AFFIDAVIT
OF xxx IN HER CAPACITY AS CO-COMPLAINING WITNESS IN NPS DOCKET NO. xxx IN
SUPPORT OF HER HUSBAND xxx; AND AS CORROBORATING WITNESS FOR HER RESPONDENT
HUSBAND
xxx IN NPS DOCKET No. xxx.
§ WITH -
“MOTION
TO INTERVENE” AS CO-COMPLAINANT OF HER HUSBAND xxx IN CASE NO. xxx BEING
THE REGISTERED OWNER OF THE DAMAGED XXX XXX WITH PLATE NO xxx.
I, xxx,
40 years old, Filipino, married to xxx, and residing at xxx, xxx Subd., xxx Village,
xxx, xxx City, under oath, respectfully depose and state:
I.
PREFATORY
STATEMENT.
1. THE
TWO (2) SUBPOENAS RECEIVED BY HEREIN AFFIANT xxx FOR AND IN BEHALF OF HER
HUSBAND xxx. -
1.1.
I received from this Honorable Office on February 14, 2016 two (2) Subpoenas, both
dated 10 February 2016, marked as Annex
“1” and Annex “2” hereof, addressed to my husband xxx
(“xxx”, for brevity) at our residence in xxx, xxx Homes, xxx Village,
xxx, xxx City in connection with the two (2) above-captioned consolidated
cases.
1.2.
The subpoena for Case No. xxx (“SPO2 xxx vs. xxx and xxx”) was not accompanied by
the Police Report of SPO2 xxx.
1.3.
On February
19, 2016 the herein Affiant secured from this Honorable Office certified
true copies of the said Police Record of SPO2 xxx and the relevant documents attached
thereto, the same to form part of my Affidavit in defense of my husband xxx and in my capacity as
intervenor/co-complainant in Case No. xxx.
1.4.
It appears that in the said Case No. xxx (“SPO2 xxx vs. xxx and xxx” for reckless imprudence
resulting in damage to property), my husband xxx was made by the SPO2 as the complainant
against xxx (“xxx”, for brevity), per my inquiry with the records staff of this
Honorable Office on February 19, 2016, because my husband xxx was not
required by the Subpoena issued in the said case to submit his/our Counter-Affidavit.
1.5.
The Subpoena for Case No. xxx (“xxx vs. xxx”, for reckless imprudence resulting in
damage to property), however, required my husband xxx, as the respondent
therein, to submit his Counter-Affidavit in relation to the Complaint filed in
the said case by xxx arising from the same vehicular incident subject matter of
the related/consolidated Case No. Case
No. xxx (“SPO2 xxx vs. xxx and xxx”).
2. PURPOSES OF THIS AFFIDAVIT AND LEGAL
STANDING OF HEREIN AFFIANT xxx. –
2.1.
This Affidavit is being submitted by me to this
Honorable Office in compliance with the abovementioned two (2) Subpoenas issued
by it in relation to the abovecaptioned two (2) consolidated cases.
2.2.
The purposes of this Affidavit are to serve as:
(a)
My Affidavit as a corroborating witness in support of the claim for damages and the
defenses of my husband xxx in the abovecaptioned two (2) consolidated cases.
(b)
My Affidavit as a Intervenor/Co-Complainant in Case No. xxx for the property damage
sustained by my vehicle (xxx, Plate No. xxx), which vehicle was officially registered in my name as the
lawful owner thereof.
(c)
My Affidavit as the Attorney-In-Fact or Legal
Representative of my husband xxx for purposes of the litigation of the
abovecaptioned two (2) consolidated cases while he is out of the country by
reason of his work as an Overseas Filipino Worker (OFW).
3.
INABILITY
OF xxx (OVERSEAS FILIPINO WORKER) TO APPEAR BEFORE THE OFFICE OF THE CITY
PROSECUTOR OF xxx CITY AT THIS TIME FOR PURPOSES OF THE PRELIMINARY
INVESTIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.
SPECIAL POWER OF ATTORNEY EXECUTED BY xxx IN FAVOR OF THE HEREIN AFFIANT
xxx AS HIS ATTORNEY-IN-FACT AND LEGAL REPRESENTATIVE IN CONNECTION WITH THE
LITIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.
3.1.
For the information of this Honorable Office my
husband xxx left for abroad as an OFW
(seaman) on January 29, 2016.
3.2.
I was appointed by my husband xxx as his
Attorney-In-Fact or Legal Representative to act for and in his behalf in
connection with the litigation of the abovecaptioned two (2) consolidated cases
as shown by the SPECIAL POWER OF
ATTORNEY (SPA) he executed on January
21, 2016, a copy of which is attached as Annex “3” hereof.
3.3.
The said SPA expressly empowered me to perform
any and all of the following duties and functions:
“x x x.
