RANILDO MANINGDING AND REGINA LUZ[] MANINGDING, PLAINTIFFS-APPELLANTS, VS. SUBIC WATER AND SEWERAGE COMPANY, INC., EDNA G. CANLAS AND YOLANDA RIVA, DEFENDANTS-APPELLEES.
SALAZAR-FERNANDO, J.:
“WHEREFORE, judgment is rendered dismissing the complaint.
SO DECIDED.“[2]
The facts are:
A Complaint[3] for Damages with Prayer for the Issuance of a Writ of Preliminary Mandatory Injunction was filed by plaintiffs-appellants, Ranildo G. Maningding (Ranildo for brevity) and Regina Luz Maningding (Regina, or collectively, Spouses Maningding for brevity) against defendants-appellees Subic Water & Sewerage Company, Inc. (SWSCI for brevity), Edna G. Canlas (Canlas for brevity) and Yolanda Riva (Riva, or collectively, defendants-appellees for brevity) averring that: plaintiffs-appellants Spouses Maningding are registered customers of defendant-appellee SWSCI with Account No. 133-12-566 for the supply of water through a ½-inch pipeline leading to a land used as a garage located at No. 9 Kentucky Lane, Upper Kalaklan, Olongapo City (subject property for brevity); sometime in July 2010, plaintiff-appellant Ranildo, at his own instance, requested defendant-appellee SWSCI to inspect the subject property for the purpose of putting in order the pipelines traversing it because the same had been causing problems in his construction works; in the course of the inspection by the personnel of defendant-appellee SWSCI conducted sometime on July 15, 2010, an alleged “bypass” was found even without actual excavation of the entire length of the pipeline after the main valve was closed and the pipe inside still discharged water; there is no evidence of the alleged “bypass” unless actual digging of the pipeline is made to confirm its existence; hence, the finding of a “bypass” is inconclusive; they were very much willing to cooperate with defendant-appellee SWSCI by allowing the latter to excavate; even if there is a “bypass”, they have no knowledge of it because when the subject property was purchased from the previous owner, the pipelines were already existing and imbedded underground; on July 20, 2010, defendant-appellee SWSCI illegally disconnected its water service, cutting off the water supply to the subject property; and, subsequently, defendant-appellee Riva, acting as IRDD Supervisor/Associate of defendant-appellee SWSCI, prepared and approved a Billing Statement dated July 23, 2010 requiring plaintiffs-appellants Spouses Maningding to pay the total amount of P213, 942.52 inclusive of the amount billed for 2,153 cubic meters of water from November 2009 to July 23, 2010, violation fee, arrears, and inspection fee.
Plaintiffs-appellants Spouses Maningding further alleged[4] that: defendants-appellees Canlas and Riva refused to reconnect their water service even if they are not responsible for the alleged “bypass”; the Billing Statement sent to them by defendant-appellee SWSCI has no factual and legal basis because P211,288.35 is based on 2,153 cubic meters of water for the stated period, which is equivalent to 39.87 drums per day of water discharge or one drum equivalent to 200 liters, or 5.5375 liters per minute; the standard engineering data for the flow of water discharge of a one-half inch pipe is only 3.785 liters per minute; it is therefore impossible to obtain from a half-inch pipe 2,153 cubic meters of water for the period stated; hence, the additional billing of P211,288.53 is arbitrary, capricious, and whimsical and was intentionally bloated to cause injustice, harassment and hardship to them; they were forced to source water from outside causing additional expenses and disruption of business activities for which they suffered and continue to suffer P500.00 per day in damages; and, defendants-appellees violated Articles 19, 20, and 21 of the Civil Code.
On August 16, 2010, summons[5] was served upon defendants-appellees.
