REYNALDA GATCHALIAN, PETITIONER, VS. ARSENIO DELIM AND THE HON. COURT OF APPEALS, RESPONDENTS.

At noon time on 11 July 1973, petitioner Reynalda Gatchalian
boarded, as a paying passenger, respondent’s “Thames” mini-bus at a
point in San Eugenio, Aringay, La Union, bound for Bauang, of the same
province. On the way, while the bus was
running along the highway in Barrio Payocpoc, Bauang, La Union, “a
snapping sound” was suddenly heard at one part of the bus and, shortly thereafter,
the vehicle bumped a cement flower pot on the side of the road, went off the
road, turned turtle and fell into a ditch. Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital
at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to have sustained
physical injuries on the leg, arm and forehead, specifically described as
follows: lacerated wound, forehead;
abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg,
left.^[1]

On 14 July 1973, while injured passengers were confined in the
hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for
their hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation
expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers,
including petitioner, sign an already prepared Joint Affidavit which stated,
among other things:

“That we were passengers of Thames with Plate No. 52-222 PUJ
Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc
Norte, Bauang, La Union while passing through the National Highway No. 3;

That after a thorough investigation the said Thames met the
accident due to mechanical defect and went off the road and turned turtle to
the east canal of the road into a creek causing physical injuries to us:

x x x                          x x x                             x
x x

That we are no longer interested to file a complaint, criminal
or civil against the said driver and owner of the said Thames, because it was
an accident and the said driver and owner of the said Thames have gone to
the extent of helping us to be treated upon our injuries.

x x x                          x x x                            x x x”^[2]

(Underscoring supplied)

Notwithstanding this document, petitioner Gatchalian filed with
the then Court of First Instance of La Union an action extra contractu
to recover compensatory and moral damages. She alleged in the complaint that her injuries sustained from the
vehicular mishap had left her with a conspicuous white scar measuring 1 by ½
inches on the forehead, generating mental suffering and an inferiority complex
on her part; and that as a result, she had to retire in seclusion and stay away
from her friends. She also alleged that
the scar diminished her facial beauty and deprived her of opportunities for
employment. She prayed for an award
of: P10,000.00 for loss of employment
and other opportunities; P10,000.00 for
the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney’s fees.

In defense, respondent averred that the vehicular mishap was due
to force majeure, and that petitioner had already been paid and moreover
had waived any right to institute any action against him (private respondent)
and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14
July 1973.

After trial, the trial court dismissed the complaint upon the
ground that when petitioner Gatchalian signed the Joint Affidavit, she
relinquished any right of action (whether criminal or civil) that she may have
had against respondent and the driver of the mini-bus.

On appeal by petitioner, the Court of Appeals reversed the trial
court’s conclusion that there had been a valid waiver, but affirmed the
dismissal of the case by denying petitioner’s claim for damages:

“We are not in accord, therefore, of (sic) the ground of the trial
court’s dismissal of the complaint, although we conform to the trial court’s
disposition of the case — its dismissal.

IN VIEW OF THE FOREGOING considerations, there being no error
committed by the lower court in dismissing the plaintiff-appellant’s complaint,
the judgment of dismissal is hereby affirmed.

Without special pronouncement as to costs.

SO ORDERED.^[3]

In the present Petition
for Review filed in forma pauperis, petitioner assails the decision of
the Court of Appeals and asks this Court to award her actual or compensatory
damages as well as moral damages.

We agree with the majority of the Court of Appeals who held that
no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit
may be quoted again:

“That we are no longer interested to file a complaint, criminal or civil
against the said driver and owner of the said Thames, because it was an
accident and the said driver and owner of the said Thames have gone to the
extent of helping us to be treated upon our injuries.” (Underscoring
supplied)

A waiver, to be valid and effective, must
in the first place be couched in clear and unequivocal terms which leave no doubt
as to the intention of a person
to give up a right or benefit which legally pertains to him.^[4]
A waiver may not casually be attributed to a person when the terms thereof do
not explicitly and clearly evidence an intent to abandon a right vested in such person.

