The Bhutanese Leading the way.
On 3rd March 2023 Gyem Gyeltshen from Lunana lost his 38-year-old wife, Dresang Dema, and his four-year-old daughter, Nima Peday, to a helicopter crash, and despite Druk Air having an insurance policy of USD 200,000 for each death, the international reinsurance companies only offered USD 10,000 each.
They cited local laws like the Road Transport Safety Act and the Bhutanese Penal Code to argue that the compensation of a Bhutanese life inclusive of the death rituals is Nu 813,000.
Druk Air, which was the primary insurer, only processed its own chopper insurance and did not bother to even inform Gyem Gyeltshen of the policy or help him to claim the insurance.
The Final Investigation Report on the crash by the Air Accident Investigation Unit of the Ministry of Infrastructure and Transport says that the probable cause was human error caused by pilot management and relation issues. This puts the liability on Druk Air.
While the crash happened in March 2023 this paper, two months before in January 2023, pointed out several issues with the Helicopter Company including its foreign pilots, and even warned of a potential crash. Druk Air responded by ignoring the findings, and banning the sale of this paper on its flights. The crash happened two months later.
On 12th July 2024 Gyem Gyeltshen, through his legal representative, decided to sue Druk Air. The suit sought 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 much emotional and mental trauma, and loss of cordyceps income.
The total liability insurance limit is of USD 20 million (mn) equivalent to Nu 1.680 billion (bn) of which after more than a year of delay, Gyem Gyeltshen is suing for USD 8.84 mn equivalent to Nu 738.57 mn, or 42.2% of the insured amount of USD 20 mn equivalent to Nu 1.680 bn.
In the last 6 months, around 4 hearings have taken place in the civil bench of the Thimphu District Court.
The lawyer hired by Druk Air has been arguing that damages are limited under the Penal Code and RSTA Act, and the insurance is between Druk Air and the International insurance companies, and does not involve Gyem Gyeltshen.
The Druk Air lawyer has been citing section 39 of the Penal Code that says a maximum compensation of 10 years minimum wage of Nu 450,000 or USD 5,500 and the cost of seven people for 49 days for funeral expenses. The lawyer also says the compensation for death under the RSTA Act for death is Nu 20,000 (USD 244) for adults and Nu 10,000 (USD 122) for children.
The Druk Air lawyer has also been saying that since it is a domestic flight only domestic laws will apply.
Gyem Gyeltshen’s lawyer, on the other hand, has been arguing that the insurance of Druk Air is naturally applicable to Gyem Gyeltshen and his family as the third-party beneficiary, as mentioned in the insurance document. The USD 200,000 per passenger is the minimal amount set aside for giving without even any court case and negotiation, which was not honored.
Gyem’s side has also been arguing that the Penal Code does not place restriction, as shown in the Penal Code where a civil suit can be brought for damages based on Civil Liability General Principles like Breach of Duty of Care and Negligence.
The two examples cited here are the Desuup Phub Gyem’s case where she sued two ministries and private individuals for Nu 28 mn in her accident case and won in 2022, and in the NHDCL Changjiji electric pole case where the family sued and won Nu 2.72 mn.
Gyem’s lawyer is also asking, if Gyem and his family have no relevance to the insurance then why did the Singaporean law firm HFW hired by the international reinsurers approach Gyem and offer him USD 20,000 for his wife and child?
His lawyer also argued that there is no law in Bhutan during when the accident happened that limits damages. The argument is also not just for the loss of lives, but also the loss of wages in cordyceps collection.
A source said that it is unfortunate that Druk Air did not help Gyem Gyeltshen to claim the insurance of USD 200,000 per death, and instead kept him in the dark and did not help him. The source said, “If Druk Air had taken a stand then Gyem would have got his due insurance amount.”
The source said that in any other country, the reinsurance companies would have rushed to settle the case and given well above the USD 200,000 per passenger, as suits there result in huge damages being offered by courts, but here, they are testing the Bhutanese legal system and also not giving due importance to Bhutanese lives.
“The approach taken via the HFW law firm in Singapore is to offer the cheapest amount possible and get away,” said the source.
The Civil Liability Act does not apply in the above case as it came after the crash, and the Act instead would have set limits instead of helping in this case.
