BY THE TRIBUNAL: (BHANWAROO KHAN,J.)
1. The applicant Ex CPL C.L.Kataria has filed this application under section 14 of the Armed Forces Tribunal Act, 2007 for setting aside the orders Annexure/1 dated 22.5.2010, Annexure/6 dated 24.2.1997 and Annexure/7 dated 29.6.2006 respectively and for his reinstatement in service with effect from 1.4.1996 with all consequential benefits or to pay 100% disability pension with effect from 1.4.1996.
2. The brief facts leading to this application are:
thatthe applicant was enrolled in the Indian Air Force on 4.7.1984 and was invalided out of service on 31.3.1986. Before invaliding him out of service, he was subjected to Invaliding Medical Board, which found him medically unfit for further service in the Indian Air Force. The Invaliding Medical Board found that the applicant is suffering from the disabilities, i.e. diabetes mellitus with 100% disability for two years, attributable to service; Rt ear total deafness with 20% disability, aggravated by service; and Rt CP angle tumour with 20% disability for two years, neither attributable to nor aggravated by service. However, the composite disability of the applicant was assessed at 100%, as such, his claim for grant of disability pension was forwarded to the Principal Controller of Defence Accounts (Pension), Allahabad, who opined that the disability suffered by the applicant is neither attributable to nor aggravated by service, as such, rejected the claim of the applicant for grant of disability pension. Thereafter, the applicant preferred an appeal, which was also dismissed. A second appeal was also preferred and the applicant was subjected to Appeal Medical Board on 21.5.2007. The appeal medical board found the disability diabetes mellitus as static and did not consider it as either attributable to or aggravated by service. As regards the disability Rt CP angle tumour, it was considered as neither attributable to nor aggravated by service. However, the disability total deafness Rt. Ear was assessed at 40% for life, aggravated by service. In this view of the matter, the composite disability was considered at 50%, as such, the applicant was granted disability pension considering the composite disability at 50%. However, the applicant claims that since his composite disability was considered at 100% by the Invaliding Medical Board, as such, he should have been granted disability pension considering his composite disability at 100%. Hence this application.
3. We have heard Mr. Shyamsingh, the learned counsel for the applicant and Mr. Harish Maan, the learned counsel for the non-applicants and have carefully gone through the record of the case.
4. It has been argued by Mr. Shyamsingh, the learned counsel for the applicant that in the instant case, the Invaliding Medical Board initially assessed the composite disability of the applicant at 100%, attributable to service but the Medical Advisor posted in the office of the Principal Controller of Defence Accounts (Pension), Allahabad without subjecting the applicant to physical medical examination has rejected the claim of the applicant considering the disability suffered by him as neither attributable to nor aggravated by service without any cogent and valid reasons, which is totally unjust, illegal and arbitrary. He has contended that though the appeal medical board has considered the first disability as static but it was considered as neither attributable to nor aggravated by service. He has submitted that in coming to this conclusion, no valid or cogent reasons have been given by the appeal medical board whereas the Invaliding Medical Board categorically observed that in view of thin lean young individual, developing sudden onset of osmotic symptoms and requiring 30 units of insulin daily, the diagnosis of IDDM was entertained in this individual. Such subset of patients are known to have smouldering type of IDDM which can mimick like NIDDIM and do respond to OHA initially. In view of above, individual was considered as a case of IDDM and invalided out of service being insulin dependent as per existing order and disease was considered attributable to service. However, the appeal medical board has not given any valid or cogent reasons in not considering this disability as having aggravated by service. In support of his contention, the learned counsel for the applicant has placed reliance on a decision of this Tribunal in Lachhmansingh Vs. UOI and Ors. (T.A.No.206 of 2009, decided on 7.5.2010) and Samunder Singh Vs. UOI and Ors. (T.A.No.208 of 2009, decided on February 26,2010), wherein it has been observed that if there are two different and contrary opinions expressed by two different experts, in such case, opinion which is beneficial to the incumbent should be given due weightage.
5. As per the learned counsel for the applicant, in the instant case, the Invaliding Medical Board initially made disease/disability No.1 and 2 attributable to or aggravated by service but the Medical Advisor posted in the office of the Principal Controller of Defence Accounts (Pension) Allahabad without assigning any valid or cogent reasons rejected the claim of the applicant for grant of disability pension holding these disabilities as neither attributable to nor aggravated by service. He has further submitted that even the appeal medical board declaring disease/disability No.1 as static has considered it as neither attributable to nor aggravated by service without assigning any valid or cogent reasons but however, the percentage of disease/ disability No.3 was increased from 20% to 40% and also considered it as attributable to service. He has, therefore, argued that in the light of the cited judgments, the opinion expressed by the expert which is more benevolent to the applicant should be given due weightage.
6. Per contra, Col Veerendra Mohan, OIC Legal for the non-applicants argued that the appeal medical board is the final authority and it has every right to differ with the opinion of the Invaliding Medical Board and the decision of the appeal medical board should be considered as final. He has submitted that as regards disease/disability No.1, the appeal medical board has considered it as static but considered it as neither attributable to nor aggravated by service and as regards disease/disatility No.3, the appeal medical board has increased the percentage of disability from 20% to 40% and considered it as aggravated by or attributable to service. Thus, on the basis of the opinion expressed by the appeal medical board, the applicant has been granted 50% disability pension on account of broad banding of 40% disability to 50% with effect from 21.5.2007.
7. It is trite law that pension is not a bounty but a legal right is vest ed in an individual. It there are two different and contrary opinions expressed by two different experts, in such case, the opinion which is benevolent to the incumbent should be given due wieghtage. In Samunder singhs case(supra), the Release Medical Board had specifically opined that both the disabilities suffered by the applicant are aggravated due to physical and mental stress and strains of military service. The appeal medical board has opined that the disabilities suffered by the applicant are neither attributable to nor aggravated by military service and the only reason given by the appeal medical board for taking a different view than the view taken by the Release Medical Board is that the applicant continued to serve in peace station from onset of the disabilities in 1993 till his Release Medical Board was held, which cannot be considered as a reasonable ground for taking a different view than the view taken by the Release Medical Board. In this view of the matter, in our considered opinion, this case is squarely covered by the decision of this Tribunal in Samunder Singhs case (Supra), therefore, considering the opinion of the Release Medical Board that disease/disabilities No.1 and 3 are aggravated by military service and are compositely assessed at 100%, the applicant is entitled to receive disability pension with effect from the date he was invalided out of service i.e. from 31.3.1996. To this extent, this application deserves to be allowed.
8. Resultantly, this application is allowed and the non-applicants are directed to grant 100% disability pension to the applicant with effect from the date he was invalided out of service i.e. from 31.3.1996. Since the applicant was granted 50% disability pension with effect from 21.5.2007, the arrears of the disability pension be paid to the applicant within a period of three months from the date of this order after adjusting the amount of disability pension already paid to him with interest at the rate of 8% per annum.
9. In the facts and circumstances of the case, the parties are left to bear their own costs of this application.