To file, prosecute and defend my
said problem or case until its finality, including with any other forum, with
power to make counterclaims, avail of discovery procedures, any and all
provisional and extraordinary remedies, and to file the proper action in court;
to appear in any hearings or proceedings or action in any forum, including with
the courts, quasi-judicial bodies and government agencies, and out-of-court,
especially for my said pending case; to attend any hearing, pre- trial hearing
or conference or mediation , with power to make admissions and stipulations of
facts and documents, to submit and/or approve compromise proposals; to attend
subsequent hearings or conferences after the pre- trial or preliminary
conference; to implement and execute any compromise proposals or agreements; to
sue and be sued under any action or proceeding; to sign VERIFICATION AND
CERTIFICATION OF NON- FORUM SHOPPING on any petition/complaint, amended or
supplemental petition/complaint, motion, manifestation, compliance or any
paper, writing or document; to waive any procedure in the Rules of Court or
other rules, including to waive any PLEADING, PRE-TRIAL OR TRIAL PROCEDURE or
any other PROCEDURE in any forum; to sign, seal and execute any affidavit of
whatever kind and nature, or any document, contract, agreement, compromises,
receipts, or any other paper or writing in relation thereto; and to sign, seal
and execute all necessary documents, contracts, agreements, affidavits,
compromises, receipts, petitions, complaints, answers, motions, verifications,
certificates against non-forum shopping and other pleadings, including
amendments and supplements thereto; to cause the signing, sealing, execution of
any complaint, motion, affidavit of whatever kind and nature, or any document,
contract, agreement, compromises, receipts, complaint-affidavit,
counter-affidavit, reply-affidavit, rejoinder-affidavit, letter or any other
paper or writing in relation thereto; to hire and pay lawyer of counsel, to
make payments as are considered acts of strict dominion; to testify in any
forum under the limits allowed by law; to secure witnesses, witnesses’
affidavits and all evidences; all pertaining to all the powers expressly and
impliedly herein granted or those bye necessary implication thereto.
X x x.”
II.
MOTION TO
INTERVENE.
4. I
hereby move for leave of this Honorable Office to INTERVENE as a CO-COMPLAINANT
of my husband xxx in Case No. xxx.
4.1.
My legal
interest to intervene lies in the fact that I was the REGISTERED OWNER of xxx with PLATE NO. xxx which was being
driven by my husband xxx at the time of the incident subject matter of the two
(2) abovecaptioned consolidated cases (i.e.,
January 8, 2016 at about 7:30 AM at xxx St. [in front of xxx Bldg. and opposite the entry-exit gate of xxx Homes]
inside xxx Village, xxx, xxx City).
4.2.
If this motion would be granted, I further move
that this Affidavit be deemed as my Complaint-In-Intervention.
4.3.
By analogy, it will be noted that Sec. 1 and Sec. 2, Rule 19 (INTERVENTION),
of the 1997 Rules of Civil Procedure provide:
“SECTION
1. Who may intervene.—A person
who has a legal interest in the
matter in litigation, or in the success
of either of the parties, or an interest against both, or is so situated as
to be adversely affected by a distribution or other disposition of property in
the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of
the original parties, and whether or not the intervenor’s rights may be fully
protected in a separate proceeding. (2[a], [b]a, R12).”
“SEC. 2. Time to
intervene.–The
motion to intervene may be filed at any
time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on the
original parties. (n).”
III.
ADOPTION
OF THE INVESTIGATION RECORDS OF THE INVESTIGATOR-ON-CASE SPO2 xxx AND SUBMISSION
OF OTHER RELEVANT DOCUMENTS.
5. For
and in behalf of my husband xxx as his
Attorney-In-Fact and Legal Representative, and in capacity as a corroborating witness for my husband xxx and
as his Co-Complainant in Case No. xxx, I hereby adopt and submit to this
Honorable Office the photocopies of the following investigation records of SPO2
xxx, which were all certified by the records section of this Honorable Office
to be true copies of the originals thereof in its custody, to wit:
(a)
Annex “4”. – Certificate of Registration (CR) and current Official Receipt (OR)
issued by the Land Registration Office (LTO) for the subject motor vehicle
of herein Affiant, i.e., xxx with Plate
No. xxx registered in my name.
(b)
Annex “5”. - Certificate of Registration (CR) and current Official Receipt (OR)
issued by the Land Registration Office (LTO) for the subject motor vehicle
of xxx, i.e., xxx with Plate No. xxx registered
in the name of herein xxx.
Note:
It appears that the
registration of the vehicle of xxx was already EXPIRED at the time of the subject vehicular incident on January 8, 2016 because the date of issuance of its annual LTO Official Receipt (OR)
was April 19, 2013 (4/19/13).
If such is the case, it may be concluded that xxx was in violation of the Land Transportation
and Traffic Code (RA 4146) at the time of the subject vehicular incident.
(c)
Annex “6”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xx.
(d)
Annex “7”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xxx, the
eye-witness Security Guard of xxx Homes (xxx Village).
(e)
Annex “8”.
– MALAYANG SINUMPAANG SALAYSAY,
dated January 8, 2016, of the herein Affiant.
(f)
Annex “9”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xxx.
(g)
Annex “10”.
– SKETCH of the scene of the subject
vehicular incident.
(h)
Annex “11”.
