Sudhir Kamal Sabharwa 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) Petitioner, hence, prays for grant of disability pension in accordance with the applicable Rules and as held by the Hon'ble Supreme Court vide Annexures A-1 to A-5 and The Entitlement Rules, 1982, by setting aside that part of the Medical Board (Annexure A-9) (colly) wherein his disability has been opined to be neither attributable to, nor aggravated by military service being not only in conflict with the Rules but also in direct contravention of a series of decisions of the Hon'ble Supreme Court (as seen supra); and broad banding in accordance with the judgment of the Hon'ble Supreme Court in UOI vs Ram Avtar;

(b) With a further prayer that the Respondent's may be directed to re-assess the quantum of disability to be awarded to the applicant in light of the Respondent's own letter dated 07.02.2001 (Annexure A-10), and the fact that Diabetes Mellitus is a serious and debilitating lifelong disease;

(c) With a further prayer that the respondents may be directed to release the disability pension and its arrears with heavy costs and compensation and interest within a time-bound manner;

(d) Any other relief which the Hon'ble Tribunal may deem fit in the interest of petitioner.

Brief facts of the case are that the applicant was commissioned in the Army on 13.06.1971 and was superannuated on 30,09.2004. Prior to superannuation applicant's Release Medical Board (RMB) was held on 26.04.2004 which had assessed composite disability for disabilities (i) Obesity ICD-10, E-66.9, (ii) Diabetes Mellitus (ICD-10, E-11) and (iii) Dyslipedennia (ICD-10 E-78.0) @ 20% for life neither attributable to nor aggravated

(NANA) by military service. The applicant is in receipt of service pension. His disability pension claim was adjudicated and rejected vide order dated

29.09.2016. Appeal against rejection of disability pension was also rejected vide order dated 29.09.2016. Hence this O.A.

Ld. Counsel for the applicant pleaded that the applicant was commissioned in the Army 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 discharged from service in low medical category, any deterioration in his health is to be presumed due to service conditions. He pleaded that the applicant was under stress and strain due to rigors of military service which may have led to occurrence of the disability. The Ld. Counsel for the applicant pleaded for disability pension to be granted to the applicant.

Per Contra Ld. Counsel for the respondents argued that Regulation 173 of Pension Regulations for the Army 1961 (Part-1) stipulates that ""unless otherwise specifically provided, a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by Military service in non-battle casualty and is assessed at 20 percent or over"". In the instant case, the disabilities of the applicant were assessed as neither attributable to nor aggravated by military service hence he is not entitled to disability pension in terms of rules on the subject. He pleaded for dismissal of the O.A.

We have heard Ld. Counsel for the parties and perused the records.

We have also noted that the first two disabilities of the officer i.e. Obesity and Diabetes Mellitus have originated simultaneously in March 1999. His third disability i.e. Dyslipedimia has started after about 04 years in 2003. When a soldier is put in 'OBESITY' category, it means that he is at least 30 and above to his acceptable Body Mass Index (BMI). BMI is defined as a person's weight with respect to his height. Obesity also reflects excessive fat accumulation in the body and is known to make a person more vulnerable to various diseases. This also clearly points out that the officer has been in overweight category i.e. BMI between 25 & 29.9 for long before being declared obese. It also indicates that the officer has failed to control his obesity from March 1999 till he retired in September 2004. In the above situation we feel that a soldier has special responsibility to keep himself fully

fit. Being overweight to the extent of being placed in lower medical category of 'OBESITY' for 5 years amounts to being negligent towards own health and also amounts to an invitation to life style disease like Diabetes, heart disease and arthritis. Thus in the above scenario it is clear that though the applicant was required to reduce his weight by diet control and regular exercise due to obesity, he has failed to do so. We are of the opinion that in this background no benefit of doubt can be given in favour of the applicant. We are therefore, in agreement with the opinion of the RMB that all the three disabilities of the applicant are not connected with service and hence are NANA.

It has been well settled by the Hontle Supreme Court that the opinion given by a Medical Board which is an expert body 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 Hontle 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, this Tribunal, while dealing with disability pension in disabilities 'Obesity and Hypertension' in O.A. No 1656/2019, ExHFO Gyanendra Singh vs Union of India & Ors, has dismissed the case on merit which was also upheld by the Hon'ble Supreme Court in Civil Diary No 21017/2019 decided on 08.07.2019.

In view of the above, we are of the opinion that we have no valid reason to interfere with the findings and opinion of the RMB declaring all three disabilities of the applicant as NANA.

In view of the above, we do not find any merit in the O.A. and accordingly the same is dismissed.

No order as to costs.

Pending applications, if any, are disposed of accordingly.

Pronounced in the open court on 11th March, 2020.