ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI. O.A.No.06 of 2013

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1 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A.No.06 of 2013 Wednesday, the 5 th day of June 2013 THE HONOURABLE JUSTICE V.PERIYA KARUPPIAH (MEMBER-JUDICIAL) AND THE HONOURABLE LT GEN (RETD) ANAND MOHAN VERMA (MEMBER-ADMINISTRATIVE) Ex No H Sep B. Suresh Babu S/o Shri B.Narasimhulu Naidu (aged about 52 years) Head Office: EME Records Home Address: Door No.2-195/2A, Gurunagar Colony Chittoor, Pin (AP)... Applicant By Legal Practitioner: M/s M.K. Sikdar and S.Biju vs. 1. The Commandant Army Base Hospital Delhi Cantt., New Delhi The Chief Record Officer EME Records Pin C/o 56 APO. Respondents By B.Shanthakumar, SPC

2 2 ORDER (Order of the Tribunal made by Hon ble Lt Gen (Retd) Anand Mohan Verma (Judicial-Administrative) 1. The petitioner was enrolled in the army on and was invalided out of service with effect from 15 th April The Release Medical Board at the time of his discharge from service had found him to be suffering from Neurosis (Anxiety state) and had opined that the disability was not attributable to nor aggravated by service. The petitioner had filed an application before this Tribunal in M.A.61 of 2011 in an unnumbered O.A. of 2011 to seek condonation of delay of 1171 days. This Tribunal, vide its order dated 19 th October 2011 dismissed M.A.No.61 of 2011 as withdrawn with liberty to challenge the opinion of the Medical Board before the appropriate forum. The petitioner thereafter approached the Union of India requesting Review Medical Board which was arranged at Base Hospital, Delhi Cantt., on 12 th July This Medical Board opined that the I.D. Neurosis (Anxiety state) was not attributable to service nor aggravated by service and it was not connected with service. The instant application has been filed by the petitioner requesting the Tribunal to set aside the opinion of both the Medical Boards, viz., Invaliding Medical Board held in 1984 and Review Medical Board held in July The petitioner also seeks disability pension

3 3 and broad-banding of 40% disability to 50%. He requests for arrears of the disability pension with interest and costs to the applicant. 2. Mr. M.K. Sikdar, learned counsel for the petitioner through his arguments and the application would state that at the time of enrolment into the army, the petitioner was in medical category, AYE. The disease Neurosis was diagnosed in July 1983, i.e., after a period of more than 5 years of service. The petitioner would claim that the Invaliding Medical Board, authorities mentioned that the disability was constitutional in nature and had manifested during service and therefore, the petitioner would claim the disease should be attributable to or aggravated by military service. In MA 61 0f 2011 in Unnumbered O.A. filed by the petitioner, this Tribunal passed an order diverting attention towards the case of Damodharan A.V. vs. UOI. The petitioner would claim that in order to respect the Hon ble Tribunal, he withdrew his application. Since the petitioner had been given liberty to challenge the opinion of the Medical Board, he approached the Union of India for constitution of a Review Medical Board which was arranged at Base Hospital, Delhi Cantt. The petitioner would plead that being a Court case, the Review Medical Board, due to egoism and vindictive attitude, did not follow the Entitlement Rules or Guidelines to Medical Officers (Pension) 2002 and concealed the fact that the disease manifested during service. The petitioner would go on to state that the Review Medical

