1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2092 OF 1997. Bhima S/o Suryabhan Dhande, Age major, Occ.Nil, R/o Village Tandala, Post Phul Savangi, Tq.Gevrai, Dist. Beed. ... Petitioner. Versus 1. Union of India. 2. Officer Incharge, Maratha Light Infuntry Abhilekh Karyalaya, Balgaum. 3. CCDA (p), Grants-3/RA Section Allahabad (U.P.) ... Respondents. ... Mr.M.K.Deshpande, advocate for the petitioner. Mr.Alok Sharma, Assistant Solicitor General of India for Respondent Nos.1 to 3. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 29.06.2010. 2 ORAL JUDGMENT (Per B.R.Gavai,J.) 1. The petitioner has filed the present petition challenging communication dated 28.12.1990 and 28.10.1996 issued by the Respondent No.2, thereby holding that the petitioner is not entitled for disability pension. The petitioner has further prayed for a direction to the Respondents to grant disability pension to the petitioner with effect from 1.12.1989 along with interest. 2. The petitioner joined as a Naik in Unit No.15, Maratha Light Infuntry at Belgaum on 11.11.1974. After serving the army for almost ten years, the petitioner met with an accident on 27.8.1984. When he was travelling in Army jeep he sustained fracture to his left leg and was admitted in Hospital at Jamnagar. After the petitioner joined the services, the Respondent conducted the Court of inquiry about disability which the petitioner acquired due to accident. During inquiry the disability was estimated at 30% and accordingly an entry in the service book 3 was also recorded. The petitioner's case was thereafter physically reexamined by the Medical Board at 92 Base Hospital, Shrinagar on 15.9.1989, which Board also held that the disability of the petitioner was upto 30%. The petitioner, therefore, came to be discharged from services on 30.11.1989. From 1.12.1989, the petitioner was being paid the regular pension. However, since the petitioner claims that on account of the disability which he acquired while on duty, he was entitled to disability pension also, he made various representations. It appears that there was certain correspondence between different offices of the Respondent and vide the communication dated 8.6.1992, the petitioner was informed that his disability was less than 20% and as such was not entitled to disability pension. The petitioner again made representation for reconsidering his case. Vide communication impugned, his request was rejected. Hence, the petition. 3. Mr.Deshpande, learned counsel for the Petitioner submits that when immediately after 4 the accident in a Court of inquiry the petitioner was found to have suffered 30% disability which was confirmed by the Board of Director at Shrinagar, there was no occasion for the Respondent No.3 to resurvey the matter and deny the claim of the petitioner for disability pension. 4. Mr.Sharma, learned Asstt.Solicitor General of India, on the contrary submits that the Medical Board of experts in resurvey has found that the disability suffered by the petitioner was only 15% to 19% and as such he was not entitled to disability pension. He relies on the judgment of the Apex Court in case of "Secretary, Ministry of Defence and others Vs. Damodaran A.V. (Dead) through L.Rs. and others" 2009-EQ-O-1962. Mr.Sharma, further submits that Medical Board has only powers to recommend and Medical Board's opinion is not binding on the Respondent No.3. He submits that the claim came to be rightly rejected by the Respondent No.3 on the basis of the resurvey done by Director General, Armed Forces (Medical Services). 5 5. At the outset, we may state that it is not in dispute that the petitioner has suffered aforesaid disability in an accident which has taken place while he was on duty. It is also not in dispute that in the Court of Inquiry which was immediately conducted after the accident and when he was discharged from the Hospital, his disability was estimated at 30%. It is also not in dispute that the Medical Board of expert in the Base Hospital at Shrinagar has reassessed the case of petitioner and that too physically, in which his disability is found 30%. It is only after the Respondent No.3 has got the papers again reassessed from the another Board and on the basis of the said Board, the petitioner was held not to be entitled to the claim of the disability pension. 6. Rule 173 of the Pension Regulations of the Army deals with grant of disability pension. The said Rules provides that a disability pension may be granted to the individual who is invalidated from service on account of disability 6 or aggravated by the Military service. Appendix II to the said Rules deals with the matter as to whether the disability is attributable or aggravated by the Military service. The Apex Court in a recent judgment has taken survey of various judgments on the issue in the case of "Secretary, Ministry of Defence and others Vs. Damodaran A.V.