IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WA.No. 179 of 2009 -------------------- AGAINST THE JUDGEMENT IN WPC.4840/2006 Dated 07/03/2008 .................... APPELLANT(S)/RESPONDENTS: -------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI-110 001. 2. THE ADJUTANT GENERAL, ARMY HEADQUARTERS, MINISTRY OF DEFENCE, DHQ P.O., NEWL DELHI - 11. 3. THE CONTROLLER OF DEFENCE ACCOUNTS, ALLAHABAD. 4. THE OFFICER-IN-CHARGE, SENA CHIKITSA CORPS ABHILEKH, ARMY MEDICAL CORPS RECORDS, LUCKNOW - 226 002. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S)/PETITIONER: --------------- STELLA EDISON, PANACKAL HOUSE, P.O.CHERAI, S.M.H.S., ERNAKULAM DISTRICT. ADV. SRI.ELVIN PETER.P.J, THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.179/2009 ------------------------------ Dated this, the 20th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The appellants were the respondents in the Writ Petition. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent is the widow of M. Rocky Edison, who was a Sepoy in the Indian Army. He died on 3.11.1982, while in service in the field area. Pursuant to the death of her husband, the respondent was granted family pension from 4.11.1982. She applied for Special Family Pension, which was initially rejected on 5.8.1983. Again her claim was rejected by Ext.P8 communication dated 21.3.1985. Finally, the Writ Petition was filed on 17.2.2006, claiming that she is entitled to get Special Family Pension. The appellants/respondents filed a counter affidavit, resisting the prayers in the Writ Petition. The learned Single Judge, after hearing both sides, allowed the Writ Petition. WA No.179/2009 - 2 - Hence this appeal by the appellants. 3. The cause of death of the respondent's husband is contained in Ext.R1(a), which reads as follows: “1. I agree with the opinion of Station Commander Baisakhi. 2. No.13931338 Sep/AA MR Edison of 405 Fd Amb was throttled to death by No.13936935 Sep DK Therbole of 405 Fd Amb and No.13944701 Sep Ajit Kumar of 305 Fd Amb on the night of 02/03 Nov 82. 3. I direct that:- (a) Severe disciplinary action be taken against No.13936935 Sep DK Therbole of 405 Fd Amb and No.13944701 Sep Ajit Kumar of 305 Fd Amb for causing death of No.13931338 Sep MR Edison of 405 Fd Amb. (b) Death of No.13931338 Sep/AA MR Edison of 405 Fd Amb is attributable to military service in field area. 4. Functioning of the Duty JCO and Duty NCO in 405 Fd Amb and system for lights out in the unit need to be looked into. I direct that Station Commander Baisakhi should go into the details of these and WA No.179/2009 - 3 - suggest suitable remedial measures.” The Officiating General Officer Commanding as per the above communication, took the view that the death of the respondent's husband is “attributable to military service in field area.” He was throttled by his colleagues and from that injury sustained on the throat, he died. So, the injury leading to his death is also attributable to military service in field area. The relevant regulations governing Ordinary Family Pension and Special Family Pension are Regulations 212 and 213 of the Pension Regulations for the Army, 1961. They read as follows: “212. Ordinary family pension: An ordinary family pension may be granted to the family of a Junior Commissioned Officer granted honorary commission as a commissioned officer while on the effective list, who dies during service or after retirement for causes neither attributable to nor aggravated by military service. 213. Special family pension: A special family pension may be granted to the family of an individual if his death was due to or hastened by- (a) a wound, injury or disease which was attributable to military service WA No.179/2009 - 4 - or (b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.” A reading of Regulation 213 would show that if the death was due to an injury which was attributable to military service, the widow is entitled to get Special Family Pension. Relying on the above Regulation, the learned Single Judge allowed the Writ Petition. Though the learned counsel for the appellants strenuously contended that the said view is untenable, we find it difficult to accept the said submission. 4. It is the case of the appellants that the death is attributable to military service in field area. So, the injury which caused the death of the respondent's husband is also attributable to military service in field area. The contention that the death may be attributable to military service, but the injury is not attributable to such service, does not appeal to us. WA No.179/2009 - 5 - In the result, the Writ Appeal fails and it is dismissed. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.