State Consumer Disputes Redressal Commission
Mr. Dollar Modi vs Birla Sun Life Insurnce Company Ltd. & ... on 18 October, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/09/98
1. MR. DOLLAR MODI
B/2, KAMALA NAGAR,
302,3 RD FLOOR, M G. ROAD,
KANDIVALI WEST, MUMBAI-400 067
MUMBAI SUBURBAN
MAHARASHTRA
...........Complainant(s)
Versus
1. BIRLA SUN LIFE
INSURNCE COMPANY LTD.
6TH FLOOR, VAMAN
CENTRE, MAKHWANA ROAD,
OFFF. ANDHERI KURLA ROAD,
NEAR MAROL NAKA, ANDHERI EAST, MUMBAI-400 059
MUMBI SUBURBAN
MAHARASHTRA
2. SEHAT INDIA HEALTH
CARE SERVICES PVT. LTD.
89/8, SUNDARAM 102, 1
ST FLOOR, SION CIRCLE,
SION, MUMBAI
MUMBAI
MAHARASHTRA
............Opp.Party(s)
BEFORE:
HON'BLE Mr. P.N.
Kashalkar PRESIDING MEMBER
HON'BLE Mr. S.R.
Khanzode Judicial Member
HON'BLE MR. Narendra
Kawde MEMBER
PRESENT:
Mrs.Anita Marathe,
Advocate for the complainant.
Mr.Ameya Tamhane,
Advocate for opponent No.1.
Mr.V. Mannadiar,
Advocate for opponent No.2.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member This is a complaint filed by Mr.Dollar Modi, residing at Kandivali (West), Mumbai alleging deficiency in service on the part of opponent No.1/Birla Sun Life Insurance Co. Ltd. of Antheri (East) and Sehat India Health Care Services Pvt. Ltd. According to the complainant, opponent No.1 is the Insurance Company and opponent No.2 is the approved Panel Lab of opponent No.1. The complainant pleaded that Mr.Shirish Vora approached him to purchase insurance policy. Accordingly, complainant applied for `1 Crore insurance policy vide Application No.A-6845407 and paid the premium of `1,04,455/- by cheque. The complainant was told to appear for medical test before opponent No.2.
Accordingly, opponent No.2 did some medical tests and issued report to the complainant dated 13/12/2007.
It was issued by Dr.Kiran Bendale mentioning HIV I/II Re-active i.e. (HIV Positive). After coming to know the result, complainant was shocked and surprised and almost collapsed. The complainant was very much confident that he was not having HIV Positive. The complainant suffered great depression, tension and stopped going to attend work. The complainants family members and relatives asked what happened to him suddenly. The complainant also suffered great social stigma. The complainant had to live miserable life after the test report.
The complainant, therefore, approached family doctor, Dr.Gaurav Shah who advised for second opinion and accordingly, the complainant went to Dr.Sangita Diagnostic Centre, Kandivali.
Said centre is also on the Panel of opponent No.1. Said centre issued report dated 24/12/2007 mentioning that complainant was having HIV result non-reactive i.e. negative. After his second report, complainant contacted his family doctor, Dr.Gaurav Shah. The complainant also requested opponent No.1 to give report submitted by opponent No.2. Opponent No.1 provided report accordingly. Dr.Gaurav Shah again suggested for screening advance test and accordingly, the complainant went to Sunflower Laboratory at Malad (West) and paid `4,410/- on 09/01/2008. Said Laboratory did all the tests and submitted report dated 09/01/2008 mentioning that HIV I/II screening advance test result was non-reactive.
According to the complainant, on his own again he went to opponent No.2 for all the tests, paid their charges and after tests, opponent No.2 submitted report dated 17/01/2008 by Dr.Kiran Bendale which shows that HIV non-reactive i.e. negative. After the second report, complainant showed earlier report to opponent No.2 and inquired why there were two different results from same Laboratory within a month. There was no proper answer from opponent No.2. The complainant then contacted Agent of opponent No.1 Mr.Shirish Vora and pointed out the report of HIV as negative. He requested him to issue insurance policy and accordingly, Mr.Shirish Vora forwarded report to opponent and in spite of fact that all reports showed HIV negative, opponent No.1 refused to issue insurance policy with malafide intention and insisted that still they want to brand complainant as HIV positive. The complainant pleaded that his image was tarnished by opponent Nos.1 and 2 by branding him as HIV positive. There were serious lapses on the part of opponent Nos.1&2 and therefore, they were jointly and severally guilty of deficiency of service and liable to pay compensation and damages. The complainant pleaded that he is a businessman and frequently visiting various countries like USA, UK, South Africa, Saudi Arabia, UAE, South Korea, Taiwan, China, Hong Kong, Hungary, Spain, etc. for business tours about 10-12 times in a year. Now branding him HIV Positive may amount to denial of Visa by any of these countries at any time and it would mean losing business from the said countries.
