REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5678  OF 2009 [Arising out of SLP (Civil) No. 23727 of 2008]

Secretary, Ministry of Defence & Others .. Appellants

Versus

Damodaran A.V. (Dead) through LRs.  & Others .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High  

Court  of  Kerala  at  Ernakulam dated  19.7.2007 delivered in  

Writ Appeal No. 2038 of 2001.   

3. The short  question that arises for  consideration of  this  

Court is whether the High Court was justified in ignoring the

report of the Medical Board in which it  is clearly mentioned  

that disability of A.V. Damodaran was neither attributable nor  

aggravated by the military service.

4. Brief facts which are necessary to dispose of the appeal  

are as under:

A.V.  Damodaran  was  enrolled  in  the  Indian  Army  as  

Sapper in the Madras Engineers Group on 28.11.1979.  After  

completion  of  basic  training  he  was  posted  to  1st Engineer  

Regiment.    

5. A.V. Damodaran was admitted to MI Allahabad and was  

diagnosed to be suffering from “Malaria” B.T.” on 24.6.1984.  

He was discharged from the hospital  on 30.6.1984 and was  

again admitted in the Air Force Hospital,  Jhansi because he  

was  suffering  from  “Hallucination”.    A.V.  Damodaran  was  

transferred  to  the  Command  Hospital,  Lucknow  for  

management by a psychiatrist on 5.7.1984.   The disability of  

A.V.  Damodaran  was  diagnosed  as  “Schizophrenia  (295)”  in  

peace station in July 1984.    

6. On 17.1.1985 the Medical Board recommended him to be  

invalided out of service in medical category “EEE” with 60%  

disability  for  a  period  of  two  years  due  to  the  disease

“Schizophrenia (295)”.   The Medical Board had opined that the  

disability  of  A.V.  Damodaran  was  not  attributable  to  the  

military service nor has it been aggravated thereby and it is not  

connected  with  the  service,  as  Schizophrenia  is  a  

constitutional disease.  The opinion of the Medical Board reads  

as under:

“OPINION

This  is  a  case  of  Schizophrenia  in  a  young  officer with 5 yrs service with no disorder of through  peruption,  behavior  and irrational  inconguity.   He  also  exhibited  impairment  of  judgment  and  might  onset  July  84.   He  has  been  treated  with  neuroleptis,  electroplexy  and  psychotherapy.  Response to therapy has been satisfactory.  There is  no evidence of active present features of illness at  present.

However, in view of early onset of the illness, a  short  period  of  service  and  chances  of  relapse  in  future under stress and strain of military service, he  is  considered  unfit  for  further  service.  Recommended medical category EEE (Psychological).

He has been reviewed by the medical specialist  and no physical contributory factor elicited for his  psychiatric  breakdown.   In  abetment  assessed  is  60%  (sixty  percent)  disability  neither  attributable  nor aggravated by service.  Longevity: Average

11.1.85. AFMSF 16281 along with related documents.”

7. The legal representatives of respondent no. 1 herein filed  

an  Original  Writ  Petition  before  the  High  Court  praying  for  

grant of disability pension.  By an order dated 20.12.2000 the

learned  Single  Judge  has  allowed  the  original  petition  and  

declared  that  the  individual  was  eligible  to  get  disability  

pension  under  the  provisions  contained  in  the  Pension  

Regulations  for  the  Army,  1961  and  such  other  enabling  

provisions.    The Department filed a Writ  Appeal  before  the  

High  Court.  By  an  impugned  order,  the  High  Court  has  

dismissed the said appeal finding no reason to interfere with  

the discretion exercised by the learned Single Judge.

8. The main questions of law that arise for consideration of  

this Court are as under:

i) Whether the High Court is justified in upholding the  

order passed by the learned Single Judge granting  

disability pension to the respondents and dismissing  

the Writ Appeal by the appellant?

ii) Whether the respondents are entitled to the grant of  

disability pension under the provisions as contained  

in Regulation 173 of the Pension Regulations for the  

Army, 1961 and such other enabling provisions?

9. The appellant Union of India submitted that:

a) As  per  the  medical  opinion  the  respondent  A.V.  

