Vinod vs Union Of India And Others

Arguments heard.

Vide separate order. OA stands disposed of.

MA 2452/2019

The respondents by way of this application have prayed for condonation of delay in filing reply statement.

For the reasons carved out in the application, the same is allowed. The reply statement shall form part of record.

MA 2495/2019

The applicant through the medium of instant MA seeks condonation of delay in filing rejoinder affidavit.

For the reasons carved out in the instant application, the same is allowed. The rejoinder affidavit shall form part of the record.

OA 1008/2018

The applicant through the medium of the present OA has prayed for the following reliefs:

a) Set aside the impugned order issued vide letter No.12681/IC-52918/T-9B/MP-5/240/2017/ Appeal/ AG/PS-4 (Imp-II) dt. 19.3.2018 (Annexure A-

1);

b) Direct the respondents to consider the disablement for ID (i) i.e. SENSOR! NEURAL HEARING LOSS (LT) @ 20% for life;

c) Direct the respondents to consider the disability No. (ii) i.e. SIMPLE OBESITY as attributable to and aggravated by service;

d) Direct the respondents to consider the composite disablement for the applicant at least @ 20% for life;

e) Direct the respondents to give benefits of rounding off of disability from 20% for life to @ 50% for life and grant disability pension w.e.f. 1.3.2012

@ 50% forlife in the light of law laid down by Hon'ble Supreme Court along with interest @ 12% per annum along with all consequential benefits; and

f) To award any other/further relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case along with cost of

the application in favour of the applicant and against the respondents.

Through the medium of instant OA the applicant has put challenge to Letter 12681/IC-52918/T-9B/MP-5/240/2017/ Appeal/ AG/PS-4 (Imp-II)

dated 19th March, 2018 denying him disability pension.

The facts leading to the filing of present OA are that the applicant joined the Indian Army on 28th February, 1985 and was released prematurely

from service on 29t1 February, 2012, after rendering twenty seven years of service. At the time of release, the Release Medical Board, which viewed

his disability, i.e., ""SENSOR! NEURAL HEARING LOSS (LT)"" for life at the rate of 15-19% and ""SIMPLE OBESITY"" nil for life, the applicant

was released in low medical category. However, the applicant was not granted Disability Element of Pension because the disability was less than

twenty per cent, though aggravated by military service as opined by the Release Medical Board. Aggrieved of this, the applicant filed an appeal which

was also dismissed on the same ground that the assessment was less than twenty per cent, minimum mandatory percentage for grant of disability

pension. Thereupon, the applicant filed the present OA claiming Disability Pension along with interest at the rate of twelve per cent per annum.

According to the applicant, the relief sought by him in the instant matter is squarely covered by the judgment rendered by Hon'ble Supreme Court in

the matter of Dharamvir Singh Vs. Union of India (2013) 7 SCC 31.6 It is further contended that whereas the Release Medical Board has

categorically opined that his disability was aggravated by military service, in order to deny him disability pension it has been assessed at the rate of

fifteen to nineteen per cent. Hence, the applicant has prayed for disability pension at the rate of twenty per cent and its rounding off to fifty per cent.

On the other hand, learned counsel for the respondents has contended that though the disability ID ""SENSOR! NEURAL HEARING LOSS (LT)

at the rate of fifteen to nineteen per cent for life of the applicant has been opined to be aggravated by Military Service by the Release Medical Board

however, since the percentage is less than twenty per cent, hence, he is not entitled to disability pension.

We have considered the submissions made by learned counsel for both the parties and have also perused the relevant documents available on

record. In the light of rival submission, the only question that needs to be answered is as to whether the claim of the applicant for disability pension can

be denied even when it has been held to be aggravated by military service only on the ground that it has been assessed at less than twenty per cent,

i.e., fifteen to nineteen per cent.

In this connection, we note that the disability of the applicant i.e. ""SENSOR! NEURAL HEARING LOSS (LT)"" has been recorded by the Release

Medical Board as aggravated by Military Service due to 'Disease Affected by Exposure to loud noise of Arty fire during military service as per

Annexure to Chapter lv Fara-7(e) Chapter VI of clinical aspects of certain disease Ser no.23 Guide to Medical Officer (Military persons) 2002 and

AFMSF-15 (Ver 2006) Dt 23 Sep 2005"".

In the instant case, the disability of the applicant has been assessed at fifteen to nineteen per cent. However, considering all issues, we are of the

considered opinion that there is a very marginal but significant difference between fifteen to nineteen and twenty per cent disability. Whereas twenty

per cent ensures entitlement to disability pension, fifteen to nineteen per cent does not. Therefore, it appears that even when the disability was held to

be aggravated by military service, the degree of disablement has been restricted to fifteen to nineteen per cent which has resulted in denial of disability

pension to the applicant. We are not very sure if this difference on one per cent can so precisely be decided. Thus considering all issues, we are

inclined to give the benefit of doubt to the applicant in this case. Therefore, we are of the opinion that the disability of the applicant at the rate of

fifteen to twenty per cent is to be deemed to be twenty per cent. As far as the second disability ""SIMPLE OBESITY"" is concerned, it has started

after about five years of first disability and we agree with the opinion of the Release Medical Board that this disease is not connected with service

hence NANA.

So far as the rounding off is concerned, in the light of the decision of the Hon'ble Supreme Court in the case of Union of India and Ors. Vs. Ram

Avtar and Ors. (Civil Appeal No.418 of 2012 decided on 10th December, 2014), we are of the considered opinion that the applicant is entitled to the

benefit of rounding off from twenty per cent to fifty per cent for life with effect from the date of his discharge from service. However, as per the law

settled by Honible Supreme Court in the case of Shiv DassV s. Union of India and Ors. [(2007 9 SCC 274 1the arrears are restricted for a period of

three years preceding the date of filing of the OA. The OA was filed on 14th May, 2018.

In view of the aforesaid OA is allowed and the respondents are directed to comply with this order within four months from the date of receipt of a

copy of this order. In default it will carry interest at the rate of eight per cent per annum till the actual payment is made.

No order as to costs.