The complainant pleaded that Saudi Arabia has strict rules and even death sentence is imposed if foreigner having HIV positive enters in their country. The complainant therefore pleaded that since he was reportedly tested HIV Positive by opponent No.2 he is suffering depression and mental anguish. The opponent Nos.1&2 played tricks upon the complainant by branding him HIV Positive and they were liable to pay `2 Crores towards mental agony and for tarnishing his reputation and medical expenses incurred by him. The complainant sent notice dated 15/05/2008 to both the opponents. Notice was replied by opponent No.1 by their letter dated 29/05/2008 mentioning that they are looking into the matter and it would take time to get necessary information from the concerned department of their Company. Therefore, they requested the complainant to hold on till June and requested not to take any action. Opponent No.2 sent reply to the complainants letter.
They conveniently avoided to give satisfactory reply to his notice on different reports. The complainant asserts that because of wrong report given by opponent No.2 who was Panel Laboratory of opponent No.1 he has suffered very badly and because of their negligence he had to suffer mental torture, anguish and social stigma and therefore, he has claimed by filing this complaint `50 Lakhs as compensation towards damages on account of mental agony, harassment and trauma suffered by him because of him branding as HIV Positive patient by opponent Nos.1&2. He also claimed amount of `25,000/- towards reimbursement of subsequent tests done by him and `50,000/-
towards costs.
Opponent No.1/Birla Sun Life Insurance Co. Ltd. has filed written version and contested the matter. They pleaded that there is no privity of contract between complainant and opponent No.1. The complainant is not a consumer. They also raised objection of no cause of action in the case of complainant as far as opponent No.1 is concerned since no policy was issued to the complainant due to non-completion of formalities. Opponent No.1 however admitted that they had a tie-up with Medical/Diagnostic Centres all over the India for conducting medical examination of the applicants. The Medical/Diagnostic Centres are independent firms/organizations and are professionally qualified, trained and equipped to provide diagnostic services. They work on non-exclusive basis and provide unbiased service to many companies and customers. These Centres submitted their report on their independent examination and conclusion and opponent No.1 merely acts on the basis of report generated by these Medical Centres. Opponent No.1 had a tie up with opponent No.2/Sehat India Health Care Services Pvt. Ltd. Opponent No.1 on the basis of report submitted by opponent No.2 assesses the risk to be undertaken and decides upon whether to issue the insurance policy or not. The complainants application was rejected on the ground that he had failed to meet fitness criteria required for issuance of the insurance policy.
Opponent No.1 clearly stated that no where they had lebelled or branded the complainant as HIV Positive.
The bonafide intention of opponent No.1 could be noted from the fact that they had shown their willingness to reconsider the case and they had given an opportunity to the complainant to apply afresh for the policy and comply with the necessary requirements.
Opponent No.1 pleaded that tie-up between opponent No.1 and opponent No.2 is on principal to principal basis.
As such opponent No.1 cannot be held responsible for the act of opponent No.2. Opponent No.1 pleaded that complainant had applied for Dream Plan Policy for basic sum assured of `90 Lakhs by application dated 07/12/2007. The complainant was apprised and was fully aware of the terms and conditions of said application. The complainant deposited premium amount of `1,04,455/-
and had been issued First Premium Receipt for the same. Said receipt clearly mentioned Acceptance of this deposit does not make Birla Sun Life Insurance Company Limited liable for acceptance of risk. Insurance cover shall commence after the application form for insurance has been examined and accepted by Birla Sun Life Insurance Company Limited which shall be communicated separately to you. Thus, opponent No.1 pleaded that acceptance of First Premium does not make opponent No.1 liable for acceptance of risk cover under the policy and they had never communicated acceptance of risk to the complainant in the instant case. The complainant was asked to undergo medical examination and submit medical examination report. Said report is important for assessing the risk to be undertaken with respect to the policy to be issued to such applicant. The opponent No.1 issues policy and takes underwriter decision solely depending upon the report submitted by the empanelled doctors for the tests done for buying an insurance product. Opponent No.1 itself did not venture into conduct of medical tests on its own or diagnose of any particular ailment. Opponent No.1 fully relied upon the result of tests done specifically by empanelled Laboratory. The complainant underwent medical examination and blood test from opponent No.1s empanelled Dr.Kiran Bendale of Sehat India Health Care Services Pvt. Ltd/opponent No.2 on 13/12/2007. Opponent No.2 submitted report dated 13/12/2007 in which the ELISA test results were shown as HIV I/II reactive.
