advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 27, 2015

The primary conditions for grant of disability pension are mentioned under Regulation 173 of the Pension Regulations for the Army 1961. Regulation 173 reads as under:- “Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty or is assessed at 20% or over.”=The above contention does not merit acceptance. By perusal of record issued by Medical Board AFMSF- 16/17, it is seen that the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority. It is also mentioned in the Medical Abstract Records as:- “1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Invalidating Disabilities is/are neither attributable to nor aggravated by service.”= When the opinion of the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority, the opinion of the Medical Board by itself cannot confer right upon the respondent to claim disability pension. = The respondent went for six weeks sick leave and reported back for review and invalidated from service with effect from 28.2.2006. After the accident when the respondent was not actually performing military service, the opinion of the Medical Board “aggravated due to stress and strain of military service” does not appear to be in proper perspective. After the accident, when the respondent was not actually performing his duties and therefore disability cannot be attributed to military service nor can it be said to have been aggravated due to stress and strain of military service. In the light of the above discussion, it is clear that the injury suffered by the respondent has no causal connection with the military service. The tribunal failed to appreciate that the accident resulting in injury to the respondent was not even remotely connected to his military duty and it falls in the domain of an entirely private act and therefore the impugned orders cannot be sustained.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6583  OF 2015
                    (Arising out of CAD No.13923 of 2014)