The degree of explicitness which this Court has required in
purported waivers is illustrated
in Yepes and Susaya v. Samar Express
Transit (supra),
where the Court in reading and rejecting a purported waiver said:

“x x x It appears that before their transfer to the Leyte
Provincial Hospital, appellees were asked to sign as, in fact, they signed the
document Exhibit I wherein they stated that ‘in consideration of the expenses
which said operator has incurred in properly giving us the proper medical
treatment, we hereby manifest our desire to waive any and all claims
against the operator of the Samar Express Transit. ‘x x x

x x x                          x x x                             x
x x

Even a cursory examination of the document mentioned above will
readily show that appellees did not actually waive their right to claim
damages from appellant for the latter’s failure to comply with their
contract of carriage. All that said
document proves is that they expressed a ‘desire’ to make the waiver — which
obviously is not the same as making an actual waiver of their right. A waiver of the kind invoked by appellant
must be clear and unequivocal (Decision of the Supreme Court of Spain of
July 8, 1887) — which is not the case of the one relied upon in this appeal.”
(Underscoring supplied)

If we apply the standard used in Yepes
and Susaya, we would have to conclude that the terms of the Joint Affidavit
in the instant case cannot be regarded as a waiver cast in “clear and
unequivocal” terms. Moreover, the
circumstances under which the Joint Affidavit was signed by petitioner
Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects of the
vehicular accident, having been in the hospital for only three days, when the
purported waiver in the form of the Joint Affidavit was presented to her for
signing; that while reading the same, she experienced dizziness but that,
seeing the other passengers who had also suffered injuries sign the document,
she too signed without bothering to read the Joint Affidavit in its
entirety. Considering these
circumstances, there appears substantial doubt whether petitioner understood
fully the import of the Joint Affidavit (prepared by or at the instance of
private respondent) she signed and whether she actually intended thereby to
waive any right of action against private respondent.

Finally, because what is involved here is the liability of a common
carrier for injuries sustained by passengers in respect of whose safety a
common carrier must exercise extraordinary diligence, we must construe
any such purported waiver most strictly against the common carrier. For a waiver to be valid and effective, it must
not be contrary to law, morals, public policy or good customs.^[5]
To uphold a supposed waiver of any right to claim damages by an injured
passenger, under circumstances like those exhibited in this case, would be to dilute and weaken
the standard of extraordinary diligence exacted by the law from common carriers
and hence to render that standard unenforceable.^[6] We
believe such a purported waiver is offensive to public policy.

Petitioner Gatchalian also argues that the Court of Appeals,
having by majority vote held that there was no enforceable waiver of her right
of action, should have awarded her actual or compensatory and moral damages as
a matter of course.

We have already noted that a duty to exercise extra­ordinary
diligence in protecting the safety of its passengers is imposed upon a common
carrier.^[7]
In case of death or injuries to passengers, a statutory presumption arises that
the common carrier was at fault or had acted negligently “unless it proves
that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755″.^[8]
In fact, because of this statutory presumption, it has been held that a court
need not even make an express finding of fault or negligence on the part of the
common carrier in order to hold it liable.^[9] To
overcome this presumption, the common carrier must show to the court that it
had exercised extraordinary diligence to prevent the injuries.^[10]
The standard of extraordinary diligence imposed upon common carriers is
considerably more demanding than the standard of ordinary diligence, i.e., the
diligence of a good paterfamilias established in respect of the ordinary
relations between members of society. A
common carrier is bound to carry its passengers safely “as far as human care and foresight can provide,
using the utmost diligence
of a very cautious person, with due regard to all the
circumstances”.^[11]

Thus, the question
which must be addressed is whether or not private respondent has successfully
proved that he had exercised extraordinary diligence to prevent the mishap
involving his mini-bus. The records
before the Court are bereft of any evidence showing that respondent had
exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt,
during the trial before the court a quo, to prove that he had indeed
exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by
alleging that the mishap was the result of force majeure. But allegation is not proof and here again,
respondent utterly failed to substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries
to passengers upon the ground of force majeure, the carrier must clearly
show not only that the efficient
cause of the casualty was entirely independent of the human will, but also that
it was impossible to avoid. Any
participation by the common carrier in the occurrence of the injury will defeat
the defense of force majeure. In
Servando v. Philippine Steam Navigation Company,^[12]
the Court summed up the essential characteristics of force majeure by
quoting with approval from the Enciclopedia Juridical Española:

“Thus, where fortuitous event or force majeure is the
immediate and proximate cause of the loss, the obligor is exempt from liability
for non-performance. The Partidas, the
antecedent of Article 1174 of the Civil Code, defines ‘caso fortuito’ as ‘an
event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses,
unexpected fire, shipwreck, violence of robbers.’

In its dissertation on the phrase ‘caso fortuito’ the Enciclopedia
Juridical Española says: ‘In legal
sense and, consequently, also in relation to contracts, a ‘caso fortuito’
presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurrence, or of
the failure of the debtor to comply with his
obligation, must be independent of the human will; (2) it must be
impossible to foresee the event which constitutes the ‘caso fortuito’, or if it
can be foreseen, it must be impossible to avoid; (3) the occurrence must be
such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor
must be free from any participation in the aggravation of the injury resulting
to the creditor.”

