Balaguru Murthy vs Union Of India And Others

M.A. No. 307/2018

For the reasons carved out in the Application, the delay of 984 days in filing the Original Application is hereby condoned.

M.A. stands disposed off.

O.A. No. 456/2018

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

(a) Quash and set aside the impugned letters dated 05 July 2017.

(b) Direct the respondents to calculate the composite assessment of both the disabilities correctly as it is to be 60% and not 40% as per GOT letter

dated 14 Dec 2009.

(c) Direct Respondents to grant Disability Pension © 75% for life to the applicant with effect from 01 Jun 2015 i.e. the date of invaliding out from

service with interest 12% p.a. till final payment is made.

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

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 17.05.1993 and was discharged from service on 31.05.2015

in low medical category after rendering more than 22 years of service. The Release Medical Board (RMB) assessed his disabilities (i) 'Primary

Hypertension' © 30% for life and (ii) 'Hypomania' 40 % for life, composite assessment for both the disabilities was @ 40% for life. However, the

RMB opined that the disabilities of the applicant was neither attributable to nor aggravated by military service (NANA) and onset of the disabilities

was in peace station. The applicant's claim for grant of disability pension was not granted by the respondents vide order dated 05.07.2017. Hence the

instant Original Application.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled in the service and any disability not recorded

at the time of enrolment should be presumed to have been caused subsequently. The action of the respondents in not granting 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 pre-enrolment 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 disabilities of the applicant are to be considered as aggravated by service and he is entitled to get disability

pension © 60% for life and the same is to be broad banded to 75%.

On the other hand, though counter affidavit has not yet been filed, learned counsel for the respondents produced the original medical records and

submitted that though the RMB had assessed both the disabilities of the applicant 40% composite, it has opined that the disability is NANA and onset

of the disabilities was in peace area. 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.

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

proceedings as well as the records. The question which needs to be answered is straight and simple i.e. Whether the disabilities of the applicant are

attributable to or aggravated by Military Service?

We have noted that the applicant is a Naik and has been discharged from service on LMC grounds through a Release Medical Board. His first

disability i.e. 'Primary Hypertension' has started 09 months before his discharge and his second disability 'HYPOMANIA', a mental ailment has

started 05 months before his discharge. In this situation we have noted that for second ailment i.e. 'HYPOMANIA' (a mental disorder), the specialist

medical officer (a Psychiatrist) has observed that the wife of the applicant has complained about alcohol abuse and odd behaviour of the applicant.

We have also noted that the RMB records indicate that the applicant is overweight i.e. 20.5 kg over and above his ideal weight. Thus considering all

issues including the relationship of overweight and alcohol abuse with hypertension we are in agreement with the opinion of the RMB that the first

disease i.e. 'PRIMARY HYPERTENSION' is NANA. As far as second disease i.e. 'HYPOMANIA' is concerned, we have noted that this disease

has developed after four months of first disease and 05 months before discharge. Thus, after 21 years of normal behaviour in service, there is sudden

change in applicant's behaviour. We have also noted that besides the complaint of wife on alcohol abuse and odd behaviour, there are office related

issues also mentioned by the specialist medical officer (a Psychiatrist) in the RMB. Thus considering the onset of the second disease in its entirety, we

are of the opinion that the second disease is related to the stress and strain of military service. Further, a perusal of opinion of medical board reveals

that initially this disability was opined to be aggravated by by the respondents within four months from the date of receipt of a copy of this order.

Default will invite interest @ 6% per annum.

No order as to costs,

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

Pronounced in the open Court on 6th March, 2020.