On November 19, 2010, defendants-appellees filed their Answer[6] denying the material allegations of the complaint, and by way of special and affirmative defenses, alleged that: the controversy started when defendant-appellee SWSCI’s inspection team visited the subject property on July 15, 2010; the inspection was led by a certain Ms. Maria Teresa S. Maranon (Maranon for brevity), the Water Distribution Manager of defendant-appellee SWSCI, responsible for the operations and maintenance of the entire distribution system of the company and overseeing the Technical Services Division and Meter and Service Line Management Division; her duty is to reduce the non-revenue water by identifying losses caused by theft of water; the inspection was made in response to the verbal request of plaintiff-appellant Ranildo’s foreman, Mr. Glenn Berdom (Mr. Berdom for brevity); Mr. Berdom requested for the relocation of service lines that were supplying water to a group of residents located at the back of the subject property; plaintiff-appellant Ranildo acquired the subject property from a certain Jesy Rose Viacrusis; at the time plaintiff-appellant Ranildo acquired the subject property, it was an empty lot with no improvements and with only the two (2)-inch distribution line traversing the left side thereof and servicing the residents at the back portion; the request of Mr. Berdom was not for the purpose of uncovering any alleged bypass connection but to determine how these service lines were tapped and how they could be relocated; this goal proved to be difficult because the two- inch distribution line to which the service lines were tapped had already been covered by new residential structures; Ms. Maranon and the inspection team couldn’t help but wonder that if the true intent of plaintiff-appellant Ranildo was to put in order the pipelines traversing his lot which are not buried underground, he should have done so when he purchased the subject property and before concrete structures had already been completed at which point the 2-inch distribution line was already completely covered, leaving only the service lines visible; this made it impossible for defendants-appellees to check for any interconnection between a service line and the distribution line to which they were probably tapped; the inspection team nevertheless proceeded with the inspection by asking Mr. Berdom to identify the meter with serial number 9611812 registered and pertaining to the service connection of plaintiff-appellant Ranildo; to test the sufficiency of the water supply, all three (3) outlets/faucets were turned on and sufficient water flowed therefrom; Ms. Maranon then directed one of her men to disconnect the registered service connection identified by Mr. Berdom as running through the meter with serial number 9611812; to her surprise, the water pressure coming from the three (3) outlets remained the same; it is logically impossible to have flowing water supply even when the service line that supplies it is already disconnected from the main line and even after the cock valve was already turned off as verified by the fact that the meter did not register any flowing water anymore; since the water kept on flowing at the same velocity as before disconnection, this is a prima facie evidence of the presence of an illegal connection or bypass; Ms. Maranon studied the history of the account and found that the subject property was previously involved in a direct tapping case and plaintiff-appellant Ranildo himself settled the case by paying all the violation charges on October 6, 2009; she also discovered that although classified as a residential consumer, plaintiff-appellant Ranildo caused the construction of structures clearly intended for commercial use for a logistics business such as a garage for several delivery trucks; despite the on-going construction of the commercial area as well as at least two (2) residential structures already occupied by two (2) families, and the presence of several construction workers, since the construction started as early as November 2009, the registered consumption varied from a low of 7 cubic meters in December 2009 to a high of just 23 cubic meters in June 2010; this is even less than the average consumption level of a family of five (5) members at 300 cubic meters per month; she estimated the volume of water consumption based on the data provided by Mr. Berdom indicating the probable level of consumption due to the construction activity, number of construction workers, and usage of two (2) families staying on the subject property; the billing thus includes the undercollection of water, penalty not exceeding double the value of the water stolen, violation fee, inspection fee, and unpaid water bill; she prepared a Violation Report dated July 15, 2010 as well as Notice of Violation on even date, duly received by plaintiff-appellant Ranildo, and advised him to report to defendant-appellee Riva within five (5) days at her office; on July 20, 2010, the service connection of plaintiffs-appellants Spouses Maningding was disconnected as authorized by paragraph 2, Section 2, Rule III of the Water Utility Rules & Regulations, an integral part of the Service Application Agreement signed by plaintiff-appellant Ranildo; and, the said portion of the rules states that defendant-appellee SWSCI has the right to disconnect any service connection “after serving notice to a customer who had committed infraction of these utility rules”.