– PICTURES of the two (2) subject
vehicles taken at the scene of the incident, showing their respective positions
(in black and while).
(i)
Annex “12”.
– QUOTATION, dated January 8, 2016,
issued by xxx INC. to xxx (driver) and the herein Affiant (registered
owner), showing a cost estimate of P96, 480.82.
(j)
Annex “13”. – REPAIR ESTIMATE, dated 11 January 2016, issued by xxx to xxx showing
a cost estimate of P88, 424.00.
(k)
Annex “14”. – TRAFFIC ACCIDENT INVESTIGATION REPORT, dated January 8, 2016,
issued by Investigator-On-Case SPO2 xxx.
6. FURTHER,
I hereby submit to this Honorable Office the following additional relevant
documents in support of my statements in this Affidavit and in support of the
claim and defenses of my husband xxx:
(a)
Annex “15”,
with sub-markings. – Additional PICTURES
of the two (2) subject vehicles taken at the time of the incident.
Note:
I am submitting to the
Investigating Prosecutor the ORIGINALS of the said pictures (attached to the original
copy of this Affidavit intended for the Investigating Prosecutor) for him to
better appreciate the nature, locations, and details of the respective property
damage/s sustained by the two (2) vehicles during the incident. The extra copies of this Affidavit will
contain only clear colored photocopies of the said pictures to economize on the
photo developing costs.
(b)
Annex “16”. - COMPACT DISC (CD) of the subject
incident which was taken by the CCTV camera of xxx Bldg. located at xxx St., xxx, xxx Village. The incident happened in
front of xxx Bldg.
Note:
I personally secured the
said CD from the caretaker (named “xxx”)
of the xxx Bldg. a few days after the date of the subject incident as part
of my continuing investigation and search for further evidence of the incident
in support of the claim and defenses of my husband xxx.
I hereby reserve
the right to secure the Affidavit of the said xxx Bldg. caretaker (“xxx”) or at
the least a notarized Certification as part of the authentication of the
contents of the said CD before the termination of the preliminary investigation
of these two (2) consolidated cases.
For lack of material time,
I cannot at this time secure the said Affidavit or notarized Certification.
Further, because the CD
version of the CCTV video is not very clear because of the opposing morning
sunlight at the time it was taken, and for the convenience of the Investigating
Prosecutor, I am attaching a clearer version thereof in a USB gadget
attached to the copy of this Affidavit intended for the Investigating
Prosecutor, so that he could better analyze the incident. The extra copies of this Affidavit however will contain the aforementioned
CDs.
(c)
Annex “17”,
- DEED OF SALE OF MOTOR VEHICLE, dated January 25, 2016, executed by me
(vendor) as the registered owner of the
subject xxx with Plate No. xxx in favor the vendee xxx for the amount of
P360, 000.00.
Note:
The cause abovementioned transaction
was negotiated and finalized between the parties thereto before the occurrence of
the subject incident. The actual execution of the deed of sale was delayed
because of the subject vehicular incident and because of the property damage
that it had caused on my vehicle. The deed of sale was executed only on January
25, 2016 (17 days after the subject January 8, 2016 vehicular incident).
(d)
Annex “18”.
- DEMAND AND INVITATION LETTER, dated January 8, 2016 (the date of the
subject incident), by our counsel Atty. Manuel Laserna Jr., addressed to xxx,
which is self-explanatory. Xxx ignored
the said letter.
(e)
Annex “19”.
– DEMAND LETTER, dated January 25, 2016, of Atty. xxx, counsel for xxx,
addressed to my husband xxx.
(f)
Annex “20”.
– REPLY-LETTER, dated January 28, 2016, our counsel Atty. Laserna addressed
to Atty. xxx in response to the aforementioned Demand Letter, dated January 25,
2016, of Atty. xxx (Annex “19”).
(g)
Annex
“21”. – PICTURE of the “speed limit signage” of xxx Village
Homeowners Association, Inc. (speed limit of 30 KPH).
(h)
Annex “22”.
- LETTER
OF EMPLOYMENT of my husband xxx showing period of his overseas employment
contract, i.e., January 29, 2016 up to
August 19, 2016. For this reason, he would be unable to appear during the
preliminary investigation of these consolidated cases. Hence, he executed an
SPA for me, as stated in Annex “3“,
supra.
IV.
FACTS OF
THE CASE.
7. Briefly,
the incident may be summarized, thus:
On January 8, 2016 at about 7:30 AM on xxx St., xxx Village, in front of the entry-exit gate of xxx Homes and in front of xxx Bldg. on xxx St., the Security Guard xxx of xxx Homes, stopped a MONTERO
(Plate Number not indicated in the case record or in the Salaysay of the said
security guard) that was traversing westward along xxx St. towards xxx St., in order to allow my husband xxx,
who was driving our family car (xxx, Plate No. xxx) to slowly exit the main entry-exit gate of xxx Homes.
When my husband was already past the middle of xxx St., all of sudden xxx, who was overspeeding, appeared like a lightning and hit the right front fender, bmper, hood, and other frontal parts of our of our
family car.