UNION OF INDIA & ORS.                                    ..Appellants

                                   Versus

3989606 P, EX-NAIK VIJAY KUMAR                      ..Respondent



                               J U D G M E N T


R. BANUMATHI, J.

            Delay condoned.
2.          This appeal is filed  against  the  order  dated  13.07.2011  in
Original  Application  No.248  of  2011  and  order  dated   31.10.2012   in
M.A.Nos.795 and 796 of 2012 passed by the Armed  Forces  Tribunal,  Regional
Bench, Chandigarh (for short ‘the tribunal’) whereby  the  tribunal  allowed
the application filed by the respondent observing  that  the  respondent  is
entitled to get disability pension for 75% disability from the date  of  his
invalidation.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
under:- On 25.02.1989, the respondent  was  enrolled  in  Indian  Army  from
Branch  Recruiting  Office  Palampur  and  after  completion  of  his  basic
Military Training at Dogra Regiment, the respondent was posted to  12  Dogra
on 05.01.1990. The respondent was granted  thirty  days  annual  leave  from
14.05.2005 to 12.06.2005. However, during the leave  period,  on  19.05.2005
the respondent went from Himachal  Pradesh  to  Jalandhar  Cantt  where  his
sister resides for making purchase of ornaments  and  clothes  and  articles
for marriage of his younger brother. On  the  same  day,  on  19.05.2005  in
Jalandhar at the house of his sister which was  on  second  floor  at  about
8.00 p.m., while the respondent was climbing stairs to go  to  the  roof  of
the quarter for smoking and  at  that  time  lights  went  off  and  due  to
darkness  he  slipped  accidentally  and  fell  down  from  the  stairs  and
sustained multiple  injuries.  The  respondent  was  initially  admitted  to
Christian Hospital, Maqsuda where he was given first  aid  treatment  for  a
night and next day on 20.05.2005, he was transferred to  Military  Hospital,
Jalandhar for treatment of his multiple injuries. The  respondent  underwent
four operations, he was treated in  military  hospital  for  three  to  four
months. However, the respondent was placed in Low Medical Category   A3  (T)
for 6/12 years. The respondent was sent for six  weeks  sick  leave  and  he
reported back for review. The respondent  was  brought  before  the  Release
Medical Board, wherein the RMB opined that  respondent  should  be  released
from military  service  in  Permanent  Low  Medical  Category  A-3  for  six
disabilities he sustained. The Release Board assessed  the  disabilities  at
Military Hospital Faizabad and composite assessment  was  assessed  at  60%.
After due procedure,  the  respondent  was  invalidated  from  service  with
effect from 28.02.2006 after completion of seventeen years of service.
4.          The respondent was paid monetary benefits  due  and  payable  to
him  and  also  other  pensionary  benefits.  The  respondent’s  claim   for
disability pension was however rejected by the competent  authority  stating
that respondent’s disabilities are neither attributable  to  nor  aggravated
due to military service.  Aggrieved by the order, the  respondent  filed  an
appeal  dated  09.05.2007  before  the  appellate  authority  for  grant  of
disability pension. The  respondent  also  sent  two  representations  dated
01.10.2007 and December 2007. After due inquiry, appeal was rejected by  the
Appellate Committee vide order dated 13.04.2007 holding that respondent  was
not entitled to disability pension in terms of Rule 12 of  Entitlement  Rule
for Casualty Pensionary Award.
5.          Aggrieved by the order, respondent filed  O.A.No.  248  of  2011
before the tribunal.  The tribunal  vide  impugned  order  dated  13.07.2011
allowed the application of the respondent holding  that  the  respondent  is
entitled to disability pension for 75% disability for  life  by  giving  the
benefit of rounding off from the date of invalidation. This  appeal  assails
the correctness of the impugned order.
6.           Mr.  P.S.  Patwalia,  learned  Additional   Solicitor   General
appearing for the appellants contended that under Regulation 173  disability
pension is granted to an individual who is invalidated  out  of  service  on
account of disability  which is either  attributable  to  or  aggravated  by
military service. It was submitted that in the facts of the  case,  the  act
of the respondent was not even remotely connected to his military  duty  and
while so, the tribunal erred in directing grant  of  disability  pension  to
the respondent.
7.          Per contra, learned counsel for the  respondent  submitted  that
the  Medical  Board  opined  that  the  disability  of  the  respondent   is
aggravated “due to stress and strain  of  military  service”  and  once  the
Medical Board gives its finding to the advantage of  the  disabled  soldier,
it cannot be changed by any other authority  and  hence  the  respondent  is
entitled for grant of  disability  pension  and  tribunal  rightly  directed
payment of disability pension to the respondent.
8.          We have heard learned counsel for  the  parties  and  have  gone
through the orders passed  by  the  tribunal  and  the  material  placed  on
record.
9.          The primary conditions  for  grant  of  disability  pension  are
mentioned under Regulation 173 of  the  Pension  Regulations  for  the  Army
1961.  Regulation 173 reads as under:-
“Unless otherwise  specifically  provided a  disability  pension  consisting
of service element and disability element may be granted  to  an  individual
who is invalidated  out of  service  on  account  of  disability   which  is
attributable to or aggravated  by military service  in  non-battle  casualty
or is assessed at 20% or over.”

10.         In terms of Rule  12  of  the  Entitlement  Rules  for  Casualty
Pensionary Awards 1982, a person subject to the  disciplinary  note  of  the
armed forces is treated on duty while performing  anyone  of  the  functions
mentioned in paragraphs (a), (b) and (c) of the Pension Regulations.   Notes
(1) and (2) of the Entitlement Rules elaborate the scope and purport of  the
term ‘duty’. Para (b) to Note (2) deals with accident which occurs when  the
armed forces personnel is not strictly “on duty”  as  defined  in  Rule  12.
For such situations, the expression “on duty” is given an  extended  meaning
inasmuch as an accident which  occurs  when  the  person  concerned  is  not
strictly “on duty” is also deemed to be on duty.  We  may  usefully  extract
Rule 12 of Entitlement Rules and para (a) to (f) of  Notes  (1)  &   (2)  as
under:-
“Rule 12: Duty:- The Entitlement Rules 1982

A person subject to the disciplinary code of the Armed Forces is on duty:-

When performing an official task or  a  task,  failure  to  do  which  would
constitute an offence triable under  the  disciplinary  code  applicable  to
him;

When moving from one place of duty to another place of duty irrespective  of
the mode of movement;

During the period of participation in recreation and other  unit  activities
organized or permitted by service  authorities  and  during  the  period  of
travelling in a body or singly by a prescribed or organized route.

