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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.

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.

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 :-