Lt. Gen. C.A. Krishnan, (Member-A).
1. The applicant submits that he was enrolled in the Indian Air Force on 12.01.2004 and was discharged on 30.04.2012 on compassionate grounds under clause 'At own request'. The Release Medical Board assessed his disabilities at the time of discharge at 50% for life. However, he was not granted disability element of pension. The first appeal claiming for disability pension was rejected vide Directorate of Air Veterans, Air Headquarters, New Delhi letter No.Air.HQ/99798/103/12/Cpl/DP/DAV dated 02.12.2014 and the second appeal was rejected vide Directorate of Air Veterans, Air Headquarters, New Delhi letter No.Air HQ/99798/5/2nd Appeal/204/ 906229/DP/AV-III(Appeals) dated 30.11.2016, stating that his invaliding diseases were neither attributable to nor aggravated by the military service. Through this original application the applicant appearing as party-in-person has prayed for grant of disability pension from his date of discharge.
2. The applicant submits that he has served for 8 years 3 months and 19 days in the Indian Air Force. He submits that he was injured in a road accident on 27-02-2006 while going to Guard room after Book out period(not on leave) for Book-in as per Standing Orders and submitted that the injury in the accident had causal connection to service which were treated as attributable to service as per Injury Report (I.A.A.F(P)-23) dated 20-07-2006. The applicant further submitted that the Director of Air Staff Inspection (DASI) was carrying out inspection of the Station on 27.02.2006. The applicant, after working from 0630 hours to 1900 hours, left the campus duly authorized by necessary booking out permission from concerned station authorities as per Station Standing Order (SSO) issued by Air Officer Commanding, 04 Wing.AF. The applicant met with an accident by a speeding car coming from the opposite direction on the wrong side, while the applicant was travelling in an auto, by which the applicant had sustained injuries and was moved to MH Agra and later moved to Base Hospital Lucknow on 04-03-2006. The applicant submitted that he was put under DIL for a long period while undergoing treatment. As per service procedure an injury report was raised at MH Agra dated 09 March, 2006 (Annexure-9, pg.29-31) and the applicant’s statement was recorded on 03-03-2006 (Annexure-9, pg.28) and by the statement of the CO,12 SQN, the injuries sustained were treated as ‘Not attributable/not aggravated by Service’. The applicant further submitted that a second injury report was raised on 20-07-2006 (Annexure-7) with the same statement of the applicant (Annexure-9, pg.28) but with a different statement from the CO, 12 SQN and the injuries sustained were recorded as ‘Attributable to service’.
3. The applicant submitted that due to family needs and career prospects he sought and was granted voluntary discharge on 30.04.2012 after completing 08 years 03 months and 19 days service. The Release Medical Board assessed his invaliding disease (i)Compound Comminuted Fracture Femur (RT) (Optd) at 40% and (ii)Compound Fracture Tibia (Rt) at 20% with composite disability assessed at 50% for life and held the same as neither attributable to nor aggravated by Air Force service(NANA). The Adjudicating authority has rejected the claim on grounds that the disability was not attributable by service as per Injury Report dated 09.03.2006. The applicant stated that the second Injury Report dated 20-07-2006 was never referred to nor considered during Release Medical Board(RMB), First Appeal and the Second Appeal. The applicant submitted that even DGAFMS has asked DAV to clarify which injury report has to be considered and for that DAV has replied stating that the Injury report dated 20.07.2006 which has the opinion ‘injuries sustained are attributable to service’ is to be considered. This fact is verifiable in the office noting of Deputy Director, DDAV-III reference (Annexure-8, pg.16 and 17).
4. The applicant submitted that Government of India, Ministry of Defence, Department of Ex-Servicemen Welfare letter No.16(5)/2008/D(Pen/Policy) dated 29th September, 2009, provides that Armed Forces personnel who proceed on retirement/discharge whether voluntarily or otherwise or entitled to disability pension. The applicant further submitted that his entitlement for disability pension and broadbanding has also been established by the Full Bench decision of the AFT Principal Bench in Ex.Sgt.Girish Kumar Vs. UOI and others in O.A.No.1439 of 2016, decided on 01.12.2017, wherein it was held :
'55. After having fully discussed the issue involved before us and to set the controversy at rest vis--vis arrears of broad banding of the disability/war injury element of disability pension on the ground of delay in filing application(s) by the individual/applicant(s) we conclude thus:
(i) Armed Forces personnel who have been invalided/superannuated/ completed terms of service/discharged under normal circumstances with disability, pre or post 01.01.1996, (including the applicants) will be entitled to broad banding of disability/war injury element. Armed Forces personnel who retired pre 01.01.1996 will be entitled to the arrears of broad banding with effect from 01.01.1996 and in the case of those who retired on or after 01.01.1996 will be entitled to arrears with effect from the date of their retirement
(ii) Armed Forces personnel who were premature retirees/proceeded on premature discharge with disability will be entitled to broadbanding of disability/war injury element of pension with effect from either 01.01.2006 or the date of their retirement. There will, however, be no restriction of date for premature retirees to be eligible for disability/war injury benefits since the earlier restriction on pre 01.01.2006 premature retirees has been struck down.
(iii) In all cases at (i) and (ii) preceding, there will be no restriction of three years on arrears and arrears will be paid according to eligibility (as stated preceding).
The other salient conclusions are :
(a) restriction of arrears can be applied to applicant(s) wherein he is not held entitled to disability/war injury element of pension, and such entitlement only gets established post adjudication by AFT/Courts; however, exception apart where the vested right of an individual is held to be denied the issue will be decided by AFT Benches, on its own facts.
