In this post we will discuss about the grounds on which disability pension in army can be granted.
Army Disability Pension for Disabilities during Tests.
Lt. Col. MahendraKumari (Retd.) v. Union of India and Others.
Allowing Original Application- Armed Forces Tribunal
In the present case, the Applicant filed for an instant Original Application seeking to set aside previous impugned letters and direct the payment of due arrears. The following reliefs were sought by the Applicant, a retired Lt. Col. Mahendra Kumari-
- Setting aside and quashing the impugned letter dated 09.11.2017
- Hold the Respondents to treat applicant’s disabilities that were rendered through tests as something that is attributable to or has been insinuated by military service and thereby grant her the facility of pension due to the disability element with vested benefits of broad banding/ rounding off the same.
- Hold and Direct the Respondents for the payment of arrears of the pension granted under the disability element with an interest of at least 12% per annum to be considered from the date of the retirement with all the benefits.
NAME OF THE COURT- Armed Forces Tribunal, Principal Bench, New Delhi
DATE OF DECISION- 5th March, 2020
NAME OF THE PARTIES-
- Applicant- Lt. Col. Mahendra Kumari (Retd.)
- Respondents- Union of India and Others.
TIMELINE-
- 27th December, 1985- The Applicant was commissioned in the Indian Army.
- 10th May, 2015 – At the time of the retirement of the Applicant from service, the Release Medical Board (RMB) assessed her disabilities.
- 31st August, 2015- The Applicant was retired in a Low Medical Category on completion of their terms of engagement.
- 29th February 2016- The Applicant’s claim for grant of pension due to the disability element was rejected.
- 19th December, 2016- The First Appeal with regards this matter was rejected.
- 9th February, 2017- The Second Appeal with regards this matter was rejected.
PETITIONER’S ARGUMENTS/ EVIDENCES-
The Counsel for the Applicant contended that when the Applicant was commissioned into the Army, she was mentally and physically fit to embark on a service with the Indian Army. There was no material proof of service of documents that stated that she was suffering from any disease at the time of her commission into the army. The diseases that was depicted by the Release Medical Board at the Military Hospital, Alwar has been enlisted below-
- Primary Hypertension ICD No. I 10.0 that is 30% permanent for life.
- Type-II Diabetes Mellitus ICD No. E 14 which is 20% permanent for life.
- Obesity ICD No. E 66 that is 1 to 5 % permanent for life.
The first and second disabilities can be aggravated by military service and the third disability cannot be attributed to military service.
The Counsel for the Applicants submitted that the diseases that the Applicant was suffering from were contracted during her service. Even the RMB opined that the diseases could have been aggravated by her service to the military as these diseases are usually incurred from a long spell of service in a field. The fact that the recommendations of the RMB were overruled by the higher authorities was grave and erroneous. Hence, they should be set aside. The Counsel also submitted that in such cases, the Apex Court and the Armed Forces Tribunals have granted many personnel with disabilities a pension of 40% rounded off to 50% most times.
ALSO READ- AFT CHANDIGARH AND PROMOTION MATTERS
RESPONDENT’S ARGUMENTS/ EVIDENCES-
The Counsel for the Respondents contended that Primary Hypertension and Diabetes Mellitus have been regarded at about 30% and 20%, composite about 40% permanent for life. But the Army Headquarters rejected the Applicant’s claim on the basis that the disabilities of the Applicant were detected during a medical examination when the Applicant was posted at Ambala. Therefore, he pleaded for the dismissal of the Original Application.
CONTROVERSY INVOLVED FOR ADJUDICATION-
- Whether the opinion of the Release Medical Board be overruled by the Army Headquarters.
FINDINGS OF THE COURT-
After having pursued all the arguments of both the Applicants as well as the Respondents, and after having gone through the material evidence and facts, the court contended that according to the Release Medical Board, the first and the second disease that is Primary Hypertension and Type II Diabetes Mellitus was insinuated and aggravated by the Applicant’s service to the Military. The Army Headquarters rejected the claim with regards the grant for a disability pension on the grounds that the onset of the disease took place in Ambala. But it has also come to the notice through the services and evidence presented that the there was no physical examination conducted on the Applicant. There have been a lot of judgments that were highlighted by the Court in this case that underlined the fact that the opinion of the medical board cannot be overruled by a higher chain of authority without a proper physical examination of the patient.
Thus, the Court set aside the conclusion and the decision of the Army Headquarters of rejecting the claim of the Applicant for the grant of a pension on the basis of disability essence. They considered the Applicant to be entitled to pension for the diseases Primary Hypertension and Type II- Diabetes Mellitus totaling about 40% permanently for life from the date of discharge that occurred in September of the year 2015.
ALSO READ- ROUNDING OF DISABILITY PENSION BY AFT TRIBUNAL
LIST OF JUDGMENTS INVOLVED-
- Sapper Mohinder Singh v. Union of India-
In this case, it was held after having taken the facts into consideration and the stands taken by the respective parties, the controversy that whether the Chief Controller of the Defence Accounts has any jurisdiction to overrule the opinion of the medical experts while dealing with grant of a pension due to disability. In this case, it was nowhere stated that the Applicant was subject to a higher medical board and the Chief Controller of Defence Accounts decided to decline the disability pension to the Applicant. The Court further expressed that the accounts branch cannot just sit over the judgment of medical experts without making reference to a higher medical board.
- Union of India and Ors v. Ram Avtar and Ors.
In this case, it was held that the Applicant was entitled to a rounding of disability element from 40% to 50% for life.
ORDER-
Taking the above facts and evidences into record, the Court has held that the Original Application filed by the Applicant deserves and hence is allowed. The first letter, the first appeal and the second appeal dated 29.02.2016, 19.12.2016, 09.11.2017 were set aside by the Court. The respondents were ordered to grant the disability element pension to the applicant at 40% which would be rounded off to 50% which would be effective from her date of discharge. The respondents were also directed to make their order effective within a period of four months from the order. The Court further held that default in following the order would entail an additional 6% per annum to the actual payment.
ALSO READ- DISABILITY PENSION LAW FOR ARMED FORCES
This post was written by Haritha Dhinakaran
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