FREDA JAMES Vs. CHIEF OF THE AIR STAFF

JUDGEMENT

(1.) The present writ petition has been filed by the widow of late Master Warrant Officer (MWO) S.D.James. The petitioner has prayed for issuance of writ in the nature of mandamus or such other appropriate writ, order or direction commanding the respondents to grant disability pension to the husband of the petitioner till his death and thereafter special family pension to the petitioner; to issue writ in the nature of mandamus or such other appropriate writ, order or direction to quash and set aside the rejection order of disability pension by the pension sanctioning authority and decision on appeal of rejection order; to grant compensation for negligence on the part of the respondents for not conducting Re-Survey Medical Board, raising injury report and ordering Court of Inquiry and suppressing this fact from the petitioner; and to award penal rate of interest on the amount due as an arrear from 01.8.1980 till the final payment is made.

(2.) The brief facts of this case, as set out in the petition are that the husband of the petitioner met with a road accident on 16.1.1980 while coming back from duty in the late hours of the evening. The husband of the petitioner was on his scooter bearing No.DLY 9876, a speeding taxi bearing No.DLT 4608 hit the scooter. In the accident he sustained multiple injuries and compound fracture in his right leg and upper hip joint. He remained on traction in the Hospital and bed ridden in Army Hospital during which period he was operated upon on two occasions. It is stated that he was in hospital for one and a half years and he was discharged from service in absentia on 31.7.1980 while he was still in hospital. The right leg of the petitioner's husband was operated upon twice and it became short by 2.5 inches. The late MWO S.D.James, husband of the petitioner, had submitted an application dated 17.3.1981 in the Base Hospital to the Commanding Officer, AFRO, to conduct medical board after the accident. A copy of the application was forwarded by the base hospital to AFRO vide letter No.1234/1/MB/81 dated 19.3.1981. Late MWO S.D.James submitted an application dated 31.3.1981 in the Base Hospital to the Commanding Officer, H.Q. WAC (U), New Delhi to conduct Re-survey Medical Board after the accident. It is pleaded that no court of enquiry was conducted to investigate the injury sustained by the husband of the petitioner. The husband of the petitioner died on 13.3.1982. The H.Q. WAC (U) did not bother to conduct Re-survey Medical Board or obtain injury report from the hospital nor it ordered a court of enquiry to take up the case for disability pension on fresh grounds after the road accident. The late husband of the petitioner submitted an application to the Chief of the Air Staff during his life time on 4.10.1981, but no action was taken. The petitioner was informed vide letter dated 4.2.1983 that the disability pension of her husband was rejected. The petitioner appealed against the order of rejection, but to no effect. It is the grievance of the petitioner that due to attitude of the respondents authorities, the late husband of the petitioner was denied disability pension and now she has been denied special family pension. Vide letter dated 4th Feb, 1983, the petitioner was informed by the CGO officer i/c. NERW (B) [for Air Officer i/c. AF Records] that the CDA (P) Allahabad had considered the case of the petitioner's husband and the disability suffered during the service is not attributable to military service. The petitioner received a fax dated 22.3.2005 from the office of PCDA(P), Allahabad, in response to summon issued by the Motor Accidents Claim Tribunal Court, New Delhi. For the first time it was revealed in the fax that the petitioner was suffering from Mycardinal Infraction and Mellites Diabetes, which was considered by the Medical Board as constitutional disorder and that no proof of any accident of the petitioner was available in the office. Aggrieved from the action of respondents, petitioner has filed the present writ petition.

(3.) Learned counsel for the petitioner has submitted that husband of the petitioner had admittedly served the Indian Air Force for 37 years and 11 days. The husband of the petitioner while on duty met with a road accident on 26.1.1980 while coming back from duty in the late hours of the evening. He sustained multiple injuries and compound fracture in his right leg and upper hip joint. He remained on traction in the hospital and bed ridden for quite some time before he was operated upon. In fact two operations were carried out on his leg and since the operations were not successful, his right leg became short by 2 - inches. The counsel for the petitioner has relied upon opinion of the Orthopedic Specialist dated 12.3.1981, which has been filed along with the writ petition. It would be useful to reproduce the opinion of the Orthopedic Specialist, at this stage: "OPINION OF ORTHOPAEDIC SPECIALIST 12.3.81 1.PRACTURE SHAFT R.T. FEMUR (OPTD) 2.FRACTURE HEAD OF RT. FEFUR WITH DISLOCATION RT. HIP. ---------------------------------------------- The M.W.O. sustained the above injuries on the night of 26/27th Jan '80 in a road accident. He was admitted to Army Hospital and treated by traction. Fracture Femur went into non-union. Dislocation of the HIP remained unredeemed. He was transferred to Base Hospital, Delhi on 07.08.80 and Kun tohur nailing of the RT Femur was done on 08.10.80. At present, fracture of the femur has united. The right hip remains dislocated and there is a vestred Fracture of the femur head. The knee flexes is restricted to 200. He has 2- shortening of the right lower limb. He is able to walk with difficulty using one stick. Recommended release in Cat. CEE(P). Disability is thirty percent for (1) and fifty percent for (2). Complete disability 80% (Eight Percent). Attributability to be given on receipt of injury report. Fit for sedentary civil employment. Review after two years. SD/- (R.D. CHAR) VSM LT. COL. HMC ADDITIONAL ADVISER-ORTHOPAEDIC"