OA 249 of 2013. Case: Chanan Singh Vs Union of India. Armed Forces Tribunal
| Case Number | OA 249 of 2013 |
| Counsel | For Appellant: Mr. Navdeep Singh, Advocate and For Respondents: Mr. Rajesh Sehgal, CGC |
| Judges | Vinod Kumar Ahuja, J. (Member (J)) and Air Marshal (Retd.) SC Mukul, Member (Ad.) |
| Issue | Service Law |
| Judgement Date | February 05, 2014 |
| Court | Armed Forces Tribunal |
Order:
(Regional Bench At Chandimandir)
-
Briefly stated the facts of the case as alleged by the petitioner are that he was enrolled in the regular Indian Army on 07.05.1963 in medical category SHAPE-1 and was invalided out on 23.10.1978 in permanent low medical category. The petitioner alleged that he was invalided out of service due to acute hearing loss on account of Otosclerosis after developing a reaction to an overdose of an injection given by a Nursing Assistant of the Army Medical Corps. Later he became a case of a failed surgical operation by military doctors in a Military Hospital after which his condition deteriorated further.
-
It was also alleged by the petitioner that it is officially recorded in the record that a prosthesis fitted by the Military Hospital surgically in his ear had slipped due to a botched surgery and then leading to a second surgery through which the prosthesis was recovered. Therefore, the observation by the Medical Board that this disability is neither attributable to nor aggravated by service is incorrect.
-
He further alleged that after 10 years of service on 17.11.1973 the petitioner was officially to be inoculated against Typhoid by the respondents and was called to the Medical Inspection Room for a TAB Vaccine. However, he was given an overdose by the concerned Nursing Assistant and he developed very high fever and also blockage of his nostrils and ears.
-
The next morning he was found to have been inflicted with hearing loss and stiffness in both ears. These all facts are recorded in the medical papers Annexure A-1. It was further alleged that even an action was initiated against the Nursing Assistant for the said incident.
-
It was further alleged that it was recorded that the petitioner was not to be posted to a field or cold area but he was still posted to Jammu & Kashmir including in snow clad environment. He further alleged that due to the overdose leading to gross hearing loss his medical category was downgraded and he was ultimately declared a case of Bilateral otosclerosis and Gross Hearing Defect. He further alleged that he was operated in the left ear but the operation was not successful and a prosthesis was implanted in his ears. Another surgery was performed to remove the complication which was not successful and his deafness increased further. His Tonsils were also removed and the said operation was also not successful. It was further alleged that as per Annexure A-3 it was specifically recorded by the medical authorities that the operations performed on him had failed.
-
It was further alleged that in spite of the above facts the Invaliding Medical Board was carried out who simply recorded Yes/No but did not give the full reasons as is provided by the Medical Board itself and they observed that it was a constitutional disease without going into history or the material on record dealing with the disability.
-
Thus, it was alleged that in view of the law laid down in various decisions the findings of the Medical Board are not sustainable and their finding that it is non-service related is illegal and the rejection of his claim for disability pension is liable to be set aside and he is entitled to the full arrears, costs etc.
-
In reply the respondents pleaded that the petitioner had rendered 15 years 5 months 17 days service in the Army. The Release Medical Board had opined his disability 'OTOSCLEROSIS BILATERAL' as neither attributable to nor aggravated and nor connected with military service as per Annexure R-1. The percentage of disability of petitioner was assessed at 40% for two years only and once it has been held that this was neither attributable to nor aggravated by services, his claim for disability pension was not sustainable, which was rightly rejected vide letter dated 27.12.1979 as per Annexure R-2. The petitioner had the remedy to file a second appeal which was not filed. It was further alleged that the petitioner had approached on 22.02.2011 after a gap of 29 years for reconsidering his case and the case of the petitioner is covered by the judgment of Hon'ble the Supreme Court in the case of Secy. Ministry of Defence Vs. A.V. Damodaran, 2009(9) SCC 140, decided on 20.08.2009 and as such the application is liable to be rejected.
-
We have heard the learned counsel for the parties and have gone through the record of the case.
-
We may make a brief reference to the documentary evidence on record. Annexure A-1 is the observations of the Medical Board, which reads as under:-
xx xx xx
-
Present condition:-
Impairment of hearing--17 Nov 1973 both ears.
This individual was completely alright before 17 Nov 1973. When he was given one inj TAB in unit MI Room. The same evening he developed fever and blockage of Nostril & ears. Next morning he found his hearing has much gone down & there...
To continue reading
Request your trial