R.S. Bhatia vs Union Of India And Others

Challenge in this OA is to the letter of the respondents(Air Headquarters/directorate of Air Veterans) dated 14.09.2016 vide which, in response to

his legal notice, the applicant was informed that he is not entitled for disability pension as Release Medical Board (RMB) assessed his disability as

neither attributable to nor aggravated by service.

Facts germane to the filing of the present OA, as averred by the applicant, are that the applicant having been enrolled in the Indian Air Force on

01.02 1998 was discharged from service with effect from 31.01_2016 on completion of 18 years of service. In the meanwhile, while serving with 810

SU. on 29.10.2004, he met with an accident while on duty and Court of Inquiry was conducted. He was admitted to military hospital for treatment and

diagnosed as a case of DEPRESSED FRACTURE (LT) FRONTAL REGION (OLD) for which he was downgraded to Low Medical Category

A4G3(P). The case for grant of disability pension was rejected by the respondents on the ground that his disability was neither attributable to nor

aggravated by service. Hence this OA

3 The claim of the applicant has been refuted by the respondents inter alia on the contention that. as per the finding of the Court of Inquiry, whereas

the applicant was on duty on 29.10.2004 from 0730 hours and had been detailed for collection of ration from Station Logistic Section in Technical

Area by his SNCO I/C, the applicant was performing his duty on a private two wheeler motorcycle. The applicant had suddenly noticed an Army

vehicle ahead of him on his path and rammed into the Army vehicle as he could not control his two wheeler. In the process he fell down and sustained

multiple injuries, diagnosed as Compound Depressed Fracture (it) Frontal Region with head injury. He was operated on 29.10.2004 and Cranioplasty

was done on 05 08 2005. Subsequentlyhe was discharged from Army Hospitalon 13.08.2005. On reporting back from sick leave, he complained of

Dimi of vision (LT) Eye. He was advised for Remodeling of graft which was done on 17.11.2005. He was reviewed by neurosurgeon and

recommended by him to be placed in Low Medical Category A4G4 (T-24) weeks. The applicant was reviewed periodically. The Release Medical

Board held on 06.05.2015, while posted at a peace station, found him fit to be released in Low Medical Category A4G3(P) for the said disability. The

disability was not considered as attributable as per Court of Inquiry Proceedings. The degree of disability was assessed as 20% for life. Since the

applicant did not fulfil primary conditions for grant of disability pension as per Rule 153 of Pension Regulations for IAF, 1961 he is not entitled for

grant of disability pension.

Counsel for the applicant submitted that the applicant was on duty when he met with an accident and sustained injuries. Reliance is placed on

Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel 2008, i.e., Appendix to Ministry of Defence letter No.

1(3)/2002/D(Pen/Pol) dated 18.01.2009 para 9 where it is mentioned that for the purpose of these Rules, a person subject to the disciplinary code of

the Armed Forces shall be treated on duty.

a) When performing an official task or a task failure to do which would constitute an offence. triable under the disciplinary code applicable to him.

b) When moving from one place of duty to another place of duty irrespective of the mode of movement.

(c) Reliance is also placed on Note below para 9 sub para 4(d) where it is mentioned that

An Armed Forces Personnel while travelling between his place of duty to leave station and vice-versa is to be treated on duty.

The occurrence of injury should have taken place in reaching the leave station from duty station or vice-versa using the commonly available/adopted

route and mode of transport. As per sub para (e) of para 9- when travelling by reasonable route from one's official residence to and back from the

appointed place of duty irrespective of the mode of conveyance (whether private or provided by the government) is treated on duty.

Reliance is also placed on para 10(i) of Entitlement Rule 2008 injuries sustained when the individual is on duty as defined shall be treated as

attributable to military service (provided a nexus between injury and military service is established).

It was submitted that the applicant met with an accident while on duty when he was travelling from one place to another place of duty, thus, his injury

sustained should be treated as attributable to military service in terms of above paras of Entitlement Rules 2008 and accordingly he is entitled for grant

of disability pension.

Reliance is also placed on the judgment passed by Hon'ble Supreme Court of India in Union of India and another versus Ex.Naik Surendra Pandey

2016(1) SCC (L&S) 266,M adan Singh Shekhawat v. Union of India, AIR 1999 SC 337,8 Ranju Devi vs. Union of India and others, WP(C)

2684/2017 decided by Hon'ble High Court of Delhi on 10.04.2019,

5 Counsel for the respondents. on the other hand, submits that instead of availing service transport, the applicant went on his own two wheeler scooter

and met with an accident. Moreover, as per findings of Court of Inquiry. applicant himself was negligent. Therefore, he is not entitled for the benefit.

6 We have given our considerable thought to the respective submissions of counsel for the parties and perused the record.

