Judgment & Order dated 10-12-2024 OA 16/2021 on 10 December 2024

1. This is an application filed under Section 14 of the Armed Forces Tribunal Act, 2007 seeking the following reliefs:- *"(a) to quash and set aside the impugned order dated 15.09.2020 by Records, the Kumaon Regiment and IHQ of MoD (Army) rejecting applicant's claim for special family pension and to consider the death of the applicant's husband to be attributable to military service.*

*(b) to pay special family pension w.e.f. the date of death of her husband to the applicant with arrear in compliance of the relevant provisions of Pension Regulation for Army Part I, 1961."*

2. Facts of the case of the applicant are that the applicant's husband was enrolled in the Army on 09.01.2003 in SHAPE-1 after thorough medical examination on finding him physically and mentally fit by the duly constituted Medical Board. Neither there was note of existence of any disease suffered by the applicant in the medical sheet maintained at the time of enrolment nor there is history of any hereditary disease in the family of the applicant. During his service period the applicant served the Nation with utmost sincerity, without any blemish, to the satisfaction of the authorities.

3. The applicant's husband was granted 62 days annual leave from 28.02.2018 to 30.04.2018. During the journey and at home he remained weak, which he thought to be high altitude affect for the initial few days. But when applicant's husband's weakness did not subside, he sought extension of his leave and the same was granted by the authorities. But after a few days, his health condition deteriorated and on 04.05.2018 as his condition became critical, he was required to be admitted in a nearby hospital at Zion Hospital, Dimapur as per advise of the doctors.

4. That the applicant begs to state that she reported the matter to her husband's Company Commander and informed about his admission in the Zion Hospital, Dimapur. Applicant's husband's Company Commander as well as Commanding Officer of 1 Naga Regiment was in contact with his family members regarding treatment as well as his health condition.

5. On receipt of the information, CO 1 Naga Regiment personally spoke to Brig Medical 3 Corps and CO 165 Military Hospital. Two medical officers from Army visited Zion Hospital and discussed with doctors' therein and met the applicant also. They intimated the applicant that the line of treatment in the hospital is proper and her husband is not in a position to be transferred to Command Hospital, Kolkata due to ongoing dialysis treatment.

6. In spite of best efforts, applicant's husband breathed his last on 16.05.2018. His dead body was cremated with full military honour on 17.05.2018. Thereafter, the CO 1 Naga Regiment had spoken to the applicant on several occasions and intimated that full benefits will be extended to her.

The initial report and detailed report was initiated by the unit and was forwarded to all concerned vide letters dated 16.05.2018 and 18.05.2018.

7. Court of Inquiry was held on 19.06.2018 and subsequent days by the orders of Stn HQ, Dimapur to investigate into the circumstances under which Nk H Philip of 1 NAGA died on 16.05.2018 at Zion Hospital, Dimapur. However, Finding and Opinion of Court and directions of Station Commander, Dimapur was not provided by the authorities to the applicant.

8. The applicant begs to state that the authorities did not provide her with any of the documents viz. copy of the Court of Inquiry Report, opinion of the Medical Officers, Army etc. So, the applicant submitted application under RTI Act, on 30.06.2019 and could get the relevant documents thereafter without the Findings and Opinion of the Court of Inquiry.

9. On receipt of the Court of Inquiry proceedings, the applicant came to learn that her husband's death was opined to be neither attributable to nor aggravated by military service. The applicant on 19.08.2019 submitted an application to Records, the Kumaon Regiment stating that her husband's death is due to stress and strain of military service and due to exposure to hostile work environment and as such his death ought to be considered as attributable to military service for which she is entitled to Special Family Pension.

10. In response to her application, Records, the Kumaon Regiment has intimated the applicant vide their letter dated 05.09.2019 that as per direction of the Station Commander, Dimpaur after Court of Inquiry, the cause of her husband's death was found to be "Multi Organs Failure" and as such same was declared as not attributable to Military service. Hence, ordinary family pension has been sanctioned to her by the PCDA (P) Allahabad.