Opponent No.1 pleaded that once application for insurance policy is received, they are directing the applicant to approach empanelled Diagnostic Centre and they relied upon the tests conducted by the empanelled diagnostic Centre and since opponent No.2 had given blood report as HIV Positive in respect of complainant, opponent No.1 informed the complainant that they could not give insurance cover to the complainant and it is pertinent to note that after rejection of the application, the complainant did not apply afresh for taking insurance cover and they had already refunded amount of `1,04,455/- paid by the applicant/complainant on 31/12/2007 by crediting said amount in the account of the complainant on 10/01/2008. On complainants own request, report received from opponent No.2 regarding blood test was conveyed to the family doctor of complainant Dr.Gaurav Shah by letter dated 27/12/2007. Said letter contained a disclaimer that result of the tests are only indicative and not conclusive and opponent No.1 would not be responsible for the reliance placed on the same for any purpose whatsoever.
Opponent No.1 further pleaded that right to accept or reject the application presented by the prospective insured vests in the Insurance Company and even if the applicant would have been diagnosed HIV negative, still opponent No.1 had right either to accept or reject the fresh application if at all ever made by the complainant.
Opponent No.1 also pleaded that complainant is not a consumer since policy was not at all issued to the complainant. They therefore pleaded that complaint should be dismissed with costs.
Opponent No.2 filed written version and pleaded that there was no privity of contract between the complainant and opponent No.2 in respect of report complained against. Opponent No.2 had drawn and carried out tests on the blood sample of the complainant at the instance of opponent No.1 and had given its report to opponent No.1 and not to the complainant. Opponent No.2 never informed the complainant that complainant is HIV Positive as falsely alleged by the complainant. They denied they were guilty of deficiency in service as alleged by the complainant. They pleaded that complaint has been filed by just to extract money from them. It is an ill motivated attempt to try and knockout moneys from this opponent and this complainant has done so at the instance of Agent Mr.Shirish Vora.
According to opponent No.2 on 13/12/2007 complainant was referred to opponent No.2 for medical tests. On 13/12/2007 opponent No.2 conducted tests required dot be done. On the same day, they prepared report and forwarded it to opponent No.1. Then complainant went to Dr.Sangita Diagnostic Centre, Kandivali on 24/12/2007 and on 27/12/2007 opponent No.1 forwarded report to complainants family doctor, Dr.Gaurav Shah. Thereafter, complainant went to Sunflower Laboratory at Malad (West) on 09/01/2008 and on 17/01/2008 complainant went to opponent No.2 for fresh tests on his own. According to opponent No.2, opponent No.1 had sent this complainant for carrying out certain pathological examinations in connection with an insurance policy applied for by the complainant. Accordingly, opponent No.2 had carried out the tests required by opponent No.1 and submitted their report directly to opponent No.1. Opponent No.2 did not interact with the complainant as a service provider and there is no privity of contract between opponent No.2 and complainant.
