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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,

JAIPUR

:JUDGMENT:

Ex Hav Moharsingh VERSUS UNION OF INDIA & OTHERS

TRANSFER APPLICATION NO.309 OF 2009 In the matter of SBCW No.4831 of 2008

Transferred to this Tribunal vide order

Dated 5.12.2009

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DATE OF JUDGMENT: MAY 20,2010

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PRESENT

HON’BLE MR. JUSTICE BHANWAROO KHAN [J]

HON’BLE LT GEN SUSHEEL GUPTA [A]

M/s S.B. Singh and Gajanand Yadav for the applicant.

Lt Col Veerendra Mohan for the non-applicants.

BY THE TRIBUNAL:[PER BHANWAROO KHAN (J)]

1. A shockingly bizarre incident reflects inhuman

treatment which had crossed all boundaries of humanity

by superior responsible Armed Forces Medical Officers,

whose actions when resulted into injustice forced the

applicant to seek his legal remedy in the form of the

present application for grant of disability pension.

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2. After the enrolment on 9.3.1988 in the Indian

Army, the misfortune of the applicant commenced on

26.2.2002 when he was traveling in an army truck

during Operation Falcon, Tawang (Arunachal Pradesh),

which was overturned resulting into multiple injuries on

head and various parts of the body. He was admitted in

the Hospital on the same day, where multiple injuries

were detected. After the treatment, he was discharged

on 4.3.2002. He told to the Doctor about the cause of

accident as steering failure and the Doctor narrated this

facts in his report. Thereafter, he was hospitalized in

Pune from 30.5.2003 to 3.11.2003, where on 9.6.2003,

the Neurologist diagnosed the ‘Motor Neuron disease’.

The M.R.I. on 8.10.2003 suggested neuro degerative

disorder. The Command Hospital, Lucknow on 2.8.2004

after complete examination suggested for Invaliding

Medical Board. The Invaliding Medical Board

[hereinafter to be referred to as ‘the IMB’] of the

applicant was held on 28.9.2004 and it found the

disability of ‘Motor Neuron Disease’, which was assessed

as 80% for life long and was held to be aggravated by

military service. The applicant was discharged from

service on 19.11.2004. The case of the applicant for

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grant of disability pension was forwarded to the

Principal Controller of Defence Accounts {Pension},

Allahabad, which described the disability suffered by the

applicant as constitutional in nature and not related to

his military service and rejected the claim of the

applicant for grant of disability pension vide order dated

20.7.2005.

3. Thereafter, an appeal was preferred by the

applicant. The Appeal Medical Board [for short ‘the

AMB”] of the applicant was held on 26.2.2007, which

described the percentage of disability suffered by the

applicant as NIL and held that the disability suffered by

the applicant is neither attributable to nor aggravated

by his military service. In these circumstances, the

applicant preferred S.B. Civil Writ Petition No.4831 of

2008 before the High Court of Judicature for Rajasthan,

Bench at Jaipur, which stood transferred for

adjudication to this Tribunal vide order dated 5.12.2009

and the same has been treated as Transfer Application.

4. The non-applicants filed a detailed reply to the

application and have admitted the facts alleged in the

application.

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5. We have heard M/s S.B.Singh and Gajanand

Yadav, learned counsel for the applicant and Lt Col

Veerendra Mohan, Officer Incharge of the non-

applicants and have carefully gone through the record

of the case.

6. 6. As there were two different opinions: one given

by the IMB and the other given by the AMB, we thought

it proper to call for the applicant to remain present

before the Tribunal. The applicant was brought before

the Tribunal on a stretcher. Looking to his pathetic

condition, the Tribunal directed vide its orders dated

8.4.2010 and 3.5.2010 to the Commandant Military

Hospital, Jaipur to conduct medical examination of the

applicant by a medical board and to send the medical

board’s proceedings of the applicant in original to this

Tribunal. In compliance of the above orders, the report

of the Medical Board held on 10.5.2010 has been

submitted in original before this Tribunal. The medical

board held on 10.5.2010 has assessed the disability

suffered by the applicant as 100% and has held that it

is aggravated by his military service. The medical

expert has opined that the patient is suffering from a

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progressive, degenerative, neurological disorder with no

specific treatment and is bed ridden.

7. In the light of the opinions expressed by the IMB,

AMB and the Jaipur Medical Board (hereinafter to be

referred to as ‘the JMB’) held on 10.5.2010, it has been

argued by the learned counsel for the applicant that

when two medical boards have specifically assessed the

disability suffered by the applicant as 80% and 100%

and held it to be aggravated by his military service, the

opinion expressed by the AMB shall not prevail over the

opinions expressed by two Medical Boards i.e. IMB and

the JMB as the AMB has not assigned any valid reasons

for taking a different view than the view taken by the

IMB and therefore, this action on the part of the AMB

deserves to be rejected. He submitted that the opinion

expressed by the medical expert cannot be thrown

away outrightly without assigning any valid reasons.

