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Service No. 13984110-N, Ex Sep Bhandari Bhaskara Rao, Andhra Pradesh v/s Union of India Represented by The Additional Director General of Personnel Services Adjutant General Branch IHQ Ministry of Defence, New Delhi

    O.A. No. 172 of 2018

    Decided On, 08 February 2019

    At, Armed Forces Tribunal Regional Bench Chennai

    By, THE HONOURABLE MR. JUSTICE V.S. RAVI (MEMBER –J) & THE HONOURABLE LT. GEN. C.A. KRISHNAN (MEMBER-A)

    For the Petitioner: V.K. Vijayakumaran, Advocate. For the Respondents: Namavarapu Rajeshwar Rao, Central Government Counsel.



Judgment Text

1. This O.A. has been filed by the applicant under Sec. 14 of the Armed Forces Act, 2007 claiming disability pension and also compensation from the Army Group Insurance Fund for the disability of the applicant with interest.

2. The applicant in the O.A. and the learned counsel for the applicant have stated that the applicant has been enrolled in the Army on 25.10.1991 and on 1.11.2011 discharged from Command Hospital, Kolkata. The applicant has served as Nursing Assistant in various places of India and his character has been assessed as exemplary. The applicant has served for 20 years and 7 days without any compliant. During 2001, due to severe hypertension, the applicant has suffered ill health. Later, the applicant has been given treatment for chronic renal failure. The applicant has undergone 18 sessions of haemodialysis. Thereafter, the applicant has been diagnosed as “IgA Nephropathy, Chronic Renal Failure”, because of which, both the kidneys failed to function. The applicant’s mother, B Narayanamma, aged 60 years, donated one of her kidneys to the applicant. The applicant has undergone a major surgery for transplant of the kidney from his mother on 30.01.2004. The Re-Categorisation Medical Board dated 24.11.2004 has stated that the disease has been afflicted due to stress and strain of service and the disability is aggravated by service. After thoroughly studying the applicant’s case, the Sr. Advisor, Medicine and Nephrology has given an opinion that the applicant to be placed in medical category P3 (Permanent). Subsequently, the Re-categorisation Medical Board has stated that the applicant has suffered 80% disability. The applicant is under constant medical supervision and also continuously on medication. The applicant’s mother, donor of the kidney, has passed away in January 2007. The applicant has been frequently admitted in various military hospitals and the applicant has got high blood pressure, swelling in legs, frequent giddiness, diabetes, anaemia and the applicant used to take only liquid food as his body is not accepting normal solid food. The first appeal preferred by the applicant has been rejected. The respondent authorities have stated that the diseases suffered by the applicant are the hereditary diseases with no service related cause. No one in the family of the applicant has got kidney failure, as suffered by the applicant. The applicant is taking continuous treatment and he is unable to move without anybody’s help. The applicant is not educated and also his economic condition is poor. The applicant has regularly subscribed to the Army Group Insurance Fund. The fund is maintained by the 5th respondent, from the contributions recovered from the Defence personnel. It is a benevolent fund for the welfare of the Defence personnel. As per the latest order of the Ministry of Defence, 80% disability of the applicant may be rounded off to 100% with compensation from the Army General Insurance Fund with interest.

3. The respondents in the reply statement and also the learned counsel for the respondents have submitted that the applicant has been enrolled into Army Medical Corps on 25.10.1991 and discharged from service w.e.f. 1.11.2011 after rendering 20 years and 7 days of service. The applicant has been granted service pension by PCDA (P), Allahabad vide PPO No.S/035024/2011 (ARMY) dated 29.08.2011. At the time of discharge from service, the applicant has been assessed in low medical category for disability “Chronic Renal Failure (Nephropathy Renal Transplant Recipient)”. The Release Medical Board has viewed the said disability as neither attributable to nor aggravated by military service and also not connected with military service. The first appeal of the applicant has been rejected on 10.9.2012. The disability suffered by the applicant is a hereditary disease with no military service related cause. The applicant is, therefore, not entitled to disability pension. The disability has been assessed by the Competent Medical Expert as not attributable to nor aggravated due to military service. Hence, the respondents have requested to dismiss the O.A.

4. After hearing both the sides and also perusal of materials on record the following pertinent point arises for consideration: -

Whether the applicant is entitled to get relief as prayed for in the O.A. on a careful consideration of the materials on record in proper perspective?