Defendants-appellees further alleged[7] that: surveillance was conducted on September 5 and 6, 2010 from 8 o’clock in the morning to 5 o’clock in the afternoon to assess the present level of water consumption; during the surveillance, no outside supplier of water was seen making any delivery to the subject property and it was observed that there was heavy and indiscriminate use of water which is unexpected because the registered service connection had been cut-off and the second bypass had already been tapped-off; it was therefore suspected that plaintiff-appellant Ranildo managed to source water illegally from the first bypass connection until the present as it had not yet been tapped off; there was also a woman seen filling a blue plastic drum with water which the woman used for cleaning; in fact, in a short period of time, the drum was filled up and more drums were lined up in the same area and were likewise filled with water using a hose connected to the illegal connection that was removed after use to prevent detection; the area where the illegal connection is located is always covered by a parked vehicle to obstruct the view of any person conducting a surveillance on the subject property; and, when a meeting was held between defendant-appellee Riva and plaintiff-appellant Ranildo at the former’s office, the latter did not contest the finding of illegal connection but merely asked for a discount regarding the penalties.
The parties thereafter filed their respective Pre-Trial Briefs.[8]
On June 3, 2011, a Pre-Trial Conference was held but defendants-appellees failed to attend the same, prompting the lower court to issue an Order of Default against them. Defendants- appellees then filed a Motion to Lift Order of Default[9] to which plaintiffs-appellants Spouses Maningding filed their Opposition.[10] In an Order dated July 12, 2011,[11] the lower court resolved to grant defendants-appellees’ Motion to Lift Order of Default in the interest of substantial justice.
After a summary hearing, the lower court in an Order dated June 8, 2011,[12] denied plaintiffs-appellants Spouses Maningding’s Motion for Issuance of a Preliminary Mandatory Injunction.
When defendants-appellees again failed to attend the Pre-Trial Conference, they were declared in default for the second time. Defendants-appellees then filed another Motion to Lift Order of Default[13] but the same was denied.[14] Thus, the lower court granted leave to plaintiffs-appellants Spouses Maningding to present evidence ex-parte.[15]
During the ex-parte presentation of evidence, plaintiffs-appellants Spouses Maningding presented plaintiff-appellant Ranildo himself as their lone witness. Plaintiff-appellant Ranildo adopted his previously executed judicial affidavit[16] and submitted a supplemental judicial affidavit, both containing substantially the same allegations as stated in the Complaint, which were earlier discussed.[17]
On January 21, 2013,[18] plaintiffs-appellants Spouses Maningding filed their Formal Offer of Exhibits. In an Order dated March 1, 2013,[19] the lower court admitted the exhibits offered in evidence.
On March 4, 2013, the lower court rendered the assailed Decision[20] dismissing the complaint. The lower court found that while the acts complained of may have caused injury to the plaintiffs-appellants Spouses Maningding, such injury alone is not sufficient to warrant damages especially since there is no proof that the acts were performed for the sole purpose of injuring them. Actual damages were also denied for failure to substantiate the same.
Undaunted, plaintiffs-appellants Spouses Maningding filed the present appeal[21] raising the following errors:[22]
I.
THE LOWER COURT ERRED IN CONCLUDING THAT THERE IS NO EVIDENCE OF MALICE OR BAD FAITH THAT WOULD JUSTIFY THE AWARD OF DAMAGES UNDER ART. 19 AND ART. 21 OF THE CIVIL CODE.II.
THE LOWER COURT ERRED IN DENYING APPELLANTS CLAIMS FOR ACTUAL DAMAGES, MORAL DAMAGES, EXEMPLARY DAMAGES, ATTORNEY’S FEES AND COSTS OF SUIT.
The appeal lacks merit.
Essentially, plaintiffs-appellants Spouses Maningding contend[23] that: the Billing Statement is whimsical and capricious as the amount billed is based on a water discharge far greater than the maximum flow from a half-inch pipe; the disconnection of their water service connection was not based on physical evidence but rather, on pure speculation and conjecture that there exists a bypass in the subject property thereby depriving them of due process; no police officer, barangay representative or impartial witness was present at the time the bypass was discovered; and, no direct evidence could hold them liable for the alleged bypass.