Upon the other hand, the record yields affirmative evidence of
fault or negligence on the part of respondent common carrier. In her direct examination, petitioner
Gatchalian narrated that shortly before the vehicle went off the road and into
a ditch, a “snapping sound” was suddenly heard at one part of the
bus. One of the passengers an old
woman, cried out, “What happened?” (“Apay addan samet nadadaelen?”). The driver replied, nonchalantly,
“That is only normal” (“Ugali
ti makina dayta“). The driver did not stop to check if anything had gone wrong with the
bus. Moreover, the driver’s reply
necessarily indicated that the same “snapping sound” had been heard
in the bus on previous occasions. This
could only mean that the bus had not been checked physically or mechanically to
determine what was causing the “snapping sound” which had occurred so
frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor
vehicle in good operating condition, and even a modicum of concern for life and
limb of passengers dictated that the bus be checked and repaired. The obvious continued failure of respondent
to look after the roadworthiness and safety of the bus, coupled with the
driver’s refusal or neglect to stop the mini-bus after he had heard once again
the “snapping sound” and the cry of alarm from one of the passengers,
constituted wanton disregard of the physical safety of the passengers, and
hence gross negligence on the part of respondent and his driver.

We turn to petitioner’s claim for damages. The first item in that claim relates to
revenue which petitioner said she failed to realize because of the effects of
the vehicular mishap. Petitioner
maintains that on the day that the mini-bus went off the road, she was supposed
to confer with the district supervisor of public schools for a substitute
teacher’s job, a
job which she had held off and on as a “casual employee”. The Court of Appeals, however, found that at
the time of the accident, she was no longer employed in a public school since,
being a casual employee and not a Civil Service eligible, she had been laid
off. Her employment as a substitute
teacher was occasional and episodic, contingent upon the availability of
vacancies for substitute teachers. In
view of her employment status as such, the Court of Appeals held that she could
not be said to have in fact lost any employment after and by reason of the
accident.^[13]
Such was the factual finding of the Court of Appeals, a finding entitled to due
respect from this Court. Petitioner
Gatchalian has not submitted any basis for overturning this finding of fact,
and she may not be awarded damages on the basis of speculation or conjecture.^[14]

Petitioner’s claim for the cost of plastic surgery for removal of
the scar on her forehead, is another matter. A person is entitled to
the physical integrity of his or her body; if that integrity is violated or
diminished, actual injury is suffered for which actual or compensatory damages
are due and assessable. Petitioner
Gatchalian is entitled to be placed as nearly as possible in the condition that
she was before the mishap. A scar,
especially one on the face of the woman, resulting from the infliction of
injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to
her conditio ante. If the scar
is relatively small and does not grievously disfigure the victim, the cost of
surgery may be expected to be correspondingly modest. In Araneta, et al. v. Areglado, et al.,^[15]
this Court awarded actual or compensatory damages for, among other things, the
surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:

“We agree with the appellants that the damages awarded by the
lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more that P1,000.00 as
compensation for the ‘permanent deformity and — something like an inferiority
complex’ as well as for the ‘pathological condition on the left side of the
jaw’ caused to said plaintiff, the court below overlooked the clear evidence on
record that to arrest the degenerative process taking place in the mandible and
restore the injured boy to a nearly normal condition, surgical intervention
was needed, for which to doctor’s charges would amount to P3,000.00,
exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation, according to
Dr. Diño, would probably have to be repeated in order to effectuate a complete cure, while removal of the
scar on the face obviously demanded plastic surgery.

x x x                          x x x                             x
x x

The father’s failure to submit his son to a plastic operation as
soon as possible does not prove that such treatment is not called for. The damage to the jaw and the existence
of the scar in Benjamin Araneta’s face are physical facts that can not be reasoned out of
existence. That the injury should be
treated in order to restore him as far as possible to his original condition is
undeniable. The father’s delay, or
even his negligence, should not be allowed to prejudice the son who has no
control over the parent’s action nor impair his right to a full indemnity.

x x x Still, taking into account the necessity and cost of
corrective measures to fully repair the damage; the pain suffered by the
injured party; his feelings of inferiority due to consciousness of his present
deformity, as well as the voluntary character of the
injury inflicted; and further considering
that a repair, however skillfully conducted, is never equivalent to
the original state, we are of the opinion that the indemnity granted by the
trial court should be increased to a total of P18,000.00. (Underscoring supplied)

Petitioner estimated that
the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00.^[16] Upon the other hand, Dr. Fe Tayao
Lasam, a witness presented as an expert by petitioner, testified that the cost would
probably be between P5,000.00 to P10,000.00.^[17] In
view of this testimony, and the fact that a considerable amount of time has
lapsed since the mishap in 1973 which may be expected to increase not only the
cost but also very probably the difficulty of removing the scar, we consider
that the amount of P15,000.00 to
cover the cost of such plastic surgery is not unreasonable.

