Armed Force Law

The Hon'ble Supreme Court in Dharamvir Singh Vs. Union of India & Ors.
[Civil Appeal No. 4949 of 2013] rendered a landmark judgment in favour of disabled Soldiers/ Officers retired in Low Medical Category (LMC) directing to Govt. of India to release disability pension. In this case many points of Casualty Pensionary Awards 1982 as amended 2008 were discussed in conjunction with Guide to Medical Officer (Medical Pension) 2002 amended in 2008. Finally after considering the relevant laws and paras of pension regulation, the Hon'ble Apex Court decided the case in favour of disabled personnel. Adv. Tanwar is dealing with the matters pertaining to disability pension in Army, Air Force, Navy including Paramilitary Forces. Adv. Anand Tanwar is one of the best disability pension advocate in jaipur who is bringing important paragraphs of the judgment as it is very lengthy. You can also read and download the full judgment by clicking a link at last of this article / blog.

" A conjoint reading of various provisions, reproduced above, makes it clear that:

i. Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

ii. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

iii. Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).

iv. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)].

v. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

vi. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

vii. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitledment : General Principles", including paragraph 7,8 and 9 as referred to above.

As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. "Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions.

In view of the finding as recorded above, we have no option but to set aside the impugned order passed by the Division Bench dated 31st July, 2009 in LPA No.26 of 2004 and uphold the decision of the learned Single Judge dated 20th May, 2004. The impugned order is set aside and accordingly the appeal is allowed. The respondents are directed to pay the appellant the benefit in terms of the order passed by the learned Single Judge in accordance with law within three months if not yet paid, else they shall be liable to pay interest as per order passed by the learned Single Judge. No costs.

Reference Source

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Adv. Anand Tanwar deals with all type of matter like service pension, disability pension, family pension etc. as such matters can be easily.