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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,

JAIPUR

:JUDGMENT:

Ex Hav Moharsingh VERSUS UNION OF INDIA

& OTHERS

TRANSFER APPLICATION NO.309 OF 2009

In the matter of SBCW No.4831 of 2008
Transferred to this Tribunal vide order
Dated 5.12.2009
:::
DATE OF JUDGMENT: MAY 20, 2010
:::
PRESENT
HON’BLE MR. JUSTICE BHANWAROO KHAN [J]
HON’BLE LT GEN SUSHEEL GUPTA [A]

M/s S.B. Singh and Gajanand Yadav for the applicant.

Lt Col Veerendra Mohan for the non-applicants.

BY THE TRIBUNAL: [PER BHANWAROO KHAN (J)]

1. A shockingly bizarre incident reflects inhuman treatment which

had crossed all boundaries of humanity by superior responsible
Armed Forces Medical Officers, whose actions when resulted into
injustice forced the applicant to seek his legal remedy in the form of
the present application for grant of disability pension.

2. After the enrolment on 9.3.1988 in the Indian Army, the

misfortune of the applicant commenced on 26.2.2002 when he was
traveling in an army truck during Operation Falcon, Tawang
(Arunachal Pradesh), which was overturned resulting into multiple
injuries on head and various parts of the body. He was admitted in
the Hospital on the same day, where multiple injuries were detected.
After the treatment, he was discharged on 4.3.2002. He told to the
Doctor about the cause of accident as steering failure and the Doctor
narrated this facts in his report. Thereafter, he was hospitalized in
Pune from 30.5.2003 to 3.11.2003, where on 9.6.2003, the
Neurologist diagnosed the ‘Motor Neuron disease’. The M.R.I. on
8.10.2003 suggested neuro degerative disorder. The Command
Hospital, Lucknow on 2.8.2004 after complete examination suggested
for Invaliding Medical Board. The Invaliding Medical Board
[hereinafter to be referred to as ‘the IMB’] of the applicant was held
on 28.9.2004 and it found the disability of ‘Motor Neuron Disease’,
which was assessed as 80% for life long and was held to be
aggravated by military service. The applicant was discharged from
service on 19.11.2004. The case of the applicant for
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grant of disability pension was forwarded to the Principal Controller of

Defence Accounts {Pension}, Allahabad, which described the

disability suffered by the applicant as constitutional in nature and not

related to his military service and rejected the claim of the applicant

for grant of disability pension vide order dated 20.7.2005.

3. Thereafter, an appeal was preferred by the applicant. The

Appeal Medical Board [for short ‘the AMB”] of the applicant was held
on 26.2.2007, which described the percentage of disability suffered
by the applicant as NIL and held that the disability suffered by the
applicant is neither attributable to nor aggravated by his military
service. In these circumstances, the applicant preferred S.B. Civil
Writ Petition No.4831 of 2008 before the High Court of Judicature for
Rajasthan, Bench at Jaipur, which stood transferred for adjudication
to this Tribunal vide order dated 5.12.2009 and the same has been
treated as Transfer Application.
4. The non-applicants filed a detailed reply to the application and
have admitted the facts alleged in the application.

5. We have heard M/s S.B.Singh and Gajanand Yadav, learned

counsel for the applicant and Lt Col Veerendra Mohan, Officer
Incharge of the non- applicants and have carefully gone through the
record of the case.

6. As there were two different opinions: one given by the IMB and
the other given by the AMB, we thought it proper to call for the
applicant to remain present before the Tribunal. The applicant was
brought before the Tribunal on a stretcher. Looking to his pathetic
condition, the Tribunal directed vide its orders dated 8.4.2010 and
3.5.2010 to the Commandant Military Hospital, Jaipur to conduct
medical examination of the applicant by a medical board and to send
the medical board’s proceedings of the applicant in original to this
Tribunal. In compliance of the above orders, the report of the Medical
Board held on 10.5.2010 has been submitted in original before this
Tribunal. The medical board held on 10.5.2010 has assessed the
disability suffered by the applicant as 100% and has held that it is
aggravated by his military service. The medical expert has opined
that the patient is suffering from a

progressive, degenerative, neurological disorder with no

specific treatment and is bed ridden.

