SS Labana vs Union Of India And Others

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 letter Nos 12681/IC-31876/T-8/MP-5(b)/114/Appeal/2005/ AG/PS-4(Imp-II) dated 05.08.2005 and

6(346)/2005/D (Pen A&AC) dated 11.05.2006. And/or

(b) Direct respondents to treat the disabilities Nos (ii) Obstructive Sleep Apnoea, 11-14% (ii) Hypothyroidism 11-14%, as attributable to/or

aggravated by military service. And/or

(c) Direct respondents to grant disability pension for all the disabilities and by giving the benefit of rounding off @ 75% in terms of Govt of

India, Min 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 UOI & Ors v. Ram Avtar vide judgment dated 10.12.2014. And/or

(d) Direct respondents to pay the due arrears of disability pension with interest @ 12% p.a. from the date of his discharge.

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

The brief facts of the case giving rise to the instant original application are that the applicant was commissioned in the Indian Army on 13.06.1976

and was invalided out of service on 09.09.2004 having rendered more than 27 years of service. The Invalid Medical Board (IMB) has assessed his

disabilities '(i) Tear Medial Meniscus (Rt) Knee @ 20% for life aggravated by military service (ii) Obstructive Sleep Apnoea @ 11-14% for life

neither attributable to nor aggravated by life (NANA) (iii) Hypothyroidism @ 11-14% for life neither attributable to nor aggravated by military service

(NANA) and (iv) Bronchial Asthma © 20% for life aggravated by military service and composite assessment for all the disabilities was assessed @

20% for life but opined the four disabilities was assessed @ 50% for life. The applicant is in receipt of 50% disability pension for disabilities (i) and

(iv). He has prayed for grant disability pension for disabilities (ii) and (iii) which are NANA. His First Appeal stands rejected vide order dated

05.08.2005. It is in this perspective that the applicant has preferred the present O.A.

Ld. Counsel for the applicant pleaded that the applicant was fully fit at the time of commission and asserted that having served for more than 08

years; he was found to be suffering from the aforesaid disabilities. The Ld. Counsel for the applicant further submitted that since the applicant has

picked up the above disabilities due to stress and strain of Army service therefore he is entitled to disability pension for all the four disabilities and not

just two as conceded by the IMB. Relying upon the Hon'ble Apex Court judgment in the case ofD haramvir Singh vs Union of India & Ors, reported

in (2013) 7 SCC 316, Ld. Counsel for the applicant pleaded that the aforesaid disabilities should be considered as aggravated by military service.

On the other hand, Ld. Counsel for the respondents contended that besides being opined as NANA by IMB, the two disabilities of the applicant are

below 20%. Hence, the applicant is not entitled to disability pension for these two disabilities i.e. Obstructive Sleep Apnoea and Hypothyroidism . He

pleaded for dismissal of the O.A.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the IMB.

This is a case where the applicant was invalided after 27 years of service, with four disabilities as aforementioned. Out of the four disabilities, two

disabilities i.e. Tear Medial Meniscus (Rt) Knee and Bronchial Asthma have been conceded as aggravated by the IMB. The applicant after broad

banding is in receipt of 50% disability pension. The applicant is seeking disability pension for the remaining two disabilities i.e. Obstructive Sleep

Apnoea © 11-14% and Hypothyroidism 11- 14%. We have gone through the Medical Literature and found that Obstructive Sleep Apnoea is a

common sleep disorder and it is not related to stress and strain of military service. The second disability Hypothyroidism is also a common disability in

which thyroid gland does not produce enough hormones causing certain health problems which can be corrected with medicine. There is no medical

evidence to suggest that this disease can be caused by stress and strain of military service. Hence considering all issues we have no valid reasons to

interfere with the opinion of the IMB on these two disabilities.

Additionally it has been well settled by the Hon'ble Supreme Court that the opinion given by the medical experts in a Medical Board should be given

due weightage and credence. While pronouncing judgment on 23.12.2012 in Civil Appeal No 1837/2009, tilted Union of India & Another vs. Ex Rfn

Ravinder Kumar, the Hon'ble Apex Court has stated as 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 once again in 2019 in the case of Ex Cfn Narsingh Yadav vs Union of India & Ors, Civil Appeal No 7672 of 2019, the Hon'ble

Supreme Court has held that

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.

We have noted that the applicant is in receipt of disability pension for two disabilities which have been opined as aggravated by same Medical

Board whose part opinion he is selectively challenging for grant of disability pension for the remaining two disabilities which have been opined as

NANA by the Medical Board. Hence we are of the opinion that in view of above mentioned facts we have no reasons to interfere with the opinion of

the IMB.

Therefore O.A. has no merit, it deserves to be dismissed and is accordingly dismissed.

No order as to costs.

Pending applications, if any, are disposed of accordingly.