Damodaran was examined by the medical specialist and

no physical contributory factor elicited for his psychiatric  

breakdown.   In  disablement  assessed  is  60%  (sixty  

percent) disability neither attributable nor aggravated by  

service.

b) The respondent’s personal history reveals that he joined  

army in 1979 to secure a good job.  He is unmarried and  

supporting his family.  He is having no addiction to any  

intoxication. Field Service is Nil and Punishment is Nil.

c) It  is  submitted that Discharge Certificate  was prepared  

and issued to the respondent by the Commanding Officer  

of  his  parent  Unit  upon  his  release  from  the  service.  

Therefore,  original  discharge  certificate  is  not  available  

with the Department.  The copy of discharge certificate  

presently available with the Department is one which was  

forwarded  by  the  respondent  along  with  his  

representation dated 18.3.1986 submitted by him to the  

Department.   Hence,  the  authenticity  of  the  discharge  

certificate cannot be relied upon and taken into account  

for grant of disability pension. In any event, in view of the  

Medical Board held on 17.1.1985, it is erroneous.

d) In the present case, the Medical Board held on 17.1.1985  

at  Command  Hospital  (Central  Command),  Lucknow,  

consisting  of  specialized  Doctors  had  opined  that  the  

disability  of  the  respondent  is  neither  attributable  nor  

aggravated by the Military service and it is not connected  

with the service, but it was constitutional in nature.  The  

said opinion is binding on all the concerns and is the only  

document on the basis of which disability pension can be  

granted or refused.

10. The appellant, aggrieved by the judgment of the Division  

Bench of the High Court, preferred this appeal.   

11. The appellant relied upon the judgment of this Court in  

Controller  of  Defence Accounts (Pension)  & Others  v.  S.   

Balachandran  Nair (2005)  13  SCC  128.   In  that  case,  a  

reference made under Rule 173 of the Pension Regulations for  

the Army has also been discussed.  Rule 173 of the Pension  

Regulations for the Army reads as under:

“173.  Primary conditions for the grant of disability   pension.—Unless otherwise specifically  provided a  disability pension may be granted to an individual  who  is  invalided  from  service  on  account  of  a  disability which is attributable to or aggravated by  military service and is assessed at 20 per cent or  above.

The question whether a disability is attributable  to  or  aggravated  by  military  service  shall  be  determined under rule in Appendix II.

Relevant portion in Appendix II reads as follows: ‘2.  Disablement  or  death  shall  be  accepted  as  

due to military service provided it is certified that— (a) The disablement is due to wound, injury or  

disease which— (i)    is attributable to military service; or (ii)  existed  before  or  arose  during  military  

service  and  has  been  and  remains  aggravated thereby;

(b) the death was due to or hastened by— (i)  a  wound,  injury  or  disease  which  was  

attributable to military service, or (ii)  the  aggravation by military  service  of  a  

wound, injury or disease which existed  before or arose during military service.

Note.—The rule also covers cases of death after  discharge/invaliding from service.

3. There must be a causal connection between  disablement  or  death  and  military  service  for  attributability or aggravation to be conceded.

4. In deciding on the issue of entitlement all the  evidence,  both  direct  and  circumstantial,  will  be  taken into account and the benefit or reasonable  doubt will be given to the claimant. This benefit will  be  given  more  liberally  to  the  claimant  in  field  service case.’ ”

12. Regulation  423  which  deals  with  “Attributability  to  

service” has also been discussed in  S. Balachandran Nair’s  

case (supra), which reads as under:

