Opinion of medical board in determining disability cannot be junked unless there is evidence to the contrary: HC

Dismissing a bunch of about 40 appeals filed by the Central Government against disability benefits granted to soldiers by the Armed Forces Tribunal (AFT), the High Court of Jammu and Kashmir and Ladakh has ruled that opinions made by medical boards in such cases should ordinarily prevail unless these are contradicted by cogent medical evidence.

Stating that the benefit of reasonable doubt must be extended to the claimant, a division bench comprising Justice Sanjay Parihar and Justice Sanjeev Kumar held that that the onus of proof largely lies with the authorities and the claimant shall not be called upon to prove the conditions of entitlement, except in case where claims are filed 15 years after discharge from service.

The bench said that defence personnel suffering from disabilities due to service conditions, including those arising within 10 years after retirement, may qualify for disability pension if the disease is found attributable to service factors.

In a detailed 260-page judgement, the bench made a detailed analysis of the pensionary provisions from the Entitlement Rules, 1982 to the comprehensive framework of 2008, which classified cases of death or disability into five categories ranging from casualty from natural causes to that in war.

The interpretation of different provisions was the crux of the petitions. The bench observed that the Pension Regulations for the Army, 1961 and the Entitlement Rules for Casualty Pensionary Awards to the Armed Forces Personnel, 1982 represented one part, whereas Pension Regulations for the Army, 2008 and Entitlement Rules for Casualty Pensionary Awards to the Armed Forces Personnel, 2008 formed second part. Some of the petitioners were covered by the first set of rules whereas others were covered by the second set of rules.

Observing that the presumption that a person shall be deemed to be in sound physical and mental condition, if no note of any disease suffered by him is made at the time of his entry into service was now not available under the new rules of 2008, the bench said that indisputably, when an individual is enrolled in military service he is subjected to thorough medical examination so as to determine whether he is fit for military service.

If during examination, no physical or mental disability is noted or recorded, it would not be inappropriate or illogical to say that the disease that occurred or manifested after his entry in service is due to military service unless of course the medical opinion states to the contrary, the bench observed.

The bench further said that while medical examination at the time of entry may not determine certain hereditary or congenital diseases which may manifest later, these would not debar personnel from disability benefits unless a causal connection with military service is ruled out by the medical boards.

Under the 2008 rules, the entire issue of attributability and aggravation has been left to be determined by the medical experts, the bench observed. However, from a reading of the entire set of new rules, it becomes abundantly clear that one-line opinion sans reasons given by the medical authorities is not determinative of the fact whether the injury or death is either attributable to or aggravated by military service, the bench said.