After a careful examination of the records of the case, as well as the law and jurisprudence pertinent thereto, this Court finds that the lower court correctly dismissed the complaint of plaintiffs-appellants Spouses Maningding.
The principle of abuse of rights is provided for in the Civil Code on the chapter of human relations. The elements of an abuse of rights under Article 19 of the Civil Code are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.[24] On the other hand, Article 21 of the same code deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure.[25] A common element therefore under Articles 19 and 21 is that the act must be intentional for the resulting injury to warrant an award of damages.[26]
In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied.[27] While the Court has not hesitated to apply Article 19 whenever the legal and factual circumstances called for its application,[28] the question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends on the circumstances of each case.[29]
In this case, it is undeniable that defendant-appellee SWSCI had a legal right to disconnect the service connection of a customer who is not paying for such service and his corresponding consumption. This right is contained in the Service Application Agreement[30] between defendant-appellee SWSCI and plaintiff-appellant Ranildo. The remedy of disconnection of service connection is specifically granted defendant-appellee SWSCI for all accounts or water bills that remain unpaid after sixty (60) days from due date.[31] Disconnection shall be effected anytime after giving due notice to the customer, while water supply will be restored upon full payment of the amount due together with the reconnection fees.[32] A basis for the Standard Computation For Average Billing is also provided in the Service Application Agreement in order to estimate the correct billing for a particular customer if and when the meter does not reflect the correct water usage.[33] This Service Application Agreement is duly signed by plaintiff-appellant Ranildo himself.[34]
The crux of the controversy therefore is whether or not defendant-appellee SWSCI abused the exercise of its legal right to disconnect the water service connection of plaintiffs-appellants Spouses Maningding with intent to prejudice the latter. This Court answers in the negative.
First, due process was accorded plaintiffs-appellants Spouses Maningding. In the course of the inspection conducted on July 15, 2010, an alleged bypass was discovered by the personnel of defendant-appellee SWSCI. The inspection was made in the presence of plaintiff-appellant Ranildo’s foreman, Mr. Berdom.
The finding of a bypass in the subject property was also based on physical evidence. In fact, records reveal that plaintiffs-appellants Spouses Maningding never disputed the finding of defendants-appellees that despite turning off the valve from plaintiffs-appellants Spouses Maningding’s service line, which in turn is connected to defendant-appellee SWSCI’s main line that supplies the water, the velocity of the water coming from all the faucets in the subject property remained the same. At this point, the meter duly registered to plaintiff-appellant Ranildo did not pick up any reading for water consumption anymore because the main valve had already been turned off, and yet the water still flowed at the same velocity as when the valve was turned on. In other words, this Court lends credence to the position of defendants-appellees that it is physically impossible for a customer to have running water at the exact same velocity flowing from his service line if the valve connecting it to the main line had already been turned off, unless there is a bypass.
In addition, records reveal that the surveillance conducted by defendant-appellee SWSCI was thorough and exhaustive.[35] Pictures and still images of a video show construction activity, indiscriminate use of water by residents, a parked vehicle used to cover the area where the bypass is located and from which area water flowed, and filling up numerous plastic drums with water. Defendant-appellee SWSCI suspects that a water hose is used to fill up discreetly these containers and removed immediately thereafter to avoid detection. From the records, it is evident that even if there had been no actual excavation of the subject property, no other conclusion can be reached except that an illegal connection or “bypass” exists.
Plaintiffs-appellants Spouses Maningding also insist that they never received the Violation Report dated July 15, 2010,[36] while defendants-appellees contend that the First Notice of the Violation[37] was furnished plaintiff-appellant Ranildo. While this Court cannot confirm whether or not the signature appearing on such notice as that belonging to plaintiff-appellant Ranildo because no printed name was placed, and inasmuch as a representative of plaintiff-appellant Ranildo could have received it for and in his behalf, this Court takes cognizance of the fact that plaintiff-appellant himself went to the office of defendant-appellee Riva to talk to her about the Billing Statement and the disconnection of their water service connection. The fact that plaintiff-appellant Ranildo was duly received by defendant-appellee Riva in her office as an officer and representative of defendant-appellee SWSCI and given an opportunity to explain his side is the essence of due process.
