At bar is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Ernesto P. Canada, challenging the November 15, 1999 Decision^[1] and the October 11, 2000 Resolution^[2] of the Court of Appeals (CA) in CA-G.R. CV No. 43476.

The facts:

Petitioner Ernesto P. Canada (petitioner) is engaged in business of providing trucking and hauling services under the name Hi-Ball Freight Services. Respondent All Commodities Marketing Corporation (respondent) has been a valued client of petitioner for several years.

On October 27, 1986, respondent contracted petitioner's services to haul and deliver one thousand (1,000) sacks of sugar from Pier 18, North Harbor in Tondo, Manila to the Pepsi Cola Plant at Muntinlupa, Metro Manila (now Muntinlupa City). The transaction was covered by Way Bills/ Delivery Receipt Nos. 5340^[3] and 5341^[4] of All Star Transport, Inc. (All Star), but duly signed by petitioner's driver. As agreed, petitioner loaded respondent's 1,000 sacks of sugar into his two (2) trucks; however, the same were never delivered to the Pepsi Cola Plant. The drivers of the trucks, along with the helpers, had since vanished into thin air.

Respondent demanded payment of the value of the sugar, but the demand was not heeded. Consequently, respondent filed a complaint^[5] against petitioner with the Regional Trial Court (RTC) of Makati to recover the value of the lost sugar. The case was docketed as Civil Case No. 18826.

In his answer,^[6] petitioner admitted that respondent contracted him to haul and deliver 1,000 sacks of sugar, but denied that the cargo did not reach their destination. He averred that the cargo were delivered to the Pepsi Cola Plant in Muntinlupa City on October 27, 1986. He rejected responsibility for the claim arguing that the loss of the goods was either due to respondent's negligence or due to fortuitous event.^[7] By way of counterclaim, petitioner asserted his right to payment of P350,000.00, representing the value of the truck that was allegedly seized by respondent.

In due course, the RTC rendered judgment^[8] against petitioner, decreeing that:

IN VIEW THEREOF, this case is hereby resolved in favor of the [respondent] and [petitioner] is hereby ordered to:

1. pay the [respondent] the sum of P350,000.00 representing the value of the sugar lost, plus the interest that have accrued thereon from the filing of this complaint until its actual payment;
   
   
2. pay the [respondent] the other actual losses it suffered by reason of the non-delivery of the sugar in terms of unearned income, cost of money and opportunity lost in the amount of P50,000.00;
   
   
3. pay the [respondent] the amount of P50,000.00 as and for exemplary damages;
   
   
4. pay the cost of suit, litigation expenses and attorney's fees in the sum equivalent to 20% of the claim hereunder, plus the per appearance fee of P300.00.
   

SO ORDERED.^[9]

Aggrieved, petitioner appealed to the CA. He raised an argument that was totally new and was never raised before the RTC, to wit -Hi Ball Freight Services was not the common carrier of respondent; hence, cannot be held liable for the value of the lost sugar.

On November 15, 1999, the CA rendered the assailed Decision. Affirming the RTC and rejecting petitioner's new theory, the CA noted that petitioner had argued his case before the court a quo without denying his contract with respondent; that it was only after the adverse judgment was rendered that petitioner began to deny his contract with respondent. It thus ruled that petitioner is estopped from presenting this issue for the first time on appeal. The CA also rejected petitioner's defense of fortuitous event for lack of basis, and sustained the finding of liability against him.

Petitioner filed a motion for reconsideration, but the CA struck it down on October 11, 2000.

Petitioner is now before us assailing the finding of liability against him. In gist, he denied his contract of carriage with respondent and passes responsibility to All Star Transport Inc. (All Star), whose name appeared in the Waybill/Delivery Receipt. Petitioner also assails the dismissal of his counterclaim.

The petition is devoid of merit.

Records show that the theory of petitioner before the trial court was different from the one he espoused in the appellate court. At the trial court stage, petitioner insisted that the goods were delivered to the Pepsi Cola Plant. He further argued that the loss was either due to the fault of respondent or due to fortuitous event. After the RTC rendered an adverse decision, petitioner adopted a new theory, denying his contract with respondent and passing all the responsibility to All Star.

As a rule, no question will be entertained on appeal unless it has been raised in the court below. Points of law, theories, issues and arguments not brought to the attention of the lower court ordinarily will not be considered by a reviewing court because they cannot be raised for the first time at that late stage. Basic considerations of due process underlie this rule. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.^[10] To permit petitioner at this stage to change his theory would thus be unfair to respondent, and offend the basic rules of fair play, justice and due process.^[11]

In this light, we agree with the following disquisition of the CA rejecting petitioner's maneuver:

None whatsoever can be unraveled from the records which would show that [petitioner] was in no way a party to the contract. There is nothing on record as well that would tend to show that a certain All Star merely hired [petitioner]. As a matter of fact, during the trial the [respondent's] witness specifically testified that [petitioner's] services have been engaged by All Commodities Marketing Corporation for five years. Again, this was never disputed nor rebutted by the [petitioner].

[Petitioner] as a matter of fact had fought its case before the lower court without denying its relationship or contract with the [respondent] until [the] judgment was rendered against him. He raised the defense that the truck was hijacked. That it is only now that he belie the claim of the [respondent] of the contract between them. Simply put, this was an issue never brought out before the court a quo, hence, [petitioner] is now estopped to present as such before this Court.^[12]

Just as meaningful, petitioner had admitted his contract of carriage with respondent in the court a quo.

To recall, petitioner in his answer admitted paragraphs 5 and 6 of the complaint^[13] which referred to the contract between him and respondent.^[14] During the trial, petitioner also admitted that the truck drivers and helpers who loaded the goods were his employees.^[15] He even tried to settle the case amicably, but negotiations for settlement had failed. These were unmistakable admissions of petitioner's contractual relation with respondent.

We have always adhered to the familiar doctrine that an admission made in the course of the trial, either by verbal or written manifestations, or stipulations, cannot be controverted by the party making such admission; they become conclusive on him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether an objection is interposed by the adverse party or not.^[16] This doctrine is embodied in Section 4, Rule 129 of the Rules of Court:

SEC. 4. Judicial admissions. â"€ An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

In the absence of a compelling reason to the contrary, petitioner's admission of his contract with respondent is definitely binding on him. Accordingly, we sustain the CA in rejecting petitioner's newly-contrived assertion that he carried the goods for and in behalf of All Star.

Petitioner also attempted to exculpate himself from liability by insisting that the incident was a caso fortuito. We disagree.

The exempting circumstance of caso fortuito may be availed of only when: (a) the cause of the unforeseen and unexpected occurrence was independent of the human will; (b) it was impossible to foresee the event which constituted the caso fortuito or, if it could be foreseen, it was impossible to avoid; (c) the occurrence must be such as to render it impossible to perform an obligation in a normal manner; and (d) the person tasked to perform the obligation must not have participated in any course of conduct that aggravated the accident.^[17]

None of these elements is present in this case. Other than petitioner's bare-faced assertion that the cargo were lost due to fortuitous event, no evidence was offered to substantiate it. On the contrary, we find supported by evidence on record the conclusions of the trial court and the CA that the loss of the sugar was due to the negligence of petitioner. The CA, therefore, committed no reversible error in sustaining the finding of liability against petitioner.

However, it is error for the RTC and the CA to award actual damages of P350,000.00 for the value of the lost sugar, and P50,000.00 for the actual losses that respondent allegedly suffered by reason of the non-delivery of the cargo.

A perusal of the records discloses that no sufficient evidence was proffered to support respondent's plea for actual damages. Indeed, the statement in the complaint would suffice as a claim for damages.^[18] However, mere allegation is not proof.^[19] It is elementary that to recover damages there must be pleading and proof of actual damages suffered. Thus:

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be presumed and courts, in making an award must point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne. ^[20]

No actual damages can thus be awarded to respondent.

However, respondent may still be awarded damages in the concept of temperate or moderate damages. When the court finds that some pecuniary loss has been suffered but the amount cannot, from the nature of the case, be proven with certainty, temperate damages may be recovered. Temperate damages may be allowed in cases where from the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is convinced that the aggrieved party suffered some pecuniary loss.^[21]

Undoubtedly, pecuniary loss had been suffered by respondent in this case. But due to the insufficiency of evidence before us, we cannot establish the amount of such loss with certainty. In this regard, considering the attendant circumstances, we find the amount of P250,000.00 to be sufficient.

The grant of temperate damages paves the way for the award of exemplary damages. Under Article 2234 of the Civil Code, a showing that the plaintiff is entitled to temperate damages allows the award of exemplary damages.^[22] Thus, we uphold the award of P50,000.00 as exemplary damages.

Similarly, we uphold respondent's entitlement to attorney's fees, but we fix the amount at P50,000.00.

Finally, we sustain the dismissal of petitioner's counterclaim for lack of merit. On this score, we are in full accord with the CA.

WHEREFORE, the instant petition for certiorari is DENIED. The November 15, 1999 Decision of the Court of Appeals in CA-G.R. CV No. 43476 is AFFIRMED with MODIFICATIONS. The award of actual damages is deleted and, in lieu thereof, temperate damages amounting to P250,000.00 are awarded. Petitioner is also ordered to pay P50,000.00 as exemplary damages and P50,000.00 by way of attorney's fees. Petitioner shall also pay legal interest of 6% interest per annum on all sums awarded from the date of the promulgation of the decision of the trial court, and 12% interest per annum from the time the Decision of this Court attains finality until their full satisfaction. Costs against petitioner.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez,  Chico-Nazario, and Leonardo-De Castro, JJ., concur.

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^* Designated to sit as additional member replacing Associate Justice Ruben T. Reyes, per Raffle dated September 29, 2008. Justice Reyes concurred with the CA decision under consideration when he was still a member of that court.

^[1] Penned by Associate Justice Eloy R. Bello, Jr. (retired), with Presiding Justice Jainal D. Rasul (retired) and Associate Justice Ruben T. Reyes (now a member of this Court), concurring; rollo, pp. 28-39.

^[2] Rollo, p. 42.

^[3] Records, p. 7.

^[4] Id. at 8.

^[5] Id. at 1-5.

^[6] Id. at 19-22.

^[7] Id. at 176.

^[8] Id. at 194-197.

^[9] Id. at 197.

^[10] Ulep v. Court of Appeals, G.R. No. 125254, October 11, 2005, 472 SCRA 241, 257.

^[11] Philippine Ports Authority v. City of Iloilo, 453 Phil. 927, 934-935 (2003).

^[12] Rollo, p. 32.

^[13] Records, p. 19.

^[14] Id. at 2.

^[15] TSN, October 12, 1992, pp. 6-7.

^[16] See RP v. Sandiganbayan, 453 Phil. 1059, 1140 (2003).

^[17] Perla Compania De Seguros, Inc. v. Sarangaya III, G.R. No. 147746, October 25, 2005, 474 SCRA 191, 200.

^[18] Records, pp. 2-3.

^[19] V.V. Soliven Realty Corporation v. Ong, G.R. No. 147869, January 26, 2005, 449 SCRA 339, 347.

^[20] B.F. Metal (Corporation) v. Sps. Rolando M. Lomotan, G.R. No. 170813, April 16, 2008.

^[21] Premiere Development Bank v. Court of Appeals, G.R. No. 159352, April 14, 2004, 427 SCRA 686, 699.

^[22] Republic v. Tuvera, G.R. No. 148246, February 16, 2007, 516 SCRA 113, 152.