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1 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: ::: PRESENT HONBLE MR. JUSTICE BHANWAROO KHAN [J] HONBLE LT GEN SUSHEEL GUPTA [A] M/s S.B. Singh and Gajanand Yadav for the applicant. Lt Col Veerendra Mohan for the non-applicants. MAY 20,2010

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.

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

3 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.

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 boards 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

5 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 applicant as NIL and disability suffered by the opined that it is neither

6 attributable to nor aggravated by his military service. The opinion about the percentage of disability has been

expressed by the medical expert i.e. IMB

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 nonapplicants that since the disability suffered by the applicant was not found to be attributable to or

7 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

8 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 experts

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

9 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 allowance.

inclusive of attendance

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

10 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 experts 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

11 before AMB, the applicant was brought on wheel chair before Col C.S. Satyanarayanan, an expert of

Neurology, who stated that applicants 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

12 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.

13 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

applicants 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 nonapplicants 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.

14 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.

15 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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