4 4 Board accepted that the disability increased to 40% for life, but did not recommend his case for grant of disability pension. He would argue that in several decisions of various Armed Forces Tribunals and High Courts, it has been held that Neurosis is one of the classified diseases mentioned in Annexure III to Appendix II of Entitlement Rules which normally is assessed as caused by stress and strain of military service. The Entitlement Rules 1982 and Guide to Medical Officers (Pension) describe Psychosis and Psycho Neurosis as affected by stress and strain. He would state that Psychosis is considered as Neurosis and hence the petitioner who at the time of entering into service was in sound health but was afflicted by the ID Neurosis during service is entitled to disability pension. The petitioner would argue that the medical authorities are not permitted to give their opinion contrary to rules and regulations laid down by the Government. The petitioner would refer to the judgment of the Armed Forces Tribunal Bench, Jaipur in T.A.No. 20 of 2010 of Ex Gnr Hera Singh vs. UOI and Others which is a case similar to that of the petitioner and compares the two cases. Ex Gunner Heera Singh served for 5 years 5 months and 2 days. His ID was Neurosis and his disability was 20% and the Medical Board had opined that the ID was not attributable to nor aggravated by military service. The petitioner would argue that the Hon ble Tribunal Jaipur Bench allowed the application and disability pension was sanctioned to Ex Gunner Heera Singh. Being a case of similar nature, the petitioner would claim that he too should

5 5 be granted disability pension and since his disability is assessed to be 40%, it should be broad-banded to 50%. 3. The respondents in their counter-affidavit and pleadings of the Senior Panel Counsel Mr. B.Shanthakumar would state that the petitioner was enrolled on 29 th December 1977 and was invalided out with effect from 15 th April 1984 due to his disability Neurosis (Anxiety state) under the provisions of Army Rule 13(3)(III)(v). Prior to his discharge, the petitioner was brought before Release Medical Board which considered the disability as not attributable to nor aggravated by military service. The respondents would state that the petitioner has been paid his dues as follows: (a) Invalid Gratuity Rs.2, (b) Death Cum Retirement Gratuity Rs.1, (c) Army Group Insurance Maturity Benefits Rs.3, (d) Credit Balance Rs.1, The respondents would submit that the petitioner did not meet the primary condition for grant of disability pension as laid down in Para 173 of Pension Regulations for the Army, 1961 wherein it is stipulated that the invaliding ID must either be attributable to or aggravated by service for grant of disability pension. In the instant case the ID was found neither attributable to nor aggravated by military service and therefore, the petitioner was not granted

6 6 disability pension. The respondents would go on to state that the opinion of the Medical Board which is an expert body is to be given due weightage, value and credence as held by the Supreme Court of India in the case of Late Sep Damodaran A.V. vs. UOI and in many other cases. The respondents would state that the petitioner after a long delay of more than 20 years forwarded a petition on 17 th September 2005 for disability pension through Shri DK Adikesavulu, Hon ble Member of Parliament which was replied vide EME Records Letter No /DP-2/Pen dated 6 th October 2005, 21 st October 2005 and 24 th October Thereafter, the petitioner had sent a petition on 4 th August 2006 which was also duly replied vide EME Records letter No /DP-2/Pen dated 14 th September 2006 in which the position had been clearly explained to the petitioner. The petitioner filed an unnumbered O.A. before the Armed Forces Tribunal, Regional Bench Chennai for grant of disability pension by setting aside the opinion of the Medical Board. This application was dismissed by the Tribunal with liberty to challenge the opinion of the Medical Board. On the request of the petitioner, Review Medical Board was held on 12 th July 2012 which considered the disability Neurosis of the petitioner as neither attributable to nor aggravated by military service and assessed the above disability at 40% for life, but the net assessment for qualifying disability pension was nil per cent for life. Referring to the petitioner s claim of the disease Neurosis being affected by stress and strain, the respondents would submit that Rule 3 of

7 7 Appendix II to Pension Regulation of the Army, 1961 (Part-I) and corresponding Rule 8 of Entitlement Rules to the Casualty Pensionary Awards, 1982 clearly stipulates that attributability/aggravation shall be conceded if causal connection between death/disablement is certified by the appropriate medical authorities. In the instant case, the appropriate medical authorities, viz., Release Medical Board and Review Medical Board have opined that there was no relation between the disease and military service. Para 173 of Pensions Regulation for the Army, 1961 stipulates that if a disease is accepted having arisen in service, it must also be either attributable to or aggravated by military service for grant of disability pension. This position has been upheld by the Hon ble Supreme Court of India in its judgment dated 11 th October 1996, passed in Civil Appeal No of 1996 between Union of India and Baljit Singh. In the light of the above, the respondents would pray that the application be dismissed as being devoid of any merit. 3. Heard both sides and perused the documents. 4. The points for determination are: (1) Whether or not the opinion of the Medical Board can be altered by a Court or a Tribunal? (2) Whether or not the petitioner is entitled to disability pension?