11. On receipt of the reply of the Records the Kumaon Regiment, the applicant submitted First Appeal to the Appellant Committee on First Appeals (ACFA) through Records, the Kumaon Regiment on 28.01.2020.

12. First Appeal was rejected by IHQ of MoD (Army) on 15.09.2020 stating that circumstances of death are not in any way related to the duties of military services. The IHCO of MoD (Army) has also advised to prefer second appeal to Second Appellate Committee on Pension (SACP) if not satisfied with the decision of the committee.

13. Second Appeal against rejection of First Appeal submitted to the Second Appellant Committee on Pension (SACP) through Records the Kumaon Regiment on 30.10.2020. However, decision on the appeal is still awaited.

14. Since the applicant's husband's disease developed due to harsh environmental condition of high altitude and his death was influenced by duty in High Altitude region. But the authorities have arbitrarily opined applicant's husband's disease as not attributable to military service. Such action of the authorities has violated applicant's statutory rights to get the benefit of special family pension and therefore, not sustainable in law.

15. As per Rule 5 of the Entitlement Rules For Casualty Pensionary Awards, 1982 a member is presumed to have been in sound physical and mental condition upon entering service except to physical disabilities noted or recorded at the time of entrance and any subsequent deterioration in health is held to be due to service. Further, Rule 9 of the aforesaid Rule provides that the burden to disapprove the correlation of the disability with the service is with the authorities and categorically prescribes that 'benefit of doubt' is to be given to the claimant. Notwithstanding, the authorities have illegally denied the applicant from his right to special family pension.

16. The applicant's husband has developed diseases due to stress and strain of the military service. There is inherent stress and strain in military service coupled with the fact that a person stays away from family during most of his/her length of service in a regimented lifestyle under a strict disciplinary code and attributability or aggravation need only be refused in cases of gross negligence, gross misconduct or intoxication. What may be called 'a lifestyle disease' for a common person on the street may be aggravated by stress and strain in case of military personnel. The Medical authorities regarded death's disease as neither attributable to nor aggravated by service in a routine manner without considering the aforesaid fact.

17. The authorities by their illegal action have violated the applicant's fundamental rights as guaranteed under part III of the Constitution of India as well as the rights granted by the Rules / Regulations holding the field and as such, same needs to be interfered with by this Hon'ble Tribunal for the ends of justice.

18. *Per contra*, learned counsel for the respondents has submitted that the husband of the applicant was enrolled in the Army on 09.10.2003. On completion of his basic military training, the individual was posted to 1 NAGA. The individual married to Smt. D. Zhilloni (applicant) on 21.05.2013 during service with 1 NAGA. The individual was proceeded to 62 days Annual Leave for the year 2018 w.e.f. 28.02.2018 to 30.04.2018. Further, he extended his Annual Leave for 28 days from advance of annual leave for the year 2019 w.e.f. 01.05.2018 to 28.05.2018 due to suffering from Jaundice. As per Court of Inquiry, the individual was admitted to Zion Hospital and Research Centre, Dimapur on 05.05.2018 and diagnosed with "ALD, CLD WITH HEPATIC ENCEPHALOPATHY". The unit requested top 165 military Hospital for shifting the individual to 165 military Hospital.

On 13.05.2015 two Medical Officers from 165 Military Hospital visited Zion Hospital for transfer the individual to command Hospital, Kolkata. However, the authorities of Zion Hospital intimated that the individual was not in a condition to be transferred due to ongoing dialysis treatment. The individual died on 16.05.2018 at Zion Hospital and Research Centre, Dimapur due to Multi Organ Failure following Cirrhosis Liver. Court of Inquiry opined that the individual was not on bonafide military duty and, therefore, death of the individual is neither attributable to nor aggravated (NANA) by military service.

