Ravi Shanker Singh vs Union Of India And Others

The applicant, Ex. JWO Ravi Shanker Singh, through the medium of the instant Original Application is seeking the following reliefs:

(a) Quash and set aside the impugned letter No Air HQ/99798/1/775331/03/16/DAV(DP/RMB) dated 05.12.2016.

(b) Direct respondents to treat the disability no. 1 and disability No. 3 of the applicant as attributable to or aggravated by military service

and grant him disability pension, and benefit of rounding off his disability pension to 50%.

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

consequential benefits.

(d) Any other relief which the Honble 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.

Briefly stated facts of the case are that the applicant was enrolled in the Indian Air Force on 19.03.1996 and was discharged on 01.04.2016 in Low

Medical Category on fulfilling the conditions of his enrolment. At the time of retirement from service, the Release Medical Board (RMB) held at Air

Force Station Jodhpur (Rajasthan) on 30.11.2015 assessed his disabilities (i) 'VERTIGO' @6-10% for life, (ii) 1SNHL B/E (RT-MILD, LT-

MODERATELY SEVERE' ©20% for life (after cutting ©6-10% for life) and (iii) 'HOARSENESS' ©1-5% for life, composite ©20% for life

and opined the disability to be neither attributable to nor aggravated (NANA) by service. The claim of applicant's disability pension has been rejected

by the respondents vide letter dated 05.12.2016. It is in this perspective that the applicant has preferred the present Original Application.

Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found mentally and physically fit for service in the Air

Force and there is no note in the service documents that he was suffering from any disease at the time of enrolment in Air Force. The diseases of the

applicant were contracted during the service, hence it is attributable to and aggravated by Military Service. He pleaded that various Benches of

Armed Forces Tribunal have granted disability pension in similar cases, as such the applicant be granted disability pension as well as arrears thereof,

as such the applicant is entitled to disability pension and its rounding off to 50%.

On the other hand, Ld. Counsel for the respondents contended that although the second disability i.e. 'SNHL B/E (RTMILD, LT-MODERATELY

SEVERE' is regarded as 'Aggravated' by military service but since all the disabilities of the applicant are less than @20% for life and first and third

disabilities i.e. 'VERTIGO' and 'HOARSENESS' have been regarded as NANA by the RMB, hence applicant is not entitled to disability pension. He

pleaded for dismissal of the Original Application.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the Release Medical Board

proceedings as well as the records. The only question which needs to be answered by us is straight and simple i.e. whether the first and third

disabilities of the applicant are also attributable to or aggravated by Military Service?

We have noted that the RMB had initially opined both disabilities to be NANA but later on corrected the second disability i.e. `SNHL B/E (RT-

MILD, LT-MODERATELY SEVERE' as 'Aggravated' by military service and connected with service due to exposure of loud noise of Aero Engine.

We have also noted that before correction, the second disability was NANA @20% but after correction it has become aggravated @640%. We have

also taken into consideration that the applicant's trade is a Flight Gunner and the applicant was required to fly in Transport and Helicopter aircraft

which are not always pressurised. Hence, vulnerability of the ear drum to changing air pressure as per height change of aircraft was a proportional

risk of the applicant.

The law on attributability of a disability has already been settled by the Hon'ble Supreme Court in the case of Dharamvir Singh Versus Union of

India & Others, reported in (2013) 7 Supreme Court Cases 316. In this case the Apex Court took note of the provisions of the Pensions Regulations,

Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same.

Since it is clear for the disease i.e. ‘SNHL B/E (RT-MILD, LT-MODERATELY SEVERE', the RMB has reduced the percentage of disability

from 20% to 6-10°/0 for life by one of its Members, hence, we are of the opinion that the percentage of disability in this case had to be decided at

the time of physical examination of the patient and not subsequently. Thus once 20% is recorded after physical examination, originally, original the

same cannot be changed subsequently to his disadvantage to 6-10%. Hence, considering all issues in totality, we feel that this is a strong case where

benefit of doubt has to be given to the applicant. Therefore, we are of the considered opinion that the second disability i.e. `SNHL B/E (RT-MILD,

LT-MODERATELY SEVERE' is to be considered as aggravated by military service ©20% for life.

In view of Hon'ble Supreme Court judgment in the case of Union of India and Ors Vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on

10th December 2014) we are of the opinion that the applicant is entitled to the benefit of rounding off from 20% to 50% for life from the date of his

discharge.

However considering all issues, we agree with the opinion of the RMB that the first and third second disabilities i.e. 'VERGIGO' and

'HOARSENESS' are not connected with service hence NANA. annum till actual payment.

No order as to costs.

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

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