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2020 DIGILAW 489 (JK)

Ajit Singh v. Union of India

2020-09-18

JAVED IQBAL WANI

body2020
JUDGEMENT In this petition, the petitioner on the foundation of the case setup implores for following reliefs: - i) To issue directions to the respondents to consider the case of petitioner for release of insurance claim which the petitioner has deposited with Seema Parihari Beema Youjana along with interest @ 18% p.a. and to provide medical expenses to the petitioner, by issuance of writ of mandamus; ii) To issue directions to the respondents to consider the case of the petitioner for release of compensation and insurance claim for the disability caused to the petitioner while performing bona fide duties for the sovereignty, integrity and unity of the country, by issuance of writ of mandamus; iii) To issue directions to respondent nos. 7 to 9 to pay ex- gratia relief to the petitioner as the Government of State of J&K has given to the other similarly situated persons who have injured during performing bona fide duties and to release the amount of ex-gratia along with interest @ 18% p.a and to pay the compensation for wrongfully withholding the amount of ex-gratia relief, by issuance of writ of mandamus; and iv) To declare the act of respondents by which the respondents have not released the amount of Insurance claim, disability claim which the petitioner has deposited with Seema Beema Parhari Youjana along with interest and also not paid ex-gratia relief to the petitioner, as ultra virus, illegal, arbitrary, unconstitutional, unjust and contrary to the provisions of BSF Act and Rules and against the provisions of principles of natural justice, by issuance of writ of mandamus; OR v) To issue any other writ, or order or directions which the Hon’ble Court may deem just and proper in the facts and circumstances of the case in favour of the petitioner and against the respondent with costs. 2. The background facts those emerge from the petition under the cover of which the petitioner claims reliefs aforesaid are that the petitioner was appointed on 10.06.1970 as Constable in Border Security Force (herein after for short BSF) allotted No. 71400049 and promoted as L/Naik in the year 1984, Naik in 1986, Sub-Inspector in January 2003 and Inspector in 2006. Petitioner is stated to have been performing his duties in BSF quite efficiently to the entire satisfaction of his superiors without earning any adverse entry. Petitioner is stated to have been performing his duties in BSF quite efficiently to the entire satisfaction of his superiors without earning any adverse entry. Petitioner is stated to have during his service earned cash award /I.G commendation certificates as well. 3. It is being stated that on 16.12.2001, in an encounter with militants who had lodged an attack on TacHQ 120 Battalion BSF, Tral, petitioner sustained injury affecting his hearing capability on account of grenade blast endorsed by Deputy Inspector General of BSF in a copy of remarks dated 20.12.2001 attached with the petition, wherein it is said that during the encounter four BSF personnel including the petitioner of 120 Bn. BSF sustained minor injuries and that the conditions of injured personnel is stable. 4. An FIR of the incident is also stated to have been registered in Police Station, Tral, bearing FIR No. 119/2001 reflecting killing of four militants. 5. It is being further stated in the petition that there was a Group Personal Accident Insurance Policy namely Seema Parhari Beema Yojana (herein after for short SPBY Scheme) started by the Directorate of BSF for BSF personnel, premium whereof used to be deducted from the salary of BSF personnel and in terms of said policy, Insurance Company namely United India Insurance Company, agreed to pay to the insured, in case insured shall sustain bodily injury resulting solely and directly from accident caused by external, violent and visible means. 6. It is being further stated that at the time of encounter supra, petitioner was covered by insurance policy. 7. It is further stated in the petition that the petitioner lodged an insurance claim being subscriber of the policy supra having suffered 25% of disability on account of aforesaid injury in as much as also having paid the premium thereof through respondent Nos. 1 to 5 and that the respondent Nos. 1 to 5 did not undertake any exercise for processing of insurance claim with the insurance company thereby deprived the petitioner of his valuable right and financial benefits. Petitioner further states that he approached the respondents number of times and submitted documents as well, for the aforesaid purpose, however, the respondents did not consider his case and did not settle the claim. 8. Petitioner further states in the petition that respondent Nos. Petitioner further states that he approached the respondents number of times and submitted documents as well, for the aforesaid purpose, however, the respondents did not consider his case and did not settle the claim. 8. Petitioner further states in the petition that respondent Nos. 7 to 9 have had issued Government order No. 723-CR (GAD) of 1990 dated 30.07.1990 regarding grant of ex-gratia relief to the persons who suffered injuries while performing bona-fide Government duties. 9. Petitioner further states that he having suffered bodily injury supra during performance of his official duties while fighting against the militants, as such, was entitled to an ex-gratia relief under the aforesaid Government order dated 30.07.1990 and though claimed by him before the respondents, yet was not paid the same even though it was paid to other similarly situated persons and thus, there has been a violation of Article 14 and 16 of the Constitution. Petitioner in the petition besides claiming the aforesaid ex-gratia relief, claims the same with interest at the rate of 18% per annum. 10. Per Contra, respondent Nos. 1 to 5 have filed objections in opposition to the petition whereas, respondents 6 to 9 have not chosen to file any objections. 11. Respondent Nos. 1 to 5 in their objections have controverted the writ petition of the petitioner and seek dismissal of the same on the premise that none of the rights of the petitioner are violated and that the petitioner though suffered an injury during militant encounter on 16.12.2001 yet upon medical examination immediately after the encounter, the injuries were found to be simple and of not of such a magnitude which would cause any disability like gradual diminution of hearing capacity. 