19. Records of the Kumaon Regiment vide letter dated 26.07.2018 processed ordinary family pension claim to PCDA (P), Allahabad for adjudication. Thereafter, PCDA (P), Allahabad sanctioned Ordinary Family Pension duly notified by Pension Payment Order (PPO) No 169201802304 dated 18.10.2018.

20. Thereafter, the applicant forwarded application dated 30.06.2019 under RTI ACT, 2005 seeking information regarding the death and attributability of the individual. Records, the Kumaon Regiment suitably replied vide letter dated 16.07.2019 with an advice that if she not satisfied with the decision, she may prefer an appeal within 30 days.

21. The applicant forwarded a personal application dated 19.08.2019 praying for grant of Special Family Pension. Records, the Kumaon Regiment letter dated 05.09.2019 intimated to the applicant that cause of death of the individual was 'Multi Organ Failure and declared as not attributable to military service'. Thereafter the applicant's first Appeal for grant of Special Family Pension was forwarded to IHQ of MOD (Army) vide Records, the Kumaon Regiment letter dated 03.06.2020. AGs Branch, IHQ of MoD (Army) vide letter dated 15.09.2020 rejected the claim of the applicant for grant of Special Family Pension stated that the disease "Multi Organ Failure" under which cause of death of the applicant's husband was not related to duties of military service with an advice that if the applicant not satisfied with the decision, she may submit a second appeal to Second Appellate Committee on Pension (SACP) within six months through Records, the Kumaon Regiment.

22. The applicant preferred second appeal against rejection of special Family Pension which was forwarded to Second Appellate Committee on Pensions (SACP), IHQ of MoD (Army) vide Records, The Kumaon Regiment letter dated 05.12.2020. Second Appeal was also rejected by the IHQ of MoD Army letter dated 06.08.2021 and forwarded to the applicant vide Kumaon Regiment letter dated 31.08.2021.

RULE POSITION

23. As per paragraph 5.1 of Govt of India, Ministry of Defence letter dated 31.01.2001, in case of death of an Armed Forces Personnel under the circumstances mentioned in category "B" or "C" of Paragraph 4, Special family pension shall continue to be admissible to the families of such personnel under the same conditions as in force hitherto fore. There shall be no condition of minimum service on the date of death for grant of Special family pension. Relevant portion of category "B &C" of paragraph 4 are reproduced hereunder: - Category B

Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Disease contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.

Category C

Death or disability due to accidents in the performance of duties such as: -

- (i) Accidents while travelling on duty in Government Vehicles or public/private transport.

- (ii) Accidents during air journey

- (iii) Mishaps at sea while on duty

- (iv) Electrocution while on duty etc.

- (v) Accidents during participation in organized sports events / adventure activities / expeditions / training.

24. As per para 105 of Pension Regulation for the army 2008 (CTC attached as annexure CA-VII) Special family pension may be granted to the next of kin of service personal if his death occurred in the circumstances mentioned in category B and C of Regulation 82 of these regulations due to or hastened by: -

- (a) a wound, Injury or disease which was attributable to military service,

- (b) was due to aggravation by service of a wound, injury or disease which existed or arose during service and in case of death after retirement/discharged.

Provided that the service personnel had retired/discharges otherwise than voluntarily/at own request, compassionate grounds before completion of terms of engagement.

25. In the instant case, the death of the individual had occurred due to "Multi Organ failure" following Cirrhosis Liver which was concerned as NANA by military service, hence the applicant is not entitled for grant of Special family pension. Hence, prayed for dismissal of the OA.

26. We have heard both the learned counsel and perused the documents placed on record.

27. The main question for determination is whether the husband of the applicant had died due to disease caused by stress and strain of military service and thus his disease was attributable to or aggravated by military service and whether the applicant is entitled for special family pension or not?

