Timeliness and contemporaneous evidence are crucial in claims for disability pension, with significant delays potentially barring the remedy.

JUDGMENT

Navin Chawla, J. (Oral)

The petition has been heard by way of video conferencing.

CM 32020/2021(exemption)

Allowed, subject to all just exceptions.

WP(C) 10401/2021

1. This petition has been filed by the petitioner challenging the order dated 08.10.2020 passed by the learned Armed Forces Tribunal, Special Bench, New Delhi (hereinafter referred to as 'AFT') in OA No.209/2016 filed by the petitioner dismissing the OA, and as a consequence, seeking setting aside of the Medical Board findings which declared the petitioner's disability to be not attributable to/not aggravated by military service and denying disability pension to the petitioner. The petitioner further prays for grant of disability pension along with arrears for the period starting from three years from the date of filing of the petition before the learned AFT.

2. It is the case of the petitioner that the petitioner, after successfully completing pre-commission training, was granted commission in the Indian Air Force in the rank of Pilot Officer. On 22.09.1977, while on duty with the 15th Squadron in Bagdogra, the petitioner, while riding to an official briefing on a motorcycle driven by his colleague Fg Offr LN Pandey met with a serious accident and suffered severe head injuries resulting in the petitioner's hospitalization.

3. On 10.05.1980, the petitioner was examined by the Additional Advisor (Psychiatry), who opined that the petitioner was permanently unfit for flying duties.

4. A Medical Board was held at Air Force Command Medical Establishment (AFCME) Bangalore which concurred with the opinion of the Additional Advisory (Psychiatry), permanently lowering the medical category of the petitioner to A4(P)G3(T), rendering him permanently unfit to fly aircraft.

5. The petitioner was thereafter brought before an Invaliding Medical Board (hereinafter referred to as `IMB') which classified his disability to be 20% for life. On 22.12.1980, the Medical Specialist, AFCME, by his opinion, recommended invalidment of the petitioner in category A4(P)G3(T)as per Air Force Regulations due to the injury suffered by him, that is, `cerebral concussion'.

6. The Chief of Air Staff approved the invalidment of the petitioner on medical grounds on 30.01.1981.

7. The petitioner claimed disability pension, however, the said claim was rejected vide order of the respondents dated 09.04.1981 on the ground that the disability was neither attributable to nor aggravated by military service.

8. On 18.04.1981, the petitioner was released from the Air Force Service in low medical category and with permanent disability.

9. In 2016, the petitioner filed the abovementioned OA before the learned AFT placing reliance on the decisions of the Supreme Court, primarily the judgment dated 02.07.2013 in Civil Appeal No.4949/2013 titled Dharamvir Singh vs. Union of India & Ors., claiming disability pension. The said petition, however, has been dismissed by the learned AFT by its impugned order, observing that the primary evidence as to the circumstances of the injury to the petitioner, as available in the Court of Inquiry, have already been weeded out by the respondents in normal course and in any case, the petitioner had never challenged the same till the filing of the petition before the learned AFT.

10. The learned counsel for the petitioner submits that the impugned Order passed by the learned AFT is liable to be set aside inasmuch as the learned AFT has failed to consider that the petitioner became aware of his rights against disability pension only upon the judgment of the Supreme Court in Dharamvir Singh (supra). In any