Kamla Devi vs Union of India & Ors.

Petitioner is mother of Vijay Kumar. He died on 1321995. She is ciaiming family pension. This has been declined to her. This is on the ground

that son of the petitioner died on account of excessive intake of alcohol (Ethyl Alcohol). Claim has also been negatived on the ground that mother

is not entitled to family

Two types of pension are admissible under the"" Army Pension regulation. One is ordinary family pension and other is special family pension. So

far as ordinary family pension is concerned this is governed by Regulation 212. Special family pension is governed by Regulation 213 Eligibility for

special family pension is governed Regulation 216. Eligibility for ordinary family pension is governed by Regulation 219. These regulations are

noticed below:

Sub section IlFamily Pension and Gratuity Ordinary Family Pension 212 See Al 51/80 reproduced in officer section Note for the Readers

Ordinary Family Pension to who applicable. Families of Armed Forces Personnel except.

(a) NCC Auxiliary Cadet Corps and Lok Sahayak Sena.

(b) TA personnel except when they die while rendering military service.

(c) Persons who are executed on being convicted of death sentence by court.

Ordinary Family Pension when admissible when an individual dies on account of causes which are neither attributable to nor aggravated by

Military service.

(i) either while in service provided he had been found fit after successful completion of the requisite training and medical examination for

commission or at the time of enrolment in the case of personnel below officer rank, (ii) or after retirement/discharge from services and was on the

date of death in receipt of or eligible for retiring/special/reservist/disability/invalid/war injury pension, (iii) Death due to suicide does not disqualify

the heir from ordinary family pension. Special Family Pension 213. A special family pension may be granted to the family of an individual if his

death was due to, or hastened by

(a) a wound, injury or disease which was attributable to military service

Or

(b) the aggravation by military services of a wound injury or disease which existed before or arose during military service. Service rendered in aid

of the civil power

Special family pension is intended for the support of all the eligible members of a family, irrespective of in whose name it stands.

Eligible members of the family

The following members of the family of a deceased individual shall be viewed as eligible for the grant of a special family pension, provided

that they bare otherwise qualified:

(a) widow/widower lawfully married. It includes a widow who was married after individual's release/retirement/discharge/invalidment.

(b) Son actual and legitimate/including validly adopted.

(c) Daughter, actual and legitimate (including validly adopted.)

(d) Father (e) Mother (f) Brother (g) Sister

Conditions of eligibility for a

family pension.

A relative specified in Regulation 216 shall be eligible for the grant of family pension provided:

General

(i) he or she is not in receipt of another pension from government:

(ii) he or she is not employed under government.

Widow

(iii) a widow has not remarried. This condition shall not apply to a widow who remarried her deceased husband's brother and continues to live a

communal life with and/or contributes to the support of the other living eligible heirs.

Son

(iv) a son is below the age of 25 years.

Daughter

(v) a daughter until she attains the age of 25 years or marriage whichever is earlier.

Parents

Second life Awards (special family pension) shall be admissible to the parent(s) of the deceased and in the absence of the parents eligible brother

and sisters of the deceased of the rate of 50% of the special family pension determined vide Regulation 227 (a), if the claimants was/were largely

dependent on the deceased for support and is/are in pecuniary need.

Mother

(vi) a mother who is a widow at the time of her son's death or who becomes a widow thereafter has not remarried.

If she had remarried before her son's death, she shall remain eligible for the special family pension unless and untill she again becomes a widow and

remarries. Brother/Sister

(vii) The brothers/sisters were largely dependent on the deceased for support and are in pecuniary need.

(viii) In the case of brother he has not completed the age of 25 years, (ix) In the case of sister, she has not completed the age of 25 years or has

not married"".

Question arises as to whether petitioner is entitled to special family pension or not. Special family pension is payable when enrolled army

personnel dies of wound, injury or disease which is attributable to military service. Ordinary family pension is payable to all relations who are

entitled to special family pension including mother also. Mother figures at serial No. (e) of the subregulation of Regulation 216. Under Regulation

219, all those relations who are mentioned in Regulation 216 are entitled to grant of family pension. Therefore, mother would be entitled to family

pension in terms of Regulation 219 and 216. In this regard it would again be apt to mention that if a person is not suffering from the disease at the

time of induction in the army and if he later on died of some disease then presumption is that he died on account of disease attributable to the army

service. Such is a view expressed by the Division Bench of this court in case Union of India versus Rattan Lal 1999(2) SCT 39. What was said in

the above judgement is quoted below:

In the present case, there is nothing on the record to indicate that the writ petitionerrespondent was suffering from the ailment at the time of entry

into service. It is also not the case of the appellantUnion of India that the ailment, was such which could not be detected at the time of entry to

service. Therefore from the judicial precedents referred to above, it can safely be concluded: (i) that in case mention is not made regarding the

disease or disablement at the time of entry in service then it is to be presumed that the disability occurred during the course of service, (ii) that

disability would be on account of stress and strains of armed service:

(iii) if competent authority is to discharge with the finding recorded by the medical board visavis the disability or the percentage thereof, the matter

should be referred to the Medical Board, (iv) as there is no finding recorded that the respondent writ petition was suffering from a disease which

could not be detected at the time of entry into services, the appellantUnion of India cannot take a somersault and come to a contrary conclusion.

(v) delay in approaching the court is irrelevant"".

No doubt above case dealt with grant of disability pension but concept of disease which is attributable to the military service would still be

available. However, as indicated above mother is entitled to family pension also. This is apparent from Regulation 219. In this regard it would again

be apt to mention that in annexure 'A' cause of death is unknown. This certificate was issued on 13.2.1995 i.e. on the date of death. If nothing is

mentioned in the death certificate then latter explanation regarding cause of death would be treated as explanation which is not based on the

medical record.

Learned counsel for the Union of India submits that on postmortem it was found that there was presence of liquor in the stomach. Mere

presence of liquor in the stomach cannot lead to conclusion that death occurred on account of consumption of liquor. Liquor is something which is

consumed by army jawans. As a matter of fact it is available in the army canteen. Therefore, to say that some liquor was present in the system or

was found on postmortem would not lead to conclusion that death occurred on account of consumption of liquor. As to how much was the

quantity found in the system has also not been indicated in the counter affidavit nor this is supported by any documents placed on record.

Petition is allowed. Petitioner is held entitled to family pension in terms of Regulation 219. Let this be released within a period of three months

from the date copy of order passed by this court is made available by the petitioner to the respondents. Petitioner is also held entitled to interest at

the rate of 9% on the arrears. In case it is not paid within period stipulated above then interest would be 12%. Interest component would be

payable by person on whose account delay occurs.

Disposed of as such.