Kuldep Singh vs Union Of India And Others

Aggrieved by IIi impugned orders dated03,05.1980 denying him disability element of pension, the applicant has filed the instant C.A. seeking the

following reliefs:

(i) To set aside the rejection leiter of disability pension dated 03.05.1980

(ii) To grant disabilliVinvalid pension by considering the invalidment of applicant ond making his disability altributabielawavated by service

and grant the disability pension to the applicant with intereyt

(iii) To direct the respondents to consider icier his injury as war injury.

(iv) To direct the respondents to consider his injury on shouldev with bayonet during Ineio-Pak war.

(v) To direct the respondents so mum' off disability from 50% to 75%.

(vi) Pass such and other orders, us this Hon -ble Tribimal may deem ,fit and proper in the facts and circumstances of the ease.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 07.02.1968 and was invalided out of service me,f,

09,081976, in low medical category 'EEEz, after having 1""1 entitled to get disability pension © 50% and the same is to be broad banded to 75%.

On the other hand, learned counsel for the respondents submitted that though the IiviB had assessed the disability of the deceased applicant ©

500/, it opined that the disability is NANA. As such his claim for disability pension has rightly been rejected by the respondents. He submitted that the

instant C.A, does not have any merit and the same is 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 deceased applicant is attributable to or aggravated by military service?

On careful perusal of the records it came to our notice that the deceased soldier was serving at Chhamb Sector when the disability was flrst

detected on 10.12.1971. In this connection summary and opinion of Lt Col Dharmvir, Eye Specialist, Military Hospital, Jammu dated 11.05.1.976

reveal that onset of the disability was insidious and his vision of both the eyes was deteriorating gradually. Therefore he was invalided out of service

being an unfit soldier. The IMB had assessed his disability © 50% for two years as NANA on grounds of disease not being connected with military

service. In this case what has caught our attention is that the deceased soldier was in Ladakh Sector of 38kK, a field area in 1971. His records show

entry of 'Bayonet Bound Lt Shoulder' as on 10.1231. The chances are not the bayonet had also partially Impacted his head which could be the reason

for his loss of eye sight at such an early age.

Thus considering all issues involved in this case and specially the fact that the matter relates to a disease picked up in field area post a Bayonet

Injury (in circumstances which are not clear), we are of the considered opinion that the disability of the applicant is to be considered as attributable to

military service n line with the judgment of the Honble Suprement Court in the case of Dharamvir Singh (supra).

Resultantly, the 0.A is allowed. The impugned orders dated 20,10.1976 and 03.05.1980 are set aside. The deceased soldier's disability 'Myopic

Astigmatism both Eyes 375 is to be considered as aggravated by military service and the deceased soldier is eligible for disability pension from the

date of discharge. The deceased soldier is entitled to disabiltty element of disability pension © 50% for two years, since broad banding came into

existence w.e.f. 01,01.1996, only 50% disability element is applicable to him. However due to law of limitations as laid down vide 1-lonble Supreme

Court judgment on Shiv Pass vs Union of India & Ors, 2007 (3) SLR 44,5 the deceased woldier will not be entitled for any disability element for the

period of two years after his discharge but he will be entitled to service element for three years preceding the date of filing this O.A. This O.A. was

filed on 2105.2017. This order is to be implemented by the respondents within four months from the date of receipt of a certified copy of this order.

Default will invite interest © 8% per annum.

No order as to costs.