At the instance of opponent No.1 they had carried out certain tests of the complainant. Complainant came to opponent No.2 consented to undergo tests prescribed for the insurance policy and he was aware of the implications of the tests and its results. Opponent No.2 pleaded that one of the standard tests conducted in India for preliminary diagnosis of exposure to HIV is commonly known as ELISA Test and same was conducted on the blood sample of the complainant and report of the same was submitted on 13/12/2007 by opponent No.2 to opponent No.1. The test conducted by opponent No.2 styled as ELISA Method is preliminary test for screening low risk persons and it is inter alia accepted as preliminary test, but it is not to be treated as conclusive test for concluding whether a person is HIV Positive or negative. For conclusive finding of such person further more accurate tests are required to be performed. Opponent No.2 further pleaded that kit used for testing ELISA sometimes shows that the sample is reactive, indicative of possible exposure to HIV amongst other viruses. Opponent No.2 further pleaded that it is an internationally accepted position that a positive inference using the ELISA Test is required to be confirmed by another sophisticated test known as Western Blot Test. Opponent No.2 pleaded that report dated 13/12/2007 submitted by it to opponent No.1 did not state that person tested as HIV Positive. The report only states that blood sample tested was reactive for HIV I/II using ELISA Method. This report clearly stated that positive test is not diagnostic of AIDS and should be confirmed by Western Blot Test. Opponent No.2 pleaded that it is well documented that ELISA is a rapid screening method and one that is most widely used to screen low risk population for exposure to HIV infection. The ELISA method is internationally accepted as being a preliminary screening test and requires confirmation by other methods and Western Blot Test is one such confirmatory test. Opponent No.2 further stated that tests carried out by them on the blood sample drawn from the complainant were not exclusively for exposure to HIV virus. It was one of the several tests that was carried out as part of a standard package at the instance of opponent No.1 for the complainant and it was based on ELISA test. Opponent No.2 further pleaded that World Health Organisation as well as Government of India through its several NGOs. have been regularly spreading message that report showing that a sample tested as being reactive does not indicate exposure to HIV Virus but such persons should visit Counselling Centres and should get them tested at the specialized centres where sophisticated confirmatory tests are undertaken. Opponent No.2 clearly stated that complainant himself project as a righteous and innocent person, but report no where stated that complainant had tested positive for exposure to HIV infection. The complainant himself had come to a conclusion that he was HIV Positive without confirmatory test. Opponent No.2 pleaded that complainant after having got tested elsewhere visited this opponent as a direct patient, requested opponent No.2 to test complainant for presence of HIV antibodies and when the complainant was tested on his request in the Laboratory, it was evidence that complainants blood sample was non-reactive for HIV antibodies. Even such negative report also carries a note that negative result does not exclude possibility of exposure to or infection with HIV I/II.
Opponent No.2 pleaded that it is universally well known that ELISA test for HIV is not cent percent reliable and this fact has been unambiguously stated in the reports submitted by it and also stated that test report should be confirmed by the Western Blot Method. The complainant was aware of these facts and still he decided to file false claim for damages against opponent No.2. Opponent No.2 denied that complainant suffered shock, depression and tension and stopped him from going to work and his reputation was badly affected. Opponent No.2 pleaded that report was never handed over to the complainant by opponent No.2 and it was sent to opponent No.1 and family doctor of the complainant obtained said report from opponent No.1 though opponent No.2 carried out the different tests as required by opponent No.1 and sent such report directly to the opponent No.1. Opponent No.2 pleaded that report dated 13/12/2007 submitted by opponent No.2 to opponent No.1 clearly stated that positive test is not diagnostic of AIDS and should be confirmed by Western Blot Test. It therefore pleaded that complaint be dismissed and complainant is not entitled to get any amount as claimed by the complainant towards compensation or `25,000/- towards expenses, etc. The complainant filed affidavit in evidence. Opponent No.1 also filed affidavit in evidence likewise opponent No.2 has filed affidavit of Dr.Kiran Bendale. They have also filed some documents. Parties have also filed written brief notes of arguments.
We heard submissions of Advocate Mrs.Anita Marathe for the complainant, Advocate Mr.Ameya Tamhane for opponent No.1 and Advocate Mr.V. Mannadiar for opponent No.2.
The important questions/points that arise before us for consideration are :-
Points Findings (1) Whether opponent No.1 is guilty of deficiency No in service qua complainant in refusing to issue insurance policy relying on the report submitted by opponent No.1?
(2) Whether opponent No.2 is a service provider No qua complainant?
(3) Whether opponent No.2 is guilty of deficiency No in service in giving two reports; one to Insurance Company regarding blood test of complainant and another to the complainant directly when the complainant approached opponent No.2 for blood test directly?
(4) What order? Complaint stands Dismissed.