“423. Attributability to service.—(a) For the purpose  of determining whether the cause of a disability or

death  is  or  is  not  attributable  to  service,  it  is  immaterial  whether  the  cause  giving  rise  to  the  disability or death occurred in an area declared to  be  a  field  service/active  service  area  or  under  normal peace conditions. It is, however, essential to  establish  whether  the  disability  or  death  bore  a  causal connection with the service conditions. All  evidence,  both  direct  and  circumstantial,  will  be  taken  into  account  and  benefit  of  reasonable  doubt, if any, will be given to the individual. The  evidence to be accepted as reasonable doubt,  for  the purpose of these instructions, should be of a  degree  of  cogency,  which  though  not  reaching  certainty,  nevertheless  carry  the  high  degree  of  probability.  In  this  connection,  it  will  be  remembered  that  proof  beyond  reasonable  doubt  does not mean proof beyond a shadow of doubt. If  the evidence is so strong against an individual as  to  leave  only  a  remote  possibility  in  his  favour,  which  can  be  dismissed  with  the  sentence  ‘of  course it is possible but not in the least probable’  the case is proved beyond reasonable doubt. If on  the other hand, the evidence be so evenly balanced  as  to  render  impracticable  a  determinate  conclusion  one  way  or  the  other,  then  the  case  would be one in which the benefit of doubt could  be given more liberally to the individual, in cases  occurring in field service/active service areas.

(b) The cause of a disability or death resulting  from  wound  or  injury,  will  be  regarded  as  attributable  to  service  if  the  wound/injury  was  sustained during the actual performance of ‘duty’ in  armed forces.  In  case  of  injuries  which were  self- inflicted  or  due  to  an  individual’s  own  serious  negligence  or  misconduct,  the  Board  will  also  comment how far the disability  resulted from self- infliction, negligence or misconduct.

(c) The cause of a disability or death resulting  from a  disease  will  be  regarded as  attributable  to  service when it is established that the disease arose  during  service  and  the  conditions  and  circumstances  of  duty  in  the  armed  forces  determined  and  contributed  to  the  onset  of  the

disease. Cases, in which it is established that service  conditions  did  not  determine  or  contribute  to  the  onset of the disease but influenced the subsequent  course of the disease, will be regarded as aggravated  by  the  service.  A  disease  which  has  led  to  an  individual’s  discharge  or  death  will  ordinarily  be  deemed to have arisen in service if no note of it was  made at the time of the individual’s acceptance for  service  in  the  armed  forces.  However,  if  medical  opinion  holds,  for  reasons  to  be  stated  that  the  disease  could  not  have  been  detected  on  medical  examination  prior  to  acceptance  for  service,  the  disease  will  not  be  deemed to  have  arisen during  service.

(d) The question, whether a disability or death  is attributable to or aggravated by service or not, will  be  decided  as  regards  its  medical  aspects  by  a  Medical Board or by the medical officer who signs  the  death  certificate.  The  Medical  Board/medical  officer will specify reasons for their/his opinion. The  opinion of the Medical Board/medical officer, insofar  as it relates to the actual cause of the disability or  death and the circumstances in which it originated  will be regarded as final. The question whether the  cause  and  the  attendant  circumstances  can  be  attributed to service will, however, be decided by the  pension sanctioning authority.

(e) To assist the medical officer who signs the  death certificate or the Medical Board in the case of  an invalid, the CO Unit will furnish a report on:

(i) AFMS F-81 in all cases other than those due  to injuries.

(i) IAFY-2006 in all cases of injuries other than  battle injuries.

(f) In cases where award of disability pension or  reassessment of disabilities is concerned, a Medical  Board is  always necessary and the certificate  of  a  single medical officer will not be accepted except in  case of stations where it is not possible or feasible to  assemble  a  regular  Medical  Board  for  such  purposes. The certificate of a single medical officer  in  the  latter  case  will  be  furnished  on  a  Medical

Board  form  and  countersigned  by  the  ADMS  (Army)/DMS (Navy)/DMS (Air).”

13. The question regarding payment of disability pension has  

also been dealt with by this Court in Union of India v. Baljit  

Singh (1996) 11 SCC 315.  In para 6 at page 316, this Court  

observed as under:

“6.  …  It  is  seen  that  various  criteria  have  been  prescribed in the guidelines under the Rules as to  when  the  disease  or  injury  is  attributable  to  the  military  service.  It  is  seen  that  under  Rule  173  disability  pension  would  be  computed  only  when  disability  has occurred due to  a wound,  injury  or  disease which is attributable to military service or  existed before or arose during military service and  has  been  and  remains  aggravated  during  the  military  service.  If  these  conditions  are  satisfied,  necessarily  the  incumbent  is  entitled  to  the  disability  pension.  This  is  made  amply  clear  from  clauses (a) to (d) of para 7 which contemplates that  in  respect  of  a  disease  the  Rules  enumerated  thereunder  required  to  be  observed.  Clause  (c)  provides  that  if  a  disease  is  accepted  as  having  arisen in service, it must also be established that the  conditions  of  military  service  determined  or  contributed to the onset of the disease and that the  conditions were due to the circumstances of duty in  military  service.  Unless  these  conditions  are  satisfied, it  cannot be said that the sustenance of  injury  per  se  is  on account  of  military  service.  In  view of the report of the Medical Board of doctors, it  is not due to military service.  The conclusion may  not have been satisfactorily reached that the injury  though  sustained  while  in  service,  it  was  not  on  account  of  military  service.  In  each  case,  when  a  disability pension is sought for and made a claim, it  must  be  affirmatively  established,  as  a  fact,  as  to  whether  the  injury  sustained  was  due  to  military

service  or  was  aggravated  which  contributed  to  invalidation for the military service.”

14. This question again came up before this Court in Union  

of  India & Others v.   Dhir Singh China, Colonel  (Retd.)  

(2003) 2 SCC 382 and the Court in para 7 of the said judgment  

observed as under:

“7. That leaves for consideration Regulation 53. The  said  Regulation  provides  that  on  an  officer  being  compulsorily  retired  on  account  of  age  or  on  completion of tenure, if suffering on retirement from  a disability attributable to or aggravated by military  service  and recorded by service  medical  authority,  he may be granted, in addition to retiring pension, a  disability  element  as  if  he  had  been  retired  on  account of  disability.  It  is  not  in dispute  that  the  respondent  was  compulsorily  retired  on  attaining  the age of superannuation. The question, therefore,  which  arises  for  consideration  is  whether  he  was  suffering,  on  retirement,  from  a  disability  attributable to or aggravated by military service and  recorded  by  service  medical  authority.  We  have  already referred to the opinion of the Medical Board  which found that the two disabilities from which the  respondent was suffering were not attributable to or  aggravated by military service. Clearly therefore, the  opinion  of  the  Medical  Board  ruled  out  the  applicability  of  Regulation  53  to  the  case  of  the  respondent.  The  diseases  from  which  he  was  suffering  were  not  found  to  be  attributable  to  or  aggravated  by  military  service,  and  were  in  the  nature  of  constitutional  diseases.  Such  being  the  opinion  of  the  Medical  Board,  in  our  view  the  respondent  can  derive  no  benefit  from  Regulation  53. The opinion of the Medical Board has not been  assailed in this proceeding and, therefore, must be  accepted.”

15. This Court in this case has clearly observed that the High  

Court  was  not  justified  in  ignoring  the  conclusions  of  the  

Medical Board and directing payment of pension.

16. This Court in Union of India & Others v. Keshar Singh  

(2007) 12 SCC 675 dealt with a case where the respondent a  

rifleman  was  discharged  from  Army  on  ground  of  his  non-

suitability for continuance in Army as he was suffering from  

Schizophrenia.  Respondent’s application for grant of disability  

pension was rejected on the ground that the disability was not  

connected with the service. Single Judge as well as a Division  

Bench  had  held  that  it  was  not  mentioned  at  the  time  of  

entering  to  army  service  that  the  respondent  suffered  from  

Schizophrenia  and  therefore  it  was  attributable  to  army  

service.  This Court has held that if a disease is accepted as  

having arisen in service it must also be established that the  

conditions of military service determined or contributed to the  

onset  of  the disease and that the conditions are due to the  

circumstances of duty in military service.  This court relied on  

Medical Board’s opinion to the effect that the illness suffered  

by  the  respondent  was  not  attributable  to  military  service.  

This  court  while  setting  aside  the  judgments  of  the  learned

Single Judge and the Division Bench held that the respondent  

was not entitled to disability pension.

17. I have heard the learned counsel for the parties.  I am of  

the considered view that the Medical Board is an expert body  

and its opinion is entitled to be given due weight, value and  

credence.    In the instant case, the Medical Board has clearly  

opined that  the  disability  of  Late  Shri  A.V.  Damodaran was  

neither attributable nor aggravated by the military service.   

