GHANSHYAM PRASAD:
Originally this suit has been filed by the plaintiff seeking declaration to the effect that the impugned orders dated 30-05-2005 and 21-04-2005 rejecting his claim for disability pension are wrong, illegal, against settled law, principles of natural justice and equity and he is entitled to disability element for life with arrears and interest @ 18% per annum thereon. This case has been received on transfer and it has been treated as application under Section 14/15 of the Armed Forces Tribunal Act, 2007.
The petitioner/plaintiff was enrolled in Defence Security Corps on 16-8-1989 in a medically fit condition. During service, mostly he remained posted at high altitude area. After completion of 14 years of service, he developed some heart problem. He was treated at various Military Hospitals. There was no improvement in his health, rather it went on deteriorating with the passage of time. Ultimately he was invalided out of service w.e.f. 31-12-2004 on medical grounds after having been placed in low medical category EEE (P) with 40% disability. His claim for grant of disability pension was rejected vide order dated 20-05-2005. Against that rejection, an appeal was preferred and a legal notice was also served upon the respondents, but to no effect. Hence this application/suit.
In this case no written statement has been filed by the respondents despite opportunity having been granted. In the absence of the same, the averments made in the application/suit are presumed to be correct.
In course of the submissions, it is submitted by the learned counsel for the petitioner that the petitioner was found fit in all respects at the time of entry into service in the year 1986 and no Note regarding any heart disease was recorded by the Medical authorities. He felt heart problem after completion of 14 years of service. He was bought before the Invaliding Medical Board. He was found to suffer from âCAD (TUD) LV SYSTOLIC DYSFUNCTION POST CABGâ. As per Medical Board opinion, his disability was held to be aggravated by military service as a result of stress and strain of service. The percentage of disability was assessed as 30% for life. It is further submitted by the learned counsel that in view of Rule 14 (b) of the Entitlement Rules, unless the Medical Board gives specific reason that an individual was suffering from such disease before entering into service, which could not have been detected on medical examination, presumption will be that such disease has arisen during the course of service and is deemed to be attributable to military service. Therefore, the he petitioner is entitled to get disability pension from the date of his invalidation.
The only objection of the learned counsel for the respondents is that the PCDA (P) Allahabad rejected the claim of the petitioner for disability pension as his disability was not found to be attributable to military service. Therefore, he is not entitled to get disability pension.
The admitted position is that the disease from which the petitioner was found to suffer was detected in course of service when the petitioner had already completed 14 years of service. He was found fit in all respects of at the time entry into service. No note regard to any kind of disease was recorded by the Medical Authority. Having regard to this fact and as per Rule 14 (b) earlier Rule 7, contained in Appendix-II of Entitlement Rules, the presumption would be that the disease having arisen during tenure of service is deemed to be attributable to military service.
We have also perused the Medical Board proceedings placed on record by the petitioner. The opinion of the Medical Board recorded therein clearly reveals that the aforesaid disease was aggravated by military service. The reason/cause thereof has been mentioned as âstress and strain of serviceâ. The percentage of disability has been shown as 30% for life.
Thus having regard to the facts and circumstances of the case, we are of the view that the petitioner is entitled to get disability element of disability pension for 30% disability from the date of his invalidation i.e. 31-12-2004. He is also entitled to the benefit of Rounding Off under Ministry of Defence letter dated 31-01-2001.
Accordingly, this application is allowed. The respondents are directed to assess and release the disability element of disability pension in favour of the petitioner/plaintiff for 30% (50% after rounding off) disability from the date of his invalidation, within six months from the date of receipt of this order. The petitioner is also entitled to get arrears. However, it shall be restricted to a period of three years prior to filing of this application/suit with interest @ 10% per annum.