REASONS Point No.1:- Complainant admittedly approached opponent No.1/Birla Sun Life Insurance Company Ltd. He wanted to purchase policy. He completed formalities by filling proposal form, paid premium of `1,04,455/-
on 07/12/2007 and complainant was directed by opponent No.1 to opponent No.2 for medical check-up and for certain medical tests. Opponent No.2 examined the complainant and issued report dated 13/12/2007 showing that complainant was HIV Positive. At page-11 of the complaint compilation, there is report submitted by opponent No.2 dated 13/12/2007. In that report the complainant was shown to be HIV I/II reactive by ELISA method, but there is important footnote just below said entry it mentioned that positive test is not diagnostic of AIDS and should be confirmed by Western Blot Test. Negative result does not exclude possibility of exposure to or infection with HIV I/II. This footnote as found in page-11 is categorically telling that complainant was found to be having HIV I/II reactive by ELISA method and that was not positive test for diagnostic of AIDS and should be confirmed by Western Blot Test. This blood test was procured by Birla Sun Life Insurance Company Ltd. and complainant was referred by Birla Sun Life Insurance Company Ltd./opponent No.1 to Sehat India Healthcare Services/opponent No.2. It has been clearly mentioned by opponent No.1 that they have certain empanelled Diagnostic Centres and they referred prospective insured to such Health Care Services and they worked on principal to principal basis. They procured test report from such Diagnostic Centres and then decide whether they should take underwriting in the particular case. They had paid charges to opponent No.2.
Complainant had not paid single paisa for this report directly to opponent No.2. When complainant has not procured services of opponent No.2, complainant cannot be said to be a consumer of opponent No.2. The consumer was opponent No.1. Opponent No.1 had refused to give insurance cover to the complainant after seeing blood report (Exhibit-A) given by opponent No.2. Opponent No.1 wrote letter to the complainant dated 27/12/2007 marked Exhibit-D at page-16 of complaint compilation that they had carefully evaluated his application and after seeing all the information available to them they regretted that they are unable to approve his application on account of blood report findings. If at all complainant-Mr.Modi wants to know about details of medical report submitted to them, please request his family physician to write to their Chief Medical Officer Dr.Karmarkar at the address mentioned below. They had clearly mentioned that objective of these underwriting processes is to determine not your state of health but your acceptability within a certain group of individuals under the same risk classification. They told that process of full refund of deposit paid in respect of said application has been initiated and he would receive the cheque shortly. This rejection letter sent by opponent No.1 refunding whole of the amount of premium paid by the complainant clearly revealed that opponent No.1 was not guilty of deficiency in service qua complainant because opponent No.1 has got prerogative to accept proposal form or to reject the proposal form on whatsoever ground. After receipt of proposal form and after receipt of medical report from opponent No.2, opponent No.1 decided not to issue policy and not to undertake risk cover for the complainant. This was permissible under the Insurance Act.
The underwriter-Company is not supposed to issue policy to each and every applicant who had filled in proposal form and deposited premium. If for any reason whatsoever the Insurance Company like opponent No.1 decided not to issue insurance policy to any person, it has got right to do so.
Insurance is a contract simplicitor and if for any reason, Insurance Company thought that particular person should not be covered under the life insurance cover then it has right to do so and by sending letter they had told the complainant that they were unable to issue insurance policy to him and they were refunding the amount deposited by the complainant and accordingly, they had issued cheque.
It is mentioned in the written version and affidavit evidence by opponent No.1 that subsequent to rejection, initial payment of `1,04,455/- paid by the complainant was duly refunded by opponent No.1 on 27/12/2007 and it has been credited in his bank account on 10/01/2008 and once the premium amount has been refunded back deciding that complainant was not eligible to get insurance cover by opponent No.1, contractual relationship between complainant and opponent No.1 came to an end and as such, the complainant cannot be heard to say that opponent No.1 was guilty of deficiency in service of any kind qua him.
Therefore, we record our finding on point No.1 in the negative.
