aft order on disability
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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
:::
DATE OF JUDGMENT: MAY 20,2010
:::
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.
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