Xxx was driving along xxx St.
from xxx Lane (east) going to xxx Ave. (west).
Xxx disregarded the MONTERO which dutifully stopped, in obedience to
the security guard of xxx Homes, to give way to my husband xxx.
My husband xxx was slowly exiting the gate of xxx Homes,
as stated in his Salaysay.
Our car sustained damage in
the right front fender, the front bumper, the hood, and other parts thereof, as
stated in the QUOTATION issued by xxx INC. (Annex “12”, supra).
The car of xxx sustained
damage at the left front fender.
Due to the impact, the air
from his left front tire exited and he suffered from a flat /deflated tire in
his left front wheel.
Instead of apologizing, XXX
blamed by husband.
At the Traffic Bureau, when
we were following up the police report, we met XXX, who again did not apologize
but instead insinuated to us that the parties should litigate their claim and
counterclaim.
We were hoping that XXX
would make a compromise offer to us to amicably settle the damage that he had
caused on our case but he did not.
Our lawyer Atty. Laserna also
wrote a letter to XXX inviting him to his law office to explore a possible
compromise but he ignored it (Annex “18”, supra).
V.
DISCUSSION.
A. RECKLESS
IMPRUDENCE OF XXX.
8. In
the MALAYANG SINUMPAANG SALAYSAY, dated
January 8, 2016, of my husband XXX (Annex
“6”, supra), which Salaysay was
sworn to by him before Senior Assistant City Prosecutor xxx, which was submitted
by my husband to SPO2 Xxx to form part of the latter’s investigation report to
be filed by said police officer with this Honorable Office for preliminary
investigation Office, and which investigation report is now part of the case
records of these to (2) consolidated cases pending before this Honorable Office,
my husband XXX stated, thus:
“Papalabas ako sa Xxx Home Subd. Nagtratrapik ang village security in between Xxx
Xxx at Xxx Home (Intersection). Pinastop
ng village security ang isang Montero para padaanin ako, habang paliko
na ako at pinagbigyan na ako ng
Montero biglang sumulpot ang isang xxx. Mabilis ang takbo ng xxx na sumulpot sa likod ng Montero”.
9.
In the MALAYANG SINUMPAANG SALAYSAY, dated January
8, 2016, of XXX XXX XXX (Annex “7”, supra) the eye-witness Security Guard of Xxx Homes assigned to the
entry-exit gate of the said village on the date and time of the subject
incident, which Salaysay was sworn to by him before Senior Assistant City Prosecutor, and submitted by him to the SPO2 XXX
to form part of his investigation report to be filed by him with this Honorable
Office for preliminary investigation, and which Salaysay is now part of the
case record of this Honorable Office,
the said affiant-witness Xxx Xxx XXX stated, thus:
“Isang
banngaan naganap sa tapat ng XXX
Building dakung axxxseyete nag umaga or 7:00 am sa may Xxx Xxx corner Xxx
Homes. Ang Xxx Xxx ay palabas nga
galing sa loob nag xxx homes at eto ay tatawid sa kabilang kalsada, inasis ko ang Xxx Xxx upamg madali
siyang makatawid at nung nakalabas na yung harapan (ng) Xxx isang sasakyan ang
bumangga sa Xxx Xxx. Ito ay Xxx.
Mabilis ang takbo nang Xxx kaya nabangga niya ang papatawid na Xxx Xxx.
Dahil sa bilis nag takbo nag Xxx nawasak
ang harapan nag Xxx Xxx sa sobrang lakas nag impak na tumama sa harapan
nag Xxx Xxx kaya wasak na wasak ang harap. Traffic ang isang linya papunta ng
Casimiro kaya pinahinto ko ang
Montero sa kabilang linya na sinusundan
nya (XXX) para makadaan ang Xxx
Xxx, Nang nasa kabilang linya
na ang Xxx Xxx nabangga na ng Xxx ang Xxx Xxx.”
10.
In my
own MALAYANG SINUMPAANG SALAYSAY, dated
January 8, 2016 (Annex “8”, supra), as the registered owner of the subject Xxx
Xxx, with Plate No. xxx, which Salaysay was sworn to by me before Senior Assistant City Prosecutor xxx,
and which was submitted by me to SPO2 XXX to form part of his investigation
report to be filed by him this Honorable Office for preliminary investigation,
and which Salaysay is now part of the case record of this Honorable Office, I
stated, thus:
“Nasa
bahay ako tumawag ang aking asawa (Xxx Xxx). Sinabi na sya ay binangga ng isang Xxx Xxx na minamaneho ni Mr. (Xxx)
Xxx. Pagdating ko sa Xxx Xxx (St.) kung saan nagyari ang aksidente,
tinanong ko ang aking asawa sa nangyari at napaliwanag nya sa akin ang buong detalye. Nagpunta kame sa
Traffic (Bureau) office sa Casimero (Ave.) para mag ayos, subalit walang
nangyari. Kaya nagsampa kame ng reklamo laban Mr. Xxx”.
11.