Point Nos.2&3:- It was vehemently contended before us by Advocate Mrs.Marathe that had opponent No.2 not given HIV reactive report in respect of complainant, complainant would have been issued insurance policy by opponent No.1 and complainant would not have got social stigma as he incurred because of wrong report given by opponent No.2 vide Exhibit-A at page-11 of the complaint compilation. What is pertinent to note is the fact that complainant was not a consumer of opponent No.2. In as much as complainant has not paid any amount towards blood test conducted by opponent No.2. It was the blood test conducted on behalf of opponent No.1-Birla Sun Life Insurance Company Ltd. Unless complainant establishes that he had paid consideration to opponent No.2 for taking first test, their wrong report cannot give rise to cause of action to the complainant to file consumer complaint because there was no consideration at all paid by the complainant himself directly to opponent No.2. Complainant appears to have got examined from Dr.Sangita Diagnostic Centre, Kandivali, who reported that complainant was HIV negative. This report is dated 24/12/2007 and first report of HIV Positive is dated 13/12/2007. Then complainant further approached Sunflower Laboratory at Malad (West) and said Laboratory did all the tests and gave report that ELISA test confirmed that the complainant was non-reactive for HIV I/II. He also further got conducted at Sunflower Laboratory Western Blot Test for HIV I/II and report was non-reactive.
This is report dated 09/01/2008.
Then it appears that complainant had again approached as a patient to opponent No.2 and got the same tests done from the same doctor who had given HIV I/II Positive report earlier.
This time said doctor gave HIV Negative report. It is dated 17/01/2008. Thus, grievance of the complainant is that opponent No.2 had given two contradictory reports and therefore, they were guilty of deficiency in service.
As far as second report is concerned, complainant had paid fees to opponent No.2 by approaching as private person. So, when the payment was made by the complainant in person to opponent No.2 he got correct report whereas when he was referred to by Birla Sun Life Insurance Company/opponent No.1 his report given by opponent No.2 was reactive to HIV I/II in terms of ELISA test. Hence, it was tried to be contended by Counsel for the complainant that opponent No.2 was guilty of giving wrong report and he was guilty of deficiency in service. However, first report was given directly to opponent No.1 by opponent No.2.
Second report was procured by the complainant on his own to expose opponent No.2 after he had got negative report from Sunflower Laboratory after going through the ELISA test as well as Western Blot test. What is pertinent to note is that at Exhibit-F opponent No.2 in its report dated 17/01/2008 clearly stated that complainant was referred to by BSL i.e. Birla Sun Life Insurance Company. But complainant in his evidence asserted that ELISA test required to be confirmed by another sophisticated test known as Western Blot test and opponent No.2 had given blood test report on the basis of ELISA test and stamped him as HIV Positive, but opponent No.2 has admitted that ELISA test for HIV was not cent percent reliable and same is required to be confirmed by another sophisticated test known as Western Blot test before showing any person as HIV reactive. This was not done by opponent No.2 when they had given report to Birla Sun Life Insurance Company (First Report). In our view, report given to opponent No.1 at the behest of opponent No.1 on the consideration paid by opponent No.1, was confidential report pertaining to blood test conducted on complainant, that report cannot give rise to the cause of action to the complainant to sue opponent No.2 for wrong diagnosis on the basis of ELISA test. The complainant has admitted that in the second test which he got it done privately by paying fees (this is his contention in written arguments) the opponent No.2 gave correct report that he was HIV non-reactive.
That was the report also given after conducting ELISA test only. We are of the view that simply because of two contradictory reports given by opponent No.2 pertaining to complainant, the complainant cannot be said to be a consumer as far as opponent No.2 is concerned with reference to first report because that was the report confidentially given to opponent No.1 for their administrative purposes. It was not meant to make public and letter of Birla Sun Life Insurance Company to the complainant expressly mentioned their inability to accept the proposal form and to issue policy. They simply mentioned that because of certain test report they were not inclined to take underwriting risk in favour of the complainant. It is the complainant who insisted that test report submitted by opponent No.2 should made public. Opponent No.1 directed the complainant to approach Chief Medical Officer of the Company to procure said report. Then he procured said report and thereafter, he conducted test from Sunflower Laboratory wherein after conducting ELISA test and Western Blot test, Sunflower Laboratory clearly gave report that complainant was HIV non-reactive. In the circumstances, we are of the view that complainant cannot be heard to say that because of wrong report given by opponent No.2 to opponent No.1 he was deprived of insurance cover. No doubt out of two reports given, one was wrong report and another was correct report given by opponent No.2 in respect of complainant, but one was procured by opponent No.1 and another was procured by the complainant himself.
