ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

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1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A.No. 64 of 2015 THURSDAY, THE 18TH DAY OF FEBRUARY, 2016/29TH MAGHA, 1937 CORAM: HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) SANTHOSH KUMAR S. (EX NO Y EX HAV OF INDIAN ARMY) S/O. LATE SIVARAMAN, KAMATHE HOUSE, ELAPPULLY VILLAGE, VENGODI P.O., PALAKKAD DIST., KERALA BY ADV. SRI. T.R. JAGADEESH versus APPLICANT: RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI THE CHIEF OF THE ARMY STAFF, INTEGRATED HEADQUARTERS OF MOD (ARMY), SOUTH BLOCK, NEW DELHI PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE PCDA (P) DRAUPADI GARH, ALLAHABAD RECORD OFFICER, MADRAS REGIMENT, PIN , C/O. 56 APO. BY ADV.SRI.TOJAN J VATHIKULAM, CENTRAL GOVT. COUNSEL

2 -: 2 :- Satheesachandran, Member (J): ORDER The applicant, Shri.Santhosh Kumar S., an Ex-Havildar of Indian Army, has filed the above application under Section 14 of the Armed Forces Tribunal Act (for short 'the Act') to set aside Annexure A7 order rejecting his claim for war injury pension and for issue of direction to the respondents to grant him war injury element of pension at 50% rounding off his 20% disability with effect from the date of his discharge on allowing him to refund the lump sum compensation received towards the war injury suffered. 2. The applicant enrolled in the Army on , it is stated, sustained a gun shot wound on the right shoulder in Operation Pawan in Srilanka on On account of the injury so sustained he was down graded to Category CEE temporarily for six months and placed in Category BEE permanent with effect from The injury suffered by

3 -: 3 :- him was declared as a battle casualty publishing a Part II order. The Medical Board assessed his disability at 20% for life and he was granted lump sum compensation Rs.18,857/- for the war injury sustained. Having been placed in low medical category he was discharged from service on after serving the Army for 17 years 2 months and 18 days. On discharge, he was granted only service pension. He would not have collected compensation for the war injury sustained had he been made aware of the Pension Regulations for the Army, is his case stating that the compensation paid in lump sum was too meagre when compared to the benefits that he would have reaped if he had opted for getting war injury pension. He made a representation to the respondents to grant him war injury pension agreeing to repay the lump sum amount received with simple interest. His request was turned down vide Annexure A7 order stating that the option already exercised to receive the lump sum compensation in lieu of war injury pension is final and he cannot opt for war injury pension later. Impeaching Annexure A7 order and for setting it aside, the applicant has filed the O.A. seeking for issue

4 -: 4 :- of directions to the respondents to grant him war injury pension on his refunding of the lump sum compensation already received. 3. The respondents have filed a reply statement resisting the claim of the applicant for war injury pension contending that the option exercised by him receiving lump sum compensation for the war injury suffered is final and he cannot re-opt to claim war injury pension refunding the lump sum compensation received. 4. When the case came up for hearing, learned counsel for the applicant Shri. T.R. Jagadeesh inviting our attention to the order passed by the Armed Forces Tribunal, Regional Bench, Chennai in O.A.No. 56 of 2014, a copy of which has been produced by the respondents with their reply statement as Annexure R7, requested for disposal of the O.A. reserving the right of the applicant to move a representation before the Government for granting him war injury pension allowing him to refund the lump sum compensation received towards war injury

5 -: 5 :- sustained. The Regional Bench, Chennai in the above O.A. has considered an identical claim canvassed for war injury pension refunding the lump sum compensation received, and after taking note of the broad aspects involved with reference to the Army Order applicable it was held that a claim for disability pension towards war injury sustained after receiving of lump sum compensation for such injury is unsustainable. However, while dismissing that O.A. some observations have been made by that Bench over the inequities caused to the defence personnel who suffered disability on account of war injury had opted for lump sum compensation instead of opting for war injury pension. Observing lump sum payment of compensation would not be beneficial to the extent of war injury pension on retirement, the Regional Bench had made a recommendation to the Government to frame adequate policy or Rules for payment of war injury pension to Army personnel who had sustained war injuries and received lump sum compensation fixing lapse of a reasonable period from the date of their retirement to get eligibility for war injury pension.

6 -: 6 :- 5. We do not endorse nor express any opinion on the recommendation made by the Regional Bench, Chennai over the granting of war injury pension to Army personnel who had exercised the option to receive lump sum compensation by refunding the sum received. We take note that under the rules now applicable, as evidenced by Annexure R2, once compensation in lieu of war injury pension due to disability for life has been paid, the recipient on retirement/discharge from Armed Force cannot claim any further pensionary benefits for disability sustained on account of war injury. No doubt, the Government having regard to the inadequacy of lump sum compensation paid to those who had opted to have compensation for war injury sustained, and, better benefits extended to others similarly placed who had opted for disability pension on retirement/discharge from the Force can make changes in the rules to enable the personnel who collected compensation to reopt for disability pension refunding the lump sum compensation received. We are of the view that it may not be appropriate for us to express any opinion in the matter.

7 -: 7 :- 6. Since the applicant has not pressed the claim canvassed for adjudication, we refrain from making any observation over the merit of the claim. We do not find any reason why the request made by the counsel for moving a representation to the Government to claim war injury pension refunding the lump sum compensation received should be turned down. We permit the applicant to do so, however, expressing no opinion on the merit of his claim. 7. The Original Application is disposed as indicated above. 8. There will be no order as to costs. 9. Issue free copy of this order to both sides. Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm. /True Copy/ Prl. Private Secretary

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A.No. 51 of 2016 WEDNESDAY, THE 17TH DAY OF AUGUST, 2016/26TH SRAVANA, 1938 CORAM: HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL