S S Lobo vs Union Of India And Others

The applicant, Maj S.S. Lobo (Retd.), through the medium of the instant Original Application is seeking the following reliefs:

(a) Set aside the impugned order dated 06,09,2016 passed by the Respondents.

(b) Direct the Respondents to treat the disability with which the Applicant is suffering as Attributable to or Aggravated by military service.

(c) Direct the Respondents to grant disability pension to the Applicant w.e.f the date of his invalidment i.e. 09.04.2015.

(d) Direct the Respondents to pay disability pension to the Appellant @ of 50% w.e.f. 09.04.2015 by rounding off the Applicant's disability to 50%.

(e) Direct the Respondents to pay 10% interest on the arrears of disability pension w.e.f. 09.04.2015; and

(f) Issue such other order/direction as may be deemed appropriate in the facts and circumstances of the case.

Briefly stated facts of the case are that the applicant was commissioned in the Army Ordnance Corps in Indian Army on 10.12.2004 and was

invalided out of service on 09.04.2015 in Low Medical Category. At the time of retirement from service, the Invaliding Medical Board (IMB) held at

Command Hospital (AF) Bangalore on 16.11.2012 assessed his disability 'RECURRENT DEPRESSIVE DISORDER (F 33.0)' ©40% for life and

opined the disability to be neither attributable to nor aggravated (NANA) by service as the onset of disease in modified (peace) and there was no

close time association with stress and strains of Field/CI Ops/HAA. The applicant approached the respondents for grant of disability pension and its

rounding off but the same was rejected vide their letter dated 22.07.2015. The applicant's first appeal has also been rejected by the respondents vide

their letter dated 06,09.2016, It is in this perspective that the applicant has preferred the present Original Application. have granted disability pension in

similar cases, as such the applicant be granted disability pension as well as arrears thereof, as such the applicant is entitled to disability pension and its

rounding off to 50%.

Learned Counsel for the applicant pleaded that at the time of service in the Army and there is no note in the service documents that he was

suffering from any disease at the time of commission in Army. The disease of the applicant was contacted during the service, hence it is attributable

to and aggravated by Military Service. He pleaded that various Benches of Armed Forces Tribunal have granted disability pension in similar cases, as

such the applicant be granted disability pension as well as arrears thereof, as such the applicant is entitled to disability pension and its rounding off to

50%.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant ©40% for life has been regarded as NANA by the

IMB, hence applicant is not entitled to disability pension. He pleaded for dismissal of the Original Application.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the Invaliding Medical Board

proceedings as well as the records. The only question which needs to be answered is straight and simple i.e. whether the disability of the applicant is

attributable to or aggravated by Military Service?

The law on attributability of a disability has already been settled by the Honible Supreme Court in the case of Dharamvir Singh Versus Union of

India & Others, reported in (2013) 7 Supreme Court Cases 316. In this case the Apex Court took note of the provisions of the Pensions Regulations,

Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same.

In view of the settled position of law on attributability, we find that the IMB has denied attributability to the applicant only by endorsing that the

disability ""RECURRENT DEPRESSIVE DISORDER (F 33.0)"" is neither attributable to nor aggravated (NANA) by service as the origin of disease

is in peace area and there was no close time association with stress and strain of filed/CI Ops/HAA. The applicant was commissioned in Indian Army

on 10.12.2004 and the disability has originated for the first time after more than six years of Army service i.e. in the month of September, 2010. We

are therefore of the considered opinion that the reasons given in IMB for declaring disease as NANA is very brief and cryptic and does not

adequately explain the denial of attributability. Additionally we are of the opinion that it is not correct to say that there is no stress and strain of military

service in peace areas. Therefore, benefit of doubt in these circumstances should be extended in favour of the applicant in view of the law settled on

this matter by Dharamvir Singh vs Union of India & Ors (supra). Hence, we consider the disability of the applicant as aggravated by military service,

as such the applicant is entitled for the disability pension from the date of his invalidation.

In view of Hon'ble Supreme Court judgment in the case of Sukhwinder Singh Vs. Union of India, reported in (2014) STPL (WEB) 468 (decided on

25.06.2014) the applicant is entitled for rounding off of disability pension from ©40% for life to ©50% for life.

In view of the above, the Original Application No. 1406 of 2017 deserves to be allowed, hence allowed. The impugned order dated 22.07.2015 and

06.09.2016, enclosed as Annexure A-1 and A-2 of the Original Application, are set aside. The disability of the applicant i.e. 'RECURRENT

DEPRESSIVE DISORDER (F 33.0)' is to be considered as aggravated by military service. The respondents are directed to grant disability pension

consisting of service element as well as disability element to the applicant ©40% for life which would stand rounded off to 50% for life from the

date of his invalidation i.e. 09.04.2015. The respondents are directed to give effect to this order within a period of four months from the date of receipt

of a certified copy of this order. Default will invite interest @ 6% per annum till actual payment.

No order as to costs.

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

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