Mohinder Pal, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the inaction of respondent No. 2 in not reimbursing the medical expenses incurred by the petitioner on the treatment of his wife (also a policy holder) on the ground that there was exclusion clause in the policy at the time of renewal and his wife jointly, without exclusion clause. The petitioner had taken the mediclaim policy on 20-4-2001 jointly with his wife Smt. Rani Bijlani for an insured sum of Rs. 3,50,000/- each, after undergoing prescribed detailed medical check-up through the approved doctor of the New India Assurance Co. Ltd. The policy was subsequently renewed for a period of one year from 20.4.2003 on the same terms and conditions. That during the currency of the insurance policy, the wife of the petitioner was diagnosed for Ovarian Cancer Stage III(c) in February, 2002 and was admitted in Jashlok Hospital, Mumbai for treatment. The treatment continued up to August, 2003. During this period, the term of the mediclaim policy expired on 19.4.2002 and the policy was renewed by the company on the same terms and conditions without any exclusion. The petitioner vide his letters dated 3.7.2002 and 28.8.2002 submitted reimbursement claim to the respondent No. 2-Insurance Company.

2. After issuance of the mediclaim policy by the Insurance Company on 20.4.2001, the policy was subsequently renewed for four times. The last renewal was on 20.4.2005. The details of the policy and each renewal is given at page 34 of the petition.

3. It is further the case of the petitioner that in April, 2003, the petitioner was called by Mr. C.P. Parwani, the then Senior Divisional Manager of the respondents-Insurance Company asking for giving undertaking in writing to the effect that the petitioner agrees to renewal of the Mediclaim Policy with the "exclusion clause" for Ovarian Cancer in case of his wife. The petitioner was further informed that it was the policy of the company to renew the mediclaim policy with exclusion clause in the cases where compensation was claimed and paid by the insurance company, and in, case, the petitioner did not agree with such undertaking in writing, the mediclaim policy will not be renewed as the renewal was at the sole discretion of the Insurance Company. The petitioner has strongly protested regarding incorporation of the exclusion clause, however, he has to give undertaking in view of the assurance given by the said officer. Ultimately, on giving undertaking in writing by the petitioner, the policy was further renewed up to 19.4.2004 with exclusion clause of Ovarian Cancer in case of wife of the petitioner. The petitioner has further pleaded that the policy was renewed from time to time. However, the exclusion clause was kept in all the renewal.

4. As per the case of the petitioner, he issued a protest letter/representation to the respondent - Insurance company on 11.8.2004 after coming of one judgment of High Court having similar facts. The relevant portion of such representation is reproduced as under:

"1. Insured has an option and right to get renewal of Mediclaim insurance by payment of renewal premium in time.

2. Insurance company is bound to renew the policy without excluding any disease already covered under the existing policy which may have been contracted during the period of the policy in force.

3. In case the insured seeks to raise the sum insured at the time of renewal, it has to be done on the same conditions, but exclusion can be different so far as the increased sum insured is concerned.

4. Renewal of Mediclaim insurance policy cannot be refused, despite timely payment of renewal premium on the ground that continuance of the cover would become more onerous or burdensome for the insurer due to the insured contracting a covered disease during the period of existing policy.

5. Renewal can be refused only on the ground like misrepresentation, fraud or nondisclosure of material