Ex LEM (R) Ramesh Kumar (Navy) vs UOI & Others on 13 August 2025

O R D E R

13.08.2025

MA No 280/2019

1. MA No 280/2019 has been filed by the Applicant for condonation of delay of 28 days in filing the OA. Having considered the reasons and grounds stated in the MA, the delay in filing the OA is condoned.

OA No 197/2021

2. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has prayed for grant of Disability Element of Disability Pension along with Rounding Off benefits for life wef 01.08.2018 and that the arrears be paid along with interest @ 18% per annum.

3. The brief facts of the case, as enunciated by the Applicant are that the Applicant was enrolled in the Navy on 31.07.2003. While in Service, he suffered from the disability “PIVD LV4-L5” and was placed in low medical category and on completion of terms of engagement, he was discharged from Service on 31.07.2018, for which he has been granted Service Pension for life. The duly constituted Release Medical Board assessed his disability @ 20% for life and opined it as Aggravated by Naval Service, however, the net assessment was arbitrarily reduced to 10% on account of his unwillingness for surgery. Therefore, his claim for grant of Disability Pension was rejected by the Competent Authority, the disability being below 20%. In support of his claim, the Applicant has placed reliance on Hon’ble Supreme Court judgments in the case of Sukhvinder Singh Vs UOI & Ors, (2014) STP 468 SC, Dharamvir Singh Vs UOI & Ors (2013) 7 SCC 316 and UOI & Anr Vs Rajbir Singh, JT 2015(2) SC 392,. During the course of arguments, Learned Counsel for the Applicant also placed reliance on this Tribunal Order dt 20.03.2025 in OA No 134/2023 in the case of Ex L/Nk Jitendra Kumar Meena Vs UOI & Ors. The Applicant made representation as also issued Legal Notice for the aforesaid prayer, but to no avail. Therefore, the aggrieved Applicant has filed the present OA.

4. The Respondents filed a detailed reply to the Application and while not disputing the basic facts presented by the Applicant, they have submitted that the Applicant refused to undergo surgery for the disability suffered by him and was discharged from service on completion of terms of engagement. The duly constituted Release Medical Board assessed his disability @ 20% for life, but as the Applicant had rendered his unwillingness for Surgery, the disability was reduced by 10% and net assessment qualifying for disability pension was assessed @10% for life. Since the final disability of the Applicant was below 20%, he was not granted Disability Pension in terms of Rule 104 of Pension Regulations for the Navy, 1964. In view of the aforesaid averments, the Respondents have reiterated that the OA is devoid of merit and deserves to be dismissed.

5. After going through the averments of the Learned Counsels and the material available on record, the following facts emerge :- (a) The Applicant was discharged from service on 31.07.2018 on expiry of engagement and has been granted Service Pension for life.

(b) The Applicant refused to undergo surgery, therefore, his disability could not be cured and, consequently, he was discharged from Service on expiry of engagement

(c) His Disability was assessed at 20% for life and opined as Aggravated by Military Service. However, as the Applicant had rendered his unwillingness for Surgery, the same was reduced to 10% and final assessment qualifying for disability pension was assessed @ 10% for life.

6. The point to be determined is whether a person who has rendered unwillingness for surgery is eligible for grant of Disability Pension?

7. Germane to arriving at a conclusion in this issue are the facts mentioned in the Release Medical Board. In Page No 5, Para 5 (c) of the Release Medical Board, in the question as “Has the individual refused to undergo operation/treatment?”, the answer is “Yes, due to domestic reasons”. In Para 5 (d), in the question as “Has the effect of refusal been explained to and fully understood by individual, viz., a reduction in, or the entire withholding of, any disability pension to which he/she might otherwise be entitled”?, the answer is “Yes”. In Para 5 (e), in question as “Does the medical board consider it probable that the operation/treatment would have cured the disability or reduced its percentage?”, the answer is “Yes, probable”. In Para 5 (f), in the question as “If the reply to (e) is in affirmative, what is the probable percentage to which the disablement could be reduced by operation/treatment?, the answer is as “50% of the existing disability”. In Para 5 (g), in the question “Does the Medical Board consider the individual’s refusal to submit to operation/treatment reasonable?” it is answered as

“No”. From the above, it is clear that the medical experts have also opined that probably the disability would be cured and there was no absolute guarantee that the disease would get fully cured with the proposed surgery.

8. The issue on the entitlements for Disability Pension wherein an individual suffering from a disability refused to undergo medical treatment has been explained in Para 104 of Pension Regulations for the Navy, 1964, which reads as under:- “104. Refusal to undergo medical treatment – If a sailor suffering from a disability accepted as attributable to or aggravated by service refused to undergo an operation, or other medical treatment which, in the opinion of the service medical authority, would cure the disability or reduce the degree of disablement, his case shall be dealt with as follows:- (a) If the refusal to undergo treatment or an operation is reasonable, the full disability pension normally admissible under the regulations shall be granted.

(b) If the refusal to undergo treatment or an operation is unreasonable,-

(i) If the medical board certifies that an operation or medical treatment will cure the disability The disability pension shall be withheld but the normal service pension or gratuity, if any, admissible under these regulations, or the pension or gratuity if any admissible under Regulation 110 may be granted; and

(ii) If the medical board certifies that an operation or medical treatment will reduce the disability to a lower percentage The disability element of pension shall be restricted to that appropriate to the lower percentage of disablement; if the lower percentage is less than twenty per cent the normal service pension or gratuity, if any, admissible under these regulations, or the pension or gratuity if any admissible under regulation 110 may be granted.

9. From the aforesaid facts, it is clear that the Applicant refused to undergo surgery and, as per the opinion of medical experts, there was probability of curing the disability but there was no guarantee that after surgery, the disability will be fully cured. Further, there are associated risks for further damage to spinal cord and further complications could arise. Therefore, the reduction of his disability to 10% (50% reduction of the disability) by the Release Medical Board is not justified in any way. Hence, we are of the considered view that the Disability of the Applicant as initially assessed by the

Release Medical Board would remain @ 20% for life. Accordingly, the Applicant is eligible for grant of Disability Element of Disability Pension along with Rounding Off Benefits to 50% for life from his date of discharge from Service, ie., 01.08.2018.

10. In-fine, we direct the Respondents to grant Disability Element of Disability Pension to the Applicant @ 20% duly rounded off to 50% for life wef 01.08.2018. The arrears of Disability Element of Disability Pension shall be paid to the Applicant within six months of receipt of a certified copy of this Order failing which the arrears shall carry interest @ 6% per annum till the date of actual payment.

11. The OA is disposed off, accordingly. Pending Miscellaneous Application(s), if any, also stand disposed off.

12. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-