12. Respondents in their objections have further stated that a court of enquiry was conducted after the encounter /incident and the petitioner was found in “SHAPE-1” medical category and even after that till March, 2009, petitioner never reported any medical hearing problem/ issue. According to the respondents even no entry in this regard is recorded in the service records of the petitioner. The respondents in their objections deny that the petitioner sustained gradual diminution of hearing capability assessed as 25% due to injuries caused by a blast on the day of encounter/incident. 13. According to the respondents even no entry in this regard is recorded in the service records of the petitioner. The respondents in their objections deny that the petitioner sustained gradual diminution of hearing capability assessed as 25% due to injuries caused by a blast on the day of encounter/incident. 13. Respondents further state in the objections that United India Insurance Company, provide insurance cover under SPBY Scheme for BSF personnel as per its terms and conditions and since the petitioner sustained only minor injuries not falling within the purview of the conditions of policy for lodgment of an insurance claim, as such did not entitle the petitioner to lodge any claim. 14. It is being further stated by the respondents that after the blast the petitioner was examined number of times by the medical board and he never ever complained about his hearing problem and consequently as such, was never awarded any medical category below SHAPE-1. 15. It is being further stated by the respondents that before his retirement, last medical examination of petitioner was carried out by medical board on 21.03.2009 at Sector Head Quarter BSF, Kupwara, (J&K) no complaint regarding diminution of hearing capability was reported/ noticed and consequently the petitioner was again awarded medical category SHAPE-1. 16. It is being further stated in the objections that being placed in medical category SHAPE-1, the petitioner earned various promotions and that it has been only after the gap of seven years, upon examination by medical board, the petitioner was placed on low medical category S1H3(P) A1P1E1 with 25% disability which according to the respondents was not acceded to by competent authority due to the reasons that such placement of the petitioner in such category was after a gap of seven years and against the court of enquiry conducted immediately after the militant attack in 2001 and remarks of the Inspector General and Deputy Inspector General of BSF therein. 17. It is further stated in the objections that BSF has executed an agreement with the United India Insurance Company for 12 calendar months w.e.f. 01.09.2001 to 31.08.2002 and as per the terms and conditions of Company, compensation payable under any sub clause shall not exceed to 104 weeks in respect of any one injury calculated from the date of commencement of disablement. 18. 18. The respondents in their objections deny the contention of the petitioner that he developed hearing problems on account of grenade blast of 2001 incident, on the ground that the petitioner earned promotions upon being placed in SHAPE-1 category and that the petitioner never submitted any medical claim/ reimbursement in between. 19. According to the respondents petitioner was medically examined by medical board in 2009 at Sector HQrs, BSF Kupwara, wherein the petitioner was again placed in SHAPE-1 category with the remark of hearing normal in both the ears. 20. The respondents in their reply deny the entitlement of the petitioner to any ex-gratia relief or else disbursement of any claim under SPBY Scheme. Respondents thus seek dismissal of the writ petition. 21. Heard and considered. 22. The moot point that begs for consideration of this court in the instant petition is that as to whether the respondents validly deny and turn down the insurance claim under SPBY Scheme as also claim for ex-gratia relief in terms of Government order No. 723-CR (GAD) of 1990 dated 30.07.1990, lodged by the petitioner on the ground that the said claims are lodged at the fag end of the service and after having earned promotions through and through upon being placed in SHAPE-1 medical category, disregarding the opinion of medical board of the respondents wherein the petitioner was placed in low medical category S1H3 (P) A1P1E1with 25% disability. 23. This is an admitted fact that after suffering injuries during the encounter of 2001, the petitioner did not suffer any other injury during his service career. In the medical opinion supra, the medical board in specific and unequivocal terms has opined that the petitioner has impaired hearing with poor speech discrimination. Neither the board supra nor any expert therein the said board has opined that the disability has originated from the injury suffered by the petitioner in the encounter of 2001. Even the respondents have remained silent on this important issue and have not undertaken any exercise to find out the cause of disability of the petitioner. To deny to the petitioner benefits of insurance policy or else any other reliefs to which he may be entitled thereto, by the respondents merely on the ground that the petitioner has remained all along in SHAPE-1 category and earned promotions thereunder does not in view of above seem to be logical and justifiable. 24. To deny to the petitioner benefits of insurance policy or else any other reliefs to which he may be entitled thereto, by the respondents merely on the ground that the petitioner has remained all along in SHAPE-1 category and earned promotions thereunder does not in view of above seem to be logical and justifiable. 24. Thus, what emerges from above is that the case of the petitioner for consideration of insurance claim under the SPBY Scheme and for other reliefs covered under Government order dated 30.07.1990 supra as claimed by the petitioner has not received proper and appropriate consideration from the respondents in general and respondents 1 to 5 in particular. Respondents as such, are required to revisit and re-consider the same taking into account all facts, circumstances, relevant rules and regulations occupying the field. 25. Viewed thus in aforesaid backdrop, this petition is accordingly disposed of in the following terms. “Respondents 1 to 5 shall reconsider and revisit the case of insurance claim of the petitioner under SPBY Scheme as also for release of any other reliefs / compensation to which the petitioner may be entitled thereto, qua the disability petitioner is suffering from, keeping in view facts, circumstances, relevant rules and regulations within a period of two months from the date of passing of this order, decision whereof shall be communicated to the petitioner within one week thereafter”. In the event, petitioner is aggrieved of any decision so taken by the respondents, he shall be free to agitate the same in appropriate proceedings available to him under law. 26. Disposed of as above.