18. In my considered view, both the learned Single Judge and  

the Division Bench of the High Court have not considered this  

case in proper prospective and in the light of the judgments of  

this Court.    The legal representatives of A.V. Damodaran are  

not entitled to the disability pension.  However, in the facts and  

circumstances of the case, in case some amount has been paid  

to  the  legal  representatives  of  A.V.  Damodaran  towards  

disability pension, the same may not be recovered from them.

19. The appeal is accordingly allowed leaving the parties to  

bear their own costs.

………………………………..J.   (Dalveer Bhandari)

New Delhi; August 20, 2009.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5678     OF 2009

(Arising out of SLP (Civil) No. 23727 of 2008)

Secretary, Ministry of Defence & Ors.        …Appellants

Versus

Damodaran A.V. (Dead) through LRs & Ors.       …Respondents  

J U D G M E N T

Dr. Mukundakam Sharma, J.

1. I have had the privilege and opportunity of going through the  

well  considered  and  reasoned  judgment  of  my  learned  brother  

Justice Dalveer Bhandari.   While most respectfully agreeing with  

the conclusions arrived at, I  would like to add a few paragraphs  

recording  my  own  reasons  on  the  issues  that  arise  for  

consideration in this case.

2. The facts leading to the filing of the Special Leave Petition by  

the Ministry of Defence are already set out in the detailed judgment  

of my learned brother and therefore I do not intend to reiterate the  

same and burden this judgment.   In the light of the facts stated

therein, the issue that arises for our consideration is as to whether  

in view of the opinion of the Medical Board that the disability of A.V.  

Damodaran  was  not  attributable  to  the  military  service  nor  

aggravated thereby and that it is not connected with the service as  

“Schizophrenia” is a constitutional disease could still  be said and  

held to be attributable or aggravated by military service.    

3. Schizophrenia is a term used to describe a mental disorder  

characterized by abnormalities in the perception or expression of  

reality,  which  is  most  commonly  manifested  as  auditory  

hallucinations,  bizarre  delusions,  or  disorganized  speech  and  

thinking  with  significant  social  or  occupational  dysfunction.   The  

medical studies have opined that there is no known single cause  

responsible  for  Schizophrenia.   However,  they  have  pointed  

towards  likelihood  of  genetic,  behavioural  and  environmental  

factors  playing  a  role  in  the  development  of  this  mental  health  

condition.

4. At this stage reference may be made to the provisions of para  

173 of the Pension Regulations, which provides as follows:-

“173.   Unless otherwise specifically provided a disability pension  

consisting  of  service  element  and  disability  element  may  be  

granted to an individual who is invalided out of service on account  

of  a  disability  which  is  attributable  to  or  aggravated  by  military  

service in non-battle casualty and is assessed at 20 per cent or  

over.

The question whether a disability is attributable to or aggravated by  

military service shall be determined under the rules in Appendix II.”

5. The question  of  attributability  or  aggravation  is  determined  

under Appendix-II  of Pension Regulations.   In 1982, a set of rules  

called “Entitlement  Rules for  Casualty Pensionary  Awards 1982”  

were brought into force and after promulgation of the said rules the  

question of attributability would have to be decided and determined  

in accordance with the provisions of the said Rules.   A guideline is  

also framed which lays down the mode and manner as also the  

guiding principles for determining such cases have been set out  

therein.    The  aforesaid  Entitlement  Rules  have  been  made  

effective w.e.f. January 1, 1982 and the aforesaid set of rules is  

required  to  be  read  in  conjunction  with  the  Guide  to  Medical  

Officers (Military Pensions) 1980.   It is provided in the aforesaid  

Entitlement  Rules read with  the guidelines  that  invalidation from  

service is a necessary pre-condition for grant of disability pension.  