In fact, even assuming arguendo that plaintiffs-appellants Spouses Maningding were not furnished a Notice of Violation, plaintiffs-appellants Spouses Maningding admitted that the inspection conducted on July 15, 2010 was made upon their own request[38] and that the bypass was discovered during the course of such inspection.[39] They likewise did not dispute the fact that their foreman, Mr. Berdom, was present during the inspection, and assisted the personnel of defendant-appellee SWSCI. Plaintiffs-appellants Spouses Maningding cannot therefore feign ignorance of any violation they may have committed which resulted in the disconnection of their water service connection.
While undoubtedly, the supply and distribution of water is imbued with public interest, companies such as defendant-appellee SWSCI are not without recourse when it comes to water pilferage. By analogy for instance, electric cooperatives insert provisions in their service contracts regarding differential billing with the option of disconnection upon non-payment by an erring consumer, the validity of which has been upheld by the Supreme Court.[40] In the same vein, this Court finds that the act of defendants-appellees in disconnecting the water service connection of plaintiffs-appellants Spouses Maninding was properly exercised and sanctioned by the Service Application Agreement between the parties. This Court recognizes the sheer necessity of such a provision as a measure of self-preservation. Otherwise, water service providers will be forced to incur millions in losses due to pilferage and will be left with no other choice but to let the losses rack up until their business folds.
Clearly, the Civil Code provisions on human relations was never meant to warrant the award of damages when the exercise of such right was not done arbitrarily or on the basis of a whim or caprice, such as in this case. In fact, good faith and lack of intent to injure on the part of defendants-appellees are evident in the fact that the latter exerted all possible means in ensuring the accuracy of the finding that there exists a bypass within the subject property. Defendants-appellees made numerous checks such as turning off the main valve during the inspection of water flow and even conducted a surveillance for several days. Needless to state, defendants-appellees cannot be faulted for disconnecting the service connection of plaintiffs-appellants Spouses Maningding, especially since there was a glaring disparity between the registered consumption of the latter, a low of 7 cubic meters per month and a high of 23 cubic meters per month between the months of December 2009 to June 2010,[41] and the inspected actual velocity of the water flow in relation to the actual indiscriminate use of water seen during surveillance.
Secondly, contrary to the claim of plaintiffs-appellants Spouses Maningding that there is no factual or legal basis for the Billing Statement dated July 23, 2010 for the amount of P213,942.52, this amount is a conservative estimate of water consumption based not only on the result of the surveillance conducted by defendant-appellee SWSCI but also on the data supplied by no other than Mr. Berdom, the foreman of plaintiff-appellant Ranildo.
Plaintiffs-appellants Spouses Maningding argue that the basis for the Billing Statement, i.e., 2,153 cubic meters of water from the period of November 2009 to July 23, 2010 or 5.53 liters of water discharge per minute through a half-inch pipe, is impossible in light of the engineering data that shows that the maximum discharge of water through the same pipe size is only 3.78 liters per minute.[42] The flaw in this argument is easily perceptible. As correctly pointed out by the defendants-appellees, the argument is premised on the assumption that the bypass or illegal connection used a half-inch pipe. The bypass is made by tapping through the two (2)-inch main line of defendant-appellee SWSCI. The size of the pipe used for the bypass to tap into the main line could easily be another two (2)-inch pipe or even larger,[43] hence explaining the bigger water consumption.
In any event, using half-inch pipes to measure the highest possible discharge of water is misleading because the differential billing refers not to the consumption through legal or registered lines, but through the illegal lines or bypass.[44] Not only that, the engineering data provided by plaintiffs-appellants Spouses Maninding is also unreliable. In fact, this Court agrees with defendants-appellees when they retorted that plaintiffs-appellants Spouses Maningding should not have used a mere technical paper as a point of reference for the engineering data on flow of water, but rather a widely accepted industry standard resource material.[45] Needless to state, this Court finds that the Billing Statement is supported by the necessary data for its computation and that it was not generated arbitrarily, whimsically, or capriciously.