In a Letter, dated January 8, 2016, of our
lawyer Atty. Laserna (Annex “18”, supra)
addressed to Xxx Xxx, Atty. Laserna
stated, thus:
“x x x.
We
represent Mr. Xxx Xxx and his wife Mrs. Xxx Xxx.
This
refers to their family vehicle registered in the name of his Mrs. Xxx Xxx,
described as Xxx Xxx, Plate No. xxx, Metallic Beige.
We
are writing in re: the incident which happened today, January 8, 2016, at about
7:00 AM – 7:30 AM at Xxx Xxx St., in front of XXX Bldg. and in front of the
gate of Xxx Homes, inside XXXXxx Village, XxxXxx City, which resulted in damage
to the vehicle of our said clients.
Based on the evidence of the
incident, the proximate cause thereof is your reckless and negligent manner of
driving your vehicle (Xxx Xxx, Plate No. xxx
when you suddenly took over a Montero vehicle in front of you, which
Montero vehicle was then on stand still having been earlier stopped by the Xxx
Homes guard on duty at that time, to give way to the slow exit of the vehicle
of our said clients from Xxx Homes. Your reckless driving resulted in a
collision of the two vehicles involved.
We request a legal
conference with you and your lawyer to be held on January 13, 2016, Wednesday,
at 3:00 PM at our law office to discuss and explore a possible compromise
agreement between the parties to avoid unnecessary and expensive criminal
and/or civil litigations.
Please
let us know of your response hereto within two (2) days from your receipt
hereof. Beyond the said time, if this request is ignored, we shall take the
proper legal actions against you. Thank you.
X x
x.”
11.1.
The
aforecited Letter was ignored by Xxx.
12. In a Letter, January 28, 2016, of our lawyer Atty. Laserna (Annex “20”, supra), addressed to Atty. Xxx, counsel
for Xxx, Atty. Laserna stated thus:
“x x x.
RE : YOUR
DEMAND LETTER, DATED JANUARY 22, 2016, ADDRESSED TO XXX XXX.
MABUHAY:
We
represent XXX XXX, a resident of xxx, XXXX Village, xxx, Xxx City.
This
refers to your Demand Letter, January
25, 2016, which the spouse of our client, Xxx Xxx, thru her mother, Xxx,
received on January 28, 2016, demanding the sum of P88,424.00 in re: the vehicular incident that happened on January 8, 2016 at about 7:00 AM on Xxx Xxx
St., XXXXxx Village, XxxXxx City.
We respectfully DENY the
claim of your client, the same being unfounded, baseless and contrary to the
truth and the evidence, the truth being that the reckless imprudence, lack of
due diligence, and criminal irresponsibility of your client was the proximate
cause of the said vehicular incident which likewise caused damage to the
vehicle of our client in the amount of P96,480.82 (See attached Xxx estimate/quotation,
dated January 8, 2016).
The
said amount of damage shall be proven in due time by our clients before the
Office of the City Prosecutor and the proper Trial Court.
Per
latest inquiry by Mrs. Xxx Xxx, the PNP XxxXxx City Traffic Bureau has
forwarded to the Office of the City Prosecutor the records of the said
vehicular incident for regular preliminary investigation. The case is
reportedly docketed as xxx before the
said Office and will still be raffled to
an investigating prosecutor as of today.
Our
clients are prepared to LITIGATE their claim before the said Office and the
proper Trial Court of XxxXxx City in due time, without prejudice to the right of the contending parties to discuss
and explore a possible Compromise
during the Mediation and the Judicial
Dispute Resolution phases of the said case.
For your information, Xxx Xxx
will fly tomorrow for abroad as an overseas Filipino worker (a seaman in a foreign
cruise liner). His wife, Xxx Xxx (who is the registered owner of the Xxx
vehicle involved in the aforecited vehicular incident), will represent him as
his attorney-in-fact for purposes of the litigation of the aforecited case
before the Office of the City Prosecutor and the proper Trial Court.
Please note that we had
previously send a Letter, dated January
8, 2016, to your client XXX B. XXX, with address of record as per his Driver’s
License at xxx Bldg., xxx Village, xxx Subd., xxx City,
inviting him to a conference at our law office on January 13, 2016 at 3:00 PM
to discuss/explore a Compromise. Your client did not appear during the said
conference.
Thank
you.
X x
x.”
B. RELEVANT LAWS AND JURISPRUDENCE.
13.
Article 365 of the Rev. Penal Code
reads as follows:
"Art. 365. Imprudence and
negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayor in its maximum period to prision correccional in
its medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be imposed; if
it would have constituted a light felony, the penalty of arresto menor in its
maximum periodical shall be imposed.
"Any
person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor
in its medium and maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be imposed.
"When
the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damages to three times such
value, but which shall in no case be less than twenty-five pesos.
"A
fine not exceeding two-hundred pesos and censure shall be imposed upon any
person who, by simple imprudence or negligence, shall cause some wrong which,
if done maliciously, would have constituted a light felony.
"In
the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in article sixty-four.
