No Disability Pension Where Condition Not Attributable To Military Service: Kerala High Court

The Kerala High Court recently dismissed a writ petition challenging the order of the Armed Forces Tribunal that rejected an ex-serviceman's application against non-grant of disability pension for Generalised Anxiety Disorder.The Division Bench of Justice K. Natarajan and Justice Johnson John held that the presumptions under the Entitlement Rules for Casualty Pensionary Awards, 1982 regarding the sound mental condition of a member upon entering service do not come in when the medical assessment does not indicate disability is attributable to or aggravated by medical service.The petitioner had enrolled in the army in 1969 and was invalided out of service in 1976 due to low medical category. The Invaliding Medical Board found that he was suffering from disability of 'Neurosis' to the extent of 30% for two years. It was also found that the disability was neither attributable to nor aggravated by military service, and he was not granted disability pension.Later, in 2013, he challenged this before the Armed Forces Tribunal but the same was dismissed too stating that the disability period expired in 1979 and also considering that the disability was not connected to the service. It was also observed that the petitioner is entitled to move a petition for holding a re-assessment by the Medical Board for assessing his disability.The Re-assessment Medical Board in 2015 found the petitioner was suffering from "Generalised Anxiety Disorder” to the extent of 40% lifelong. Again, he came before the Tribunal in 2018 but his application was dismissed, finding that the Re-assessment Medical Board report does not show that the disability is attributable to or aggravated by military service and that the entitlement of a soldier to disability pension cannot be determined on the basis of a medical examination conducted after more than 39 years from his date of discharge.The petitioner contended that a conjoint and harmonious reading of Rules 5, 9 and 14 of the Rules shows that a member is presumed to have been in sound mental condition at the time of entering service and if he is discharged from service on medical grounds subsequently, it must be presumed that such deterioration of health was due to the military service.According to Rule 5, the question of entitlement to casualty pensionary awards and evaluation of disabilities has to be considered on the basis of certain presumptions: (i) a member is presumed to have been in sound mental and physical condition upon entering service except for the physical disabilities recorded at the time of entrance, and (ii) in the event of his subsequent discharge from service on medical grounds, deterioration of health has to be presumed to take place due to service.As per Rule 9, a claimant shall receive the benefit of reasonable doubt when it comes to his conditions of entitlement and he shall not be called upon to prove the same. The benefit of the same has to be given more liberally to claimant in field or afloat service cases.Rule 14 states that in cases where it is established that conditions of military service did not determine or contribute to the onset of a diseases but influenced its subsequent course, will fall for acceptance on the basis of aggravation. It is further stated that a disease which has led to an individual's discharge or death will ordinarily be presumed to have arisen in service if not note of it is made at the time of entrance but if medical opinion holds that the disease could not have been detected on medical examination prior to entrance, the presumption would not be there. Moreover, when a disease is accepted as having arisen in service, it must be established that the conditions of military service determined or contributed to the insent of the disease and that the conditions were due to the circumstances of military service duty.Referring to the 2015 re-assessment report, the Court remarked that the petitioner has been found to be functional in socio-occupational spheres since his invalidment though he claimed to have had episodes of anxiety. It was also noted in the report that evaluation at the time of his initial admission had shown that he had other stress factors like father's chronic illness, divorce of elder sister and his job post-invalidment but nothing that indicate that the disability was aggravated by or attributable to military service. Thus, the Court felt that the petitioner was not entitled to relief.The Court observed:“In the absence of any material to indicate that the disability assessed by the Invaliding Medical Board or in the Re-assessment Medical Board is attributable to or aggravated by military service, it cannot be held that there is any denial of fundamental right or jurisdictional error or error apparent on the face of the record warranting interference under Article 226 of the Constitution of India. In view of the opinion expressed by the medical experts in the initial Medical Board assessment and the Re- assessment Medical...

No Disability Pension Where Condition Not Attributable To Military Service: Kerala High Court

K. Salma Jennath

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