8 8 5. POINT NO.1: It has been held by the Hon ble Supreme Court of India in the case of A.V. Damodaran vs. UOI and in several judgments passed by this Tribunal that the Medical Board is a body of experts and its opinion must be given primacy, value and credence. This Tribunal in its judgment in O.A.No.53 of 2012 dated 9 th April 2013 held as follows: 13. The order by this Tribunal in O.A.No.35 of 2010 in which extracts of judgment passed by the Supreme Court in the case of A.V.Damodaran reported in (2009) 8 MLJ 1475 (SC) between Secretary, Ministry of Defence and Others vs. Damodaran A.V. (Dead) through LRs. and others with regard to the primacy of the Medical Board s opinion while determining the disability were quoted which reads as follows: 7. The aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of Section 173 of the Pension Regulations including other relevant provisions came to be considered by the Supreme Court. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure, guidelines and principles as to under what circumstances a person could be said to be medically unfit and disabled and is to

9 9 be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension. 8. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than AYE (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. The said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease/injury has a causal connection with military service or not. On the basis of the same, they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. The same is adjudged and an assessment is made of the percentage of the disability suffered

10 10 by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual. 9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service. This position has been followed by this Tribunal in the judgment in O.A.No.9 of 2012 passed on 3 rd December 2012 and O.A.No.2012 passed on 25 th February In O.A.No.84 of 2012, this tribunal has held that the opinion of the Medical Board is by a body of experts and its opinion should not be altered or changed by a Court or a Tribunal.

11 11 In further support of our above mentioned position we refer to the following Supreme Court judgments in all of which it has been held that the opinion of a medical Board must be given primacy, due weight, value and credence: Civil Appeal No 9 Kumar 1837 of 2009, UoI vs Ravinder kumar; Om Praksash Singh vs UoI (2010) 12 SCC 667; UoI vs Ram Prakash (2010) 11 SCC We are, therefore inclined not to grant relief to the petitioner on two counts. Two Medical Boards have opined that the IDs are not attributable to nor aggravated by service, and secondly, we reiterate our position that the opinion of the Review Medical Board is final and should not be altered or modified. Point No.2 is answered accordingly. We reiterate this position that the opinion of the Medical Board must not be altered by the Tribunal. Point No.1 is answered accordingly. 6. POINT No.2: The petitioner had filed an application before this Tribunal as unnumbered O.A. of 2011 and the M.A.61 of 2011 in this application was dismissed. The order passed by this Tribunal is as follows: The Miscellaneous Application is to condone the delay of 1171 days in filing the Original Application, which is for setting aside the opinion of the Medical Board (AFMSF-16, dated 30 th June 1984). When the judgment of the Honourable Apex Court reported in (2009) 8 MLJ

12 (SC), (Secretary, Ministry of Defence and Others vs. Damodaran A.V. (Dead) through LRs and Others) is brought to the notice of the applicant, who is arguing his case in person, he has come forward to withdraw this application with a liberty to challenge the opinion of the Medical Board (AFMSF-16) before the Review Medical Board. Endorsement made on the application to that effect. 2. Under such circumstances, M.A.No.61 of 2011 is dismissed as withdrawn with a liberty to challenge the opinion of the Medical Board (AFMSF-16) before the appropriate forum/review Medical Board within three months. No costs. The petitioner has now challenged the opinion of the Release Medical Board held on 14 th March 1984 and Review Medical Board held on 12 th July A reading of the Release Medical Board proceedings dated 14 th March 1984 reveals that the ID Neurosis started in January 1983 at Barrackpore. The petitioner had served at Abohar prior to that from 18 th February 1979 to 14 th April The ID Neurosis (Anxiety state) was opined to be neither attributable nor aggravated by service as it is constitutional in nature and manifested during service. The assessed disability was 20%. The Review Medical Board held on 12 th July 2012 opined that Neurosis (Anxiety state) was neither attributable to nor aggravated by service. The assessed percentage of disability was 40% for