Note 1:     xx         xx         xx         xx

xx          xx         xx         xx

Note 2: (d) Personnel while  travelling  between  place  of  duty  to  leave
station and vice versa to be treated on duty irrespective  of  whether  they
are in physical possession of railway  warrant/concession  vouchers/cash  TA
etc or not. An  individual  on  authorized  leave  would  be  deemed  to  be
entitled to travel at public expense.

The time of occurrence of injury should fall within the time  an  individual
would normally take in reaching the leave station from duty station or  vice
versa using the commonly authorized mode(s) of  transport.  However,  injury
beyond this time period during the leave would not be covered.

An accident which occurs when a man is not strictly  ‘on  duty’  as  defined
may also be attributable to service, provided that it  involved  risk  which
was definitely enhanced  in  kind  or  degree  by  the  nature,  conditions,
obligations or incidents of his service and that the same  was  not  a  risk
common to human existence in modern conditions in India.”



11.         This Court in Sukhwant Singh vs. Union  of  India   through  the
Secretary, Ministry of Defence And Ors., (2012) 12 SCC 228  after  referring
to the judgment of the tribunal affirmed the legal position as summed up  by
the tribunal and the same reads as under:-
“To sum up in our view  the  following  principles  should  be  the  guiding
factors for deciding the question of attributability or  aggravation,  where
the disability or fatality occurs during  the  time  the  individual  is  on
authorized leave of any kind:
(a) The mere fact of a person being on ‘duty’ or otherwise, at the place  of
posting or on leave, is not the sole criteria for  deciding  attributability
of disability/death. There has  to  be  a  relevant  and  reasonable  causal
connection,  howsoever  remote,  between  the  incident  resulting  in  such
disability/death and military  service  for  it  to  be  attributable.  This
conditionality applies even when a person  is  posted  and  present  in  his
unit. It should similarly apply when he is on  leave;  notwithstanding  both
being considered as ‘duty’.
(b) If the injury suffered by the member of the armed force  is  the  result
of an act alien to the sphere of military service or is in no way  connected
to his being on duty as understood in the sense contemplated by Rule  12  of
the Entitlement Rules, 1982, it would neither be the  legislative  intention
nor to our mind would it be  the  permissible  approach  to  generalise  the
statement that every injury suffered  during  such  period  of  leave  would
necessarily be attributable.
(c) The act, omission or commission  of  which  results  in  injury  to  the
member of the force and consequent disability or  fatality  must  relate  to
military service in some manner or the other, in other words, the  act  must
flow as a matter of necessity from military service.
(d) A person doing some act at home,  which  even  remotely  does  not  fall
within the scope of his duties and functions as a member of the  force,  nor
is remotely connected with the functions  of  military  service,  cannot  be
termed  as  injury  or  disability  attributable  to  military  service.  An
accident or injury suffered by a member of the armed force  must  have  some
causal connection with military service and at least should arise from  such
activity of the member of the force as he is expected to maintain or  do  in
his day-to-day life as a member of the force.
(e) The hazards of army  service  cannot  be  stretched  to  the  extent  of
unlawful and entirely unconnected acts or  omissions  on  the  part  of  the
member of the force even when he is on leave. A  fine  line  of  distinction
has to be drawn between the matters connected,  aggravated  or  attributable
to military service, and the matter entirely alien  to  such  service.  What
falls ex facie in the domain of an entirely private act  cannot  be  treated
as a legitimate basis for claiming the relief  under  these  provisions.  At
best, the member of the force can claim disability  pension  if  he  suffers
disability from an injury while on casual leave even if it arises from  some
negligence or misconduct on the part of the member of the force, so  far  it
has some connection and nexus to the nature of the force.  At  least  remote
attributability to service would be the condition precedent to  claim  under
Rule 173. The act of omission and commission on the part of  the  member  of
the force must satisfy the test of  prudence,  reasonableness  and  expected
standards of behaviour.
(f) The disability should not be the result of an accident  which  could  be
attributed to risk common to human existence in modern conditions in  India,
unless such risk is enhanced  in  kind  or  degree  by  nature,  conditions,
obligations or incidents of military service.”


