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2002 DIGILAW 35 (JK)

Nanak Chand v. Union Of India

2002-02-28

T.S.DOABIA

body2002
1. Petitioner has been denied disability pension. He had approached this court. He has rendered 23 years of service. He was complaining of gradual domination of vision of right eye. He was brought before the Medical Board. The Board found that petitioner had developed a Macular Scar of right eye. At that point of time, as indicated above, the petitioner had rendered 23 years of service. He was a driver. As his vision was diminishing he was boarded out of service. As indicated above, he was denied disability pension. 2. The opinion of the Medical Board was that though the petitioner was suffering from Macular Scar right eye 370 but is not of good bodily health and has no prospect of an average duration of life. The disability of the petitioner was assessed at 20 percent. It is precisely in this basis, the disability pension has been disallowed. 3. In the brief history given by the respondents, it has been mentioned that..." the disability if the petitioner was assessed at 20% for two years by Release Medical Board. Accordingly the disability pension claim of the petitioner was forwarded to Chief CDA (Pension) Allahabad for their adjudication vide ASC Records (MT) letter No.13836573W/Pen/Disb dt.21-10-93. After due examination of the case. Chief CDA (Pension) Allahabad vide their letter No.G-3/82/276/11/93 dt.29.3.1994 rejected the disability pension claim of the petitioner on the plea that the disability for which the individual suffered during his service and on which his claim is based, is neither attributable to nor aggravated by military service and does not fulfill the condition, namely it existed before and has remained aggravated thereby..." 4. From the above, it becomes apparent that even though the disability of the petitioner was assessed at 20%, nevertheless, the Controller of Defence Accounts (Pension), Allahabad, was of the opinion that the disease is constitutional. It is on this basis, the disability pension was denied to the petitioner. 5. The position of law is well settled. A disease which leads to an individuals discharge from service would ordinarily be deemed to have arisen in service, if no note of it is made at the time of entry into service. This aspect of the matter has been considered by a Division Bench of this court in the case of Union of India Vs. Rattan Lal, 1999(2) SCT 39. This aspect of the matter has been considered by a Division Bench of this court in the case of Union of India Vs. Rattan Lal, 1999(2) SCT 39. The Division Bench while dealing with the principles of grant of disability pension concluded as under- I). That in case mention is not made regarding the disease or disablement at the time of entry in service, then it is to be presumed that the disability occurred during the course of service. II) That disability would be on account of stress and strains of army service. III) If competent authority is to disagree with the finding recorded by the medical board vis-a-vis disability or the percentage thereof, the matter should be referred to the medical board. IV) As there is no finding recorded that the respondent writ petitioner was suffering from a disease which could not be detected at the time of entry into service, the appellant Union of India cannot take a summersault and come to a contrary conclusion. V) Delay in approaching the court is irrelevant. 6. In Ram Niwas Goswami V. Union of India, 2000(2) SCT 490, the petitioner was discharged from Air Force. He was denied disability pension. There was no evidence on the record to indicate that the petitioner was suffering from the ailment at the time he entered the service or prior thereto. The disease was diagnosed after five years of enrolment. The petitioner in the above case was held entitled to disability pension. The above was a case of Schizophrenia. Again in Pritam Singh V. Union of India, 2000(2) SCT862, the petitioner was discharged on medical grounds as he was suffering from Schizophrenia Psyschosis Catatoic disorder. Petitioner had rendered seven years of service. The disability was determined at 30 percent but the actual disability pension was not granted. Taking note of a decision given by a Division Bench of this court in the case of Balwant Singh V. Union of India LPA No.521/98, decided on 17th Nov99 and some other decisions, the petitioner in the above case was held entitled to disability pension. 7. The view is again well settled that in case opinion is expressed by the Medical Board, then the Controller of Defence Accounts is not to sit over the opinion. 7. The view is again well settled that in case opinion is expressed by the Medical Board, then the Controller of Defence Accounts is not to sit over the opinion. In Janak Raj V. Union of India, 2000(2) SCT 456 (P&H), the disability of the aggrieved army personnel was determined by the Medical Board at 40 percent but the Controller of Defence Accounts, rejected the claim. It was observed that the Controller of Defence Accounts cannot sit over the findings of the Medical Board as he is not an expert in this regard. In another case reported as Nk. Darshan Singh V. Union of India, 2000(2) SCT 504, the claimant came to suffer from a paralytic stroke. It was a case of 100 percent disability. The recommendation was made by the Medical Board, which was negatived by the controller of Defence Accounts. It was observed that the Medical Boards opinion should prevail and the claimant was held entitled to disability pension. 8. The petitioner in this case is suffering from macular Scar Right eye. Traumatic macular degeneration occurs in several manner. A blow on the eye may lead to milky white cloudiness due to oedema. This is so stated in Parsons "Diseases of the Eye 17th Edition at page 247. Earlier this degeneration is slight and the fine pigmentary changes are easily overlooked. The pigmentation, as per the learned author aggregates at the fovea. The odematous changes may lead to the formation of cystic changes at the macula and on the rupture of a cyst a macular hole can be formed. This aspect of the matter has also been dealt with at page 131. There can be superficial ulceration and in some cases, subsequent healing is not there. Some ulcers on account of bacteria notably the pneumococcus and septic organisms. These extend rapidly so that the whole thickness of the cornea except Descemets membrane and a few corneal lamellae are destroyed. Senile macular degeneration is referred to at page 167 of the said book Taking note of the observations made by the learned author which stand noticed above, to say that Macular scar i.e. disease from which the petitioner came to suffer is a constitutional disease and cannot occur on account of hazards of army service would not be correct. A macular scar could occur if some damage is caused by external pressure on the eye. A macular scar could occur if some damage is caused by external pressure on the eye. In the present case, the Medical Board assessed the disability of the petitioner at 20 percent There was no mention of the fact that the petitioner suffered from this disability of the petitioner at 20 percent. There was no mention of the fact that the petitioner suffered from this disability at the time of his entry into service. Therefore, in view of the legal position noticed above and in view of the observations made by the learned author regarding the said disease which have been noticed above. The diseases of the petitioner cannot be said to be constitutional and has occurred on account of stress and strains of military service. The petitioner is accordingly held entitled to disability pension. Let this be calculated and paid to the petitioner within a period of two months from the date a copy of this order is made available to the respondents by the petitioner. The petitioner is also held entitled to interest at the rate of 6 percent on the arrears. In case, the disability pension and the arrear is not released within the period mentioned above, then the petitioner shall become entitled to interest at the rate of 15 percent and this enhanced compondent would be payable by the person on whose account the delay occurs. 9. Disposed of accordingly.