Regular Second Appeal No. 2751 of 2006(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2751 of 2006(O&M) Date of Order: 22.09.2008 Bhajan Lal Ex. Sepoy Army No.2930B10 ...Appellant Versus Union of India, Ministry of Defence & Others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Rajender Chhokar, Advocate for the appellant. Ms. Renu Bala Sharma, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees passed by the Additional Civil Judge (Senior Division), Gurgaon, dated 19.10.2005 and District Judge, Gurgaon, dated 23.02.2006, dismissing the suit and his appeal. The appellant- a sepoy was invalidated out of service on 02.08.1949 on account of a disability. Despite surveys by the Medical Board, as his disability was below 20% he was held not entitled to disability pension. The appellant thereafter, approached the respondents for grant of benefits due to a war injured under a policy framed by the respondents on 30.10.1987. As the respondents did not accede to his request the appellant filed a suit for declaration to the effect that he was entitled to receive war injury benefit under the aforementioned policy. In response to the suit, the respondents denied that the appellant was not entitled to any benefit but admitted that the appellant sustained injuries Regular Second Appeal No. 2751 of 2006(O&M) -2- during war. On the basis of the pleadings, the learned trial court framed the following issues:- (i) Whether the plaintiff is entitled to disability war injuries pension benefits on the grounds as alleged in the plaint along with interest @ 18% per annum ?OPP (ii) Whether the suit is not maintainable in the present form ?OPD (iii) Whether the plaintiff has no cause of action to file the present suit ?OPD (iv) Whether the suit is hopelessly time barred? OPD (v) Whether this court has no jurisdiction to try and entertain the present suit?OPD (vi) Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD (vii) Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court dismissed the suit by holding that the provisions of the letter dated 30.10.1987 did not apply to the appellant as it applies to Armed Forces personnel dying in harness on or after 01.01.1986. Aggrieved by the aforementioned judgment, the appellant filed an appeal to the District Judge, Gurgaon who vide order dated 23.02.2006 dismissed the appeal. Counsel for the appellant submits that the respondents have admitted that the appellant received injuries during war in the year 1948. Consequently, irrespective of the fact that his disability was below 20%, he was entitled to receive benefits under the Liberalised Pensionary Awards Regular Second Appeal No. 2751 of 2006(O&M) -3- (Battle Casualty and such other cases as may be specially notified by the Government), dated 30.10.1987. The aforementioned communication, has been misread by the courts below to hold that it only applies to Armed Forces Personnel who were in service as on 01.01.1986 or join service thereafter. It is submitted that the courts below were apparently under an erroneous impression that the appellant had put forth a claim for disability pension and, therefore, erred in dismissing his suit and appeal. Counsel for the respondent, however, submits that the appellant who injured during the 1948 war, was invalidated out of service on 02.08.1949 but unfortunately as his disability was below 20%, he could not be awarded disability pension. The policy framed on 30.10.1987 does not apply to the appellant and, therefore, the concurrent findings of fact recorded by the trial Court and the first appellate Court should be upheld. I have heard counsel for the parties and perused the impugned judgments. The appellant claims benefit under the Liberalised Pensionary Awards (Battle Casualty and such other cases as may be specially notified by the Government) framed by the Union of India on 30.10.1987. A relevant extract from this letter, as reproduced by the learned trial Court reads as follows:- “The provisions of this letter shall apply to the Armed Forces personnel who were in service as on 01.01.1986 or joined/join service thereafter; and” It is, therefore, apparent that this letter does not apply to the appellant as he was invalidated out of service in 1949, before the issuance of this letter. Though, counsel for the appellant places reliance upon paragraph 18.3 to urge that the minimum amounts of war, injury pension prescribed in para no.18.2 of this letter would be admissible to cases where the degree of disability is assessed at below 20%, it would not apply to the Regular Second Appeal No. 2751 of 2006(O&M) -4- appellant as the letter under reference applies to Armed Forces Personnel who were in service as on 01.01.1986 or join service thereafter. The first appellate Court, apparentlyin error in observing that the war service period was over on 31.03.1946. The appellant was admittedly injured in Indo Pak war that took place in 1948 and, therefore, its conclusions on that the appellant's claim was factually incorrect, is itself factually wrong. Despite this the erroneous finding of fact, the appellant's claim cannot be accepted as the letter under reference, does not apply to the appellant as referred to herein before. In view of what has been stated herein above, the appeal is dismissed with no order as to costs. September 22, 2008 (RAJIVE BHALLA) nt JUDGE