At, Armed Forces Tribunal Regional Bench Koch
By, THE HONOURABLE MR. JUSTICE BABU MATHEW P. JOSEPH
By, JUDICIAL MEMBER & THE HONOURABLE MR. VICE ADMIRAL M.P. MURALIDHARAN
By, AVSM & BAR
By, ADMINISTRATIVE MEMBER
For the Applicant: T.R. Jabadeesh, Advocate. For the Respondents: C.B. Sreekumar, Senior Panel Counsel.
VAdm.M.P.Muralidharan, Member (A)
1. The Original Application has been filed by Jarad. A., Ex Havildar No.6382543 of ASC, seeking disability pension with the benefit of rounding off.
2. The applicant was enrolled in the Army (ASC) on 03 October 1986 and was invalided out of service with effect from 16 July 2004 under Army Rule 13(3)III(iii), after rendering 17 years 09 months and 13 days of service (Annexure A4). The Invaliding Medical Board held at the time of his discharge assessed him to have the disability of Organic Delusional Disorder assessed at 20% for 05 years, which was considered as aggravated due to mental strain of service. The applicant was also assessed to have Hyperthyroidism at 20% for a period of 05 years, which was held as aggravated by service. The composite disability of the applicant was assessed at 40% for 05 years (Annexure A3). While the applicant was granted service pension (Annexure R1), his claim for disability element of pension was rejected by PCDA(P) (Annexure A1).
3. Shri TR Jagadeesh, the learned counsel for the applicant submitted that at the
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ime of enrolment into the Army, the applicant was fully fit. He developed the disabilities of Organic Delusional Disorder and Hyperthyroidism while in service. The Invaliding Medical Board assessed his composite disability at 40% for 05 years and held the same as aggravated by military service. Such a finding was in keeping with the Entitlement Rules for Casualty Pensionary Awards and decision of the Honourable Apex Court in Dharamvir Singh vs. Union of India & Ors., (2013) 7 SCC 316.4. The learned counsel further submitted that however the disability pension claim of the applicant was rejected by the PCDA(P), holding that the disability was neither attributable to nor aggravated by military service, based on the advice of Medical Advisor (Pensions) attached to the office of the PCDA(P) (Annexure A1). The learned counsel contended that the finding of the Medical Board could not have been altered by the Medical Advisor (P), without having physically examined the applicant. The Honourable Apex Court in Ex Sapper Mohinder Singh vs. Union of India, Civil Appeal No.164 of 1991, had clearly held that opinion of a Medical Board could not have been disregarded by the PCDA(P). The learned counsel therefore prayed that the applicant be granted disability pension with the benefit of rounding off.5. The respondents in their reply statement have submitted that the applicant, who was enrolled in the Army on 03 October 1986 with a term of engagement of 20 years in colour and 03 years in reserve, was placed in temporary low medical category for Hyperthyroidism in November 2000. Subsequently he was placed in permanent low medical category in April 2002. Later in February 2004, he was also assessed to have disability of Organic Delusional Disorder and was placed in temporary medical category for the same. The applicant was hospitalised in March 2004 and in view of his poor response to treatment and poor motivation for service, he was recommended to be invalided out of service. The IMB assessed his disabilities of Organic Delusional Disorder and Hyperthyroidism as aggravated due to stress and strain of military service with composite degree of disablement at 40% for 05 years. The applicant was invalided out from service with effect from 16 July 2004.6. The respondents further submitted that the applicant was granted service pension (Annexure R1).However his claim for disability pension was adjudicated by PCDA(P) and rejected holding that the disability was neither attributable to nor aggravated by military service (Annexure R3). The applicant who was informed of the rejection of his disability pension claim (Annexure R4), did not prefer any appeal at that stage, but in March 2017, sought information under the Right to Information Act for his Medical Board proceedings (Annexure R5). Th respondents further submitted that the applicant was not granted disability pension based on the decision of the Medical Advisor (P) in the office of PCDA(P), who was the final authority on deciding admissibility till 2004. Respondents further submitted that since then, based on the decisions of the Honourable Apex Court in a number of cases, a revised policy has been issued by Army Headquarters, to withdraw from contesting cases where personnel had not been granted disability pension based on decision of Medical Advisor (Pensions), which was at variance with the Medical Board recommendations, and process them for sanction (Annexure R6).7. Heard rival submissions and perused records.8. It s not disputed that the applicant was invalided out of service under Army Ruled 13(3)III(iii) with effect from 16 July 2004. The Invaliding Medical Board assessed him to have the disabilities of Organic Delusional Disorder and Hyperthyroidism, which were held as aggravated by military service and assessed at 40% for 05 years with composite assessment at 40% for 05 years.9. Regulation 173 of Pension Regulations for the Army, 1961 provides for grant of disability pension and reads as follows:"173. 