Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve, Member (A) held that there is no barometer that can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus.
Briefly stated facts of the case were that the applicant was enrolled in the Indian Air Force on 14-11-1995 and was discharged on 30-11-2015 in Low Medical Category (Permanent). At the time of his retirement, the Release Medical Board (RMB) assessed his disability ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ at 15-19% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected, pursuant to which the applicant had preferred the present Original Application.
The applicant pleaded that he was enrolled as Radio Fitter (Electronics & Telecommunication) trade and was working in advance defence ground environmental system which deals with Radar and Radio equipments and such units are usually at High Altitudes, thus environmental condition leads to stress and strain which had affected his health badly. He submitted that in the year Dec 1998, he was posted at High Altitude Area i.e. Dalhousie (H.P.) located above 10,000 feet and to protect from cold large heating blowers were used. Due to high altitude there was lack of oxygen and due to use of blowers there was lack of moisture content which resulted in breathing problems. In the last phase of his three years tenure, he started having breathing problems at High Altitude due to Nasal Blockage. He further submitted that claim for the grant of disability pension was wrongly rejected on the ground of disability percentage being less than 20% and NANA.
Regarding the issue of disability being assessed as less than 20%, the Tribunal stated that various Tribunals and Courts had found that,
“The assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also. In case of doubt as the benefit should always be given to the applicant.”
Noticeably, the applicant was enrolled in Indian Air Force in fully fit condition after rigorous medical examination and the disability was detected for the first time in January 2008 after more than 12 years of Air Force service. Therefore, the Tribunal held that disability of the applicant must be presumed to have arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to had been attributable to or aggravated by service. Further, there was neither any note in the service record of the applicant at the time of his entry nor was any reason been recorded by the RMBoard that the disease which the applicant was found to be suffering from, could not have been detected at the time of his entry into service hence the reasoning for denying disability pension to applicant was not convincing and did not reflect the complete truth on the matter. The Tribunal remarked,
“The opinion that ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is caused by obesity and included anatomical variations resulting in airway collapse and apnoea is an good opinion, but nowhere rules out that this may not occur due to conditions of service.”
In the backdrop of above, the Tribunal held that the benefit of doubt in should be given to the applicant and the disability of the applicant should be considered as aggravated by military service. Accordingly, the impugned orders rejecting claim for grant of disability element to the applicant were set aside. The respondents were directed to grant disability element of the pension at 15-19% to the applicant, which was directed to stand rounded off to 50% from the date of discharge.[Rohitash Kumar Sharma v. Union of India, 2021 SCC OnLine AFT 1413, decided on 18-01-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Tribunal:
For the Applicant: Rohitash Kumar Sharma (In-person)
For the Union of India: Govt. Counsel Kaushik Chatterji