Manoj Chaudhary vs Union Of India And Others

MA 869/2018

Vide this M.A., the applicant seeks condonation of delay of 284 days in filing the present OA. Keeping in view the averments made in the

application and finding the same to be bonafide and in the light of the decision in Union of India and Others Vs. Tarsem Singh [2008 (8) SCC 648], we

allow the instant MA and condone the delay of 284 days in filing the OA.

MA No 869 of 2018 stands disposed of accordingly.

OA 981/2018

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 letters dated 23 Jan 2018 and 12 Feb 2018.

(b) Direct Respondents to grant disability pension @,30% and rounding off the same to 50% for life as recommended by RAIB to the applicant with

effect .from 01 Aug 2017 i.e. the date of discharge front service with interest @,12% p.a. till .final payment is made.

(c) Any other relief which the Hon 'ble Tribunal may deem fit and proper in the fact and circumstances of the case.

Brief facts of the case are that the applicant was enrolled in the Indian Air Force on 15.07.1997 and was discharged from service on 31.07.2017 in

low medical category on fulfilling the conditions of his enrolment, having rendered more than 20 years of service. The RMB of the applicant was held

on 15.01.2017 at 32 Wing, Air Force which had assessed his two disability, ie (i) ""Congenital Hyperbilirubinaemia"" @ 15-19%, and (ii) ""Dislocation

Left Elbow"" @ 15-19% and composite assessment @ 30% for life and considered as neither attributable to nor aggravated by military service

(NANA). Disability pension claim of the applicant was rejected vide orders dated 23.01.2018 and 12.02.2018. It is in this perspective that this O.A.

has been filed.

Ld. Counsel for the applicant pleaded that the applicant was enrolled in the Indian Air Force in medically and physically fit condition. It was further

pleaded that a member is to be presumed in sound physical and mental condition upon entering service if there is no note or record to the contrary at

the time of entry. In the event of his subsequently being invalided out from service on medical grounds, any deterioration in his health is to be

presumed due to service conditions. He pleaded that the applicant was under stress and strains due to rigors of service conditions which may have led

to occurrence of the disability. The action of the respondents in denying disability pension to the applicant is illegal. In this regard, he relied on the

decisions of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India and others, (2013) 7 SCC 316 and Union of India & Another Versus

Rajbir Singh (Civil Appeal No. 2904 of 2011, date of decision 13.02.2015) and submitted that for the purpose of determining attributability of the

disease to military service, what is material is whether the disability was detected at the time of enrolment and if no disability was detected at that

time, then it is to be presumed that the disability arose while in service, therefore, the disability of the applicant is to be considered attributable to or

aggravated by service and he is entitled to get disability pension ©30% and the same is to be broad banded to 50%. The Ld. Counsel for the

applicant pleaded for grant of disability pension to the applicant.

On the other hand, Ld. Counsel for the respondents submitted that since the RMB has opined the disability as NANA, the applicant is not entitled to

disability pension. He further accentuated that the applicant is not entitled to disability pension in terms of Rule 173 of Pensions Regulations for the

Army 1961 (Part-I) which stipulates that, ""unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided

out ofserviceonaccountof a disability which is attributable to or aggravated by military service and is assessed at 20% or over but in the instant case

the disability of the applicant has been assessed at 30% for life and considered as NANA and the first disease 'Congenital Hyperbilirubinaemia' is

hereditary in nature and the second disability ""Dislocation Left Elbow"" is not connected with military service, therefore the applicant is not entitled to

disability pension. He pleaded the O.A. 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 both the

disabilities of the applicant are attributable to or aggravated by military service?

On careful perusal of the medical documents, it has been observed that the applicant was enrolled on 15.07.1997 and the first disease 'Congenital

Hyperbilirubinaemia' had first started in July 2001 i.e. just after rendering 4 years of service. Medical literature on the disability states that the

Congenital Nonhemolytic Hyperbilirubinemias (CNH) are quite rare pathology of liver. They occur most often in children, but are common in adults

too. Hereditary genetics defect of enzymes taking part in metabolism of bilirubin is the cause of CNH"". In view of the above, it can be concluded that

what is congenital, i.e., by birth, can't be because of stress and strain of military service. Hence, in this case we have no valid reasons to interfere with

the opinion of the medical board. As far as the second disability ""Dislocation Left Elbow"", is concerned, it was suffered by the applicant while parking

his personal bike in the side of his corridor at 2030 hrs in night. He had slipped and fallen down on ground with body weight of left elbow. The same

fact has been mentioned in the medical board proceedings and the applicant has also given a signed undertaking that he sustained injury while parking

his personal bike in his Billet corridor. Since the injury was suffered by the applicant while parking his personal motorcycle at the place of his

residence, i.e. Billet, the same can't be considered as attributable to/ or aggravated by military service for disability pension purpose.

It has been well settled by the Hon'ble Supreme Court that the opinion given by the expert Medical Board should be given due weightage and

credence. While pronouncing judgment in Civil Appeal No 1837/2009, tilted Union of India & Another vs. Ex Rfn Ravinder Kumar, the Hon'ble Apex

Court vide its order dated 23.05.2012 had stated that opinion of Medical Board should not be over ruled judiciously unless there is a very strong

medical evident to do so. Relevant part of judgment is as given under:-

Opinion of the Medical Board should be given primacy in deciding cases of disability pension and the court should not grant such pension

brushing aside the opinion of the Medical Authorities, record the specific finding to the effect that the disability was neither attributable to

nor aggravated by military service, the court should not ignore such a finding for the reason that Medical Board is specialized authority

composed of expert medical doctors and it is the final authority to give opinion regarding attributability and aggravation of the disability

due to military service and the conditions of service resulting in disablement of the individual"".

Additionally, in Civil Appeal No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors it has again been held by the Hon'ble Supreme

Court that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation (in this case after about four years of

service) does not entitle a person for disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of

Medical Board. Relevant part of the aforesaid judgment is as given below:-

Though, the opinion of the Medical Board is subject to judicial review but the courts are not possessed of expertise to dispute such

report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of

the Review Medical Board.

In the instant case, the applicant suffered first disability 'Congenital Hyperbilirubinaemia' within four years of joining the Air Force. Additionally, this

disability is congenital, i.e., by birth, hence is of genetic nature and has no casual connection with the service. The second disability 'Dislocation Left

Elbow' has been suffered by the applicant while parking his personal bike in the corridor of the Billet which was his residence and has no relation to

military duty. Therefore, this disability has been considered as NANA. Even otherwise, both the disabilities have been assessed below 20%

independently. The Hon'ble Supreme Court in the case of UOI & Ors. Vs. Wing Commander S.P. Rathore in Civil Appeal No 10870 of 2018, decided

on 11.12.2019 has settled law that the personnel who superannuated or were discharged from service on completion of terms of engagement and

whose disability was less than 20% were not entitled to disability pension.

In view of the above, we are of the opinion that we have no valid reasons to interfere with the opinion of RMB, hence we agree with the opinion

of the RMB declining both the diseases as NANA. The O.A. is, therefore, devoid of merit and deserves to be dismissed. It is accordingly dismissed.

No order as to costs.

Pending application(s), if any, also stands disposed of.

Pronounced in the open court on 6th March, 2020.