"The provisions contained in this article shall not be applicable:
"1. When the penalty provided for the offense is equal
to or lower than those provided in the first two paragraphs of this article, in
which case the courts shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to
apply.
"2.
When, by imprudence or negligence and with violations of the Automobile Law,
the death of a person shall be caused, in which case the defendant shall be
punished by prision correccional in its medium and maximum periods.
"Reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on
the part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.
"Simple imprudence
consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.
"The penalty next higher in degree to those
provided for in this article shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be in his hands to
give."
14.
The aforecited provision defines RECKLESS IMPRUDENCE and SIMPLE NEGLIGENCE as
follows:
"Reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by
reason of inexcusable lack of
precaution on the part of the person performing or failing to perform
such act, taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place.
"Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.
15. XXX was overspeeding at the time of
the incident.
The speed limit inside XXXXxx Village is only 30 KPH.
In our own village (xxx)
located inside XXXXxx Village the speed limit, in fact, is even much lower,
i.e., 15 KPH.
The speed limit signages of
the XXXXxx Village Homeowners Association, Inc. [BFRVHAI] are
located/distributed all around the main streets inside the village. (See Annex “21”, supra).
The CCTV video (Annex “16”, supra) of the incident shows that XXX was overspeeding, perhaps at about 40-50 KPH.
Considering that January 8,
2016, a Friday, was a working day, it is fair to assume that at that time (7:00
AM) XXX was in hurry to go to work, hence, the reckless overspeeding and
overtaking.
On the other hand, my
husband XXX, per the same CCTV video, was moving very slowly at about 15 KPH as he was carefully turning left,
after exiting from the gate of Xxx Homes, along Xxx Xxx St. towards xxx St.
(westward).
XXX knew and could not have
missed the fact that the MONTERO car had already stopped or was stationary, in
obedience to the signal of the Xxx Homes Security Guard XXX. XXX should have
likewise stopped to give way to the exiting vehicles from the gate of Xxx
Homes.
At the very least, XXX should have slowed down to 10 KPH to 15 KPH
to insure that there were no outgoing vehicles on his left (i.e., left or front
of the stopped MONTERO) which was a blind side from XXX’s vantage.
XXX did not stop.
Instead, he overtook the
stopped or stationary MONTERO in front of him.
XXX, in an overspeeding
manner, tried to speed away on the right side of the MONTERO, hitting our
family car being driven by my husband XXX at that time.
The PROXIMATE CAUSE of the property damage on our family car was the RECKLESS
IMPRUDENCE of XXX.
16. The analogous case of ROGELIO J. GONZAGA vs. PEOPLE OF THE XXXPINES, G.R. No. 195671, January 21,
2015, is instructive.
“x x x.
Reckless
imprudence, as defined in Article 36540 of the RPC, consists in voluntarily,
but without malice, doing or failing to do an act from which material damage
results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his
employment or occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
X x x.
In the present case, the RTC and the CA uniformly found that Rogelio’s
act of driving very fast on
the wrong side of the road was the proximate
cause of the collision, resulting to the death of Dionesio, Sr. and
serious physical injuries to Dionesio, Jr. and Cherry. Notably, the road where the incident occurred was a curve sloping
upwards towards Brgy. Bocboc where the Inguitos were bound and descending
towards the opposite direction where Rogelio was going. Indeed, the very fact of speeding, under
such circumstances, is indicative of imprudent behavior. As a motorist,
Rogelio was bound to exercise ordinary care in such affair by driving at a
reasonable rate of speed commensurate with the conditions encountered, as this
would enable him to keep the vehicle under control and avoid injury to others
using the highway.43 Moreover,
it is elementary in traffic school that a driver slows down before negotiating
a curve as it may be reasonably anticipated that another vehicle may appear
from the opposite direction at any moment. Hence, excessive speed,
combined with other circumstances such as the occurrence of the accident on or
near a curve, as in this case, constitutes negligence.44 Consequently, the Court finds that
Rogelio acted recklessly and imprudently in driving at a fast speed on the
wrong side of the road while approaching the curve where the incident happened,
thereby rendering him criminally liable, as well as civilly accountable for the
material damages resulting therefrom. X x x.
X x x.”
17. Sec. 41
of R.A. No. 4136, or the LAND TRANSPORTATION AND TRAFFIC CODE, provides for
the rules on overtaking and passing which apply to this case by analogy.
When a driver’s vantage or line of sight is obstructed, e.g., by a curve or a
stopped/stationary vehicle in front of him, he should not overtake the stopped/stationary vehicle in front of
him, more so in an overspeeding manner.
In this case, XXX overtook
the stopped/stationary MONTERO in front of him, in an overspeeding manner and
without regard as to whether or not there were vehicles on the left or front of
the said MONTERO exiting from Xxx Homes along Xxx Xxx St. that he might hit.
Please note Sec. 41 of RA No. 4136, to wit:
“Section 41. Restrictions on overtaking
and passing.
(a)
The driver of a vehicle shall not drive to the left side of the center line of
a highway in overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible, and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking or passing to be made in
safety.
