to nor aggravated by military service (NANA). The applicant's claim for grant

of disability pension was rejected by the respondents, hence the instant Original Application.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled/commissioned in Army service and any

disability not recorded at the time of enrolment/commission 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 diseases to military service, what is

material is whether the disabilities were detected during the initial pre-commissioning medical tests and if no disability was detected at that time, then it

is to be presumed that the disabilities arose while in service, therefore, the disabilities of the applicant is to be considered as aggravated by service and

he is entitled to get disability pension @ 200/ofor life and the same is to be broad banded to 50% for life.

On the other hand, learned counsel for the respondents has filed the Counter Affidavit and submitted that though the RMB had assessed the

disabilities of the applicant composite © 20% for life, it opined that the disabilities are NANA and reason/cause for first disability is 'Metabolic

Disorder' and second and third disabilities are constitutional disorder not connected with service. As such his claim for disability pension has rightly

been rejected by the respondents. He submitted that the instant Original Application 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 needs to be answered is, whether the

disabilities of the applicant are attributable to or aggravated by military service?

We have noted that the applicant suffered with three disabilities i.e. first disability 'Obesity' in May 1997 and second disability 'Gouty Arthritis' in

November 1997 and third disability 'IND' in October 2004. All the diseases started after Obesity in May 1997. We have also noted that when a soldier

is put in 'OBESITY' category, it means that he is at least 30 and above to his acceptable Body Mass Index (BMI). BMI is defined as a person's

weight with respect to his height. Obesity also reflects excessive fat accumulation in the body and is known to make a person more vulnerable to

various diseases. This also clearly points out that the officer has been in overweight category i.e. BMI between 25 & 29.9 for long before being

declared obese. It also indicates that the officer has failed to control his obesity from may 1997 till he retired in 2008.

In the above situation we feel that a soldier has special responsibility to keep himself fully fit. Being overweight to the extent of being placed in

lower medical category of 'OBESITY' for 11 years amounts to being negligent towards own health and also amounts to an invitation to life style

disease like 'Hypertension', 'Arthritis' and 'heart disease'. Thus in the above scenario when it is clear that the applicant was required to reduce weight

by diet control and regular exercise due to obesity, we are of the opinion that no benefit of doubt can be given in favour of the applicant. We are

therefore, in agreement with the opinion of the RMB that all the three disabilities of the applicant are not connected with service and hence, are

NANA. In a similar case on 08.07.2019, Hon'ble Supreme Court has dismissed the Civil Appeal (Diary No. 21017/2019) Gyanendra Singh Versus

Union of India & Others, arising out of Judgment and order dated 20.02.2019 passed by this Tribunal in O.A. No. 1656 of 2016.

In view of the above, the applicant has failed to make out a case for himself. Hence, this Original Application is liable to be dismissed, hence,

dismissed.

No order as to costs.

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

Pronounced in the open Court on 5th March, 2020.