Mr. Justice Chandrashekaraiah, President—The complainant has filed this complaint for a direction to the O.P. to reimburse the medical expenditure incurred as per the terms of the policy.

2. The complainant had taken a policy from the O.P. for the period from 18.3.2002 to 13.9.2002. The copy of the policy is produced as Annexure R.1 by the O.P. Thereafter, he went to USA. On 11.5.2002 as he has suffered severe chest pain at U.S.A. He went to the hospital for consultation. The hospital authorities diagnosed the said pain as a heart attack and advised him to undergo for a surgery. Accordingly he under-went a surgery on 11.9.2002 in the Hospital in U.S.A. For that, according to him he had spent a sum of Rs. 2,88,999.07 US Dollars. But, he has restricted him claim in this petition at Rs. 1,00,000 US Dollars.

3. Further case of the complainant is that he has also informed the hospitalization through his son Ajay Kumar to the Mercury International Assistance Incorporated, Coral Springs, Florida, USA and this was followed by a fax message also. But the said Mercurry International Assistance Incorporated, Coral Springs, Florida, USA has not taken any steps to extend assistance to the complainant. After coming over to India, the complainant has filed the claim petition before the Insurance Company for payment of amount due under the policy towards medical expenditure. On that claim no decision has been taken till the complainant has filed this complaint before this Commission. It appears, after filing of this complaint for the Insurance Company repudiated the claim on the ground that he has not disclosed the pre-existing disease as on the date of the filing of the proposal form.

4. On service of notice O.P. has filed the version justifying its action regarding the repudiation of the claim made by the complainant on the ground that he had a pre-existing disease.

5. So far as the fact that the policy was in force as on the date of the complainant under-went for surgery is not disputed. Further, the assured sum under the policy is also not disputed. The O.P. has stated that the complainant has not moved Mercury International Assistance Incorporated, Coral Springs, Florida, USA for assistance as per the terms of the policy. The only dispute between the parties is whether the risk is excluded as per the terms of the policy. In the proposal form the complainant has disclosed the observation of the Doctor so far as the complainant is concerned as LVH with stenosis. LVH means Left Ventricular Hypotrophy. The Insurance Company has not produced any evidence to show that the complainant had taken treatment for this LVH. Mere observation of a Doctor itself cannot be treated as one of the diseases relating to the heart. The further case of the O.P. is that the complainant was suffering from H.P. and B.P. for the last twenty years. In order to show that the complainant was suffering from the above said disease, the O.P. has not produced any material to show that the complainant had taken treatment for the said diseases. After certain age, necessarily one should have H.P. and B.P. and that can be controlled with a medicine. Therefore, it cannot be taken as if it is serious disease which ultimately resulted in heart disease. As per the documents produced by the complainant, the doctors at USA revealed that the complainant is required treatment for wall replacement which required a By-pass surgery. This is nothing to do with any of the diseases referred to above. If that were to be the case the policy does not exclude the claim of the complainant. Today the Insurance Company has filed an affidavit to show that the complainant was suffering from the disease relating to heart prior to the issuance of the policy. This Doctor has not treated the complainant at any point of time for any disease, when such being the case, no reliance can be placed on this affidavit. Therefore, we are of the view that the Insurance Company is not justified in repudiating the