Dev Mani Sharma vs Union Of India And Others

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

(a) Direct to Respondents to release computing disability pension @ 60% and Rounding off benefit of Disability Pension @ 60% to @ 75% with

effect from 01.02.2014 to for life, according to policy letter issued by Govt of Indi vide dated 31.01.2001 and judgment dated 10.12.2014 passed by

Hon'ble Supreme Court of India in Bench of matter titled as Union of India & others Vs Ram Avtar in Civil Appeal 418/2012 alongwith 12% annual

interest till the payment be made, for which the applicant deserves.

(b) Issue any other appropriate order or direction which this hon'ble Tribunal may be deem fit and proper in facts and circumstances of the case.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Air Force on 28.07.1976 and was discharged from service on

31.01.2014 in low medical category after rending more than 37 years of service. The Release Medical Board (RMB) assessed his disabilities (i)

BRONCHIAL ASTHMA @ 40% (ii) OBSTRUCTIVE SLEEP APNEA @ 11-14 % (iii) METABOLIC SYNDROME 15-19%; composite

assessment for all the disabilities was @ 60% for life. First disability of the applicant i.e. 'Bronchial Asthma' @ 40% for life was aggravated by

service and the applicant is in receipt of 40% disability pension for his first disability i.e. 'Bronchial Asthma' with effect from 01.02.2014 vide PPO No.

08/14/B/DP/CORR/0566/2015. However, the RMB opined that second and third disabilities of the applicant were neither attributable to nor

aggravated by military service (NANA). The applicant is in receipt of disability pension for his first ID i.e. Bronchial Asthma but denied for second

and third disability, 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 for all three disabilities 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 precommissioning 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 rounded off to 75%.

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 @ 60% composite, the applicant is in receipt of 40% disability pension for his first disability i.e. 'Bronchial Asthma' with

effect from 01.02.2014 vide PPO No. 08/14/B/DP/CORR/0566/2015. However, the RMB opined that second and third disabilities of the applicant

were neither attributable to nor aggravated by military service (NANA) and second disability is effect of co existing disability of metabolic syndrome

and third disability is due to dietary indiscipline and lack of exercise. As such his claim for disability pension for second and third disabilities 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 questions which needs to be answered is straight and simple i.e. whether second and third disabilities of the

applicant are attributable to or aggravated by Military Service?

6 We have noted that second and third disabilities of the applicant have been opined as NANA by the RMB as second disability is effect of co

existing third disability i.e. metabolic syndrome and the third disability is due to dietary indiscipline and lack of exercise. In this situation we have had a

close scrutiny of the RMB and the specialist doctor opinion. We have noted that the applicant is average built, with height of 169 cms. He has a body

weight of 105 kg against ideal body weight requirement of 65.0 kg. His BMI is 36. 76 and he has been opined to be obese by the board. We have also

noted that as per medical report he has gained 20 kg weight in last three years. His third disability 'METABOLIC SYNDROME' is defined as :-

A cluster of conditions that increase the risk of heart disease, stroke and diabetes. Metabolic syndrome includes high blood pressure, high blood sugar,

excess body fat around the waist and abnormal cholesterol levels. The syndrome increases a person's risk of heart attack and stroke.

We have noted that the applicant in his medical records is under repeated advice to reduce his weight, regulate his diet and carry out regular

exercises.

Thus in view of the above facts we are of the opinion that the applicant has no case and we are in agreement with the opinion of RMB that his

second and third disability is NANA.

However, we would like to clarify that the applicant is eligible for the benefit of rounding off of his first disability from 40% to 500/0 for life in terms

of the decision of Hon`ble Supreme Court in Union of India and others V. Ram Avtar (Civil Appeal No 418 of 2012 dated 10.12.2014).

Resultantly, the O.A. deserves to be partly allowed, hence partly allowed. The applicant is eligible for disability element for his first disability only.

The disability element of pension for his first disability i.e. 'BRONCHIAL ASTHMA', which the applicant is already in receipt © 40% w.e.f.

01.02.2014 as per PPO, is to be rounded off from 40% to 50% for life. In view of the decision of the Hon'ble Supreme Court in Union of India vs.

Tarsem Singh reported in 2009 (1) AI5L7 371, the arrears will be restricted up to a period of three years preceding the date of filing of the O.A. The

date of filing of this 0.A is 26.09.2017. Ordered accordingly. To be implemented 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 11th March, 2020.