Before the Court is a Petition for Review on Certiorari of the Decision^[1] of the Court of Appeals (CA) in CA-G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal Case No.        Q-93-42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of reckless imprudence resulting in damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias Road, Quezon City.  The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of a passenger bus with Plate Number NCV-849.  Suelto, its employee, was assigned as the regular driver of the bus.^[2]

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus along Kamias Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA).  The bus suddenly swerved to the right and struck the terrace of the commercial apartment owned by Valdellon located along Kamuning Road.^[3]  Upon Valdellon's request, the court ordered Sergio Pontiveros, the Senior Building Inspection Officer of the City Engineer's Office, to inspect the damaged terrace.  Pontiveros submitted a report enumerating and describing the damages:

(1) The front exterior and the right side concrete columns of the covered terrace were vertically displaced from its original position causing exposure of the vertical reinforcement.

(2) The beams supporting the roof and parapet walls are found with cracks on top of the displaced columns.

(3) The 6? CHB walls at [the] right side of the covered terrace were found with cracks caused by this accident.

(4) The front iron grills and concrete balusters were found totally damaged and the later [sic] beyond repair.^[4]

He recommended that since the structural members made of concrete had been displaced, the terrace would have to be demolished "to keep its monolithicness, and to insure the safety and stability of the building."^[5]

Photographs^[6] of the damaged terrace were taken.  Valdellon commissioned Engr. Jesus R. Regal, Jr. to estimate the cost of repairs, inclusive of labor and painting, and the latter pegged the cost at P171,088.46.^[7]

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded payment of P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the terrace.^[8]  The bus company and Suelto offered a P30,000.00 settlement which Valdellon refused.^[9]

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against Suelto. After the requisite preliminary investigation, an Information was filed with the RTC of Quezon City.  The accusatory portion of the Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being then the driver and/or person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did then and there unlawfully, and feloniously drive, manage, and operate the same along Kamias Road, in said City, in a careless, reckless, negligent, and imprudent  manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s and damage to property, and considering the condition of the traffic at said place at the time, causing as a consequence of his said carelessness, negligence, imprudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bump a commercial apartment belonging to ERLINDA V. VALDELLON located at No. 31 Kamias Road, this City, thereby causing damages to said apartment in the total amount of P171,088.46, Philippine Currency, to her damage and prejudice in the total amount aforementioned.

CONTRARY TO LAW.^[10]

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages.  She prayed that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary attachment against the defendants upon approval of plaintiff's bond, and after trial on the merits, to render a decision in favor of the plaintiff, ordering the defendants, jointly and severally, to pay

a)  the total sum of P171,088.46 constituting the expenses for the repair of the damaged apartment of plaintiff, with interests to be charged thereon at the legal rate from the date of the formal demand until the whole obligation is fully paid;

b)  the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney's fees and the sum of P1,000.00 for each appearance of plaintiff's counsel; and costs of suit;

PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises.^[11]

A joint trial of the two cases was ordered by the trial court.^[12]

The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to have it repaired and restored to its original state.  Valdellon, however, disagreed because she wanted the building demolished to give way for the construction of a new one.^[13]

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in support thereof, adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by the BB Construction and Steel Fabricator for "carpentry, masonry, welding job and electrical [work]."^[14]

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of the terrace, but that the building should also be demolished because "if concrete is destroyed, [one] cannot have it restored to its original position."^[15]

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the terrace and estimated the cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala Avenue, Makati, Metro Manila.  When he reached the corner of K-H Street at Kamias Road, Quezon City, a passenger jeepney suddenly crossed from EDSA going to V. Luna and swerved to the lane occupied by the bus.  Suelto had to swerve the bus to the right upon which it hit the side front of the terrace of Valdellon's two-door apartment.^[16]  Based on his estimate, the cost to the damage on the terrace of the apartment amounted to P40,000.00.^[17] On cross-examination, Suelto declared that he saw the passenger jeepney when it was a meter away from the bus.  Before then, he had seen some passenger jeepneys on the right trying to overtake one another.^[18]

Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted to P55,000.00.^[19]

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of reckless imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly and severally, P150,000.00 to Valdellon, by way of actual and compensatory damages, as well as attorney's fees and costs of suit.  The fallo of the decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of the crime of Reckless Imprudence Resulting in Damage to Property, said accused is hereby sentenced to suffer imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon and against defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where both are ordered, jointly and severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her damaged apartment;
b. the sum of P20,000.00, as compensatory and exemplary damages;
c. the sum of P20,000.00, as attorney's fees; and,
d. the costs of suit.

SO ORDERED.^[20]

MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution failed to prove Suelto's guilt beyond reasonable doubt.  They averred that the prosecution merely relied on Valdellon, who testified only on the damage caused to the terrace of her apartment which appellants also alleged was excessive.  Appellant Suelto further alleged that he should be acquitted in the criminal case for the prosecution's failure to prove his guilt beyond reasonable doubt.  He maintained that, in an emergency case, he was not, in law, negligent.  Even if the appellate court affirmed his conviction, the penalty of imprisonment imposed on him by the trial court is contrary to law.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that the appealed decision should be affirmed with modification.  On Suelto's claim that the prosecution failed to prove his guilt for the crime of reckless imprudence resulting in damage to property, the OSG contended that, applying the principle of res ipsa loquitur, the prosecution was able to prove that he drove the bus with negligence and recklessness.  The OSG averred that the prosecution was able to prove that Suelto's act of swerving the bus to the right was the cause of damage to the terrace of Valdellon's apartment, and in the absence of an explanation to the contrary, the accident was evidently due to appellant's want of care.  Consequently, the OSG posited, the burden was on the appellant to prove that, in swerving the bus to the right, he acted on an emergency, and failed to discharge this burden.  However, the OSG averred that the trial court erred in sentencing appellant to a straight penalty of one year, and recommended a penalty of fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award for actual damages was reduced to P100,000.00.  The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo is AFFIRMED with the modification that the sum of P150,000.00 as compensation sustained by the plaintiff-appellee for her damaged apartment be reduced to P100,000.00 without pronouncement as to costs.

SO ORDERED.^[21]

Appellants filed a Motion for Reconsideration, but the CA denied the same.^[22]

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a) the prosecution failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed to adduce evidence to prove that respondent suffered actual damages in the amount of P100,000.00; and (c) the trial court erred in sentencing petitioner Suelto to one (1) year prison term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto acted with recklessness in swerving the bus to the right thereby hitting the terrace of private respondent's apartment.  However, the prosecution failed to discharge its burden.  On the other hand, petitioner Suelto was able to prove that he acted in an emergency when a passenger jeepney coming from EDSA towards the direction of the bus overtook another vehicle and, in the process, intruded into the lane of the bus.

On the second issue, petitioners insist that private respondent was able to prove only the amount of P35,000.00 by way of actual damages; hence, the award of P100,000.00 is barren of factual basis.

On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended by the trial court, and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.

The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines 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.  Although she did not testify to seeing the incident as it happened, petitioner Suelto himself admitted this in his answer to the complaint in Civil Case No. Q-93-16051, and when he testified in the trial court.

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.  Petitioners were burdened to prove that the damage to the terrace of private respondent was not the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate court, petitioners failed to prove that petitioner acted on an emergency caused by the sudden intrusion of a passenger jeepney into the lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto's defense that he acted on an emergency, that is, he had to swerve the bus to the right to avoid colliding with a passenger jeep coming from EDSA that had overtaken another vehicle and intruded into the lane of the bus.  The sudden emergency rule was enunciated by this Court in Gan v. Court of Appeals,^[23] thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method unless the emergency in which he finds himself is brought about by his own negligence.

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.

However, the trial court correctly rejected petitioner Suelto's defense, in light of his contradictory testimony vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:

It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the commercial apartment of Dr. Valdellon sustained heavy damage caused by the bus being driven by Suelto.  "It seems highly improbable that the said damages were not caused by a strong impact.  And, it is quite reasonable to conclude that, at the time of the impact, the bus was traveling at a high speed when Suelto tried to avoid the passenger jeepney."  Such a conclusion finds support in the decision of the Supreme Court in People vs. Ison, 173 SCRA 118, where the Court stated that "physical evidence is of the highest order.  It speaks more eloquently than a hundred witnesses."  The pictures submitted do not lie, having been taken immediately after the incident.  The damages could not have been caused except by a speeding bus.  Had the accused not been speeding, he could have easily reduced his speed and come to a full stop when he noticed the jeep.  Were he more prudent in driving, he could have avoided the incident or even if he could not avoid the incident, the damages would have been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his testimony in court.  In the former, he stated that the reason why he swerved to the right was because he wanted to avoid the passenger jeepney in front of him that made a sudden stop.  But, in his testimony in court, he said that it was to avoid a passenger jeepney coming from EDSA that was overtaking by occupying his lane.  Such glaring inconsistencies on material points render the testimony of the witness doubtful and shatter his credibility.  Furthermore, the variance between testimony and prior statements renders the witness unreliable.  Such inconsistency results in the loss in the credibility of the witness and his testimony as to his prudence and diligence.

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]

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against the driver of the offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto's reliance on the sudden emergency rule to escape conviction for the crime charged and his civil liabilities based thereon is, thus, futile.

On the second issue, we agree with the contention of petitioners that respondents failed to prove that the damages to the terrace caused by the incident amounted to P100,000.00.  The only evidence adduced by respondents to prove actual damages claimed by private respondent were the summary computation of damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00 representing cost for carpentry works, masonry, welding, and electrical works.  Respondents failed to present Regal to testify on his estimation.  In its five-page decision, the trial court awarded P150,000.00 as actual damages to private respondent but failed to state the factual basis for such award.  Indeed, the trial court merely declared in the decretal portion of its decision that the "sum of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged apartment."  The appellate court, for its part, failed to explain how it arrived at the amount of P100,000.00 in its three-page decision.  Thus, the appellate court merely declared:

With respect to the civil liability of the appellants, they contend that there was no urgent necessity to completely demolish the apartment in question considering the nature of the damages sustained as a result of the accident.  Consequently, appellants continue, the award of P150,000.00 as compensation sustained by the plaintiff-appellee for her damaged apartment is an unconscionable amount.

The damaged portions of the apartment in question are not disputed.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and adequate compensation due is hereby fixed at P100,000.00.^[25]

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable consequences of the act or omission complained of, classified as one for the loss of what a person already possesses (daño emergente) and the other, for the failure to receive, as a benefit, that which would have pertained to him (lucro cesante).  As expostulated by the Court in PNOC Shipping and Transport Corporation v. Court of Appeals:^[26]

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or in recompense for, loss or injury sustained.  They proceed from a sense of natural justice and are designed to repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty.  In actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences of the act or omission complained of.  There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses (daño emergente), and the other is the failure to receive as a benefit that which would have pertained to him (lucro cesante).^[27]

The burden of proof is on the party who would be defeated if no evidence would be presented on either side.  The burden is to establish one's case by a preponderance of evidence which means that the evidence, as a whole, adduced by one side, is superior to that of the other.  Actual damages are not presumed.  The claimant must prove the actual amount of loss with a reasonable degree of certainty premised upon competent proof and on the best evidence obtainable.  Specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne must be pointed out.  Actual damages cannot be anchored on mere surmises, speculations or conjectures.  As the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available.  The burden of proof is on the party who would be defeated if no evidence would be presented on either side.  He must establish his case by a preponderance of evidence which means that the evidence, as a whole, adduced by one side is superior to that of the other.  In other words, damages cannot be presumed and courts, in making an award, must point out specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne.^[28]

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the plaintiff is entitled to their value at the time of the destruction, that is, normally, the sum of money which he would have to pay in the market for identical or essentially similar goods, plus in a proper case, damages for the loss of the use during the period before replacement.^[29]

While claimants' bare testimonial assertions in support of their claims for damages should not be discarded altogether, however, the same should be admitted with extreme caution.  Their testimonies should be viewed in light of claimants' self-interest, hence, should not be taken as gospel truth.  Such assertion should be buttressed by independent evidence.  In the language of the Court:

For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by independent evidence.  Moreover, because he was the owner of private respondent corporation whatever testimony he would give with regard to the value of the lost vessel, its equipment and cargoes should be viewed in the light of his self-interest therein.  We agree with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence considering his familiarity thereto.  However, we do not subscribe to the conclusion that his valuation of such equipment, cargo, and the vessel itself should be accepted as gospel truth.  We must, therefore, examine the documentary evidence presented to support Del Rosario's claim as regards the amount of losses.^[30]

An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually incurred.  It is not enough that the damage be capable of proof but must be actually proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory damages are borne.  Private respondents merely sustained an estimated amount needed for the repair of the roof of their subject building.  What is more, whether the necessary repairs were caused only by petitioner's alleged negligence in the maintenance of its school building, or included the ordinary wear and tear of the house itself, is an essential question that remains indeterminable.^[31]

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to the terrace of private respondent would amount to P55,000.00.^[32]  Accordingly, private respondent is entitled to P55,000.00 actual damages.

We also agree with petitioner Suelto's contention that the trial court erred in sentencing him to suffer a straight penalty of one (1) year.  This is so because under the third paragraph of Article 365 of the Revised Penal Code, the offender must be sentenced to pay a fine when the execution of the act shall have only resulted in damage to property.  The said provision reads in full:

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 period 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 25 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 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto's act was to the terrace of private respondent's apartment, costing P55,000.00.  Consequently, petitioner's contention that the CA erred in awarding P100,000.00 by way of actual damages to private respondent is correct.  We agree that private respondent is entitled to exemplary damages, and find that the award given by the trial court, as affirmed by the CA, is reasonable.  Considering the attendant circumstances, we rule that private respondent Valdellon is entitled to only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED.  The joint decision of the Regional Trial Court of Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner Suelto is sentenced to pay a fine of P55,000.00 with subsidiary imprisonment in case of insolvency.  Petitioners are ORDERED to pay to Erlinda V. Valdellon, jointly and severally, the total amount of P55,000.00 by way of actual damages, and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.

Panganiban, C.J., (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario, JJ., concur.

---

^[1]  Penned by Associate Justice Demetrio G. Demetria, with Associate Justices Ramon Mabutas, Jr.  (retired) and Jose L. Sabio, Jr., concurring; rollo, pp. 38-41.

^[2]  Exhibit "3," folder of exhibits.

^[3]  Id.

^[4]  Exhibit "A," folder of exhibits.

^[5]  Id.

^[6]  Exhibits "C" to "C-4," "E" and "F" and their submarkings, "G" and "H" and their submarkings.

^[7]  Exhibit "D," folder of exhibits.

^[8]  Exhibit "K," id.

^[9]  TSN, September 14, 1993, p. 31.

^[10] Records (Criminal Case No. Q-93-42629), p. 1.

^[11] Records (Civil Case No. Q-93-16051), p. 4.

^[12] Id. at 18.

^[13] TSN, October 13, 1993, p. 10.

^[14] Exhibit "M," folder of exhibits.

^[15] TSN, September 7, 1993, pp. 38-39.

^[16] TSN, February 1, 1994, pp. 7-10.

^[17] Id. at 11.

^[18] Id. at 21-22.

^[19] Exhibit "l" and its sub-markings.

^[20] Rollo, p. 36.

^[21] Rollo, pp. 40-41.

^[22] Id. at 42.

^[23] G.R. No. L-44264, September 19, 1988, 165 SCRA 378, 382.

^[24] Rollo, pp. 34-35.

^[25] Id. at 40.

^[26] 358 Phil. 38 (1998).

^[27] Id. at 52-53.

^[28] Id. at 53-54.

^[29] Id. at 53.

^[30] Id. at 55.

^[31] Southeastern College, Inc. v. Court of Appeals, 354 Phil. 434, 446 (1998).

^[32] Exhibits "1" to "1-A."