28. A perusal of the case shows that the deceased Naik H. Philip had proceeded on 62 days annual leave from 28.02.2018 to 30.04.2018 but his condition deteriorated and on 04.05.2018 he was admitted in Zion Hospital, Dimapur and ultimately breathed his last on 16.05.2018. Court of Inquiry was conducted and Commanding Officer, Records Office, 1 Naga Kumaon Regiment issued a certificate regarding Naik H. Philip that his death was found due to "Multi Organs Failure following Cirrhosis Liver" is natural and is not attributable to military service (page 26 of O.A.). The statement of the Medical Officer is placed on record at page 27, in which it has been mentioned that, "as individual died as a consequence/complication to Alcohol related illness which is neither attributable nor aggravated by military service." The First Appeal of the applicant was rejected on 15.09.2020 (page 38 of O.A.) in which it has been mentioned that the circumstances of death of late Naik H. Philip are not in any way related to duties of military service. The Second Appeal was also rejected on 06.08.2021 (page 40 of O.A.) in which it was stated that there is no evidence of any service related factor having caused or aggravated the condition and therefore the death is conceded as not attributable to military service.

29. From the documents which are placed on record, it appears that the husband of the applicant had suffered from 'Cirrhosis Liver' which had ultimately resulted in Multi Organ Failure. It is mentioned that the disease was alcoholic. However, the learned counsel for the applicant has pointed out that the deceased was never issued any reprimand of red ink entry or black ink entry for alcoholism.

30. This argument was considered. Further it has been pointed out by the learned counsel for applicant that onset of the disability of her husband occurred when he was posted at high altitude area of Arunachal Pradesh. This has been mentioned by the applicant in her First and Second Appeal. The statutory complaint regarding non-grant of special family pension can be seen at Annexure-D (at page 28 of O.A.) in which it has been mentioned by the applicant that her husband was posted in High Altitude area of Arunachal Pradesh when he has sought leave to solve some domestic problems. It has been so stated in the First Appeal as well as in (Annexure-F). The respondents have not denied that the applicant was not posted at high altitude area of Arunachal Pradesh. As per Rule 11 of Entitlement Rules for Casualty Pensionary Awards to Armed Force Personnel 2008, "a disability shall be conceded aggravated by service if its onset is hastened or the subsequent course is worsened by specific conditions of military service such as places of extreme climatic conditions, environmental factors related to service conditions i.e. Fields, Operations, HAA etc."

31. It appears that the onset of disability of the applicant occurred when he was posted in High Altitude Area of Arunachal Pradesh, hence the disability shall have to be considered as aggravated by military service. As already pointed out that there is no material on record to show that the disability was lifestyle disease due to excessive intake of alcohol by the deceased.

32. Consequently, the deceased was entitled to disability pension and the applicant, his spouse is entitled for special family pension.

33. The O.A. consequently stands allowed. The impugned order dated 15.09.2020 by Records, the Kumaon Regiment and IHQ of MoD (Army) rejecting the applicant's claim for special family pension is quashed and set aside.

34. Regulation 213 of Pension Regulations for Army 1961 describes Special Family Pension, which is reproduced as under :- "213. 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, or (b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service."

35. It has already been found that the death of the husband of the applicant was due to Multi Organs Failure caused by Cirrhosis Liver which was again aggravated by military service. Therefore, the applicant is entitled to special family pension.

36. The O.A. thus stands allowed in following terms :-

1) The applicant is entitled for special family pension with effect from the date of death of her husband i.e. from 16.05.2018.

2) The arrears of Special Family Pension shall be however limited to three years prior to the date of filing of the present O.A. The present O.A. was filed on 15.06.2021.

3) The order be complied with within four months from the date of obtaining the copy of this order.

4) Any delay would invite interest @ 8% p.a.

37. No order as to costs.

(Lt Gen P. Gopalakrishna Menon) Member (A)

Date – 10.12.2024. Sh

(Justice Shailendra Shukla) Member (J)