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[4/20, 07:53] Sekarreporter: Musings At Law-III Narasimhan Vijayaraghavan False and fabricated insurance claims are dime a dozen. Insurance crimes are perceived as ‘victimless crimes’. Equally, it is legion that insurance policies are so one-sided that they were printed only on one side, in Great Britain. Lord Denning was stinging in his criticism. “Beware of Insurance contracts. More often than not what the bigger clause gives, the smaller clause takes it away.” Groucho Marx was even more pungent and cynical, in his own signature style. “I have always known that insurance policies belong to a special specie. While it would offer cover for a fall from height, it would however exclude the actual fall”. Yes, the language used in such contracts are ‘legal mumbo jumbo’ and jargon that ordinary mortals find difficult to gauge the length, breath or depth of what they have gotten into. And, more often not, neither the insurer nor the community that sells the product can either understand a word of it or explain it satisfactorily, except as is comfortable and convenient to the consumers’ ears. Therein hangs many a life and property of those who consider themselves well protected. Particularly, in these Pandemic times, when it is a peril contemplated or not, only god knows. Let us get real with a lovely tale as to how a small time lady entrepreneur got one up on the cunning insurer. Today, the girl, a sister of a High Court Judge (I am not saying who or which), is a successful businesswoman and a Page 3 celebrity. Let it and she stay there, for I was the author of the scheme, which we manoeuvred, to cross the difficult line of ‘admissibility’, under the otherwise ununderstandable contract of insurance. It all happened several years ago, to the day. Early morning, one day, the land line rang, as a rattled advocate friend (then a fellow advocate but now a Judge) came on call. “Hey, my sister has gotten into serious trouble. She has a small time desk top publishing unit. She has borrowed heavily from a bank, and got the unit insured as well. She got a tantalising order from an overseas entity, to print and supply several thousand copies of a research paper. It was for a prestigious institution and if she could do it good and well, it could be the start of a financially healthy relationship. She was desperate to meet the deadline and was burning the midnight oil. Yesterday, as she was working overtime, suddenly two desktop units, in use, conked out, one after the other. She could not revive them. Her call to the insurance agent got a reply that was disdainful and dismissive. It appears he told her- “Madam, with electronic items, what happened is passé. They work and work well. But, at times, they can go cranky as cranky goes, for no reason. If there was no alien impact and it was an electronic default, nothing can be done as such risks are not covered under the insurance policy. Anyway, get to me in the morning, let me see if any help can come your way”. “My sister is inconsolable as this was her maiden venture and a major order. It could make or break her career. She is devastated that if the insurance claim does not come through, she may turn a debtor and insolvent. Can you advise us?” I calmly heard him out. It was a tale of woe, as any other distressed insurance claim call is. I confirmed that his sister had availed a Standard Fire and Special Perils (SFSP) Insurance Policy. The unit was running in the outskirts of Chennai. It was an asbestos terraced temporary construction and his sister was assisted by three helpers. The roof was high with girders running across. And it was a rented premises and rental dues, if added, the non settling of the claim, would overwhelm her. I verified and confirmed that no claim was as yet lodged with the insurer and the agent was contacted only for a few minutes, as he was irritated by the call at an unearthly hour. I asked him to take down the claim intimation letter. “Dear Sir, I have availed a SFSP policy with your reputed PSU for the period…..in respect of the desktop publishing unit. On….when we were desperately at work, to meet a tough deadline for an export order, at about….., suddenly, out of the blue, a couple of monkeys entered the premises. When one of our helpers tried to shoo them away with a huge stick, they climbed the roof and sat on the girders above. The helper tried to chase them out and one of the monkeys, in the melee, fell from the roof, on one of the desktop units , jumped over another, and then escaped. Ever since, the two desk top units have not been functioning. Kindly register my claim, send a licensed surveyor to assess the claim and expeditiously settle the same. As we have a timeline to keep, to comply with the orders, at work, your immediate and positive response would be highly appreciated.” The same day morning a senior and experienced surveyor came to the premises. He reported this to the insurer. “In my 40 years as surveyor, this is the first instance I have encountered of such an unusual claim. As I entered the insured premises, two monkeys were seen prancing and jumping about, across the girders on the roof. I have appended digital photographs of the same. My enquiries revealed that this area was infested with monkey visits. (recent newspaper reports of municipal action to rid the menace are annexures). I am satisfied that there is basis to accept the claim of the insured that it was the sudden fall of the monkeys on the desktop publishing units, which was the proximate cause of cessation in operation of the same. The insurer may decide the claim in accordance with the terms and conditions of the SFSP policy of insurance”. Based on the said finding of the surveyor, the claim for replacement/reinstatement of the affected units was satisfied. The insurer took legal opinion (not from me though, for the sake of good order and propriety, nothing less) that the claim was admissible under the SFSP policy. There was admissible coverage for loss/damage to insured assets from ‘impact by animal’ tucked away in a remote corner of the contract of insurance. Mostly unseen, unread, unappreciated and untapped into of clauses, for redressal of genuine claims. Twin lessons can be learnt from this musing. Firstly, until the insurance companies are compelled to draft such contracts of insurance in simple English- it would be advisable to consult an expert from ‘minute one’ of the occurrence of loss. Imagine the claim being made without invoking the monkey clause. The girl’s business career may have ended with the loss. It would make robust common and legal sense to verify the surrounding facts and circumstances before pedantically pursuing the claim. Secondly, if the claims are otherwise genuine and bonafide, beating the insurer at their own game, is no