(Dead) through L.Rs. and others" (supra). The Apex Court in the said judgment has relied on its earlier judgment in the case of "Controller of Defence Accounts (Pension) & others Vs. S.Balachandran Nair (2005) 13 SCC 128 and observed thus : "12. Regulation 423 which deals with 'Attributability to service' has also been discussed in S.Balachandran Nair's case (supra), which reads as under : '423. Attributability to service -- (a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death 7 occurred in an area declared to be a field service/active service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but 8 not in the least probable' the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in field service/active service areas. (b) The cause of a disability or death resulting from wound or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of 'duty' in armed forces. In case of injuries which were self-inflicted or due to an individual's own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct. (c) The cause of a disability or death resulting from a disease will be 9 regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. 10 (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/medical officer will specify reasons for their/his opinion. The opinion of the Medical Board/medical officer, insofar as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. (e) To assist the medical officer who signs the death certificate or the Medical Board in the case of an invalid, the CO Unit will furnish a report on : 11 (i) AFMS F-81 in all cases other than those due to injuries (i) IAFY -2006 in all cases of injuries other than battle injuries. (f) In cases where award of disability pension or reassessment of disabilities is concerned, a Medical Board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular Medical Board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a Medical Board form and countersigned by the ADMS (Army)DMS(Navy)DMS(Air)." 7. After considering various judgments, the Apex Court observed thus : "9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has 12 been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service." It can thus clearly be seen that in the present case, it is not in dispute that the accident with which the petitioner met had taken while he was on duty. It is also not in dispute that the Court of inquiry had held that his disability was 30%. It is also not in dispute that the Medical board which consisted of more than one doctor's has found that his disability was 30% and attributable to his duty. The Apex Court in the aforesaid judgment has clearly observed that the opinion of the Medical Board shall be given weightage and primacy in the matter for ascertainment as to whether or not the 13 injuries/illness sustained was due to or was aggravated by the military service. As has already been observed herein above that the invalidation of the petitioner from the military service was solely on account of the disability that occurred to him in the accident. When the Medical Board of expert after physically verifying the petitioner's case had come to a conclusion that the petitioner has suffered disability of 30%, we see that Respondent No.3 had no business to get it resurveyed from another Board and that too without physically examining the petitioner. It is to be noted that the import of the Court of Inquiry and the resurvey of the petitioner in the year 1989 was immediately after his accident and on account of which the petitioner was came to be invalidated to continue in the military service. As already observed hereinabove a due weightage ought to have been given to the report of the Medical Board which physically resurveyed the case of the petitioner on 15.9.1989. In so far as contention of Mr.Sharma, that the Medical Board has only power to recommend and the Respondent NO.3 is final 14 authority is concerned, it is a settled law that merely because a discretion is given to the authority, the authority can not exercise it in an arbitrary manner. We find that when the Court of Inquiry so also the Medical Board after resurvey on physical examination of the petitioner had found that the petitioner had suffered disability of 30%, the Respondent No.3 ought to have accepted the report of the Medical Board and granted disability pension to the petitioner. Reliance placed on resurvey conducted at the instance of the Respondent No.3 in our view is not of any assistance to the case of the Respondent, inasmuch as preference will have to be given to the report of the Medical Expert's who have physically examined the petitioner immediately after the accident as compared to some opinion given by some doctors sitting in their office only on the basis of documents. It is further to be seen that while interpreting Appendix II, the Apex Court in case of S.Balachandran Nair has held that if a doubt arises it should be reasonable and even in that eventuality a benefit thereof has to be given to 15 the person claiming the pension. 8. In the result, we find that the action of the Respondent No.3 in rejecting the claim of the petitioner for disability pension is not sustainable in law. Rule is, therefore, made absolute in terms of prayer clause (D). It is held that the petitioner was entitled for disability pension from 1.12.1989 in accordance with the Rules and that the said disability pension would be paid to the petitioner in accordance with the Rules with arrears of the same along with interest at the rate of Rs.6% p.a. from the date on which the pension is due till the actual payment is made. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp209297