Armed Forces Tribunal Act, 2007 – ss.14, 30 – Pension Regulations for the Army, 1961 – Regs 173, 183 – Entitlement Rules for Casualty Pensionary Awards, 1982 – rr.5 – Disability pension – Appellant, enrolled in the army, as invalided out from service on account of low medical category for the disease generalized tonic clonic seizure old 345 V-67 assessed at less than 20% on the recommendations of the Invaliding Medical Board – Case of the appellant that he was hale and hearty when he had joined the army but suffered the disability during his posting at high altitude glacier – Appellant was granted disability pension consisting of the service element only since the disability was assessed at less than 20% and held as not attributable to or aggravated by military service – Challenge to – Tribunal held that disability of the appellant was less than 20% – Review application thereagainst also dismissed – Correctness:
Held: Tribunal simply went by the remarks of the Invaliding Medical Board and Re-Survey Medical Boards to hold that since the disability of the appellant was less than 20%, he would not be entitled to the disability element of the disability pension – Tribunal did not examine the issue as to whether the disability was attributable to or aggravated by military service – Neither has it been mentioned by the Invaliding Medical Board nor by the ReSurvey Medical Boards that the disease for which the appellant was invalided out of service could not be detected at the time of entry into military service – Invaliding Medical Board was quite categorical that no disability of the appellant existed before entering service – If there is no note or report of the Medical Board at the time of entry into service that member suffered from any particular disease, the presumption would be that the member got afflicted by the said disease because of military service – Thus, the burden of proving that the disease is not attributable to or aggravated by military service rests entirely on the employer – Any disease or disability for which a member of the armed forces is invalided out of service would have to be assumed to be above 20% and attract grant of 50% disability pension – Impugned orders of the tribunal wholly unsustainable in law and set aside – Respondents to grant the disability element of disability pension to the appellant at the rate of 50% with effect from 01.01.1996 onwards for life. [Paras 46, 47]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.