It is undisputed case of the parties that the applicant was on duty on 29.10.2004 from 0730 hours. He was detailed for ration collection from Station

Logistics Section in Technical area by Sgt Chaturvedi, Rdo Tech.. SNCO I/C Airmen Mess. The applicant performed his duty on a private two

wheeler motorcycle and was in possession of a valid driving licence and driving permit. As per the findings of the Court of Inquiry. he started from the

Airmen Mess around 0900 hrs and while travelling to Station Logistics Section. He met with an accident resulting in injuries. The Court of Inquiry

opined that he was responsible and blameworthy for the accident, however, the non-availability of adequate road signs/warning signs at the

intersection had also contributed to the accident. It was also observed that the road from the domestic area to technical area of the unit has a small

approach road leading to various establishments of the IAF. Army, GE etc. Most intersections did not have adequate road signs/cautions/boards to

alert the motorists. As a result, motorists have tendency to focus on road ahead other than approach road on sides and tend to be taken by surprise

when they see vehicle coming from the sides.

8 As per the Release Medical Board. the reason for opining the disability as neither attributable to nor aggravated by service is that the onset of

disability was while posted at peace station.

The aforesaid discussion makes it clear that the claimant sustained the injuries while he was performing a military duty. However, he was denied

the benefit of disability pension on the ground that although service vehicle was available but he preferred to perform the duty on his own two wheeler

scooter.

In Madan Singh Shekhawat (supra), Hon'ble Supreme Court considered Rule 48 of the Pension Regulation which contemplates admissibility of

disability pension. Paras 8, 9,10;11,12 and 15 are relevant and are extracted as below.-

Rule 48 of the said regulation contemplates admissibility of disability pension. It has enumerated various cases under which an army

personnel is entitled to the grant of disability pension.

Rule 48 reads thus :-

Disability pension when admissible-

An officer who is retired from military service on account of a disability which is attributable to or aggravated by such service and is

assessed at 20 per cent or over may. on retirement. be awarded a disability pension consisting of a service element and a disability element

in accordance with the regulations in this section:

In respect of accidents the following rules will be observed

(a) ...

(b)

(c) A person is also deemed to be on duty' during the period of participation in recreation, organised or permitted by Service Authorities

and of travelling in a body or singly under organised arrangements. A person is also considered to be on duty when proceeding to his leave

station or returning to duty from his leave station at public expense."" (emphasis supplied).

This rule is a deeming provision which provides for situations under which a person on duty, if he suffers disability, is entitled to the

grant of disability pension. The last part of this sub-rule provides that a person incurring disability when proceeding to his leave station or

returning to duty from his leave station at public expense is also entitled to the grant of disability pension.

The controversy in this case is whether the qualification ""at public expense"" found in this rule is so mandatory as to deprive an army

personnel who is travelling to his leave station or vice versa ""on duty"", but at his own expense, of the benefit of disability pension if need

arises.

11 If the expression ""at public expense"" is to be construed literally then under the Rules referred to above, an army personnel incurring a

disability during his travel at his own expense will not be entitled to the benefit of Rule 6c (supra). The object of the rule, as we see, is to

provide relief to a victim of accident during the travel. If that be so, the nature of expenditure incurred for the purpose of such travel is

wholly alien to the object of the rule.

It is the duty of the Court to interpret a provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than

a restrictive meaning which would negate the very object of the Rule.

Applying the above rule, we are of the opinion that the rule makers did not intend to deprive the army personnel of the benefit of the

disability pension solely on the ground that the cost of journey was not borne by the public exchequer. If the journey was authorised, it can

make no difference whether the fare for the same came from the public exchequer or the army personnel himself.

The words (at public expense) were interpreted to mean travel which is undertaken authorisedly. Applying the ratio of this case, we find that in the

instant case, there is no allegation that the applicant, while going to bring ration was travelling unauthorisedly. The mere fact that instead of availing a

service vehicle, he opted to go on his two wheeler scooter does not make the travel unauthorised. Further, the Court of Inquiry opined that the

applicant was also negligent. However, the Court of Inquiry also observed the contributory negligence on the part of the respondents for not providing

adequate road since warning signs at the inter section. That being so, the denial of disability element of pension to the applicant on the ground of his

being posted at peace station or due to minor negligence on his part is unjustified. Further more. the assessment of disability was 20% for life.

That being so, OA is allowed. The applicant is granted disability element of pension @ 20% for life which is liable to be broad banded to 50% in

view of Govt. of India Ministry of Defence Letter No.1 (2)/97/D(Pen-C) dated 31.01 2001 and law settled by Hon'ble Supreme Court in Civil Appeal

No.418/2012 titled U01 & Ors Vs Ram Avtar vide judgment dated 10.12.2014, w.e.f. 01.02.2018.

Respondents are directed to calculate sanction and issue necessary PPO to the applicant within a period of four months from the date of receipt of

this order. failing which, it shall carry interest 8% pa

No order as to costs.

Pronounced in open court on21st August ,2019