13 13 life, but disability qualifying for disability pension was nil. The Review Medical Board s opinion with detailed reasons is as follows: STATEMENT OF THE CASE 1. Chronological list of the disabilities:- Disabilities Date of Origin Rank of individual Place and unit where serving at the time NEUROSIS (ANXIETY STATE) 300-A Jan 1983 Sep LRW 90 Mtn Regt, C/o 99 APO 2. Clinical details, Attach clinical summary here giving the salient facts of (a) (b) (c) (d) Personal and relevant family history Specialist report Treatment Present condition in detail PART V OPINION OF THE MEDICAL BOARD Note to be communicated to the individual Causal Relationship of the Disability with Service conditions or otherwise Disability Attributable to service Y/N Aggravated by service Not connected with service (Y/N Reason/Cause/Specific and period in service condition NEUROSIS (ANXIETY STATE No No Yes No history of trauma/infection preceding to the onset of ID. The onset of ID in Jan 1983 while serving in peace area. There is no close time association of the onset with Field/Cl Ops/HAA tenure. Hence ID conceded as neither attributable to nor aggravated by mil service. Ref para 54 (d) of chapter VI of GMO Mil Pens 2002 and dt 2008.

14 14 The Medical Board also attached the Summary of Opinion of the Senior Advisor (Psychiatry), the relevant extract is as follows: Precipitating factors were adverse domestic conditions and consequent preoccupation with it and demotivation. There was history of neurotic traits in childhood such as night terrors, night mares. Thus it is evident that the Review Medical Board had considered all facets of the disease and had also relied upon the opinion of the specialists before arriving at its conclusion. Rule 3 of Appendix II to Pension Regulation of the Army, 1961 (Part-I) classifies Psychosis and Psycho Neurosis as disease affected by stress and strain. Para-8 of the Entitlement Rules 1961 and 1982 states, 8. Attributability/aggravation shall be conceded if causal contraction between death/disablement and military service is certified by appropriate medical authority. The medical authorities after considering all the relevant aspects have opined that the disease of the petitioner is not attributable to nor aggravated by military service. The opinion of the specialists attached to the Review Medical Board held in July 2012 indicates that the precipitated factors were adverse conditions and consequent preoccupation with it and demotivation. The petitioner also had a history of neurotic traits during his childhood.

15 15 Therefore, the medical authorities had opined that the disease is not attributable to nor aggravated by service and we find no reason to interfere with its opinion. Point No.2 is answered accordingly. 7. In the light of the aforesaid discussion, we are inclined not to grant relief to the petitioner on the following two counts: (1) Two different medical boards have opined that the ID was not attributable to nor aggravated by service ; and (2) The opinion of the Medical Board which is the body of experts must be given primacy, value and credence and must not be substituted by opinion of a Tribunal. costs. 8. In fine, the application is dismissed being devoid of merit. No Sd/ JUSTICE V.PERIYA KARUPPIAH (MEMBER-JUDICIAL) Sd/ LT GEN (Retd) ANAND MOHAN VERMA (MEMBER-ADMINISTRATIVE) (True copy) Member (J) Index : Yes / No Member (A) Index : Yes / No vs Internet : Yes / No Internet : Yes / No

16 16 To 1. The Commandant Army Base Hospital Delhi Cantt., New Delhi The Chief Record Officer EME Records Pin C/o 56 APO. 3.M/s. M.K. Sikdar and S.Biju Counsel for Petitioner. 4. Mr. B. Shanthakumar, SPC For respondents. 5. OIC, ATNK & K Area HQ, Chennai. 6. Library, AFT, Chennai.

17 17 HON BLE JUSTICE V.PERIYA KARUPPIAH MEMBER (J) AND HON BLE LT GEN (RETD) ANAND MOHAN VERMA (MEMBER (A) O.A.No.06 of