The Bhutanese Leading the way.
On 6th February 2024, the helicopter crash survivor Gyem Gyeltshen, his relative who is a lawyer, RICBL, the Druk Air and the Bhutanese legal representative of Holman Fenwick Willan (HFW), a legal firm in Singapore hired by the two international reinsurance companies QBE Insurance (Australia) Limited and Best Meridian International Insurance Company SPC met and on the request of Gyem’s legal representative he was finally given a fully copy of the insurance document.
In the meeting Gyem Gyeltshen told the gathering that they are familiar with his problem and difficulties and how he has not received the insurance amount since almost 12 months. He said he was not happy that he was offered USD 20,000 when unknown to him he was actually entitled to a much higher amount (USD 400,000).
He said he would like to solve the matter when the flame is small and without too much excuses and making him run around otherwise he would have to seek other recourses.
Gyem has lost his wife and daughter in the 3rd March 2023 helicopter crash in Wachey, Lunana where he was also a passenger.
The initial part of the meeting got a bit heated as Gyem’s relative who is a lawyer by training was firstly questioned on he was, and secondly matters also got flared up when Gyem’s relative asked why Gyem was not given the insurance document and kept in the dark till now and what should the basis of the discussions be.
Gyem’s legal representative received a talking to by a senior RICBL official for around 2 minutes where according to an eyewitness he was scolded as if he was like a RICBL staff.
Gyem’s lawyer asked the gathering what is the value they are willing to assign to a Bhutanese life and asked for a copy of the complete insurance document as he said this should be the basis to talk.
The lawyer asked the Druk Air official there on why Druk Air could not file and process the claim for Gyem but Druk Air threw the buck back to Gyem asking him to file a claim with Druk Air which Druk Air would then submit to RICBL.
According to a meeting eyewitness it seemed that all the agencies were more interested in passing the buck around rather than taking responsibility and the lead on the issue.
Though all the parties were there nobody apologized to Gyem for the difficulty he was put through and nobody also bothered to explain the legal basis of reducing a USD 200,000 claim for each death to USD 10,000.
The agencies present also did not make an offer to Gyem so that the matter could be resolved at the spot.
Instead Gyem and his legal representative will have to file paper work with Druk Air justifying the claim which will study it and pass it on to RICBL which in turn will pass it on to the Reinsurance companies and what position they will take is not clear yet except for the USD 20,000 they have been offering so far.
The hostile and unhelpful attitude at the meeting also ensured that nothing more could be discussed.
A closer look at the insurance documents show that not only is Gyem’s late wife Dresang Dema (38) and daughter Nima Peday (4) eligible for the insurance but also Gyem’s daughter (10) who suffered injuries in the crash, Gyem himself for the trauma and also the loss and damage of his luggage.
By extension the older daughter (15) is also eligible give the loss of her mother and the final claim by Gyem’s lawyer may also include all of the above.
A different lawyer said that there is nothing in the 15-page document including its reference to international aviation treaties that is damaging to Gyem.
According to a source the agencies involved were trying to limit the compensation using the Warsaw Convention 1929 that caps compensation at USD 10,000 to 20,000 per person. However, this is outdated and not followed by most countries.
The Montreal Convention used by most countries offers USD 175,000.
Another is that the Druk Air under its Conditions of Carriage Article 20 allots only Nu 750,000 for the death or permanent disablement of a passenger at or above 12 years of age and Nu 350,000 for those below that age.
However, here this and the Warsaw Convention is overridden by the insurance claim and also the fact that this is not an international flight but a domestic one.
One example that was even brought up was the Nu 20,000 compensation given to road accident victims under current laws but this does not apply to an air crash.
There are also attempts to look at all domestic legal laws to limit compensation. Here other lawyers and a judicial expert in the past already told this paper there is no law to limit compensation in Bhutan in such a case.
A source said that an insurance document is like a contract and so if the agencies do not honour it then it should be put to the court to enforce it. The source pointed out that the court will not even have to try and quantify the compensation as it is already mentioned in the policy document.
If the reinsurance companies do not settle and give the USD 200,000 voluntary compensation and it goes to court then Gyem’s lawyer can sue for a much higher amount as the total single combined liability covered by the insurance is USD 20 mn minus the USD 3.4 mn for the chopper insurance.
The source said that if the matter goes to court then the case will be between Gyem and Druk Air as Gyem had entrusted the life of his family members to Druk Air who was responsible for safety.
Once the case judgment is given then Druk Air will have to recover the amount from RICBL which in turn will have to do it from the reinsurance companies.
The Druk Air in an interview with a different media outlet shared a chain of emails saying it had followed up with RICBL from July, August and September 2023 on the insurance owed to Gyem but Gyem Gyeltshen told this paper that despite him approaching Druk Air, they never shared that he is eligible to get USD 200,000 per death under Druk Air’s insurance policy signed with RICBL.
He said that in the end it was Druk Air who asked him to meet the HFW lawyer who only offered USD 20,000.
This leads Gyem to wonder about the sincerity of Druk Air’s claims.
This paper earlier interviewed the Druk Air CEO twice asking why Druk Air did not file the claims on behalf of Gyem but Druk Air never shared these emails with the paper.
The email from RICBL to Druk Air shared with the different media outlet which Druk Air declined to share with The Bhutanese despite a subsequent request says, ‘It also mentioned that USD 200,000 per passenger was the maximum limit of the claim and the claim shall be offered considering the nationality of the passengers, local law of Bhutan, age of the passengers, employment of the passengers, dependency on how many family members they were supporting, the financial status of the passengers. But if the deceased was the sole breadwinner then the settlement amount would differ.’
However, a lawyer said that it is not accurate that USD 200,000 is the maximum claim limit as this is the voluntary settlement amount as per the insurance document and is, in fact, the minimum.
The lawyer also said that the various other conditions set after this like age of the passengers, employment of the passengers, dependency etc. are only applicable if Gyem goes to court and claims more than USD 200,000 per person.
The Druk Air CEO Tandi Wangchuk said that while Druk Ait initiated the process from July 2023 the reinsurers had a right to send representatives to find the facts.
The CEO alleged that Gyem was unavailable for six months at a time.
However, Gyem said that the place he stays has mobile and internet connection and it is only a couple of days in a week he may go to an area with no internet.
He said that in the month of May feeling very empty at home and to take his mind off things he had gone for cordyceps collection but he was available for the rest of the time.
When asked why Druk Air had not shared with Gyem what he was entitled too and a copy of the insurance policy the Druk Air CEO said that they could not share such information without approval from the third party.
Meanwhile the RICBL CEO Karma refuted that the meeting was hostile or not productive.
He said he first said that the delay that has happened so far is unfortunate, secondly the victim should get the maximum compensation allowed under the law and third that RICBL and Druk Air will give all the information and support towards this.
The CEO said the two main parties in the case are now the victim and the HFW lawyer and the issue needs to be resolved between them.
The CEO said that a copy of the insurance policy was shared with the victim after permission from Druk Air.
The CEO said they wished the victim well.
