Kaushlendra Kumar Awasthi vs Union Of India And Others

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces

Tribunal Act, 2007 wherein he has sought the following reliefs:-

(a) Quash and set aside the impugned letter No Air HQ/ 99798/1/ 733877/ DAV/DP/CC dated 20.02.2017 and/or

(b) Direct the respondents to treat the disability of the applicant as attributable to or aggravated by military service and grant him disability

element of pension as applicable by giving broad banding benefits @ 100% in terms of Govt of India, Min of Defence letter No 1(2)/97/D

(Pen-C) dated 31.01.2001 and or/

(c) Direct respondents to pay the due arrears of disability element of pension with interest @ 12%p.a. from the date of Invalidment with all

the consequential benefits.|

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

application in favour of the applicant and against the respondents.

The brief facts of the case giving rise to the instant original applicant are that the applicant was enrolled in the Indian Air Force (IAF) on

30.08.1991 and was invalided out of service on 07.06.2016. Prior to discharge, the Invaliding Medical Board (IMB) had assessed his disabilities (i)

'Acid Burn Injury (BE) Optd (old)' © 90% for life and (ii) 'Diabetes Mellitus' 200/o for life neither attributable to nor aggravated by military service

(NANA). Disability pension claim was rejected vide order dated 22.07.2016. It is in this perspective that the applicant has preferred the present O.A.

Ld. Counsel for the applicant pleaded that the applicant was fully fit at the time of enrolment and submitted that the applicant was granted casual

leave with prefixes 13.09.2008 and 14.09.2008 hence he proceeded on 12.09.2008 on leave after duty hours. On 12.09.2008 at about 2315 hrs while

the applicant was waiting at Bus Stand, Jhansi,two miscreants tried to snatch his belongings and in that course of action they threw some chemical on

his face resulting in his face burn injury. The applicant was provided treatment at MH Jhansi, MH Gwalior and Army Hospital, Research and Referral

(R&R), Delhi. The applicant was discharged from service on 07.06.2016 in medical category A4G4. Ld. Counsel for the applicant further submitted

that the applicant had suffered Diabetes Mellitus Type-II on 22.03.2014 which has causal connection with burn injury as he had been in the various

hospitals for prolonged period and that prevented him for doing physical work due to low eye vision. Relying upon the Hontle Apex Court judgment in

the case of Dharamvir Singh vs Union of India & Ors, reported in (2013) 7 SCC 31,6 Ld. Counsel for the applicant argued that the disabilities of the

applicant are principally due military service hence these should be considered as aggravated by military service.

On the other hand, Ld. Counsel for the respondents though conceded that burn injury of the applicant occurred while the applicant was proceeding

on casual leave but submitted that since the competent authority has opined the disability as NANA therefore the applicant is not entitled to disability

pension. He pleaded for dismissal of the O.A.

5, We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the IMB and rejection order of

disability pension claim. The question before us is simple and straight i.e.-is the disabilities suffered by the applicant attributable to or aggravated by

military service?

On scrutiny of the documents we have found that the applicant was eligible to proceed on casual leave on 12.09.2008 AD hours. This fact i.e. his

leave, his prefix and his entitlement to travel on 12th AD hours has been verified with his Personal Occurrence Report (POR) produced in the

Tribunal. We have also noted that a statement of the applicant is on record (page 64 of the 0.A.) and according to that the applicant was waiting at

Jhansi bus stand on 12.09.2008 when the incident of snatching his luggage took place and on his resistance some chemical was thrown on his face

which resulted in burn injury and substantial loss of his vision. For convenience sake the statement is reproduced as under:-

STATEMENT BY 733877-H SGT KK AWASTHI, SEW 16 BRD, AF

I was posted strength of at 42 ED, AF Gwalior. At 2315 Hrs, on 12 Sep 08, near bus stop at Jhansi (while proceeding on leave), two

persons attempted to snatch my luggage, I resisted and started shouting. That time they threw some liquid (chemical) on my face and fled

away with my luggage. I could not see anything after the incident. With the help of someone I was taken to MH, Jhansi. From MH (Jhansi) I

was referred to MH (Gwalior) and further to R&R New Delhi on 13 Sep 08. Due to the chemicals thrown on my face, lost my vision of both

the eyes.

Dated: 16 Feb 16 Yours faithfully,

(sd/xxxxx)

SD/-xxxxx

(Rajiv J Mistry) Gp Capt Commanding Officer

16, BRD, Air Force 16 Feb 16

We have noted that this incident took place in 2008, however the statement of applicant is of February, 2016. Since attributability of an injury is

disposed off, as per official norms either by facts emerging out of an injury report or by a Court of Inquiry (C of I), we asked for the same. However

respondents admitted that injury report is not traceable and this fact of non traceability of injury report is also mentioned in the RMB.

We have also noted that at the time of incident the applicant was posted at GWALIOR and his leave station was in JHANSI Area of U.P. Thus

circumstantial evidence in terms of date, time and place of the acid burn incident indicates that there is credibility in the statement of the applicant that

this injury has been suffered while travelling from duty station to leave station. Additionally any accident/injury during the travel period of leave from

duty station to leave station and vice versa is to be deemed as an accident/injury while on duty vide Hon'ble Supreme Court judgment in the case of

Secretary Government of India & Ors vs Dharambir Singh, Civil Appeal No 4981 of 2012 decided on 20.09.2019.

Thus, from the above facts and records, it is clear that the applicant has sustained injury while travelling from duty station to leave station and

therefore this accident is to be treated as an accident on duty because there is a causal connection of injury with military duty and the disability is

therefore to be considered as attributable to military service.

Additionally, the Hontle Supreme Court in the case of Union of India vs Ex Nk Vijay Kumar, Civil Appeal No 6583 of 2015 (arising out of CAD

No. 13923 of 2014), decided on 26.08.2015 has observed that there should be some nexus between the Military duty and the incident resulting in the

injury to a person subject to Military Act.

Considering all aspects of his second disability i.e. Diabetic Mellitus and the circumstances under which this disability has originated, we agree

with the opinion of Medical Board that this disability is NANA.

In view of the above, we are of the view that the applicant is entitled to disability pension for life. Additionally his disability is eligible for broad

banding to 100% disability element for life in terms of Union of India vs Ram Avtar & Ors, Civil Appeal No. 418 of 2012 decided on 10 December,

2014.

As a result of foregoing discussion, the O.A. is allowed. The disability 'Acid Burn Injury' is to be considered as attributable to military service. The

impugned orders are set aside. The applicant shall be granted disability element @ 90% for life broad banded to 100% for life w.e.f. his date of

discharge. The respondents are directed to give effect to this order within a period of four months from the date of receipt of ireei-tiffe=c1 copy of

this order. Default will invite interest @ 6% per annum.

No order as to costs.

Pending applications, if any, are disposed of accordingly.

Pronounced in the open court on 17th March, 2020.