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 disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over.The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II."10. The Regulations specify two conditions for grant of disability viz., disability is to be above 20% and should be attributable to or aggravated by military service. It is further specified that attributability or aggravation is to be decided under rules at Appendix II, ie, Entitlement Rules for Casualty Pensionary Awards, 1982 of which, Rules 5, 9 and 14 are relevant in deciding the issue. As per Rule 5, a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. In the event of his subsequently being discharged from service on medical grounds, any deterioration in his health which has taken place is due to service. While under Rule 9 the claimant shall not be called upon to prove the conditions of entitlements, Rule 14 specifies rules to be observed in respect of diseases to decide the aggravation/attributability.11. The above Rules were looked into by the Honourable Apex Court in Union of India & Anr. vs. Rajbir Singh, Civil Appeal No.2904 of 2011, during which the Apex Court also referred to its decision in Dharamvir Singh (supra) and held as follows:“15. . . . . . . . The essence of the rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces . . . .”12. The disabilities of the applicant viz., Organic Delusional Disorder and Hyperthyroidism were considered by the Invaliding Medical Board as aggravated due to stress and strain of military service and assessed at 40% for 05 years and the composite assessment at 40% for 05 years. The finding of the IMB was in keeping with the Entitlement Rules for Casualty Pensionary Awards. Therefore, in our view, without giving sufficient justification, the findings of the Invaliding Medical Board could not have been overruled by Medical Advisor (pensions) at PCDA(P), that too without examining the applicant, by merely stating that the disability was neither attributable to nor aggravated by military service. The Honourable Apex Court in Secretary, Ministry of Defence and Others Vs. A.V.Damodaran (Dead) Through LRs. and Others, (2009) 9 SCC 140, clearly held that the Medical Board is an expert body and its opinion is to be given due weight, value and credence. In our view, therefore in keeping with the opinion of the IMB and based on the principles enunciated by the Honourable Apex Court in Rajbir Singh and AV Damodaran (both supra), the applicant was eligible for disability element of pension at 40% at the time of his discharge from service, albeit for a period of five years. As the assessment of disability by the IMB was only for a period of five years and no medial records have been placed before us to indicate whether it still persists, a Re-assessment Medical Board would be necessary to examine if the disability still persists and if so at what percentage.13. In view of the foregoing, the respondents are directed to convene a Re-assessment Medical Board of the applicant to examine if the disabilities of Organic Delusional Disorder and Hyperthyroidism, held at the time of his discharge from service, still persists and if so at what percentage, within a period of three months from the date of receipt of a copy of this order. We make it clear that the finding entered that the disability of the applicant is attributable to/aggravated by military service, is binding on the Board and all authorities concerned. If the Re- Assessment Medical Board opines that both the disabilities or anyone of them still persist and singly or in the composite is at 20% or more, the applicant would be eligible for grant of disability element of pension. It is however made clear that the disability pension, if so granted, would only be from the date of the Re-assessment Medical Board in accordance with order dated 14 August 2017 in M.A.No.297 of 2016, while condoning the delay in filing the Original Application. The respondents are further directed to disburse monetary benefits to the applicant with arrears restricted as above, within a period of four months from the date of conduct of the Re-assessment Medical Board, failing which the unpaid amount will carry simple interest at the rate of 8% per annum.14. There will be no order as to costs.15. Issue free copy to the parties.