According to the learned counsel, from the perusal of

the medical documents of the applicant, it would be

clear that the applicant was seriously ill but however,

the AMB has gone beyond all limits of humanity when it

held the percentage of disability suffered by the

applicant as NIL and opined that it is neither

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attributable to nor aggravated by his military service.

The opinion about the percentage of disability

expressed by the medical expert i.e. IMB has been

completely ignored and overlooked by the AMB, which

is unthinkable in the medical history. Moreso, initially

when the Invaliding Medical Board had assessed the

disability suffered by the applicant as 80% for life and

held it to be aggravated by his military service, how the

appeal medical board could have concluded the

percentage of disability suffered by the applicant as Nil

and held it to be neither attributable to nor aggravated

by his military service. Even prior to appearance before

the AMB, the applicant appeared before the expert of

the AMB on wheel chair and was dependant on others

for all activities in his daily life. While assessing the

percentage of disability suffered by the applicant as

NIL, the AMB has not assigned any valid reasons for

taking a different view, which was taken by the IMB.

8. On the other hand, it has been argued by the Lt

Col Veerendra Mohan, Officer Incharge of the non-

applicants that since the disability suffered by the

applicant was not found to be attributable to or

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aggravated by his military service, the percentage of

disability has been shown as Nil by the appeal medical

board.

9. From the facts and circumstances of this case, it

is apparent that initially, Invaliding Medical Board

assessed the disability suffered by the applicant as 80%

for life and held it to be aggravated by his military

service but however, the Principal Controller of Defence

Accounts {Pension} held the disability suffered by the

applicant as constitutional in nature and neither

attributable to nor aggravated by his military service

and thus, rejected the claim of the applicant for grant

of disability pension. Thereafter, on the appeal, the AMB

assessed the disability suffered by the applicant as NIL

and held it to be neither attributable to nor aggravated

by military service. Then, constituted by the Tribunal

the Medical Board at Military Hospital, Jaipur assessed

the disability suffered by the applicant as 100% and

held it to be aggravated by his military service. If we

overlook the opinion expressed by the AMB for the

reasons which would be mentioned hereinafter, we

come to the conclusion that the onset of the disease

Motor Neuron is after the applicant received the injuries

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in an accident, which occurred while he was traveling in

the army truck and thereafter, he remained hospitalized

on different spell, the disease remain deteriorating as is

revealed by the JMB, which described the disease as

progressive and degenerative.

10. The documents submitted by the JMB reveals

that progressive disorder of this unknown cause is

because of viral infection, trauma, exposure to toxine

and electric shock and the person remains mentally

active but all limbs of his body refuses to response the

daily working life. From the date of IMB and till the date

of JMB, the disease during this intervening period of six

years deteriorate and the percentage of the disability

increased from 80% to 100%. As per the expert’s

opinion given by the Medical Board held at Jaipur also,

the disease is progressive and degenerative disorder.

Thus, the disease having no specific treatment will

always remain in progress and as such, the opinion of

the AMB held in the year 2007 which assessed the

disability suffered by the applicant as NIL is beyond

imagination and is contrary to the opinion of two

Medical Boards i.e. IMB and the JMB. The opinion with

callous approach expressed by the AMB is the cause

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which restrained the authorities to grant disability

pension to the applicant, who was otherwise entitled to.

From the opinion expressed by the IMB and the JMB, we

can safely conclude that the applicant after having met

with accident while performing his duties remained

hospitalized in different hospitals for various spell till he

was invalided out from service and the percentage of

disability assessed by both the medical boards is 80%

and 100% respectively. Thus, the opinion expressed by

the AMB is grossly incorrect in the light of these two

opinions given by two different medical boards i.e. IMB

and the JMB, which have corroborated each other with

regard to disability and aggravation due to service.

Hence, as per Regulation 173 of the Pension

Regulations for the Army, 1961, the disability being

100% and aggravated by military service, the applicant

becomes entitled for disability pension from the date of

his discharge alongwith all consequential benefits

attached to 100% disability inclusive of attendance

allowance.

11. Now, the report of AMB & MAP both have declared

the disability as neither attributable to nor aggravated

by military service. The AMB has given the report

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without examining the applicant and in complete

disregard of the opinion of IMB as no specific reasons

have been given by the AMB for not treating the

disability as aggravated by military service and has

acted on whims and capricious. Had the AMB gone

through the expert report, either he would have

assigned the reasons thereof for not toeing with the

opinion of IMB or have given the reasons thereof for

difference of opinion but no such action was taken by

the AMB, which in the circumstances of the case is

depricable. No reliance can be placed on this report.

