RIO Y COMPANIA, PETITIONER, VS. WORKMEN’S COMPENSATION COMMISSION, VIVENCIO SOLIS AND REMEDIOS M. SOLIS, RESPONDENTS.

This is a petition to review a decision of the Workmen’s Compensation
Commission dated January 29, 1963, and
its en banc resolution of May 22, 1963, declaring that Virgilio Solis was an apprentice-mate of the M/V Pilar II, owned and operated by the Rio Y Compania, when it
sank on August 20, 1959, and holding the latter liable to the par­ents of the
deceased in the sums of P1,528.80 as death com­pensation benefit and P114.66 as
damages.

As a result of a cyclonic typhoon on August 20, 1959, the M/V Pilar II, owned and operated by
the Rio y Compania, sank off Cabuli Island,
north of Palawan, on its
return voyage to Manila.  A great number of its passengers and crew
members perished.  Among those reported
dead in the local dailies was Virgilio Solis, whose
body, in spite of an ex­tensive search, was never recovered.

On November 18, 1960
Vivencio Solis, father of Virgilio,
filed a formal claim for death compensation with the Regional Office No. 3 of the Department of Labor in Manila.  In answer, the Rio y Compania
alleged, among other things, that the deceased was not its employee and that he
was not on board the vessel when it sank. 
In the course of the hear­ing, the mother of the deceased, Remedios M. Solis, was included as one of the claimants.

On January 31, 1962 the Hearing Officer of the Depart­ment of Labor, although he found,
among other things, that “Among those reported in the local dailies as
victim of the tragedy was one Virgilio Solis”,
nevertheless dismissed the claim on the ground of absence of employer-employee
relation­ship between the latter and the company.  From this decision, the spouses Solis filed a
petition for review with the Workmen’s Compensation Commission.  The Commission, thru Commis­sioner N. Baens del Rosario, after review, rendered judgment on January 29,
1963, reversing that of the
Hearing Officer and finding that Virgilio Solis was
an apprentice-mate of the said vessel at the time of his death, and, therefore,
entitled to compensation.  On May 22, 1963
the company filed a motion for review
of the said decision, for the first time interposing the defense of
prescription, that is, that the action had already prescribed because the
claimants failed to file a no­tice and claim compensation within three months
after the death of Virgilio Solis.  The motion for review was denied by the Com­mission
en banc, on a vote of two of its members (one did not
participate), on May 22, 1963.

Hence, the present appeal
by certiorari.

The petitioner company
tenders for resolution only two issues, namely, (1) whether the Commission
erred in ruling that the defense of prescription was not well-taken; and (2)
whether the Commission erred in finding that the relation of employer-employee
existed between the company and Virgilio Solis.  The fact of the latter’s death is not in
issue.

We will pass upon the
second issue first.  The company contends
that on the question of whether Virgilio Solis was an employee
of the petitioner, the Shipping Articles should be accorded more weight than the Coasting Manifest, because the latter contains only a
list of prospective crew members of the vessel, while the former is the written
contract of employment; that the purpose of the Coasting Manifest is not to
establish employer-employee relationship but merely to comply with customs,
radio and post-office regulations.  In
this connection the company argues that the carbon copy of the Coasting
Manifest which was presented at the hearing is inadmissible without proof of
loss of the original.

We have read the
Commission’s decision, and we are of the view that there is sufficient
substantial evidence to support the finding that Virgilio
Solis at the time of the fatal mishap was an apprentice-mate of the M/V Pilar II.  We quote
with approval the following excerpt from the decision:

“That his (Virgilio Solis) name was
included in the Crew List dated August 12,
1959 signed under oath by
the Captain of M/V Pilar II, is indeed a strong
argument which cannot be shaken in favor of the stand taken by the claimants
that Virgilio Solis was actually employed as appren­tice-mate
when it left Manila Port on August 12, 1959. 
Although Solis’ name does not appear in the Shipping Articles dated August 12, 1959, which may have been
prepared by an office clerk of the company, this deficiency alone will not
vitiate the fact that the deceased actually served as apprentice-mate of said
vessel.  For as testified to by Mrs. Guillerma E. Garcia, Employment Agent of the Manpower
Services of the Department of Labor, the crew members who were on board the
ship at that time were check­ed by her against the names appearing in the
Shipping Articles dated August 12,
1959.  We do not assail this
testimony inasmuch as it is the routine duty of the witness an employment agent
of the Manpower Office of the Department of Labor to check the crew members
aboard the ship and we presume that she did her duty pro­perly.  In view of the many boats plying be­tween the
islands and the numerous members of the crew manning all of them, said
employment agent of the Department of Labor will be help­less in remembering
all their names as well as their faces. 
And this checking is usually done hours or sometimes days, when the
trips are delay­ed, before the boat sails. 
It is very apparent that the checking precedes the sailing.  Even minutes before the sailing if the
captain of the boat, who is traditionally named as the king of the sea, saw it
fit to pick up another mem­ber of the crew so necessary in order to com­plete
the complement of the vessel in order to make a successful voyage, he had the
right to do it.  Hence, in the Coasting
Manifest he ad­ded the name of Virgilio Solis as
apprentice-mate and in listing his name the late captain made it under
oath.  In all probability, there­fore, at
the time of this check up, Virgilio Solis was not
actually on board the ship.  But the fact
that his name was included as ‘appren­tice-mate’ in the Crew List under the
signature of the Captain is convincing evidence, notwith­standing the Shipping
Articles, that Solis was such an employee for that voyage, for the cap­tain
himself is the best and most competent per­son to determine and know who were
the mem­bers of his crew before the boat sailed on.  It must be emphasized, and this is very
signifi­cant, that, according to the testimony of Don Benigno
del Rio, Assistant Manager and Treasurer of respondent,
it was the Captain who appoints apprentice-mates, and is responsible for the
dismissal or termination of their services. 
(tsn p. 6,
Hearing on Sept. 27, 1961).  Upon
this fact alone, the probative value of the ‘Coast­ing Manifest’ dated August 12, 1959 becomes un­assailable compared to the
Shipping Articles upon which respondent
anchors its desistance in admitting employer-employee relationship.”