(b) all premature/voluntary retirees will remain eligible only for disability/war injury element of pension, their service element will need to be earned independently, based on years of service rendered and held as qualified for service pension;
56. We would like to add that the respondents have their internal mechanisms in the form of First Appeal and Second Appeal to redress the grievances of disability pension. It has been observed by us that the applications are being dismissed in a routine manner by the First and Second Appellate authorities, thus increasing the number of litigations in this Tribunal. When the issues have been well settled by the Apex Court in various judgments, and now the larger Bench of the Tribunal has settled the issue of payment of arrears for broad banding, we hope and trust that the respondent will use this judgment to dispose of most of the cases pertaining to disability pension and payment of arrears in First and Second appeals to the respondents, rather than forcing the applicants to approach this Tribunal/Courts. This would ease the load on AFT Benches and enable them to deal with other meaningful matters before them.'
5. The learned Counsel for the respondents, while not disputing the fact that the applicant was enrolled on 12.01.2004 in the Indian Air Force and was discharged on 30.04.2012 on compassionate grounds with 50% disability due to Invaliding diseases, viz., (i)Compound Comminuted Fracture Femur (RT) (Optd) at 40% and ID (ii)Compound Fracture Tibia (Rt) at 20% with composite assessment for all disabilities at 50% for life and submitted that injuries were considered as neither attributable to nor aggravated by service vide Injury Report dated 09.03.2006. The learned Counsel submitted that on 27.02.2006 the applicant had met with Road Traffic Accident while coming from Taj Mahotsav at Agra civil locality. The applicant sustained injuries, viz., (i) Compound Comminuted Fracture Femur(Rt) and (ii) Compound Fracture Tibia(Rt). The learned Counsel for the respondents further submitted that there were two Injury Reports, viz., the first Injury Report dated 09.03.2006 which stated that the injury is considered as neither attributable to nor aggravated by military service, and second Injury Report dated 20.07.2006 which has initially considered the injury as attributable to service and then amended as 'NO' without proper justification, but reserved the remarks as attributable in separate certificate which is found annexed with injury report.
6. The learned Counsel for the respondents could not offer any reason to the Tribunal for the injury being reconsidered and declared attributable to military service in the second Injury Report initiated on 20.07.2006, and also for ignoring Note-8 dated 13.08.2013 and Note-10 dated 26.11.2013 of the Dy. Director, DDAV-III (Annexure-8, pages 17 and 18), wherein it has been clarified by the Deputy Director AV-III that the second Injury Report dated 20.07.2006 is to be taken into account to consider the injuries by the Air warrior as attributable to service. Para-2 of Note-10 dated 26.11.2013(supra) reads as follows:
'2. The individual sustained injuries while returning from Taj Mahotsav where he was on official duty and accordingly an injury report was raised dated 20 Jul 06. As per injury report dated 20 Jul 06, the injury is attributable to Military service. As per clarification given in preceding notes – 8 & 9 ante, injury report dated 20 Jul 06 is to be taken into account to consider the injuries by the Air warrior as attributable to service. '
7. Heard both the parties and perused records.
8. It is not disputed that the applicant was enrolled into the Indian Air Force on 12.01.2004 and took voluntary discharge on 30.04.2012. At the time of taking voluntary discharge, the applicant was in low medical category and the Release Medical Board has assessed his Invaliding diseases, viz., (i)Compound Comminuted Fracture Femur (RT) (Optd) at 40% and ID (ii)Compound Fracture Tibia (Rt) at 20% with composite assessment his disability at 50% for life. The applicant while travelling in an Autorickshaw along with his colleagues while returning from Taj Mahotsav at Agra on 27.02.2006 met with an accident and he suffered the abovesaid injuries. There were two Injury Reports initiated, viz., first one dated 09.03.2006 and the second one dated 20.07.2006. The first injury report declared that the injury was not attributable to nor aggravated by service. But the second Injury Report dated 20.07.2006 declared the injuries as attributable to military service, presumably, after reconsideration of the fact that the applicant was injured while returning from Taj Mahotsav where he was on official duty as per Note-10 dated 26.11.2013(supra). Subsequent correction made to the Injury Report to read as ‘No’ against the question ‘Was the injury sustained in the performance of Air Force Duty?’, was made without proper justification, as has been admitted by the respondents in their reply. The respondents did not place on record or produce any document/Court of Inquiry to overrule the second injury report and declare that the injury is neither attributable to nor aggravated by military service. The respondents also did not offer any satisfactory reasons for a second Injury Report being initiated. Their reply in this regard to the applicant stating that 'the matter being approximately 9 years old, the reason for the second Injury Report is not known', only strengthens the applicant’s claim.
9. In view of th
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e foregoing facts and the clearly enunciated position in the matter by the Hon’ble Supreme Court in Dharamvir Singh Vs. UOI & others in C.A.No.4949 of 2013 decided on 02.07.2013, and the Full Bench decision of the AFT Principal Bench in Ex.Sgt.Girish Kumar Vs. UOI and others in O.A.No.1439 of 2016, decided on 01.12.2017, we conclude that the applicant is entitled to disability element of pension at 50%. The applicant is also entitled to the benefits of broadbanding and rounding off of his disability element of the pension from 50% to 75% with effect from his date of discharge from military service. 10. For the reasons mentioned above, the O.A is allowed. The monetary arrears to the applicant as allowed above shall be paid by the respondents within a period of three months of receipt of this order, failing which the unpaid amount shall carry 8% interest per annum till realization. The O.A. is disposed of accordingly. No costs. 11. Learned counsel for the respondents/Union of India made oral prayer for grant of leave to appeal before the Hon’ble Supreme Court. We are of the considered opinion that no ground is made out for grant of leave to appeal as there is no question of law of public importance involved in this case. Hence the oral prayer, made by the learned counsel for the respondents is rejected.