When another report was procured from opponent No.2 it was correctly diagnosed by blood testing made by opponent No.2 and the report clearly stated that complainant was HIV non-reactive. In the circumstances, simply because two reports were given, one in the affirmative and another in the negative that would not give any cause of action for the complainant to sue opponent No.2 because for the First Report he had not paid any consideration directly to opponent No.2. In the circumstances, we hold that complainant has failed to establish that opponent No.2 was guilty of deficiency in service in giving wrong report of his blood test concerning HIV I/II since for the wrong report, complainant has not paid a single farthing to opponent No.2. We therefore record our finding on point No.2 in the negative.
Point No.4 :- In the light of discussions made above, we are finding that complaint is misconceived. It is also pertinent to note that in every report issued by opponent No.2, it has been clearly mentioned by opponent No.2 that report reactive in respect of HIV I/II by ELISA method would not be a positive test for diagnostic of AIDS and should be confirmed by Western Blot test. Conversantly, it has been mentioned that negative result does not exclude possibility of exposure to or infection with HIV I/II. So, even first report which was HIV reactive (positive) issued by opponent No.2 dated 13/12/2007 mentioning caution that positive test was not diagnostic of AIDS and should be confirmed by Western Blot test.
This is found in the reported issued by opponent No.2 dated 13/12/2007. Then Dr.Sangita Diagnostic Centre though gave result as non-reactive in its report dated 24/12/2007 clearly mentioned that Reactive results to be confirmed by Western Blot test. Sunflower Laboratory gave result only after conducting Western Blot test for HIV I/II and they specifically mentioned result as negative of HIV I/II.
They had also issued report on ELISA test which is called HIV I/II screen test. Result was non-reactive, but they mentioned in a footnote that negative results does not indicate that patient is not infected with HIV I/II and positive report are to be confirmed with Western Blot test. Thus, taking all these reports into account including one dated 17/01/2008 given again by opponent No.2 which was HIV non-reactive pertaining to complainant, it must be stated that every Laboratory clearly mentioned that ELISA test is required to be confirmed by Western Blot test.
It was rightly contended by Advocate Mr.Mannadiar for opponent No.2 that Birla Sun Life Insurance Company should have asked opponent No.2 to conduct Western Blot test on the blood of the complainant to confirm whether complainant was HIV Positive because in ELISA test he was reported to be HIV Positive, but that was not conclusive test. But since no request came from opponent No.1, they could not perform Western Blot test to confirm ELISA test result of HIV Positive in respect of complainants blood. Thus, to some extent fault lies with opponent No.1 because they did not bother to procure Western Blot test report when First Report based on ELISA test issued by opponent No.2 suggested that complainant was HIV Positive. But it is for the Insurance Company to decide whether to refer the patient again for Western Blot test or not. They did not opt to do so and they simply turned down the complainants plea for issuance of policy and had refunded the amount back to the complainant because they thought it fit not to insure complainant at all with their policy. Complainants premium amount was returned to the complainant and therefore, neither opponent No.1 can be held guilty nor opponent No.2. In the circumstances, we are of the view that the complainant should have got Western Blot test done from opponent No.2 to seek confirmation of their previous report based on ELISA test.
So, fault lies with the complainant and not with opponent Nos.1&2. When ultimately complainant approached Sunflower Laboratory, the complainant was fully convinced that he was HIV negative after he had undergone ELISA test as well as Western Blot test from said Laboratory. It appears that complainant is trying to capitalize the report submitted by opponent No.2 and since, one report was contradicted by another report, complainant thought it fit that this was a fit case for claiming damages from opponent Nos.1&2. As we have discussed above, opponent No.1 is not guilty of deficiency in service because they simply relied upon their panel laboratory report of ELISA test conducted on the complainant and they decided to refund the amount to the complainant and not to issue policy to the complainant. As far as opponent No.2, we had already stated that complainant had not paid any amount towards First Report which was directly procured by opponent No.1. Whereas, Second Report was got procured by complainant himself (as he alleged in the written arguments) where he approached opponent No.2 as private person and he got correct result that after the ELISA test he was found HIV negative. In the circumstances, we cannot hold even opponent No.2 guilty of deficiency in service qua complainant. In the circumstances, we have got no option but to hold that both opponents are not guilty of deficiency in service. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 18th October 2012.
[HON'BLE Mr. P.N. Kashalkar] PRESIDING MEMBER [HON'BLE Mr. S.R. Khanzode] Judicial Member [HON'BLE MR. Narendra Kawde] MEMBER dd