In passing upon the oral testimony of Benigno
del Rio who testified that Virgilio
Solis was not an apprentice-mate at the time the vessel sank, the Commission
aptly said:

“In the above testimony, the affiant admitted that the captain
needed two apprenticeship-mates for the trip and the inclusion of the name of Vir­gilio Solis made him the second apprenticeship-mate.

“It will be noted that Don Benigno
del Rio nev­er categorically answered that Solis’
services were terminated before the departure of M/V Pilar
II on August 12, 1959, but merely declared that Rodolfo Armoreda, son of the captain, took Solis’ place as apprentice-mate.  But was Rodolfo Armoreda
really employed as ‘apprentice-mate’ of Pilar II on August 12, 1959 and previous voyages?  The answer to this question lies the
desperate attempt of respondent to escape liability under the Workmen’s
Compensa­tion Law, for the Crew List dated August 12, 1959 signed under oath by Captain C.M. Armoreda,
expli­citly shows that Rodolfo Armoreda’s name is
listed No. 11 thereof as ‘Quartermaster’ and not as ‘apprentice-mates!  Again we see the futility of respondent’s
ground when we consider that in the Shipping Articles dated June 5,
1959 (Exh. ‘2’) and dated July 6, 1959 (Exh. ‘3’),
Rodolfo Armoreda’s name is listed No. 8 in both documents with the
designation of ‘Ableseaman‘ with address at 1725 Pasay City, age 27, and with a salary of P100.00.  Plainly, it can be said, without fear of
contradiction, that Rodolfo Armoreda was not employed
as ‘apprentice-mate’ for the voyage of August 12, 1959 but as ‘Quartermaster’ of Pilar
II.  Even the shipping articles dated
August 12, 1959 will show that his name was originally
list­ed No. 8, but was
apparently cancelled in favor of one Oscar de la Vega; then his name was listed
No. 25 with the designation of ‘apprentice-mate:  Obviously, the change herein made on the
Shipping Articles dated August 12, 1959
was done to suit respondent’s de­fense. 
As can be clearly seen from the previous shipping articles, Rodolfo Armoreda was no longer an apprentice-mate and it would be
plainly illogi­cal that he should be reverted to such status after having been
previously employed as ‘Ableseaman and
‘Quartermaster’ without an ulterior motive to strengthen the weak defense.  It is hard to believe the harsh designation
in view of the fact that the captain was his father.  The Ship­ping Articles dated August 12, 1959,
adjudged by the Hearing Officer to have more weight, faith and credit should,
in the light of the above facts, be viewed with much skepticism and should not
be allowed to prevail over the ‘Oath of Mas­ter Covering List of Officers on
Coastwise Ves­sels’ dated August 12, 1959 subscribed by the captain
himself.  Of course, the best and most
authoritative person who could testify as to whether or not Virgilio
Solis was actually em­ployed as apprentice-mate on board M/V Pilar II is Captain C.M. Armoreda
himself who personally knew all the members of his crew.  Unfortunately, he is now dead and death
sealed his lips so that he could no longer testify but he left his writ­ten
testimony in the ‘Coasting Manifest’ which he signed under oath.  This unassailable docu­ment – the ‘Oath of
Master’ dated August 12, 1959
– indelibly imprints the fact that Virgilio Solis was
employed as ‘apprentice-mate’ on said vessel when it began its ill-fated voyage
of August 12, 1959 for the Palawan Ports.”

The above findings of the Workmen’s Compensation should not be
disturbed unless there is a clear showing of failure to consider evidence on
record, or a failure to consider fun­damental and patent logical relations in
the evidence, amount­ing to abuse of discretion, which are not present in this
case.