fraudulent act. Law is a contract. Law is language. It requires craft, cunning, dexterity, smart wordplay, and above all, knowledge, exposure and experience that alone can rescue the distressed, with deserved succour and relief, which is the paramount intention of such contracts of indemnity. One can explain such advices in Nani Palkhivala’s construct, as ‘the subtleties between avoidance and evasion in taxes that matter’. No taint of illegality may then attach. How else can one answer the pangs of conscience? [4/20, 07:54] Sekarreporter: Musings At Law- IV Narasimhan Vijayaraghavan The late Justice M. Srinivasan, the scholarly judge, who went on to become a Supreme Court Judge, died in harness, was never tired of saying this in Court. I have been a recipient of his near ‘barb’ish truism, in the manner in which, he confronted us as counsel, when we expressed dismay that he was refusing to agree to our submissions of conviction. He rose up to his full height, not so modest, with his turbaned head, as a practitioner of orthodox Vaishnavite tradition, in his seat, never once leaning behind, and always said it with a cheeky smile, “Counsel, don’t beat around the bush. Always remember and never ever forget that Law is in search of Proof not Truth. This is a court of law. It is governed by basic principles of evidence which are unexceptionable. It had always been so and shall always remain so”. The way he uttered that phrase- Law is in Search of Proof and Not Truth- it has stayed with me ever since, and it is that imprint that I always brought to the fore in pursuing any cause. On the other side of the spectrum of this fundamental proposition , that Learned Hand May have applauded, was the trust that Louis Nizer, the genial Jewish giant attorney in the US, placed in The Theory of Probability to pursue even lost causes. He strongly believed, “The Theory of Probability has never failed me. It is one tool that the blind lady of Justice always loved. If the cause is genuine and I am convinced of it, from my instincts and experience, it has never misfired. If a given set of facts are true, then the proof and evidence to establish it, are available somewhere. It is the duty of the forensic craftsman in the lawyer, to ferret it out, in more ways than one. And believe me you, truth has a knack of coming it out in our adversarial jurisprudence, in the most stunning ways. But it has never surprised me, for I believe that truth is final and it shall prevail as it ever ought to”. Putting these two potions or propositions together, is this classic chemistry in action. It was a testamentary suit proceeding before the High Court. Our client was insistent that the Will under the scanner was false and fabricated. We had no reason to disbelieve his version. But, guardedly, we had put the family on notice, that we shall try our best, but the ultimate result would depend on the proof or evidence, we were able to marshall on our side. The suit went for trial and the plaintiff’s witness went into the box, to depose on the truth of the instrument. The witness was a tough nut to crack and he appeared to have been well tutored, to stand the rigour of cauldron that a live court presented. The judge was getting impatient that we were making no headway and it was showing. We were told that he did not have an eternity, to offer, and we would do well to wind down. When the witness was smartly warding of the offensive questioning from us, from several fronts, trustingly, we came to the most innocuous of questions, we had avoided posing thus far . For whatever reason. Q: “Sir, was this the only Will that was prepared by the deceased? A: Yes. Q: Was any draft prepared before the final version was made ready for the signature of the testator?” Even before the witness could answer, as he was ruminating, the counsel for plaintiff got up and jutted in, as he may well not have, “Of course, a draft was prepared. As my learned Senior knows, no Will is signed without a draft. I wonder why he had not chosen to ask this foundational question, at the outset. He need not have wasted the valuable time of the witness and all of us and this Court, to pose this obvious question at the fag end. It discloses the futility in their efforts. We have no issues to go clean. Here is the draft of the Will, which was prepared and my learned senior can recognise that it is in my own handwriting. That should convince him to call closure and give up this fight, as a lost cause.” My Senior took hold of the draft. Scanned it for just a few seconds and sought permission of the Court, to have it marked as defendant’s document. The other side counsel readily agreed, as the luncheon bell rang. We assembled after lunch, when my Senior informed the Court that our cross examination was over. And out of the blue, he informed the Court, the evidence may well be closed on both sides, for all practical purposes, as there was no need to go beyond. He conceded that continuing the contest may be a futile exercise and waste of time for everyone involved in it. The judge was flummoxed. He asked my Senior the reason for his sudden turnaround. But, he would be happy if both counsel accepted their responsibility to the court. And then Senior urged the Court to have a look at the Exhibit marked as draft of the Will. “It is admittedly in the handwriting of the counsel for the plaintiff. It is written down on the reverse, in the blank space available, of a few sheets from the High Court Cause List. An habit every counsel in practice, before this Court, is guilty of. The Will is dated 1st March, 1989. The deceased had died on 1st Nov, 1989. The Cause List, in which the draft was written down is dated 1st April, 1990. We believed in our cause. We had trust in our client. My instinct told me that truth had a knack of appearing when least anticipated. That is the beauty of this British legacy, our adversarial jurisprudence. I say no more. We rest our case.” The other side counsel and the witness did not know what hit them. The Judge did not even ask the plaintiff counsel to respond, as it was all over. Game, set and match to truth. And there was proof to let the truth prevail. It would be a futile exercise to carry on any further; even this piece The spice would go stale. That the Will was prepared, drafted and signed, after the death of the testator got proved in a court of law, thanks to the utter stupidity of the counsel for plaintiff, who carried the draft in the bundle, forgot all about the conspiracy and lowered his guard to produce it, during the live proceedings, even as the witness was groping for an answer, which he never gave. Louis Nizer’s Theory of Probability triumphed and Justice M Srinivasan’s- Law is in Search of Proof Not Truth – also prevailed, as the proof to prove the truth emerged, from nowhere, so that Justice was done.