Savitri Devi vs Union Of India And Others

Being aggrieved by denial of disability pension for life time to her husband, the applicant has filed the present Original Application under Section 14

of the Armed Forces Tribunal Act, 2007 wherein she has sought the following reliefs:-

(a) Declare the whole action of the respondents as illegal, unjust, arbitrary and discriminatory in not granting the disability pension to the husband of

the applicant despite the fact that the disease of Schizophrenia caused to the applicant during active service in Navy and remained aggravated thereby

assessed as 40% for life which caused the discharge of the deceasedfrom service.

(b) Quash and set aside the Impugned order dated 01/09/2003. 24.02.2005, 19.05.2017 and set aside the finding of Release Medical Board dated

26/12/2002 with regard to Attributability and aggravation declaring as perverse and against the judicial pronouncement on the subject.

(c) Direct the respondents to authorize and grant disability pension of the husband of the applicant by treating the disease of Schizophrenia as

Attributable to and Aggravated by service and assessed as 40% and the applicant may be granted Disability Element of Disability pension @ rounding

off to 50% in view of the Judgement of Apex Court in the case of UOI Vs Ram Avtar wef the date of his Discharge, i.e. 31/01/2003 till his death, i.e.,

and, consequently the applicant may be entitled for Special Family Pension wef the date of death of her husband and be paid the life time arrears on

account of disability pension with interest @18%.

(d) Direct the respondents to authorize and grant Special Family Pension to the applicant and the applicant may be paid her difference ofp ension wef

the date of death of her husband.

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

(f) Award cost;

Brief facts of the case are that the applicant's husband was enrolled in the Indian Navy on 07.01.1988 and was discharged from service on

31.01.2003 in low medical category having rendered 15 years and 25 days of service. The Release Medical Board (RMB) of the applicant was held

on 26.12.2002 at INHS, Asvini which had assessed his disability, 'Schizophrenia (ICD F-20 Z-03)'@ 40% for life and considered as neither

attributable to nor aggravated by military service (NANA). The applicant's husband having completed 15 years of service is prima fade eligible for

service pension and accordingly the applicant as legal wife is also eligible for family pension after her husband's death. However, the applicant is now

for the first time claiming disability pension for her late husband and special family pension for herself. In this context the disability pension claim of the

applicant's husband was rejected by the competent authority vide orders dated 01.09.2003, 24.02.2005 and 19.05.2017. The applicant's husband died

on 22.05.2017.

It is in this perspective that this O.A. has been filed by the applicant.

Ld. Counsel for the applicant pleaded that the applicant's husband was enrolled in the Indian Navy in a medically and physically fit condition. It was

further pleaded that a member is to be presumed in sound physical and mental condition upon entering service if there is no note or record to the

contrary at the time of entry. In the event of his subsequently being invalided out from service on medical grounds, any deterioration in his health is to

be presumed due to service conditions. He pleaded that the applicant was under stress and strains due to rigors of service conditions which may have

led to occurrence of the disability. The action of the respondents in denying disability pension to the applicant is illegal. In this regard, he relied on the

decisions of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India and others, (2013) 7 SCC 316 and Union of India & Another Versus

Rajbir Singh (Civil Appeal No. 2904 of 2011, date of decision 13.02.2015) and pleaded for grant of disability pension with the benefit of Broad Banding

to 50% for the life time of the applicant's husband and thereafter Special Family Pension to the applicant's wife.

On the other hand, Ld. Counsel for the respondents submitted that the applicant had completed 15 years of permissible service before his discharge.

However, since the RMB has opined his disability as NANA, the applicant's husband is not entitled to disability pension He further accentuated that

the applicant's late husband was not entitled to disability pension in terms of Rule 173 of Pensions Regulations for the Army 1961 (Part-I) which

stipulates that, ""unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided out of service on account of

a disability which is attributable to or aggravated by military service and is assessed at 20% or over but in the instant case the disability of the

applicant's husband has been opined as NANA by RMB, being a constitutional disorder, therefore the applicant's late husband was not entitled to

disability pension during his life time. Moreover, the first and second appeals preferred by the applicant's husband during his lifetime have also been

rejected by the competent authority. Hence he pleaded the O.A. 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 disability

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

On careful perusal of the medical documents, it has been observed that the applicant's husband was enrolled is genetic disorder that on 07.01.1988

and the disease 'Schizophrenia (1CD F-20 Z-03)' had first started in August 1995 i.e. after rendering

7 years and seven months of service. Medical literature on the disability states that ""Schizophrenia usually appears in late adolescence or early

adulthood. Characterized by delusions, hallucinations, and other cognitive difficulties, schizophrenia can often be a lifelong struggle."" Moreover, the

applicant's husband suffered from the disability in less than eight years of service while serving in peace with no visible strain and stress of service.

The Release Medical Board (RMB) being an expert body has considered this disease to be of contstitutional nature and now when the applicant

himself never challenged the opinion of RMB during his life time, i.e., till 15 years after his discharge, the same is being challenged by his wife after

his death.

It has been well settled by the Hontle Supreme Court that the opinion given by the expert Medical Board should be given due weightage and

credence. While pronouncing judgment in Civil Appeal No 1837/2009, tilted Union of India & Another vs. Ex Rfn Ravinder Kumar, the Hon'ble Apex

Court vide its order dated 23.05.2012 had stated that opinion of Medical Board should not be over ruled unless there is a very strong medical evidence

to do so. Relevant part of judgment is as given under:-

Opinion of the Medical Board should be given primacy in deciding cases of disability pension and the court should not grant such pension brushing

aside the opinion of the Medical Authorities, record the specific finding to the effect that the disability was neither attributable to nor aggravated by

military service, the court should not ignore such a finding for the reason that Medical Board is specialized authority composed of expert medical

doctors and it is the final authority to give opinion regarding attributability and aggravation of the disability due to military service and the conditions of

service resulting in disablement of the individual"".

Additionally, in Civil Appeal No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors it has again been held by the Hon'ble Supreme

Court that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person for disability

pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. Relevant part of the aforesaid

judgment is as given below:-

In the present case, clause 14(d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability pension

shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related to conditions of

military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the time of recruitment cannot

normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that

Schizophrenia is presumed to be attributed to or aggravated by military service.

Though, the opinion of the Medical Board is subject to judicial review but the courts are not possessed of expertise to dispute such report unless

there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of the Review Medical

Board.

In the instant case, the applicant's husband suffered disability 'Schizophrenia (ICD F-20 Z-03)' within eight years of joining the Navy. He was kept

in service till he became eligible for pension, i.e., 15 years service. Thereafter as per terms of engagement he was discharged with pension. He never

challenged the findings of RMB or rejection of his disability pension during his retired life of about 15 years. Now after his death his wife is claiming

disability pension on his behalf by challenging the RMB claiming a special family pension for herself.

After considering the issues involved in this case, we are of the opinion that the applicant is already in receipt of ordinary family pension and has

totally failed to make out a case for her entitlement to Special Family Pension. Additionally in a similar case the Hontle Supreme Court in Civil Appeal

No.583-584 of 2017 (SLP (C) No.644-645 of 2011) Union of India and Ors. Vs. Rajwanti has clearly stated that claims of disability pension which

were not pursued by a soldier in his life time cannot be raised by the wife at a belated stage.

In view of the above, we are of the opinion that we have no valid reasons to interfere with the opinion of RMB, hence we agree with the opinion

of the RMB declaring the disease of applicant's late husbandas NANA. The O.A. is, therefore, devoid of merit and deserves to be dismissed. It is

accordingly dismissed.

No order as to costs.

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

Pronounced in the open court on 25th June 2020.