Delhi High Court
Union Of India Through Its Secretary, ... vs Smt. Savitri Devi Mehta Widow Of Late ... on 25 January, 2002
Equivalent citations: 2002VIAD(DELHI)619, 97(2002)DLT796, 2002(64)DRJ347
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. Delay in filing the appeal is condoned.
2. The Appellants have preferred this appeal, under Clause X of the Letters Patent, against the judgment and order dated 8th November, 1995 passed by a learned Single Judge allowing C.W No.3427/94.
3. The deceased husband of Respondent No.1 (and father of the other Respondents) was enrolled in the Army as a Civil Storeman in the Mobile Military Workshop on 2nd December, 1941. He remained in temporary service till 21st March, 1945. He was re-enrolled as a Combatant Hawaldar Storeman under the combatisation scheme and continued to serve in the Army till his discharge on 17th June, 1953.
4. It appears that during 1953 the deceased was stationed in Jammu & Kashmir and thereafter posted to C.O.D. Delhi. On reaching Delhi, he was asked to join duty in Poona immediately. During his journey he fell sick and on reaching Poona he was diagnosed as suffering from Malaria. He was given medical treatment and examined by the Medical Board on 5th February, 1953. On the recommendations of the Medical Board, the deceased was discharged from the Army on 17th June, 1953. It was opined by the Medical Board that he was suffering from Toxic Psychosis (following Malaria MT) and his disability was assessed at 40%. The deceased thereafter was never examined by the Medical Board of the Army even though it was so recommended. As a result of persistent efforts made by the deceased and his family, he was eventually called for a re-survey Medical Board on 4th February, 1983. However, he had already expired by then on 29th September, 1982.
5. This was brought to the notice of the Appellants through further representations made by the Respondents. Eventually, by a letter dated 29th January, 1987, the Respondents were informed that the President had been pleased to decide that the disability on account of which the deceased was invalided out of the Army was attributable to military service. It was also decided that his disability should be assessed at 40% for the period from 17th June, 1953 to 16th June, 1954 and less than 20% for the period thereafter until his death.
Consequently, the deceased was given disability pension for only one year but thereafter it was stopped. After his death, the family of the deceased was not given any Special Family Pension. The Respondents represented for grant of pension but since no positive result came out of these representations, they filed C.W No.3427/94 in this Court.
6. The learned Single Judge summarised the claims of the Respondents under four heads which are as follows:-
1. Entitlement to disability pension;
2. Whether the period from 2nd December, 1941 to 22nd March, 1945 can be counted as active service;
3. Entitlement to Special Family Pension; and
4. Compensation and interest for non-payment and/or delayed payment of the lawful dues.
7. On the second issue, namely, whether the period from 2nd December, 1941 to 22nd March, 1945 can be counted as on active service, the learned Single Judge examined the various provisions of the Indian Army Act, 1911 as well as the Pension Regulations for the Army. It was concluded that the deceased could not have been deprived of the benefits of service rendered between December, 1941 and March, 1945. It was also held that the instructions which came subsequent to this period would not nullify the benefit that should have been granted to the deceased on the basis of the statutory provisions.
8. Consequent upon this, the learned Single Judge examined the question whether the deceased was entitled to disability pension. In this regard, the learned Single Judge concluded that the death of the deceased was attributable to military service and that his disability had been assessed at 40%. Without any fresh medical examination of the deceased, his disability was reduced to less than 20%. The reduction in the disability per centage was held to be arbitrary and was struck down by the learned Single Judge. The deceased was held entitled to disability pension for the period after his discharge till his death.
9. As regards the grant of Special Family Pension, learned counsel for the Appellants who had appeared before the learned Single Judge conceded that the family of the deceased would be entitled to Special Family Pension if it was found that the deceased was entitled to disability pension. In view of the finding of the learned Single Judge that the deceased was entitled to disability pension, it was held that his family would be entitled to Special Family Pension.
10. All the three issues were, therefore, decided in favor of the Respondents and the learned Single Judge granted interest on the unpaid disability pension as well as the unpaid Special Family Pension with interest @ 18% per annum.
11. On the fourth issue that is the grant of compensation, the learned Single Judge held that since the Appellants had deprived the deceased as well as his family of their rightful dues, they were obliged to compensate the Respondents for their wrongful and illegal acts. The learned Single Judge took into consideration the fact that the deceased was discharged at the age of 28 years and that he received no financial help from the Army after his discharge and, therefore, his family was entitled to compensation which was assessed at Rs.3,00,000/-.
12. Feeling aggrieved, the Appellants preferred the present appeal. A Division Bench of this Court on 11th April, 1996 formulated two questions that arise in this case. These questions are as follows:
1. Whether the deceased is entitled to 40% disability pension and consequently his family is entitled to Special Family Pension.
2. Whether the directions of the learned Single Judge in granting compensation of Rs.3 lakhs is valid.
13. With regard to the first question, we need hardly say that the learned Single Judge has elaborately discussed the various aspects and critically analysed the statutory provisions concerning the grant of disability pension to the deceased. Nothing has been shown to us by learned counsel for the Appellants which necessitates our taking a view different from that taken by the learned Single Judge. We approve and uphold the reasons recorded by the learned Single Judge and answer the first question in the affirmative.
14. Insofar as the second question is concerned, the learned Single Judge placed reliance on Lt. Col. K.D. Gupta Vs. Union of India & Ors, 1989 Supp (1) SCC 416. In paragraph 11 of the Report, the Supreme Court said:-
"The defense personnel have peculiar incidence of service. Life's course does not run smoothly for everyone. In the present proceedings which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely. We are of the view that a total compensation of Rs.four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel's rank, which the petitioner admittedly holds, would be entitled to."
15. Quite clearly, the compensation awarded by the Supreme Court was on the facts of that case. No general rule was laid down either for granting compensation or for quantifying the amount.
16. In the present case, there is no violation of any fundamental right, only a statutory right. The Respondents were deprived of the disability pension and the special family pension which is a denial of a monetary claim only. Consequently, the learned Single Judge was right in directing the payments to be made to the Respondents with interest at 18% per annum. The higher rate of interest was awarded not only to make up for the loss of earnings by the Respondents but also by way of solarium for the deprivation of the principal amount. It is nobody's case that the decision taken by the Appellants was mala fide or was arrived at so as to deliberately deprive the Respondents of their lawful dues. Therefore, to ask the Appellants to pay a sum of Rs.3 lakhs as compensation is virtually penalising them for their error in not taking a legally correct decision. Since there is no violation of any fundamental right, we feel that it would not be correct in law to award compensation in this case.
17. We are conscious of the fact that had the payments been made to the Respondents in time and when due, it would have considerably alleviated their financial hardship and consequent anguish. But, one cannot turn the clock back. On the other hand, if the payments had been made when due, the question of interest or compensation would not have arisen. Consequently, while balancing the scales of both the parties, we are of the view that the award of 18% interest on the amounts due to the Respondents is sufficient recompense for the financial harassment caused to the Respondents.
18. The appeal is, therefore, partly allowed. The direction to pay compensation of Rs.3 lakhs to the Respondents is set aside.
19. The Respondents did not argue their cross-objections during the course of hearing. Accordingly, the cross-objections are dismissed.
20. The learned Single Judge has awarded costs to the Respondents. We do not disturb this conclusion but quantify the costs at Rs.10,000/-.