7. In the light of the opinions expressed by the IMB, AMB and the
Jaipur Medical Board (hereinafter to be referred to as ‘the JMB’) held
on 10.5.2010, it has been argued by the learned counsel for the
applicant that when two medical boards have specifically assessed
the disability suffered by the applicant as 80% and 100% and held it
to be aggravated by his military service, the opinion expressed by the
AMB shall not prevail over the opinions expressed by two Medical
Boards i.e. IMB and the JMB as the AMB has not assigned any valid
reasons for taking a different view than the view taken by the IMB and
therefore, this action on the part of the AMB deserves to be rejected.
He submitted that the opinion expressed by the medical expert
cannot be thrown away outrightly without assigning any valid
reasons. According to the learned counsel, from the perusal of the
medical documents of the applicant, it would be clear that the
applicant was seriously ill but however, the AMB has gone beyond all
limits of humanity when it held the percentage of disability suffered
by the applicant as NIL and opined that it is neither

attributable to nor aggravated by his military service. The opinion

about the percentage of disability expressed by the medical expert

i.e. IMB has been completely ignored and overlooked by the AMB,

which is unthinkable in the medical history. Moreso, initially when the

Invaliding Medical Board had assessed the disability suffered by the

applicant as 80% for life and held it to be aggravated by his military

service, how the appeal medical board could have concluded the

percentage of disability suffered by the applicant as Nil and held it to

be neither attributable to nor aggravated by his military service. Even

prior to appearance before the AMB, the applicant appeared before

the expert of the AMB on wheel chair and was dependant on others

for all activities in his daily life. While assessing the percentage of

disability suffered by the applicant as NIL, the AMB has not assigned
any valid reasons for taking a different view, which was taken by the

IMB.

8. On the other hand, it has been argued by the Lt Col Veerendra

Mohan, Officer Incharge of the non- applicants that since the
disability suffered by the applicant was not found to be attributable to
or

aggravated by his military service, the percentage of disability has

been shown as Nil by the appeal medical board.

9. From the facts and circumstances of this case, it is apparent

that initially, Invaliding Medical Board assessed the disability suffered
by the applicant as 80% for life and held it to be aggravated by his
military service but however, the Principal Controller of Defence
Accounts {Pension} held the disability suffered by the applicant as
constitutional in nature and neither attributable to nor aggravated by
his military service and thus, rejected the claim of the applicant for
grant of disability pension. Thereafter, on the appeal, the AMB
assessed the disability suffered by the applicant as NIL and held it to
be neither attributable to nor aggravated by military service. Then,
constituted by the Tribunal the Medical Board at Military Hospital,
Jaipur assessed the disability suffered by the applicant as 100% and
held it to be aggravated by his military service. If we overlook the
opinion expressed by the AMB for the reasons which would be
mentioned hereinafter, we come to the conclusion that the onset of
the disease Motor Neuron is after the applicant received the injuries

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in an accident, which occurred while he was traveling in the army
truck and thereafter, he remained hospitalized on different spell, the
disease remain deteriorating as is revealed by the JMB, which
described the disease as progressive and degenerative.

10. The documents submitted by the JMB reveals that progressive

disorder of this unknown cause is because of viral infection, trauma,
exposure to toxine and electric shock and the person remains
mentally active but all limbs of his body refuses to response the daily
working life. From the date of IMB and till the date of JMB, the
disease during this intervening period of six years deteriorate and the
percentage of the disability increased from 80% to 100%. As per the
expert’s opinion given by the Medical Board held at Jaipur also, the
disease is progressive and degenerative disorder. Thus, the disease
having no specific treatment will always remain in progress and as
such, the opinion of the AMB held in the year 2007 which assessed
the disability suffered by the applicant as NIL is beyond imagination
and is contrary to the opinion of two Medical Boards i.e. IMB and the
JMB. The opinion with callous approach expressed by the AMB is the
cause

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which restrained the authorities to grant disability pension to the
applicant, who was otherwise entitled to. From the opinion expressed
by the IMB and the JMB, we can safely conclude that the applicant
after having met with accident while performing his duties remained
hospitalized in different hospitals for various spell till he was invalided
out from service and the percentage of disability assessed by both
the medical boards is 80% and 100% respectively. Thus, the opinion
expressed by the AMB is grossly incorrect in the light of these two
opinions given by two different medical boards i.e. IMB and the JMB,
which have corroborated each other with regard to disability and
aggravation due to service. Hence, as per Regulation 173 of the
Pension Regulations for the Army, 1961, the disability being 100%
and aggravated by military service, the applicant becomes entitled for
disability pension from the date of his discharge alongwith all
consequential benefits attached to 100% disability inclusive of
attendance allowance.
11. Now, the report of AMB & MAP both have declared the
disability as neither attributable to nor aggravated by military service.
The AMB has given the report

