Friday morning, Gyem Gyeltshen’s legal representative, Karma Tshering, filed a legal suit in the Thimphu District court against Druk Air for the deaths of Gyem’s 38-year-old wife Dresang Dema, and his four-year-old daughter Nima Peday, in a helicopter crash on 3rd March 2023 that happened due to pilot error.
The suit seeks compensation for the two deaths as well as for injuries and damages to Gyem and his other daughter who survived the crash with injuries and a lot of emotional and mental trauma and loss of cordyceps income.
The case should have been fought in the Gasa court as the crash happened in Gasa, but it was too far away and not convenient and so Gyem’s lawyer sought permission from the Chief Justice to fight the case in Thimphu.
The lawyer said, “the Chief Justice kindly allowed us special leave to file the case in the Thimphu District Court.”
The lawyer said the case being fought in Thimphu would be convenient for all sides as all relevant agencies, people and information is in Thimphu and it would also be easier to summon people and witnesses.
Gyem’s suit giving the reasons for coming before the court says even after almost about a year, no stakeholders concerning this accident took any serious actions towards compensating the victim’s family. They were left in the dark with no one coming to their rescue.
It said rather the insured Drukair and the insurer Royal Insurance Corporation of Bhutan Limited (RICBL) turned ‘deaf and blind’ even as a Bhutanese representative of HFW, a Singapore based company, who claimed to act on behalf of Drukair and its aviation liability insurers, offered a meagre sum of USD 20,000 equivalent to Ngultrum 1.68 million (mn) in compensation to the family as against the liability insurance limit of USD 20 mn equivalent to Nu 1.680 Billion (bn) – a crucial information that could have helped the victim to negotiate and bargain the extent of compensation they could have been entitled to.
The offer USD 20,000 was based on the advice of a local counsel or expert who is reported to have advised HFW there is no specific legislation in Bhutan that deals with the air accidents and corresponding compensation requirements and so the relevant laws would be the Road Safety Transport Authority Act and Penal Code of Bhutan, which put together, could only accommodate compensation to the extent offered.
The suit said as such, the victims realistic claim of USD 8.84 mn equivalent to Ngultrum 738.57 mn, a mere 42.2% of the insured amount of USD 20 mn equivalent to Ngultrum 1.680 bn, was non-agreeable by HFW even as they went onto ask victim to sign a covenant to release the insurers from any further actions if they accepted USD 20,000.
The legal suit says such an advice by HFW who claims to be an expert despite having no legal knowledge and experience in the context of Bhutan resulted in ‘blind leading the blind’, a serious effect that only went onto belittle the whole issue and undermine the sovereignty of the country and the law and legal institutions that have the sovereign power to pronounce law and order in Bhutan.
It said that despite this, both the insured and insurer asked victims to acknowledge HFW, who the victims categorically said they do not recognise. The victims expressly wrote to Drukair that no one, including Drukair, has the right to instruct victims to engage with whom they do not recognise.
They also wrote they would not accept and allow anyone, including HFW, to be the judge of its own cause. They emphasised that they would not subject themselves to arbitrary treatment because their disagreement to engage with HFW will delay the claims settlement.
The petition of the suit before the court is to recover compensation for suffering personal injuries and deaths while travelling by helicopter, owned and operated by the insured Drukair.
The suit says the cause to sue Drukair is founded on relevant air laws, contract law, and general tort law.
Under air laws, Drukair has the legal duty of care to ensure air travel is safe and secure. In that, Drukair has the duty to ensure its aircrafts are not operated in negligence or reckless manner so as to endanger life or property of others. It is duty bound to reduce inherent risks of aviation operations.
Under Contract law, by agreeing to fly the victims and family for the consideration received in ticket amount, Drukair covenants to fly them to destination even as the victim family entrusted their lives and properties in their hands.
Even under general tort law relating to negligence, Drukair has the legal duty to ensure its air travel service is safe and secure.
In short, whether under air, contract or general tort law relating to negligence, Drukair owed legal duty of care for the safety of plaintiff and the family travelling in its helicopter inter alia making sure they were kept safe from personal injury and death, whether while embarking, travelling or disembarking the helicopter.
It says this legal duty is contested to be have been negligently breached by Drukair.
This is based on the Final Accident Investigation Report prepared by the Air Accident Investigation Unit which concluded that the Terrain impact due to the pilot attempting an abrupt change of its flight manoeuvre in a low approach which could have resulted in a loss of obstacle clearance.
It was also attributed to other factors that underlined Drukair’s failure to amongst others ensure the pilots were flying the aircraft as per their schedule. The circumstances leading to the pilot having to fly helicopter and not by the one scheduled to do so was wholly avoidable and foreseeable.
The suit says, “This negligent breach of duty to care that caused the accident caused serious harm to the family. Mr Gyem and family suffered damages that no monetary compensation can indemnify. The physical loss of their loved ones and the mental trauma that ensued are incomprehensible and incalculable. Nothing can quantify and value the lives of their departed loved ones nor can it value the mental trauma and anguish they continue to suffer. As they must face, however, they now plead the Court to allow them the same amount of compensation that they filed with the Drukair.”
These claims are based on lost past and expected future income and lost household services in light of the economic aspects of the family, serious bodily injury, sorrow, mental anguish, and solace vis-à-vis losing forever her beloved mother and sister for Kinley Pelden, minor bodily injury, sorrow, mental anguish, and solace vis-à-vis losing forever his beloved wife and daughter for Gyem Gyeltshen, and sorrow, mental anguish, and solace vis-à-vis losing forever her beloved mother and sister for Kinley Om.
The suit says that even as everyone is taken aback by the extent of damages claimed, it is important to acknowledge that this family lost nothing short of everything.
“Further, if we look at the economic aspect of their life, the family lost and continues to lose and will lose in the future income from priced cordyceps collection profession that they rely their survival on. Examining the life expectancy of both male and female in Bhutan, the family will lose at least about 47 seasons, with each season priced at average price of cordyceps in 2024 at Ngultrum 2.57 mn.
This loss is only from one perspective that Mrs Dresang is no more, because of which Mr Gyem would not be able to pursue this profession up until his two daughters are adult to look after themselves. By the time he gets time, he would be aged to pursue this profession.
Likewise, his deceased wife and mother to the daughter, who was much better than Mr Gyem, at cultivating the priced cordyceps could have pursued this profession until she was at least in the age range of 60-65 years old.
It said this loss is more than triple in the future as the daughters would not be able to pursue in the absence of their abled parents to teach and show them the tradition. They would have forever lost the profession.
The suit said HFW’s role in this case is flawed by the mere fact that they are in no position to assume any role in this context and as such HFW as the legally authorised representative so by the insurance company is nothing but a deliberate attempt to confuse what is otherwise a straightforward issue that only Bhutanese and its law can only absolve.
It said under the insurance as the contract of indemnity, Drukair is not obliged to consult the insurance companies on the amount of compensation sought.
It goes to say that reinsurance companies if at all relevant in this case, it is their contractual obligation to indemnify RICBL, as much as RICBL must indemnify Drukair the compensation that it might be ordered to pay so now.
India International Insurance has 20% stake in the reinsurance and the other players are Best Meridian International Insurance Company SPC with 16%, La Reunion with 15%, The New India Assurance Company with 15%, QBE Insurance (Australia) Limited with 10%, Fair Aviation Pool with 10% and Societe Central de Reassurance, Morocco with 7%. This is a total of 93% policy owned by foreign companies. The remaining 7% stake for reinsurance had been taken by a Bhutanese FDI company called GIC Bhutan Reinsurance Co Ltd.