According to the principle of damnum absque injuria, damage or loss which does not constitute a violation of a legal right or amount to a legal wrong is not actionable.[46] In this case, what prompted defendants-appellees to disconnect the water service connection of plaintiffs-appellants Spouses Maningding is the discovery of an illegal connection or bypass used by them to the detriment of defendant-appellee SWSCI. Certainly, defendant-appellee SWSCI’s exercise of such right does not amount to a legal wrong even if the disconnection of the water service connection of plaintiffs-appellants Spouses Maningding resulted in their inconvenience, or perhaps even damage, since there is no proof of ill-motive on their part. As the lower court aptly stated in the assailed Decision:[47]
“In this case, the act complained of may have caused injury to the plaintiff, but such injury alone is not sufficient to tilt the scales in favor of the plaintiff inasmuch as there is no showing that the defendant performed the act “with the sole purpose of injuring the plaintiff.
xxx
The court cannot assume that the cutting off of water services and sending of billing are tantamount to ill motive.”
All told, this Court finds no cogent reason to depart from the ruling of the lower court dismissing plaintiffs-appellants Spouses Maningding’s complaint.
WHEREFORE, premises considered, the instant appeal is DENIED. The assailed Decision dated March 4, 2013 of the RTC, Branch 75, Olongapo City in Civil Case No. 119-0-10 is hereby AFFIRMED.
SO ORDERED.
Garcia and Bueser, JJ., concur.
[*] Also spelled as Luiz in various pleadings and orders
[1] Rollo, pp. 46-49. Penned by Judge Raymond C. Viray
[2] Rollo, p. 49.
[3] Records, pp. 2-6.
[4] Id.
[5] Records, p. 10.
[6] Records, pp. 217-258.
[7] Id.
[8] Records, pp. 444-447.
[9] Records, pp. 515-517.
[10] Records, pp. 522-525.
[11] Records, pp. 526-527.
[12] Records, pp. 509-513.
[13] Recortds, pp. 549-552.
[14] Records, pp. 561-562.
[15] Id.
[16] Records, pp. 16-20.
[17] Records, pp. 2-6.
[18] Records, pp. 578-580.
[19] Records, p. 583.
[20] Records, pp. 585-588.
[21] Records, p. 591; Rollo, pp. 31-45.
[22] Rollo, p. 33.
[23] Rollo, pp. 31-45.
[24] Albenson Enterprises Corp., et al. v. Court of Appeals, et al., G.R. No. 88694, January 11, 1993.
[25] Id.
[26] Id.
[27] Globe Mackay Radio and Cable Corp. v. Court of Appeals, G.R. No. 81262, August 25, 1989.
[28] Id. citing Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31, 1981, 106 SCRA 391; United General Industries, Inc. v. Paler, G.R. No. L-30205, March 15, 1982, 112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153SCRA 183.
[29] Supra note 27.
[30] Records, pp. 267-272.
[31] Records, p. 269.
[32] Id.
[33] Records, p. 270.
[34] Records, p. 272.
[35] Records, pp. 324-330; 428-434.
[36] Records, p. 282.
[37] Records, p. 283.
[38] Records, p. 3; Rollo, p.35.
[39] Id.
[40] Samar II Electric Cooperative, Inc. v. Estrella Quijano, G.R. No. 144474, April 27, 2007, citing Ridjo Tape and Chemical Corporation v. Court of Appeals, 350 Phil. 184, 193 (1998); Manila Electric Company v. Jose, G.R. No. 152769, February 14, 2007.
[41] Records, p. 231.
[42] Rollo, p. 38.
[43] Rollo, p. 95.
[44] Rollo, p. 95.
[45] Rollo, pp. 95-96.
[46] Supra note 27 citing Escano v. CA, G. R. No. L-47207, September 25, 1980, 100 SCRA 197; Gilchrist v. Cuddy, 29 Phil. 542 (1915); The Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987.
[47] Rollo, p. 48.