The principles enunciated  in  the  above  judgment  were  referred  to  and
reiterated by this Court in Union of India And Anr.  vs.  Ex  Naik  Surendra
Pandey, 2015 (2) SCALE 361 to which both of us were parties.
12.         Entitlement Rules for the Casualty Pensionary  Awards  1982  are
beneficial in nature and ought to be liberally construed. In terms  of  Rule
12, the disability sustained during  the course of an accident which  occurs
when the personnel of the armed forces  is not strictly on duty may also  be
attributable to service on  fulfilling  of  certain  conditions   enumerated
therein. But there has to be a  reasonable  causal  connection  between  the
injuries resulting in disability and the military service.
13.         Applying the ratio of various cases in  Secretary,  Ministry  of
Defence & Ors. vs. Ajit Singh,  (2009)  7  SCC  328  and  relying  upon  the
principles laid down in Union of India & Ors. vs. Keshar  Singh,  (2007)  12
SCC 675 and Union of India & Ors. vs. Surinder Singh Rathore, (2008)  5  SCC
747, this Court rejected the claim of the respondent for disability  pension
on account of electric shock sustained by him while he was on casual leave.
14.         In Union of India And Ors. vs. Jujhar Singh (2011)  7  SCC  735,
this Court was dealing with the question whether the respondent who had  met
with  an  accident  in  his  native  place  and  sustained  grievous  injury
resulting in permanent disability was entitled to disability  pension.   The
respondent in that case had upon recovery from injury continued in  military
service and superannuated with normal service pension.  In  the  said  case,
this Court held that the member of armed forces who is  claiming  disability
pension must be able to show a reasonable nexus between  the  act,  omission
or commission resulting in an injury to the person and the  normal  expected
standard of duties and a way  of  life  expected  from  a  member  of  armed
forces.
15.         In yet another case, Union  of  India  And  Anr.  vs.  Talwinder
Singh, (2012)  5  SCC  480,  the  disability  pension  was  claimed  by  the
individual enrolled in the army who was on annual leave   for  a  period  of
two months in his home town, got injured during the leave period by a  small
wooden piece  “Gulli” while playing with children  which  seriously  damaged
his left eye.  This Court in para (12) observed thus:-
“12. A person claiming disability pension must be able to show a  reasonable
nexus between the act, omission or commission resulting in an injury to  the
person and the normal expected standard of duties and way of  life  expected
from such person. As the military personnel  sustained  disability  when  he
was on an annual leave that too at his home town  in  a  road  accident,  it
could not be held that the injuries could be attributable to  or  aggravated
by military service. Such a person  would  not  be  entitled  to  disability
pension. This view stands fully fortified by the earlier  judgment  of  this
Court in Ministry of Defence v. Ajit Singh, (2009) 7 SCC 328.”


