Mohinder Singh (Ex. Sepoy) vs Union Of India & Ors.
1999 Latest Caselaw 220 Del

ORDER

Mammohan Sarin, J.,

1. Rule D.B. had been issued in the present case on 26.9.1995 and the matter was directed to be listed on 1.2.1999. Counsel for the parties were heard and judgment was reserved. The matter was renotified for seeking clarifications on certain aspects on which counsel for the parties were again heard on 19.2.1999.

2. Petitioner is aggrieved by the rejection of his claim for disability pension. Petitioner seeks a direction in the nature of mandamus to direct the respondents to grant disability pension with effect from 12.1.1989 alongwith interest on the arrears.

3. Petitioner was enrolled as a combatant soldier in the army on 26.12.1981, after undergoing a medical examination. Petitioner's case is that due to rigours and hazards of military service life, he developed a stomach disease in 1986 and was treated for the same in the military hospitals. Petitioner was found to have been suffering from "bladder neck obstruction" resulting in the thinning of urine stream. The Urologist of Army Hospital after investigation and test found it to be a case of organic bladder obstruction. The surgery of bladder neck obstruction was withheld and not recommended on account of fear of retrograde ejaculation and young age of the petitioner. Petitioner was placed in lower medical category and, subsequently, was recommended for being invalidated out of service by the Medical Board. Petitioner was on leave before discharge, when he met with an accident with the door of the bus and his right-hand finger was crushed, which was later on operated in the military hospital, Delhi Cantt. Petitioner was invalidated out of service with effect from 12.1.1989 after being placed in low medical category (EEE-P) and having been found medically unfit for further service under Rule 13(3) of the Army Rules. The diseases being "organic bladder neck obstruction" and "fracture proximal phalanx right index finger". The Medical Board constituted on 19.12.1988 at Military Hospital, Jabalpur, assessed the disability of the petitioner at less than 20 per cent. While the disability on account of bladder neck obstruction was assessed at 15 to 19 per cent, the disability on account of fracture proximal phalanx right index finger was assessed at 6 to 10 per cent.

4. The respondents rejected the claim of the petitioner for disability pension relying on Rule 173 of the Pension Regulations since the disability requirement for being eligible for disability pension was disability of at least 20 per cent or more.

5. Learned counsel for the petitioner, Mr. Hooda, has drawn the attention of the Court to Rule 9-E of the Entitlement Rules. The relevant extract is as under:-

"Composite assessments-where there are two or more disabilities due to service; compensation will be based on the composite assessment of the degree of disablement. Generally speaking, when separate disabilities have entirely different functional effects, the composite assessment will be the arithmetical sum of their separate assessments. But where the functional effects of the disabilities overlap, the composite assessment will be reduced in proportion to the degree of overlapping."

6. Relying on the above Rule, Mr. Hooda submits that the total disability is to be reckoned by the arithmetical total of the disability, viz.

(i) Disability on account of bladder neck obstruction at 15 to 19 per cent.

plus

(ii) Disability on account of fracture proximal phalanx right index finger at 6 to 10 per cent.

7. There is merit in this contention of learned counsel for the petitioner, in as much as, the disease of bladder neck obstruction and fracture proximal phalanx of right index finger are disabilities having entirely different functional effects and, therefore, under composite assessment, the arithmetical total of the two disabilities has to be reckoned, which will make it over 20 per cent.

8. Mr. Hooda further submitted that since the accident resulting in the fracture of the having entirely different functional effects and, therefore, under composite assessment, the arithmetical total of the two disabilities has to be reckoned, which will make it over 20 per cent.

9. Mr. Hooda further submitted that since the accident resulting in the fracture of the

10. As per the entitlement rules for grant of disability pension, the disability should occur during service. It should be attributable to military service or aggravated by it and it should be assessed at 20 per cent or more. The entitlement rule relating to disablement or death for purposes of disability pension is as under:

(a) the disablement is due to a wound, injury or disease which:

(i) is attributable to military service; or

(ii) existed before or arose during military service and has been and remains aggravated thereby."

In the instant case, it is not disputed that the disability, i.e.

"organic bladder neck obstruction" was neither detected nor noticed during the medical examination of the petitioner at the time of recruitment. It can, therefore, be presumed that the disease occurred or manifested itself during military service. However, apart from the disability arising during military service, a further requirement is that it is attributable to or has been and remains aggravated on account of military service. In the instant case, it cannot be said that the nature of the disease was such as was attributable to or could have been aggravated or remains aggravated on account of military service. As earlier noticed, the Army Medical Authorities had reached the conclusion that it was an organic and constitutional ailment not attributable to or having been caused by or aggravated by military service.

The original medical record has been perused. The Army Medical Board found the disability of bladder obstruction to be an organic and constitutional disease, neither caused nor attributable to army service nor aggravated by it. The Army Authorities have indicated the reasons for their findings. Accordingly, the extent of disability on account of bladder obstruction cannot be held as attributable or caused by or aggravated by the army service. This would leave for consideration only the disability due to fracture proximal phalanx of the right index finger. This would leave a permanent disability of 6 to 10 per cent as against the requirement of 20 per cent for being eligible to disability pension.

11. In these circumstances, the rejection of claim of the petitioner for grant of disability pension cannot be said to be arbitrary or being contrary to the rules for grant of disability pension. Learned counsel for the petitioner has sought to place reliance on the case of Ex. Sapper Mohinder Singh Vs. Union of India (Civil Appeal No.164 of 1993) decided by the Apex Court to urge that the Controller of defense Accounts had no authority to reject the case for disability pension. The cited case cannot be of any assistance to the petitioner wherein the Apex Court held that the Chief Controller of defense Accounts could not on the basis of a plea of having consulted a higher medical authority, disregard the opinion of the duly constituted Medical Board regarding the extent of disability. In the instant case, the Medical Board had recommended the invalidity of the petitioner from service. The Controller of defense Accounts found that the petitioner's extent of disability attributable to army service was less than 20 per cent and hence held that the petitioner was not eligible for disability pension. The Controller of defense Accounts did not disregard the opinion of Medical Board.

Reliance was next placed on a decision of a Division Bench of this Court in Raghubir Singh Vs. Union of India & Anr. (CW.1537 of 1995) In this case the Medical Board had assessed the disability at 30 per cent. The Division Bench rejected the contention that the Controller of defense Accounts was the final authority on the question of deciding the disability pension. The Division Bench held that the Controller of defense Accounts had no power to override the medical opinion of the Medical Board by which the army personnel was invalidated. The present case is clearly distinguishable, as in the instant case the Controller of defense Accounts is not acting contrary to the recommendation of the Medical Board.

In these circumstances, we do not find any merit in the petition and hold that petitioner is not entitled to the relief of grant of disability pension. The writ petition is dismissed.