5. POINT: The respondents have categorically admitted in the reply statement that the applicant has served for 20 years and 7 days and he has already been granted service pension as per PPO No.S/035024/2011 (ARMY) dated 29.08.2011. On 21.2.2001 itself, the applicant has been diagnosed as suffering from severe hypertension by the Army Hospital, Delhi Cantonment, as per details of Page 2 of the O.A., namely, the report of illness for treatment in the hospital. As per the details in page 7 of the O.A., the Medical Board, on 19.5.2004, has clearly pointed out that the applicant has got the disability, “IgA Nephropathy, Chronic Renal Failure & Renal Transplant Recipient” and also pointed out that the disability has been contracted by the applicant during military service and its sequence. As per the Medical Case Sheet enclosed at page 9 of the O.A., the applicant has been assessed for the disability of “IgA Nephropathy, Chronic Renal Failure & Renal Transplant Recipient”. Again, as per the Medical Board proceedings dated 24.11.2004, enclosed at page 11 of the O.A., the disability of the applicant has been assessed as attributable to stress and strain of military service. Further, as per the details at page 13 of the O.A., the applicant has been assessed by the Senior Advisor, Medicine & Nephrology, with the disability of “IgA Nephropathy, Chronic Renal Failure & Renal Transplant Recipient” and the applicant also suffered due to hypertension and the applicant has undergone the kidney transplant, from the donor being his mother. On 11.11.2006, the said opinion has been given by the Senior Advisor, Medicine and Nephrology of Army Hospital. Further, as per the Medical Board proceedings enclosed at page 17 of the O.A., the applicant has been assessed at 80% disability on 28.11.2008 by the Board and as per Part II details at page 18 of the O.A., it has been pointed out that the said disability have been aggravated by stress and strain of military service. Further, as per the medical certificate issued by the Senior Advisor of Medicine & Cardiology, enclosed at page 21 of the O.A., the disability of the applicant has been assessed for Chronic Kidney disease who has undergone renal transplant on 30.01.2004 and also assessed as the life long disease. As per the details enclosed at page 24 of the O.A., the Medical Board has assessed the disability of the applicant at 80% on 03.01.2011. However, the respondents have stated that the said disability is not attributable to nor aggravated by military service.

6. The legal position regarding the disability pension has been clearly observed in the Judgement of Hon’ble Supreme Court in C.A.4949/2013 dated 02.07.2013 in the case of Dharamvir Singh Vs. Union of India & Ors, wherein it is held as follows:

“29. A conjoint reading of various provisions, reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under “Entitlement Rules for Casualty Pensionary Awards, 1982" of AppendixII (Regulation 173).

(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).

(iv) If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)].

(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 – "Entitledment : General Principles", including paragraph 7,8 and 9 as referred to above.”

30. In the present case it is undisputed that no note of any disease has been recorded at the time of appellant's acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in the service record at the time of acceptance of joining of appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service.

7. In the judgment of the Hon’ble Supreme Court reported in (2014) 14 Supreme Court Cases 364 in the case of Sukhvinder Singh VS Union of India and others, it has been clearly held as under:

“Held, any disability not recorded at time of recruitment must be presumed to have been caused subsequently and unless proved contrary to the consequence of military service – Benefit of doubt rightly extended in favour of member of armed forces since any other conclusion would tantamount to granting premium to Recruitment Medical Board for their own negligence.”

8. Keeping with the principles enunciated by the Hon’ble Supreme Court in Union of India & another vs Rajbir Singh (Civil Appeal No.2904 of 2011), the Hon’ble Apex Court held as follows:

15. ........”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. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contorted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.”

9. Further on 30.01.2015, the applicant has issued legal notice also. It is also pertinent to point out that in the reply statement also, the respondents have admitted that the applicant has been discharged from service in low medical category for the disability “IgA Nephropathy, Chronic Renal Failure & Renal Transplant Recipient”, and assessed at 80% for life. Further, the respondents at para 10 of the reply statement, have admitted that as per the judgement passed by the Hon’ble Supreme Court in SLP (C) No.23727/2008 in UoI vs Damodaran AV, “the Medical Board is an expert body and its opinion is entitled to be given due weight, value and credence”. In the present case, as per the Medical Board proceedings itself, the disability of the applicant has been assessed at 80% and also, due to stress and strain of military service. The respondents have stated that the disease suffered by the applicant is the hereditary disease but they have not proved the same by producing relevant records. Further, it is a well settled law that the existing administrative provisions could not be more suitable than the proceedings of the Medical Board’s opinion, combined with the fact that the said disabilities suffered by the applicant are attributable to and aggravated by military service and the root cause of which is due to stress and strain of military service. Hence, the rejection of disability element of disability pension and also compensation payable by the Army Group Insurance Fund to the applicant is not correct. Further, the said order of the respondents is against the principles of natural justice and also, not as per the principles of the Hon’ble Supreme Court judgements mentioned herein above. Further, no disability has been recorded at the time of recruitment of the applicant in the military service. Hence, the disability

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recorded subsequently has to be construed as a disability suffered by the applicant due to military service only. As per the observations of the Hon’ble Supreme Court in Union of India in Ram Avtar in C.A. 418 of 2012 the applicant is entitled to get the disability element of the disability pension alongwith the benefit of broadbanding from 80% to 100%. As the applicant has regularly contributed to the Army Group Insurance Fund and also subscribed till the last month of his service, he is entitled to get the compensation from the Army Group Insurance Fund. 10. As this case pertains to pension and in view of the principles laid down by the Honourable Supreme Court in the case of Union of India and Others vs Tarsem Singh reported in (2008) 8 SCC 648, the relief will be restricted to a period of three years prior to the date of filing of the Original Application. Therefore, the applicant is entitled to get the disability pension with effect from 3 years prior to the date of filing of the application, i.e., 27.04.2018, or, in other words, the applicant is entitled to reliefs with effect from 27.04.2015. The point is answered, accordingly. 11. In the above mentioned facts and circumstances, the applicant is entitled to get disability pension with disability element broadbanded from 80% to 100% w.e.f. 27.04.2015 and also, the appropriate and due compensation amount payable by Army Group Insurance Fund (R5) within three months, failing which, the arrears shall carry interest at 8% per annum till the date of actual payment. 12. The O.A. is ordered, accordingly. No costs.
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