IMPORTANT POINT
Disability pension is payable only if the injury is attributable to or aggravated by military service.
In deciding attributability of military service, opinion of the medical board has to be given primacy.

ORDER

1. Leave granted. The present appeal has been filed against the judgment and order dated 11.11.2009 passed by the High Court of Punjab & Haryana at Chandigarh in RSA No.599 of 2009 by which the High Court has reversed the judgment and order of the Trial Court as well as the First Appellate Court and granted the relief of disability pension to the respondent.

2. Facts and circumstances giving rise to this appeal are that the respondent was enrolled in the Infantry (Sikh Regiment) on 23.5.1987. He proceeded on annual leave on 31.3.1990 for a period of two months to his home town. During his leave period, the respondent suffered injuries being hit by a small wooden piece “Gulli” in the play of children and thus, his left eye was seriously damaged. He was admitted to Command Hospital, Chandimandir and remained there from 1.4.1990 to 25.4.1990. The respondent was operated upon twice and, subsequently, was discharged giving him sick leave from 26.4.1990 to 6.6.1990 and was placed in low medical category ‘BEE’ (permanent).

3. The investigation/enquiry was conducted by Army Authorities and the court of inquiry vide order dated 13.7.1990 came to the conclusion that injuries sustained by the respondent were not attributable to military service. The respondent was kept in sheltered appointment upto 31.5.2003 for giving him an opportunity to complete his terms of engagement. The respondent was examined by the Release Medical Board (RMB) on 14.2.2003 for assessment of degree and attributability/aggravation factors of the disability ‘Perforating Injury Left Eye’ and it came to the conclusion that disability was 30% for life, however, the Board further declared that the said disability was neither attributable to nor aggravated by military service. In view thereof, the claim of the respondent for disability pension was rejected by the competent authority vide order dated 7.8.2003.

4. The respondent filed Suit No.312 of 2004 before Civil Judge (Senior Division) Sangrur, Punjab, seeking the relief of disability pension which was dismissed vide judgment and decree dated 25.9.2006. Aggrieved, respondent preferred Civil Appeal No.150 of 2006 which was dismissed by the learned Additional District Judge, Sangrur vide judgment and decree dated 2.9.2008. Respondent, not being satisfied, preferred RSA No.599 of 2009 before the High Court of Punjab & Haryana challenging the aforesaid judgments and decree. Learned Single Judge reversed the concurrent finding of facts by two courts below and allowed the appeal decreeing the suit issuing direction to the appellants/ defendants to release payment of disability pension alongwith 8% interest per annum from 31.5.2003, within a period of 3 months. Hence, this appeal.

5. Shri H.P. Raval, learned ASG appearing on behalf of Union of India, has submitted that the High Court committed an error allowing the appeal and reversing the judgments and decree of the courts below as the case of the respondent could not fall within the provisions of paragraph 179 of the Pension Regulations of the Army, 1961, Part-I, (herein after called the ‘Regulations’) as well as the findings and opinion of the Medical Board, a finding that the injury suffered by the respondent could neither be attributable to, nor could be aggravated by the military service. Therefore, the appeal deserves to be allowed. The judgment and decree of the High Court is liable to be set aside.

6. On the contrary, Shri Vivek Gupta, learned counsel appearing for the respondent, has contended that the High Court has decided the case in correct perspective and correctly interpreted the statutory provisions and therefore, no interference is required. The appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by learned counsel for the parties and perused the record. The sole question involved in this appeal is that if a person enrolled in Army suffers from injury at his home when on leave, whether such injury