“As a general rule, findings of fact by the Indus­trial Court
or the Workmen’s Compensation Com­mission are final and conclusive (Madrigal
Ship­ping Co. Inc. v. Nievas Baens
del Rosario, et al., L-13190, October 31, 1959; St. Thomas Aqui­nas Academy v.
WCC, et al, L-12297, April 22, 1955; NLU v. Sta. Ana, L-9987, April 29, 1957),
unless the lower court acted with grave abuse of discretion, or said findings
find absolutely no support in the evidence on record, or are un­supported by
substantial or credible evidence (PAL v. PAL Employees Association, L-8197,
October 31, 1958; Donato v. Phil. Marine Officers’
Association, L-12506, May 18, 1959; 15¢ and Up Employees Association v. Dept.
and Bazar Free Workers’ Union, L-9168, Oct. 18, 1956;
NLU v. Dinglasan, L-7945, March 23, 1956).”
(B.T. Co. v. Rivera, L-14427, Aug. 29, 1960).

Anent the petitioner’s claim that the carbon copy of the Coasting
Manifest is inadmissible under our law of evi­dence, without proof of loss of
the original, suffice it to say that since it is not asserted in this appeal
that the said evidence was objected to at the hearing, the admissi­bility, due
execution and validity thereof may not now be raised in issue at this stage of
the proceedings.  At all events there is
a rule in compensation cases that –

“Primarily the problem in workmen’s compen­sation is not the
admissibility of evidence in­competent by the ordinary legal rules but the
ability of such evidence to support an award or decision. Consequently, it can
be said that the admission of incompetent evidence is not in it­self ground for
reversal of an award. (Larson’s Workmen’s Compensation Law, Vol. II, page
238).” (Morabe & Inton,
The Workmen’s Compensation Act, 1955 ed
p. 205.)

We now come to the first issue. 
The petitioner contends that the Commission erred in ruling that the
defense of prescription was not well taken. 
The petitioner argues that the failure of the claimants to file a notice
and claim for compensation within three months after the death of the deceased
is fatal, invoking section 24 of the Workmen’s Compensation Act, as amended.

This Court has repeatedly held that failure to comply with the
requirements of section 24 of the Workmen’s Compensation Act -that is the
giving of notice and the filing of a claim within the time prescribed in said
section — is non-jurisdictional.^[1]
It is also a settled rule that fail­ure or delay in giving notice, as required
in section 24 of the law, shall not be a bar to the proceeding in a claim for compensation
if it is shown that the employer, his agent or representative, had knowledge of
the injury, sickness, or death, or that the employer did not suffer by such
delay or failure.^[2]
It is likewise settled that even if a claim for compensation is filed beyond the period prescribed
in sec­tion 24, when it is shown that the employer has not manifested his
intention to controvert the right to compensation within ten days after he has
knowledge of the accident, the Workmen’s Compensation Commission can proceed to
determine and decide the claim for compensation.^[3]

In this case the requirement prescribed in section 24 may be
dispensed with, for the record unmistakably shows that the company had
knowledge of the accident that resulted in the death of Virgilio
Solis, and there is no showing that the company had suffered by the delay in
the filing of the claim in question. 
Furthermore, the defense of prescription may be rejected on the ground
of the failure to controvert the claim within ten days after the company had
knowledge of the accident.  The
petitioner’s failure to comply with the requirement in paragraph 2 of section
45 resulted in statutory renunciation of its right to controvert the claim even
if the same was filed beyond the period prescribed by section 24.

The obligation of the employer to file the notice of controversion is independent of the filing by the employee
of the notice and the claim under section 24.^[4]
It is also noteworthy that Rio y Compania failed to
file a report as required by section 37 which provides, among other things,
that “as soon as possible after the occurrence of an injury resulting in
absence from work a day or more, the employer shall give written notice thereof
to the Workmen’s Compensation Commissioner.” Because of such failure, the
company must be deemed to have waived its defense that the claim is not
compensable for failure to file it within the statutory period.^[5]

ACCORDINGLY, the judgment a quo is affirmed in toto, at petitioner’s cost.

Concepcion, C.J., Reyes, Dizon, Makalintal, Bengzon, Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.

^[1]
Victorias Milling Co., Inc. v. Villanueva, et
al., L-10533, May 13, 1957; Century Insurance Co., Inc. v.
Fuen­tes, et al., L-16039, August 31,
1961.

^[2]
Section 27, Act 3428; Paez v. Workmen’s Compensation Commission, et al.,
L-18438, March 30, 1963; Pangasinan Transportation
Co., Inc. v. Workmen’s Compensation Com­mission,
et al., L-16490, June 29, 1963.

^[3]
Section 45, Act 3428; Marth Lumber Mill Inc. v.
Workmen’s Compensation Commission, L-7599, June 27, 1956; Tan Lim Te v. Workmen’s Compensation
Commission, et al., L-12324, August 30, 1958; Iloilo Dock and Engineering Co. v.
Workmen’s Compensation Commission, et al., L-17283, July 31, 1962; National
Power Corpo­ration v. Workmen’s Compensation Commission, et al.,
L-19843, Jan. 30, 1965; National Development Co. v. Workmen’s Compensation Com­mission, et al.,
L-20504, March 31, 1965; Manila Railroad Company v. WCC, et al., L-21902, August 10, 1967.

^[4]
National Development Company v. WCC, et al., L-20504, March 31, 1965.

^[5]
Manila Railroad Company v. WCC, et al., L-19377, Jan. 30, 1964.