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without examining the applicant and in complete disregard of the
opinion of IMB as no specific reasons have been given by the AMB
for not treating the disability as aggravated by military service and
has acted on whims and capricious. Had the AMB gone through the
expert report, either he would have assigned the reasons thereof for
not toeing with the opinion of IMB or have given the reasons thereof
for difference of opinion but no such action was taken by the AMB,
which in the circumstances of the case is depricable. No reliance can
be placed on this report. The opinion of the AMB describing the
disability as NIL and further holding the disability as neither
attributable to nor aggravated by military service is completely
contrary to the opinion of IMB and JMB. The expert’s opinion about
the disease is degenerative, progressive and without any specific
treatment. Initially, the RMB assessed the disability as 80% for life but
the AMB, which examined the applicant after 3 years i.e. on
26.2.2007 described the percentage of disability as NIL and held it to
be neither attributable to nor aggravated by military service. This
random mentioning of NIL percentage of disability is in gross violation
of the actual condition of the applicant, because prior to appearance

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before AMB, the applicant was brought on wheel chair before Col
C.S. Satyanarayanan, an expert of Neurology, who stated that
applicant’s condition is static and he is dependant on others for his
daily actions. Thus, it is not understandable that how and on what
ground, the NIL percentage of disability was prescribed by the AMB.
The report of the AMB is contrary to both Medical Boards i.e. IMB and
JMB. Therefore, in view of corroborative opinion of two Medical
Boards i.e. IMB and JMB, the opinion of AMB deserves to be rejected
outrightly.
12. The report submitted by the AMB without any basis or ground
forced the authorities to deny disability pension to the applicant,
otherwise he was legally entitled to claim the disability pension. The
applicant has been left in lurch only on the random report without
taking in consideration the due care and circumstances of the case
by mentioning the percentage of disability as NIL. Such type of
conduct, behavior and manner of performance of duties on the part of
the AMB, which consisted of Air Commodore D.P.Joshi, Lt Col
Shobana Das and Col S.P.Singh collectively deserves to be
deprecated as they have acted in callous manner and

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have committed gross negligence by depriving the applicant of his

legal dues and rights. The applicant has to starve for pretty six years

without any medical and financial assistance from the non-applicants

only because of the callous action of the members of the AMB.

13. We are conscious of the fact that all the three defaulting

Officers i.e. Three Members of the AMB have neither been given the

notice nor they are present before the Tribunal but the situation of the

case does not require so, because whatever written by them as

opinion is an admitted fact available on record. The most surprising

fact is showing of NIL percentage of disability, then the question of

disability having neither attributable to nor aggravated by military

service does not arise at all, which is simply misconceived and clearly

reflects their conduct, callous behaviour in performance of duty. We

direct the non-applicants to take disciplinary action against all the

three Officers with the hope that it will be a deterrent step for others

to take more care in performance of duty specially in such type of

cases, where humanity is the supreme.

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The proposed action initiated will be intimated to this
Tribunal.
14. What has rankled us more is the callous manner, inhuman
approach and failure of performance of duty on the part of the
members of the AMB dealing with applicant’s case. The applicant has
to be compensated for the travails undergone by him. For this gross
negligence, we impose costs of Rs.1,00,000/- (Rs. One Lakh only) to
be paid to the applicant by the non- applicants but it is to be
recovered from the salary of all the three Officers AMB i.e. Air
Commodore D.P.Joshi, Lt Col Shobana Das and Col S.P.Singh jointly
and collectively in equal ratio. We also direct that all these three
Officers should be subjected to disciplinary action under the Army
Act. It is expected that necessary action against all these three
officers shall be taken at the earliest and result thereof shall be
intimated to this Tribunal. A copy of this Judgment be sent to the
Secretary to the Government of India, Ministry of Defence, New Delhi
for compliance and initiation of disciplinary actions against these
three erring officers.

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15. Resultantly, this application is allowed and the orders

Annexure/7 dated 31.8.2005 passed by the Principal Controller of
Defence Accounts {Pension} Allahabad and Anneuxre/9 dated
22.3.2007 passed on the appeal filed by the applicant are set aside
and quashed and the non-applicants are directed to grant disability
pension to the applicant from the date of his discharge from service
i.e. 19.11.2004. The arrears of disability pension be paid to the
applicant within a period of three months from the date of receipt of
copy of this judgment with interest @ 6% per annum. We impose the
costs of Rs.1,00,000/-, which shall be paid to the applicant by the
non-applicants but shall be recovered in equal ratio from Air
Commadore D.P.Joshi, Lt Col Shobana Das and Col S.B.Singh from
their salary. We direct the Secretary to the Govt. of India, Ministry of
Defence, New-Delhi to initiate disciplinary action against all the three
erring Officers immediately after the receipt of copy of this Judgment.
The Registry is directed to send a copy of this Judgment to all the
three non-applicants for necessary compliance.

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16. In the facts and circumstances of this case, the parties are left
to bear their own costs of this application.
[Lt Gen Susheel Gupta] [Justice Bhanwaroo
Khan]

R.MUNDRA
PPS.