16.         Applying these principles and Rule 12 and mandate of  Regulation
173, admittedly in the instant case as mentioned in the  proceedings  before
the Board Officer that during the annual leave respondent went to  Jalandhar
on 19.05.2005 from Himachal Pradesh to purchase ornaments  and  clothes  for
his brother’s marriage.  He was staying at his sister’s  place  and  in  the
night at about 8.00 p.m. while he was climbing the  stairs  to  get  to  the
roof for smoking and at that time the lights went  off  and  due  to  sudden
darkness he lost his balance and fell down  and  lost  his  senses.  He  was
admitted in civil  hospital  in  Jalandhar  and  after  first  aid,  he  was
transferred to military hospital Jalandhar for multiple  fracture  injuries.
It is apparent that the injury sustained by Vijay Kumar  was  accidental  in
nature and nobody can be blamed for the same.   Respondent’s  act  of  going
towards the roof for smoking at his sister’s house and falling  down  at  no
stretch of imagination can be attributed to military service.
17.         Learned counsel for the respondent heavily placed reliance  upon
the judgment of this Court in Union of India & Anr.  vs.  Ex  Naik  Surendra
Pandey, (2015) 2 SCALE 361, in which the respondent  went  on  annual  leave
and was travelling from the place of his duty to the place where his  family
was residing (Sewan).  The respondent boarded the bus from Hajipur to  reach
Patna to join his family and at that time, he met  with  an  accident  which
resulted in disability assessed at 20% by the Medical  Board.  In  the  said
case, it  was  the  specific  case  of  the  respondent  that  although  the
respondent’s hometown is Gopalganj, his family was residing at Patna and  it
was for that reason he claimed to be travelling by train beyond  Sewan  upto
Hajipur by train to  catch  a  bus  to  reach  Patna  to  join  his  family.
Considering  the  facts  and  circumstances  of  the  said  case  and   that
respondent’s family was residing at Patna, this Court held that there was  a
reasonable nexus and  causal  connection  between  the  disability  and  the
military service of respondent at the relevant time.  In para (12),  it  was
held that “…..The case  may  have  been  different  if  the  respondent  had
reached the destination engaged in  some  activity,  unrelated  to  military
service and in the course of such activity met with  an  accident  resulting
in  a  disability….”.   Thus,  Ex  Naik  Surendra  Pandey  case  is  clearly
distinguishable on facts.
18.         Learned counsel for the respondent contended that the  composite
assessment for the respondent’s  disability  was  assessed  at  60%  by  the
Medical Board and the same was found to be attributable and aggravated  “due
to stress and strain of military  service”  and  as  per  settled  law  once
medical board gives its finding to the advantage of  the  disabled  soldier,
findings of the Medical Board cannot be changed.  The above contention  does
not merit acceptance.  By perusal of record issued by Medical  Board  AFMSF-
16/17, it is seen that the assessment by  the  Board  is  recommendatory  in
nature and is subject to acceptance by the  Pension  Sanctioning  Authority.
It is also mentioned in the Medical Abstract Records as:-
“1. Though the disablement has been mentioned in percentage  in  para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Invalidating Disabilities is/are neither attributable to nor  aggravated  by
service.”


When the opinion of the assessment by the Board is recommendatory in  nature
and is subject to acceptance  by  the  Pension  Sanctioning  Authority,  the
opinion of the  Medical  Board  by  itself  cannot  confer  right  upon  the
respondent  to  claim  disability  pension.  Further,  after  accident   the
respondent was treated in the military hospital for  three  to  four  months
and he was placed in low medical category.   The  respondent  went  for  six
weeks sick leave and reported back for review and invalidated  from  service
with effect from 28.2.2006.  After the accident when the respondent was  not
actually performing military service,  the  opinion  of  the  Medical  Board
“aggravated due to stress and strain of military service”  does  not  appear
to be in proper perspective.   After the accident, when the  respondent  was
not actually performing  his  duties  and  therefore  disability  cannot  be
attributed to military service nor can it be said to  have  been  aggravated
due to stress and strain of military service.
19.         In the light of the above  discussion,  it  is  clear  that  the
injury suffered  by  the  respondent  has  no  causal  connection  with  the
military service.  The tribunal  failed  to  appreciate  that  the  accident
resulting in injury to the respondent was not  even  remotely  connected  to
his military duty and it falls in the domain of an entirely private act  and
therefore the impugned orders cannot be sustained.
20.         In the result, the impugned order of the tribunal is  set  aside
and the appeal is allowed. In the facts and circumstances of  the  case,  we
make no order as to costs.


                                              ….……………………J.
                                    (T.S. THAKUR)



                                …..……………………J.
                                     (R. BANUMATHI))

New Delhi;
August 26, 2015

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.