The opinion of the AMB describing the disability as NIL

and further holding the disability as neither attributable

to nor aggravated by military service is completely

contrary to the opinion of IMB and JMB. The expert’s

opinion about the disease is degenerative, progressive

and without any specific treatment. Initially, the RMB

assessed the disability as 80% for life but the AMB,

which examined the applicant after 3 years i.e. on

26.2.2007 described the percentage of disability as NIL

and held it to be neither attributable to nor aggravated

by military service. This random mentioning of NIL

percentage of disability is in gross violation of the actual

condition of the applicant, because prior to appearance

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before AMB, the applicant was brought on wheel chair

before Col C.S. Satyanarayanan, an expert of

Neurology, who stated that applicant’s condition is

static and he is dependant on others for his daily

actions. Thus, it is not understandable that how and on

what ground, the NIL percentage of disability was

prescribed by the AMB. The report of the AMB is

contrary to both Medical Boards i.e. IMB and JMB.

Therefore, in view of corroborative opinion of two

Medical Boards i.e. IMB and JMB, the opinion of AMB

deserves to be rejected outrightly.

12. The report submitted by the AMB without any

basis or ground forced the authorities to deny disability

pension to the applicant, otherwise he was legally

entitled to claim the disability pension. The applicant

has been left in lurch only on the random report without

taking in consideration the due care and circumstances

of the case by mentioning the percentage of disability

as NIL. Such type of conduct, behavior and manner of

performance of duties on the part of the AMB, which

consisted of Air Commodore D.P.Joshi, Lt Col Shobana

Das and Col S.P.Singh collectively deserves to be

deprecated as they have acted in callous manner and

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have committed gross negligence by depriving the

applicant of his legal dues and rights. The applicant has

to starve for pretty six years without any medical and

financial assistance from the non-applicants only

because of the callous action of the members of the

AMB.

13. We are conscious of the fact that all the three

defaulting Officers i.e. Three Members of the AMB have

neither been given the notice nor they are present

before the Tribunal but the situation of the case does

not require so, because whatever written by them as

opinion is an admitted fact available on record. The

most surprising fact is showing of NIL percentage of

disability, then the question of disability having neither

attributable to nor aggravated by military service does

not arise at all, which is simply misconceived and

clearly reflects their conduct, callous behaviour in

performance of duty. We direct the non-applicants to

take disciplinary action against all the three Officers

with the hope that it will be a deterrent step for others

to take more care in performance of duty specially in

such type of cases, where humanity is the supreme.

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The proposed action initiated will be intimated to this

Tribunal.

14. What has rankled us more is the callous manner,

inhuman approach and failure of performance of duty

on the part of the members of the AMB dealing with

applicant’s case. The applicant has to be compensated

for the travails undergone by him. For this gross

negligence, we impose costs of Rs.1,00,000/- (Rs. One

Lakh only) to be paid to the applicant by the non-

applicants but it is to be recovered from the salary of

all the three Officers AMB i.e. Air Commodore D.P.Joshi,

Lt Col Shobana Das and Col S.P.Singh jointly and

collectively in equal ratio. We also direct that all these

three Officers should be subjected to disciplinary action

under the Army Act. It is expected that necessary

action against all these three officers shall be taken at

the earliest and result thereof shall be intimated to this

Tribunal. A copy of this Judgment be sent to the

Secretary to the Government of India, Ministry of

Defence, New Delhi for compliance and initiation of

disciplinary actions against these three erring officers.

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15. Resultantly, this application is allowed and the

orders Annexure/7 dated 31.8.2005 passed by the

Principal Controller of Defence Accounts {Pension}

Allahabad and Anneuxre/9 dated 22.3.2007 passed on

the appeal filed by the applicant are set aside and

quashed and the non-applicants are directed to grant

disability pension to the applicant from the date of his

discharge from service i.e. 19.11.2004. The arrears of

disability pension be paid to the applicant within a

period of three months from the date of receipt of copy

of this judgment with interest @ 6% per annum. We

impose the costs of Rs.1,00,000/-, which shall be paid

to the applicant by the non-applicants but shall be

recovered in equal ratio from Air Commadore D.P.Joshi,

Lt Col Shobana Das and Col S.B.Singh from their salary.

We direct the Secretary to the Govt. of India, Ministry

of Defence, New-Delhi to initiate disciplinary action

against all the three erring Officers immediately after

the receipt of copy of this Judgment. The Registry is

directed to send a copy of this Judgment to all the three

non-applicants for necessary compliance.

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16. In the facts and circumstances of this case, the

parties are left to bear their own costs of this

application.

[Lt Gen Susheel Gupta] [Justice Bhanwaroo Khan]

R.MUNDRA

PPS.