Judgment:
1. The petitioner by this petition has prayed that the impugned order dated 25th June 2009 passed by the Defence Ministers Appellate Committee be set aside and also to set aside the opinion of the Invaliding Medical Board held in respect of the applicant pertaining to the attributability aspect. He has further prayed that disability pension be granted with effect from 6th June 1984 along with interest @ 12% p.a.
2. The facts of the case are that the petitioner was enrolled on 5th January 1981 as a Sailor in the Indian Navy. During his time of enrolment, he was subjected to proper medical examination and he was found fit in all respects. The petitioner was put through very tough training regimen and he successfully completed the same. On completion of the training he was posted to Naval Ship INS Vijay Durg from 1981 to 1983. Towards the end of his tenure on the ship i.e. in January 1983 he contracted a disease called Grand Mal Seizures due to stress of afloat service.
3. The petitioner subsequently got an attack of the disease and he was admitted in the hospital quite frequently. He could not however be treated fully and was thus declared unfit to continue in service. He was medically downgraded to S5A5 (Permanent). He was invalidated out of service after Invalidating Medical Board held on 16th March 1984. He was finally discharged from the Naval Services on 6th June 1984 with no disability pension.
4. Learned counsel for the petitioner submitted that this being a case of 1984 is very old. He submitted that a waiver has been granted by the Central Government in this regard vide their letter dated 16th January 2007. The letter gives the sanction for the first appeal to be made against the rejection of disability pension in respect of the petitioner.
5. Learned counsel argued that firstly during the time of enrolment the petitioner was in sound health. However due to stress and strain of service afloat while serving on INS Vijay Durg, he succumbed to this disease of Grand Mal Seizures. First episode has been noticed in his medical record in January 1983.
6. Going by the Entitlement Rules for Casualty Pensionary Awards, 1982 in Appendix II in paragraph 4 which reads as under:
â4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than âA. and are discharged because no Alternative or Shelter Appointment can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service.â
7. He further argued that as per para 6 and 6(a) of Appendix II âDisablement of death shall be accepted as due to military service provided it is certified by appropriate medical authority that:
(a) the disablement is due to a wound, injury or disease which
(i) is attributable to military service, or
(ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/hastening of the onset of a disability.â
8. Learned counsel put forth that para 7 states that in case there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted. Paras 7 and 8 read as under:
â7. Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.
8. Attributability/aggravation shall be conceded if causal connection between death/disablement and military service is certified by appropriate medical authority.â
9. Further he drew our attention to Annexure III to Appendix II of the Entitlement Rules under the classification of diseases, Diseases affected by stress and strain which are listed as under:
â1. Psychosis and Psyconeurosis.
2. Hypertension (BP)
3. Pulmonary Tuberculosis.
4. Pulmonary Tuberculosis with pleural effusion.
5. Tuberculosis (Non-pulmonary)
6. Mitral Stenosis.
7. Pericarditis and adherent pericardium.
8. Endocarditis.
9. Sub-acute bacterial endo-carditis, including infective endocarditis.
10. Myocarditis (acute and chronic).
11. Valvular disease.
12. Myocardial infarctionm, and other forms of IHD.
13. Cerebral haemorrhage and dcerehral infarction.
14. Peptic ulcer.â
10. Learned counsel for the petitioner submitted that the Medical Board has been very unfair when they did not consider the immediate cause of action in terms of his service afloat and thus did not give the opinion that the disease is attributable/aggravated by the military service.
11. Learned counsel for the respondents in the reply has not disputed the facts of the case. In the reply it has been stated that the applicant was hospitalised for the first time in February 1983. He absconded from the hospital while under medical investigation and had to be discharged in absentia. In July 1983 petitioner was again hospitalised and he again absconded and again discharged in absentia. In November 1983 the petitioner was again admitted as the case of status epileptics and his behavioural disorder was found to be attributable to epilepsy. Due to his behavioural disorder due to epilepsy and frequent hospitalisation, the applicant was considered unfit for the service and hence recommended for invaliding out.
12. Learned counsel for the respondents conceded that the disability pension was rejected by the competent authority on the ground that the disability as not caused by service factors. The decision of the competent authority was conveyed to the petitioner by the Bureau of Sailors on 5th June 1985. After a lapse of twenty years, the applicant preferred his first appeal on 28th July 2005. The permission to waive the time bar was accorded by the competent authority and his first appeal was rejected as the Committee upheld the findings of the Invaliding Board and thus rejected the appeal. The applicant preferred a second appeal and the Defence Ministers Appellate Committee also deliberated upon the appeal and came to this conclusion that the disease was not attributable or aggravated by the military service.
13. Having heard learned counsel for both the parties at length and having examined the records, we are of the opinion that as per the Entitlement Rules for Casual Pensionary Awards, 1982 since no mention of this disease was made at the time of entering into service and the individual was discharged for this disease of Grand Mal Seizures which was first detected in January 1983, this case needs to be treated as an âinvalidmentâ case. As regards the attributability/aggravation caused by military service, paras 7 and 8 of the Entitlement Rules clearly state that even if there is a causal connection with the service environment, the medical authority is empowered to consider the disease as aggravated by military service. Psychosis and Psychoneurosis has been listed as the first disease in Annexure III to Appendix II i.e. disease caused by stress and strain. Furthermore, there has been no background or history of this kind of diseases in his family.
14. In view of the foregoing, we are of the opinion that this disease should be treated as aggravated by military service as it manifested itself in January 1993 when the individual was doing service aboard INS Vijay Durg as afloat service. The disability has been termed by the Medical Board as 50% for one year and if the respondents so require they may consider this as life long disability or send the petitioner for a fresh Medical Board to assess the degree of disability. It is further directed that the petitioner shall be paid arrears within 90 days with 12% interest.
15. The petition is partially allowed with no order as to costs.