Delhi High Court
Smt. Birma Devi vs Union Of India (Uoi) And Ors. on 11 January, 2007
Author: S Kumar
Bench: S Kumar, G Sistani
JUDGMENT
Swatanter Kumar, J.
1. Smt. Birma Devi, widow of late NK Sube Singh has filed the present petition praying for setting aside and quashing of the order dated 7.2.2006 passed by the respondents. She further prays that the respondents may be directed to pay disability pension in her late husband's name from 24.10.97 to 10.5.1998 and thereafter special family pension to the petitioner in addition to ordinary family pension from the date of death of her husband.
2. Sube Singh was enrolled in the 'DSC' on 7th March, 1978. He was subjected to medical and physical tests at the time of his admission to the service. He was found free from any disease at the time of his enrollment. During his service, he fell sick and was ultimately invalided out of service on 23.10.1997 due to the disease 'Pulmonary Tuberculosis and HIV infection 042'. Unfortunately, the husband of the petitioner died on 9.5.1998 due to excess effect of invaliding disease of Tuberculosis. In terms of Rule 213 of the Pension Regulations for the Army 1961 Part-I, the petitioner claims the above reliefs. On 19th July, 2005, the petitioner had approached the respondents requesting for payment of disability pension from the date of discharge till death of her late husband and thereafter special family pension. However, vide letter dated 22.8.2005 written by the Record Office, this claim was declined on the ground that the disability of her husband was neither attributable to nor aggravated by military service. The petitioner preferred an appeal against this order which was also not accepted by the concerned authorities and vide letter dated 7.2.2006, the claim was finally rejected, resulting in filing of the present petition.
3. Learned Counsel appearing for the petitioner has heavily relied upon the recent judgments of a Division Bench of this Court in the cases of Sh. Navin Chandra v. UOI and Ors. 2006(7) AD (Delhi) 709 and Ex. Cfn. Sugna Ram Ranoliya v. UOI and Ors. 132 (2006) DLT 544(DB) in support of his contentions that the disease of the petitioner's husband was attributable to and, in any case, aggravated by military service.
4. The records were produced by the respondents. In fact, copy thereof particularly the proceedings of the invaliding medical board have been placed by the petitioner on record as Annexure P5. In terms of this, the following findings of the medical board can be usefully referred to at this stage:
The Board should state fully the reasons in regard to each disability on which its opinion is based.
3. Disability A B C
1. Pulmonary Tuberculosis 011 Yes No No
2. HIV Infection 042 No Yes No
(b) In respect of each disability shown as attributable under A, the Board should state full the specific condition and period in service which caused the disability.
-Infection contracted in May97 while serving at 366 ASC Pl for (1) and NA for (2)
(c) In respect of each disability shown as aggravated under B, the Board should state fully:
(i) The specific condition and period in service which aggravated the disability- NA for (1) and stress and strain of service condition for (2)
(ii) Whether the effects of such aggravation still persist.-NA for (1) and Yes for (2)
(iii) If the answer of (ii) is the affirmative, whether effect of aggravation will persist for a material period.- NA for (1) and Yes (2)
(d) In the case of a disability under 'C' the Board should state what exactly in their opinion is the cause thereof. -NA for (1) and (2)
xxx xxx xxx xxx
Disability (as Percentage of disablement Probable duration Composite assessment
numbered in of this degree (all disabilities)
question 1, Part of disablement
II)
1. Pulmonary 100.00% One year 100%
Tuberculosis 011 (One hundred per cent)
2. HIV Infection 042 15-19% One year
5. Furthermore, the Professor and Head of Deptt. of Medicine had specifically noticed that the 48 years old DSC soldier became symptomatic in last week of Jan 97 with loose motions, low grade fever and subsequently loss of weight. It was noticed to be a case of pulmonary and extra Pulm Tuberculosis with hilar lymph nodes and LLZ. infiltration and HIV-Positive. The concluding part of the opinion reads as under:
A case o f pulmonary and extra Pulm tuberculosis with hilar lymph nodes and LLZ. infiltration and HIV-Positive. Criteria fits with diagnosis of AIDS. Recommended to be invalided out of service in medical category 'EEE' as per present orders.
Advise
To continue ATT as advised Cap Rifampicin 600 mg OD INH 300 mg OD till 28 Dec 97.
6. There cannot be dispute to the fact that the petitioner's husband had put in more than 19 years of service with the respondents and till the year 1997, he had served to the satisfaction of all concerned and was found not ailing from any disease much less such serious diseases during his long term service. The petitioner's husband had served at different altitudes and, thus, was subjected to stress and strain of service. In view of the principles of law stated in the judgments afore-referred and the fact that the onus to assess attributability and/or aggravation of a disease or otherwise in terms of para 423 of the defense Services Regulations for the Medical Services of the Armed Forces, 1962 is upon the respondents, we are unable to accept the contentions raised on behalf of the respondents that the disease was not attributable to or aggravated by military service. On the contrary, the opinion of the medical expert as well as the proceedings of the medical board afore-noticed, clearly show that the disease was the result of stress and strain of service conditions. Even the Tuberculosis would be attributable to or aggravated by military service as he had contracted infection in May, 1997 while serving at 366 ASC Pl. Once the medical opinion had clearly stated that the diseases were the result of stress and strain and the petitioner's husband got infection during service, we fail to understand as to on what basis his claim could be declined. The petitioner's late husband would have been entitled to receive disability pension and only thereafter the petitioner would be entitled to receive special family pension in accordance with rules.
7. The petitioner' husband was invalided from military service in 1997 and unfortunately he died in the year 1998. The petitioner had moved the representation to the respondents for grant of relief in July/August, 2005 which was declined by the authorities on 22.8.2005. Appeal against such order was also rejected in the year 2006. As such, the petitioner's husband had taken no steps and did not approach the authorities for grant of disability pension during his life time and even thereafter the petitioner did not take steps for a long period of seven years. Therefore, she cannot take benefit of her own wrong. We are of the considered view that the petitioner's husband would have been entitled to receive disability pension but the said relief cannot be granted on the ground of delay. However, the petitioner would be entitled to receive special family pension, the arrears whereof shall be restricted to three years immediately preceding the date of filing of this petition as it is continuing and subsisting cause of action.
8. The writ petition is disposed of while leaving the parties to bear their own costs.