(b)
The driver of a vehicle shall not overtake or pass another vehicle proceeding in
the same direction, when approaching
the crest of a grade, not upon a curve in the highway, where the driver's view
along the highway is obstructed within a distance of five hundred feet
ahead, except on a highway having two or more lanes for movement of traffic in
one direction where the driver of a vehicle may overtake or pass another
vehicle: Provided, That on a highway within a business or residential district,
having two or more lanes for movement of traffic in one direction, the driver
of a vehicle may overtake or pass another vehicle on the right.”
18.Please
note also Sec. 35 of RA No. 4136
(restrictions as to speed).
“Section 35. Restriction as to speed.
-
(a)
Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater
nor less than is reasonable and proper, having due regard for the traffic, the
width of the highway, and of any other condition then and there existing;
and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the vehicle to a
stop within the assured clear distance ahead.
(b)
Subject to the provisions of the preceding paragraph, the rate of speed of any
motor vehicle shall not exceed the following:
|
MAXIMUM ALLOWABLE SPEEDS |
Passengers
Cars and Motorcycle |
Motor trucks and buses |
|
1.
On open country roads, with no
"blinds corners" not closely bordered by habitations. |
80
km. per hour
|
50
km. per hour
|
|
2.
On "through streets" or boulevards,
clear of traffic, with no " blind corners," when so designated. |
40
km. per hour
|
30
km. per hour
|
|
3.
On city and municipal streets, with
light traffic, when not designated "through streets". |
30
km. per hour
|
30
km. per hour
|
|
4. Through crowded
streets,
approaching intersections at "blind corners," passing school zones, passing other vehicles which are stationery, or for similar dangerous circumstances. |
20 km. per hour
|
20 km. per hour
|
19. The analogous case of MARIANO
C. MENDOZA and ELVIRA LIM vs. SPOUSES LEONORA J. GOMEZ and GABRIEL V.
GOMEZ, G.R. No. 160110, June 18, 2014, is applicable to this case.
In the said case, the Supreme Court held that
“before the collision, the Xxx
truck was in its rightful lane, and was even at a stop, having been flagged
down by a security guard of St. Ignatius Village.”
The mishap occurred “when the Mayamy
bus, travelling at a fast speed as shown by the impact of the collision, and
going in the opposite direction as that of the Xxx truck, encroached on the
lane rightfully occupied by said Xxx truck, and caused the latter to spin,
injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx
truck.”
The
relevant doctrinal parts of the aforecited case are cited hereinbelow:
“x x x.
The first question to address, then, is whether or not Mendoza’s
negligence was duly proven. Negligence
is defined as the failure to observe for the protection of the interests of
another person, that degree of care, precaution and vigilance which the circumstances
justly demand, whereby such other person suffers injury.21
As found by the RTC, and affirmed by the CA, Mendoza was negligent in
driving the subject Mayamy bus, as demonstrated by the fact that, at the time
of the collision, the bus intruded on the lane intended for the Xxx truck.
Having encroached on the opposite lane, Mendoza was clearly in violation of
traffic laws. Article2185 of the Civil
Code provides that unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating
any traffic regulation. In the case at bar, Mendoza’s violation of
traffic laws was the proximate cause of the harm.
Proximate cause is defined as that cause,
which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not
have occurred. And more comprehensively, the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final
event in the chain immediately effecting the injury as a natural and probable
result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom.22
The evidence on record shows
that before the collision, the Xxx truck was in its rightful lane, and was even
at a stop, having been flagged down by a security guard of St. Ignatius
Village.23 The mishap occurred when the Mayamy
bus, travelling at a fast speed as shown by the impact of the collision, and
going in the opposite direction as that of the Xxx truck, encroached on the
lane rightfully occupied by said Xxx truck, and caused the latter to spin,
injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx
truck.
X x x.”
20.
In the case of
LARRY V.
CAMINOS, JR. vs.
PEOPLE OF THE XXXPINES, G.R. No. 147437, May 8, 2009, the Supreme Court discussed the standard of
care or diligence that a driver must observe, that is, “the measure of a motorist’s duty is such care as is, under the facts and
circumstances of the particular case, commensurate with the dangers which are
to be anticipated”.
“x x x.
All told, it must be needlessly emphasized that the measure of a
motorist’s duty is such care as is, under the facts and circumstances of the
particular case, commensurate with the dangers which are to be anticipated and
the injuries which are likely to result from the use of the vehicle, and in
proportion to or commensurate with the peculiar risk attendant on the
circumstances and conditions in the particular case,81 the driver being under the duty to know
and to take into consideration those circumstances and factors affecting the
safe operation of the vehicle which would be open to ordinary observation.82
X
x x.”
21.
In
the analogous case of MARIKINA
AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO vs. PEOPLE
OF THE XXXPINES and ERLINDA V. VALDELLON, G.R. No. 152040, March 31, 2006, where the issues were the illegal
overtaking and overspeeding of the guilty driver, the Supreme Court cited Art. 2185 of the Civil Code
which provides that "unless there
is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent, if at the time of mishap, he was violating any traffic
regulation." In the aforecited case, “by his own admission, petitioner
Suelto violated the Land
Transportation
and Traffic Code when he suddenly swerved the bus to the right, thereby causing
damage to the property of private respondent.”