In  paragraph  5  thereof  a  presumption  is  to  be  drawn  for  

determining the question of entitlement to such disability pension  

when it provides as follows:-

“5. The  approach  to  the  question  of  entitlement  to  casualty  

pensionary awards and evaluation of  disabilities  shall  be on the  

following presumptions:-

Prior to and during service

(a)  A member is presumed to have been in sound physical and  

mental  condition  upon  entering  service  except  as  to  physical  

disabilities noted or recorded at the time of entrance.

(b) In  the  event  of  his  subsequently  being  discharged  from  

service on medical grounds any deterioration in his health which  

has taken place is due to service.”

6. Paragraph 6, on the other hand, provides that disablement or  

death shall  be accepted as due to military service provided it  is  

certified by appropriate medical authority that (a) the disablement is  

due to a wound, injury or disease which is attributable to military  

service, or existed before or arose during military service and has  

been  and  remains  aggravated  thereby,  or  (b)  the  death  of  the  

personnel was due to or hastened by a wound, injury or disease  

which  was attributable  to  military  service,  or  the  aggravation  by  

military service of a wound, injury or disease which existed before  

or  arose  during  military  service.   Paragraph  8  provides  that  

attributability/aggravation would be considered if causal connection  

between death/disablement and military service is certified by an  

appropriate  medical  authority.    Paragraph  11  deals  with  cases  

where an individual in receipt of disability pension dies at home.    

7. The  aforesaid  provisions  including  that  of  the  guidelines  

called the Guide to Medical Officers (Military Pensions) 1980 and  

also the source of power, i.e., the provision of Section 173 of the  

Pension Regulations including other relevant provisions came to be  

considered  by  the  Supreme  Court.    A  conjoint  reading  of  the  

aforesaid  provisions  along  with  the  decisions  rendered  by  this  

Court  makes  it  amply  clear  that  the  said  provisions  and  the  

decisions lay down the entire procedure, guidelines and principles  

as  to  under  what  circumstances  a  person  could  be  said  to  be  

medically unfit and disabled and is to be boarded out from service

and  its  attributability.    The  decisions  have  also  dealt  with  the  

manner and circumstances under which the said person would be  

entitled to receive the disability pension.

8. When an individual is found suffering from any disease or has  

sustained injury, he is examined by the medical experts who would  

not only examine him but also ascertain the nature of disease/injury  

and also record a decision as to whether the said personnel is to be  

placed  in  a  medical  category  which  is  lower  than  ‘AYE’  (fit  

category) and whether temporarily or permanently.   They also give  

a medical assessment and advice as to whether the individual is to  

be brought before the release/invalidating medical board.   The said  

release/invaliding medical board generally consists of three doctors  

and they, keeping in view the clinical profile, the date and place of  

onset of invaliding disease/disability and service conditions, draws  

a  conclusion  as  to  whether  the  disease/injury  has  a  causal  

connection with military service or not.   On the basis of the same  

they  recommend  (a)  attributability,  or  (b)  aggravation,  or  (c)  

whether connection with service.   The second aspect which is also  

examined  is  the  extent  to  which  the  functional  capacity  of  the  

individual is impaired.   The same is adjudged and an assessment  

is  made of  the percentage of  the disability  suffered by the said  

personnel which is recorded so that the case of the personnel could  

be considered for grant of disability element of pension.   Another  

aspect  which is  taken notice  of  at  this  stage is  the  duration for  

which  the  disability  is  likely  to  continue.   The  same  is  

assessed/recommended in view of  the disease being capable of  

being  improved.    All  the  aforesaid  aspects  are  recorded  and  

recommended in the form of AFMSF- 16.   The Invalidating Medical  

Board  forms  its  opinion/recommendation  on  the  basis  of  the

medical report, injury report, court of enquiry proceedings, if any,  

charter of duties relating to peace or field area and of course, the  

physical examination of the individual.  

9. The  aforesaid  provisions  came  to  be  interpreted  by  the  

various  decisions  rendered  by  this  Court  in  which  it  has  been  

consistently  held  that  the  opinion  given  by  the  doctors  or  the  

medical board shall be given weightage and primacy in the matter  

for ascertainment as to whether or not the injuries/illness sustained  

was  due  to  or  was  aggravated  by  the  military  service  which  

contributed to invalidation from the military service.

