Ram Awdhesh Singh vs Union Of India And Others

MA 162/2017

Vide this M.A., the applicant seeks condonation of delay of 9089 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 6481, we

allow the instant MA and condone the delay of 9089 days in filing the OA.

MA No 162 of 2017 stands disposed of accordingly.

OA 204/2017

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) Direct respondents to grant disability pension which includes disability element and service element to the applicant from the date of

discharge, i.e., wef 31.08.1991 with consequential benefits and arrears with interest @12% p.a.

(b) 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 Army on 28.10.1990. At the time of joining the Army, the applicant was

medically examined and found fit in all respects. The applicant was invalided out from service on 31.08.1991 after rendering 10 months and 04 days of

military service. At the time of invalidnnent, the applicant was in low medical category 'EEE' (Permanent) due to disability 'Pleural Effusion RT of

Tubercular Actiology 012 (b)'. Before invalidment from service, IMB of the applicant was held on 11.06.1991 at Military Hospital, Roorkee which

assessed his disability 'Pleural Effusion RT of Tubercular Actiology' @ 100% for two years and considered it as attributable to military service. The

applicant'sclaim for grant of disability pension was rejected by the respondents vide order dated 18.08.1993, stating that the invaliding disease was

neither attributable to nor aggravated by military service. Being aggrieved, the present 0.A is filed.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant i.e. 'Pleural Effusion RT of Tubercular Actiology 012

(b)' has been conceded as aggravated @100% for two years by IMB. The claim for grant of disability pension was forwarded to PCDA (P),

Allahabad. However, the same was overruled and rejected vide their order dated 09.05.1992 on the ground that the disability is neither attributable to

nor aggravated by military service. The applicant preferred first appeal, however the same was also rejected vide letter dated 18.08.1993. Hence, he

pleaded for dismissal of the Original Application.

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 applicant is attributable to or aggravated by military?

Perusal of Invaliding Medical Board goes to show that the disability of the applicant was assessed @ 100% for two years and considered as

attributable to military service. The disability pension claim was forwarded to PCDA (P), however PCDA (P) overruled the opinion of IMB and

considered the disability as neither attributable to nor aggravated by military service and rejected the disability pension claim vide order dated

09.05.1992.

We have noted that in the IMB records, in answer to specific question against Para 2 (b) on attributability, it is opined by the medical board, i.e.,

Yes, due to infection contracted during the service"". Thus it is clear that the IMB had considered the disability to have been contracted while in

service, that is why they have considered the same as ""Attributable to military service"" and the competent authority has erred in overruling the findings

of the medical board.

The law on overruling of the opinion of a Medical Board has been well settled by the Hon'ble Supreme Court in the case of Ex Sapper Mohinder

Singh v. Union of India and others (Civil Appeal No 164 of 1993 decided on 14.01.1993). In this judgement, it has been clarified that higher authorities

can't overrule the opinion of a medical board without conducting another higher medical board. Hence, in the light of this judgment, we set aside the

impugned orders of the respondents and agree with the opinion of the IMB, whereby the disability of the applicant ""Pleural Effusion RT of Tubercular

Actiology 012 (b)"" has been opined as 'attributable to military service'.

Since the applicant's IMB was valid for only two years w.e.f. 01.09.1991, hence, the respondents will now have to conduct a fresh RSMB for him

to decide his future entitlement to disability element. However, considering the fact that the 0.A has been admitted after condoning the huge delay and

laches, therefore, in view of the decision of the Hon'ble Supreme Court in Union of India and Others Vs. Tarsem Singh [2008 (8) SCC 648], the

financial benefits will however be restricted to three years before the date of filing this Original Application, i.e. 24.01.2017. Hence, the applicant will

not be entitled to any arrears of disability element for the period of two years from his discharge. However, he will be entitled to arrears of service

element of disability pension from three years prior to the date of filing this OA.

In view of the above, the 0.A deserves to be partly allowed, hence partly allowed. The impugned orders are set aside. The disability of the applicant

Pleural Effusion RT of Tubercular Actiology 012 (b)"" @ 100% for two years is to be considered as attributable to military service, as recommended

by the IMB. The applicant is held to be entitled to disability pension ©100% for two years from the date of invalidation of the applicant i.e.

01.09.1991. However, due to law of limitation, the applicant will not be eligible for arrears of disability element but he will be eligible for three years

arrears of service element of disability pension prior to the date of filing this OA. Date of filing this OA is 24.01.2017. The respondents are to conduct

a Re-Survey Medical Board for the applicant to assess his further entitlement of disability element. Respondents are required to give effect to the

order within four months from the date of receipt of a certified copy of this order. Default will invite interest 6% per annum till actual payment.

No order as to costs.

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

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