The above provision applies to XXX who was guilty of overspeeding, reckless overtaking on the
right side of a stopped/stationary vehicle (Montero), and using an apparently
expired LTO OR (see Annex “5”,
supra).
In the aforecited case the Supreme Court held, thus:
“x x x.
On the first issue, we find and so resolve that respondent People of the
Xxxpines was able to prove beyond reasonable doubt that petitioner Suelto swerved the bus to the right with
recklessness, thereby causing damage to the terrace of private
respondent’s apartment. Xxx.
Suelto narrated that he suddenly
swerved the bus to the right of the road causing it to hit the column
of the terrace of private respondent. X x x.
X x x.
Under Section 37 of Republic Act
No. 4136, as amended, otherwise known as the Land Transportation and Traffic
Code, motorists are mandated to drive and operate vehicles on the right
side of the road or highway:
SEC. 37. Driving
on right side of highway. – Unless a
different course of action is required in the interest of the safety and the
security of life, person or property, or because of unreasonable difficulty of
operation in compliance herewith, every person operating a motor vehicle or an
animal-drawn vehicle on a highway shall pass to the right when meeting persons
or vehicles coming toward him, and to the left when overtaking persons or
vehicles going the same direction, and when turning to the left in going from
one highway to another, every vehicle shall be conducted to the right of the
center of the intersection of the highway.
Section 35 of the law provides, thus:
Sec. 35.
Restriction as to speed.—(a) Any person
driving a motor vehicle on a highway shall
drive the same at a careful and prudent speed, not greater nor less than is
reasonable and proper, having due regard for the traffic, the width of the
highway, and of any other condition then and there existing; and no
person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the
vehicle to a stop within the assured clear distance ahead (emphasis supplied).
In
relation thereto, Article 2185 of the New Civil Code provides that "unless
there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent, if at the time of mishap, he was violating any
traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus to the
right, thereby causing damage to the property of private respondent.
X x x.
As already maintained and concluded, the severe damages sustained could
not have resulted had the accused acted as a reasonable and prudent man would.
The accused was not diligent as he claims to be. What is more probable is that
the accused had to swerve to the right and hit the commercial apartment of the
plaintiff because he could not make a full stop as he was driving too fast in a
usually crowded street.24
X x x.”
22.
At this juncture, it is instructive to cite the
relevant provisions of the Civil Code on human
relations and quasi-delict.
Human Relations.
Article
19. Every
person must, in the exercise of his rights and in the performance of his
duties, act with justice, give
everyone his due, and observe honesty and good faith.
Article
20. Every person who, contrary to law,
wilfully or negligently causes damage to another, shall indemnify the latter
for the same.
Article
21. Any
person who wilfully causes loss or injury to another in manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.
Quasi-delicts
Article
2176. Whoever
by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict
and is governed by the provisions of this Chapter. (1902a)
Article
2177. Responsibility
for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant.(n)
Article
2179. When
the plaintiff's own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n)
Article
2184. In
motor vehicle mishaps, the owner is solidarily liable with his driver, if the
former, who was in the vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is
disputably presumed that a driver was negligent, if he had been found guilty of
reckless driving or violating traffic regulations at least twice within the
next preceding two months.
If
the owner was not in the motor vehicle, the provisions of article 2180 are
applicable. (n)
Article
2185. Unless
there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap, he was violating any traffic regulation. (n)
VI.
RELIEF.
WHEREFORE, in the interest of justice, it is respectfully prayed
that XXX B. XXX be INDICTED for the
felony of RECKLESS IMPRUDENCE RESULTING IN DAMAGE TO PROPERTY.
FURTHER, the undersigned
respectfully prays that her aforementioned MOTION
FOR INTERVENTION, as a CO-COMPLAINANT of her husband XXX in re: Case No. xxx, supra, be GRANTED and
that this Affidavit of the undersigned Affiant by deemed as her Complaint-In-Intervention.
FURTHERMORE, it is
respectfully prayed that the aforementioned SPECIAL POWER OF ATTORNEY executed by XXX XXX y AMBAGAN in favor of
the undersigned Affiant as his Attorney-In-Fact and Legal Representative for
purposes of the litigation of the abovecaptioned two (2) consolidated cases be duly NOTED.
FINALLY, the undersigned
respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.
Xxx City, February 20, 2016.
XXX XXX XXX
Affiant;
Co-Complaining Witness vs.
Xxx;
Attorney-in-Fact and Wife
of Lead Complaining Witness
Xxx; and
Collaborating Witness for
Her Husband Xxx
SUBSCRIBED and sworn to before me in Xxx
City on February 24, 2016.
Xxx
Investigating Assistant City
Prosecutor
Copy Furnished:
XXX
Respondent in NPS Docket No.
Xxx;
Complainant in NPS Docket No.
Xxx
(Represented by
Atty Xxx Xxx)
File Copy