Mahendra Singh vs Union Of India And Others

Aggrieved by the denial of disability pension vide order of Respondent No. 3 (AG/PS-4) dated 01.12.2014 for the medical disabilities (i) Temporal

Lobe Epilepsy, assessed by RSMB 20% for life, and 'neither attributable nor aggravated (NANA) by military service', and (ii) Bullet Injury Face

(Battle Casualty) assessed @ 1-5% (less than 20%) for life and attributable to military service, the applicant, an army officer who was invalided out

from service on 05.10.1976, has filed thk; OA with a prayer for grant of war injury element of pension @ 50% (after rounding off/ broadbanding) with

effect from the date of his being invalided out.

Heard the learned counsels on both sides and perused the pleadings and documents on file.

Brief facts of the case, as averred by the applicant, are that he was commissioned in the Indian Army (Punjab Regiment) on 10.05.1964 and

participated in both the 1965 and 1971 wars with Pakistan. He was awarded 'Mention in despatches' in the 1965 war and sustained a bullet injury on

his face during the 1971 war and was declared a 'Battle Casualty'. The applicant was admitted in military hospitals on a number of occasions in 1974

and 1975, following which, he was admitted in Military Hospital, Jhan.si on 22.11.1975 for Toxic Confusional State and Temporal Lobe Epilepsy.

Consequently, he was invalided out of service in October 1976. Resurvey Medical Board (RSMB) of the applicant was held at Army Hospital (R&R)

in September-October 2014 which assessed his degree of disability for 'Temporal Lobe Epilepsy' as 20% for life and 'neither attributable nor

aggravated by service' (NANA), and for 'Bullet Injury Face' as 1-5% and attributable. Thus, the respondents denied disability or war injury pension to

the applicant as it did not meet the mandatory provisions prescribed at Para 53 of the Pension Regulations (Army), 1961, whereby minimum 20%

degree of disability as well as attributability/aggravation are mandatory.

Learned counsel for the applicant has submitted that the applicant was invalided out of service in 1976 for Temporal Lobe Epilepsy, which clearly

was a result of the str esses and strains of military service of over 12 years, during which period he had taken part in active action in two Indo-Pak

Wars. Further, due to bullet injury sustained on his face during the 1971 War, the applicant was declared a 'Battle Casualty'. Thus, the applicant was

invalided out on medical grounds for reasons that were clearly attributable to military service and he should accordingly be granted war injury pension.

Counsel has also referred to Air Force Order (AFO) 06/2015 where it is stated that for any percentage of disability below 50%, the percentage to be

reckoned for computing the disability element will be 50%.

Per contra, learned counsel for the respondents has submitted that the initial claim of disability was taken up with the Competent Authority and the

same was conceded as NANA vide Govt. of India Ministry of Defence letter No. 218607/76/Pen-C dated 7th October 1975. Having been invalided

out with disability assessed as NANA, the applicant was granted invalidation pension vide PPO No. M/2356/77. The respondents have conceded that

the applicant had participated in Indo-Pak War 1965 and Indo-Pak War 1971 and was wounded in action and admitted in hospital for the same on

06.12.1971. His medical disability 'temporal lobe epilepsy' was assessed @ 30% at the time of his invalidation from service. The respondents have

submitted that old medical documents of the applicant had already been weeded out on completion of prescribed period of retention i.e. 15 years after

retirement/release, under the provision of Para 619(c) of Regulation for the Army. Further, it has been contended that war injury pension cannot be

granted beyond 3 years of the date of invalidment.

Further, respondents have submitted that the applicant was subsequently brought before an RSMB on 15.10.2014 for further assessment of his

disability and that, as per RSMB proceedings, ID No. (ii) of the applicant (facial bullet injury) was assessed as attributable to military service but

assessed @ 1-5% which is less than 20%. The medical authorities fuund that the applicant was asymptomatic for his facial bullet injury, which was

superficial in nature, and thus the medical authorities have assessed the degree of disability as only 1-5%. On the other hand, the disease Temporal

Lobe Epilepsy, though now assessed @ 20%, was declared as having no causal connection to his military service. Hence, the applicant does not fulfill

the eligibility condition as laid down in Para 53 of the Pension Regulations for the Army, 2008, Part-1 for grant of disability pension. Thus, the disability

claim of the applicant was rejected vide the letter Gated 01.12.2014.

Consideration:

We have given due consideration to the arguments on both sides and find that the primary issue before us is whether the applicant should be

granted war injury or disability pension due to the fact that he was invalided out of service for 'Temporal Lobe Epilepsy' in 1976 and in consideration

of the fact that he suffered a facial bullet injury during the 1971 Indo-Pak War, which, however, has been assessed as superficial and asymptomatic

by the medical authorities, with degree of disability @ only 1-5%.

Para 33 of the Guide to Medical Officers (GOMA) (Military Pensions) 2002 comments on the attributability conditions of 'Epilepsy' and is

reproduced as hereunder:

Epilepsy

This is a disease which may develop at any age without obvious discoverable cause. The persons who develop epilepsy while serving in forces are

commonly adolescents with or without ascertainable family history of disease. The onset of epilepsy does notexclude constitutional idiopathic type of

epilepsy but possibility of organic lesion of the brain associated with cerebral trauma, infections (meningitis, cysticercus, encephalitis, TB) cerebral

anoxia in relation to service in HAA, cerebral infraction and hemorrhage, and certain metabolic (diabetes) and demyelinating disease should be kept in

mind. The factors which may trigger the seizures are sleep deprivation, emotional stress, physical and mental exhaustion, infection and pyrexia and

loud noise. Accepting is on the basis of attributability if the cause is infection, service related trauma. Epilepsy can develop after time lag/latent period

of 7 years from the exposure to offending agent (Trauma, Infection, TB). This factor should be borne in mind before rejecting epilepsy cases. Where

evidence exists that a person while on active service such as participation in battles, warlike front line operation, bombing, siege, jungle war-fare

training or intensive military training with troops, service in HAA, strenuous operational duties in aid of civil power, LRP on mountains, high altitude

flying, prolonged afloat service and deep sea diving, service in submarine, entitlement of attributability will be appropriate if the attack takes place

within 6 months. Where the genetic factor is predominant and attackoccurs after 6 months, possibility of aggravation ma y be considered.

We find that, whereas the medical authorities may be correct in assessing his facial bullet injury, sustained during the 1971 War, as

asymptomatic/superficial, meriting only 1-5% (less than 20%) degree of disability, however, the contents of aforesaid Para 33 of GOMA, 2002 clearly

brings out that wartime trauma or stresses and strains of operational service could be a cause of the Epilepsy that he contracted and thus his medical

condition, which was serious enough to lead to invalidation from service, can be considered as attributable/aggravated by military service. However,

we do not find any reason to grant war injury pension because no link has been established between his war injury anci' the medical condition that led

to his invalidment.

In the result, the OA bears merit and is allowed partially. The applicant is granted disability element of disability pension @ 20% for life, which is

broadbanded to 50% in keeping with the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Rain Avtar [Civil Appeal 418 of

2012] decided on 10th December, 2014. This would be in addition to the service element he is already in receipt of. However, keeping the long delay

in approaching the Tribunal in view, the arrears will be limited to only three years prior to the date of filing this OA i.e. 23.11.2015. Arrears to be paid

within four months, otherwise it will attract interest @ 8% per annum.

No order as to costs.

Pronounced in open Court on this 9th day of December, 2019