10. In the case of Controller of Defence Accounts (Pension) and  

others v. S. Balachandran Nair reported in AIR 2005 SC 4391 and  

the decision in Union of India and another v. Baljit Singh reported in  

1996 (11) SCC 315 held that Medical Board’s opinion to the effect  

that illness and disability suffered by the respondent therein was  

not attributable to military service cannot be substituted by the court  

in order to arrive at a contrary finding.   It was also held that where  

a  medical  board  found  that  there  was  absence  of  proof  of  the  

injury/illness having been sustained due to military service or being  

attributable thereto, the High Court’s direction to the Government to  

pay disability pension was not correct.   The Supreme Court in the  

case of Baljit Singh (supra) also dealt with the contention that the  

employee was posted at a sensitive border area and, therefore, his  

illness was fully attributable to military service and negatived the  

same.

11. In the backdrop of the aforesaid legal position made clear by  

several decisions of this Court the facts of the present case are  

required to be considered.

12. It  is  revealed  from  the  personal  and  family  history  of  the  

respondent that on account of financial problems, the respondent  

was  forced to  abandon his  education  and join  the  Army.    The  

respondent  was  the  sole  bread  earner  of  his  family  and  was  

burdened with  the responsibility  of  maintaining his  aged parents  

and three younger sisters.    Further,  it  may be pertinent to note  

here that the respondent was posted to 1st Engineer Regiment at  

Allahabad, which is neither a sensitive border area nor a difficult  

terrain/high altitude region.   The respondent was not posted at an  

isolated location.   He had access to the society there.   A person  

is,   under  law,  entitled  to  the  disability  pension  provided  his  

disability is certified by the appropriate medical authority as being  

attributable  to  or  aggravated  by  or  connected  with  the  military  

service.

13. In the present appeal, the record reveals that in the opinion of  

the Medical Board no physical contributory factor was elicited for  

the psychotic breakdown of the respondent.   Thus, the condition of  

military  service  cannot  be  said  to  have  triggered  the  onset  of  

schizophrenia in the respondent.   However, the possibility of the  

development  of  schizophrenia  in  the  respondent  as  a  result  of  

family stress and pressure (which is regarded as a factor triggering  

the onset of this mental  condition in some individuals cannot be  

ruled out totally.   The respondent did not assail the validity of the  

finding or the opinion of the Medical Board.   On the contrary, the

respondent has placed reliance on the findings of the Board on the  

aspect of the extent of the respondent’s disability being 60%.

14. Here is also a case where the Medical Board has given its  

definite opinion that disease from which the petitioner was suffering  

was  not  attributable  or  aggravated  by  military  service.    It  was  

recorded by the Medical Board that the case is of Schizophrenia in  

a young officer  with  five years  service manifested in disorder  of  

thought, perception,   behaviour and emotional incongruity.  Further  

opinion of the Board is that he had been reviewed by the medical  

specialist  and  no  physical  contributory  factor  elicited  for  his  

psychiatric  breakdown.    In  disablement  assessed is  60% (sixty  

percent) disability neither attributable nor aggravated by service.

15. Clearly therefore, the opinion of the Medical Board ruled out  

the possibility of the disease of the respondent being attributable to  

or  aggravated by military  service.    That  being the position,  the  

respondent  cannot  claim  for  payment  of  any  disability  pension.  

Another relevant factor which is required to be noted that the report  

of the medical board is not under challenge.  As has been held by  

this  Court,  such  opinion  of  the  medical  board  would  have  the  

primacy  and  therefore,  it  must  be  held  that  the  learned  Single  

Judge and the Division Bench of the High Court were not justified in  

allowing the claim of the respondent.    

16. I fully endorse and agree with the conclusion arrived at by my  

esteemed  brother  Justice  Dalveer  Bhandari  that  the  legal  

representatives of the respondent A.V. Damodaran are not entitled  

to  disability  pension  but  if  any  amount  towards  such  disability  

pension has already been paid, the same may not be recovered

from the legal representatives.  I also hold that the appeal stands  

allowed in terms of the aforesaid order.

.………………………J

[Dr. Mukundakam Sharma]

New Delhi;

August 20, 2009