Turning to petitioner’s claim for moral damages, the
long-established rule is that moral damages may be awarded where gross
negligence on the part of the common carrier is shown.^[18]
Since we have earlier concluded that respondent common carrier and his driver
had been grossly negligent in connection with the bus mishap which had injured
petitioner and other passengers, and recalling the aggressive maneuvers of
respondent, through his wife, to get the victims to waive their right to recover
damages even as they were still hospitalized for their injuries, petitioner
must be held entitled to such moral damages. Considering the extent of pain and anxiety which petitioner must have
suffered as a result of her physical injuries including the permanent scar on
her forehead, we believe that the amount of P30,000.00 would be a reasonable
award. Petitioner’s claim for P1,000.00
as attorney fees is in fact
even more modest.^[19]

WHEREFORE, the Decision of the Court of Appeals dated 24
October 1980, as well as the decision of the then Court of First Instance of La
Union dated 4 December 1975 are hereby REVERSED
and SET ASIDE. Respondent is hereby ORDERED to pay petitioner Reynalda
Gatchalian the following sums: 1)
P15,000.00 as actual or compensatory damages to cover the cost of plastic
surgery for the removal of the scar on petitioner’s forehead; 2) P30,000.00 as moral
damages; and 3) P1,000.00 as attorney’s fees, the aggregate amount to bear
interest at the legal rate of 6% per annum counting from the promulgation of
this decision until full payment thereof. Costs against private respondent.

SO ORDERED.

Fernan, C.J., (Chairman), Gutierrez, Jr., Bidin, and Davide, Jr., JJ., concur.

^[1]
TSN, 19 December 1974, p. 8.

^[2]
Record on Appeal, p. 10.

^[3]
Annex A of Petition; Rollo, pp. 16-26. The Decision was split: Coquia,
J. joined the ponente Asuncion, J.; Cuevas, J. concurred in
the result, stating that there was a valid waiver of the civil but not of the
criminal liability involved; German and Gopengco, JJ., dissented, holding that
there was no valid waiver and the claim for damages should be granted.

^[4]
Fernandez v. Sebido, 70 Phil. 151 (1940); Lang v. Provincial
Sheriff of Surigao, et al., 93 Phil. 661 (1953); Andres v. Crown Life Insurance
Co., 102 Phil. 919 (1958); Yepes and Susaya v. Samar Express Transit, 17
SCRA 91 (1966).

^[5]
Article 6, Civil Code.

^[6]
See, e.g., Maniego v.
Castello, 101 PHIL. 293 (1957); Cui v. Arellano University, 2 SCRA 205
(1961).

^[7]
Article 1733 and 1755, Civil Code.

^[8]
Article 1756, Civil Code.

^[9]
Brito Sy. v. Malate Taxicab & Garage, Inc., 102 Phil. 482 (1957).

^[10]
Landingin v. Pangasinan Transportation Co., 33 SCRA 284 (1970).

^[11]
Article 1755, Civil Code

^[12]
117 SCRA 832, 837 (1982).

^[13]
Rollo, p. 18.

^[14]
Article 2199, Civil Code of the Philippines; Suntay Tanjangco v.
Jovellanos, 108 Phil. 713 (1960).

^[15]
104 Phil. 529 (1958).

^[16]
TSN, 15 July 1975, p. 10.

^[17]
Id., 19 December 1974, p. 7.

^[18]
See, e.g., Mecenas v. Court of Appeals, 180 SCRA 83 (1989); Kapalaran
Bus Line v. Coronado, 176 SCRA 792 (1989); Sweet Lines, Inc. v.
Court of Appeals, 121 SCRA 769 (1983); Ortigas, Jr. v. Lufthansa German
Airlines, 64 SCRA 610 (1975); Air France v. Carrascoso, 18 SCRA 155
(1966); La Mallorca and Pampanga Bus Co. v. de Jesus, et al. 17 SCRA 23
(1966); Laguna Tayabas Bus Co. v. Tiongson, et al. 16 SCRA 940 (1966);
Lopez, et al. v. Pan American World Airways, 16 SCRA 431 (1966); Laguna
Tayabas Bus Co. v. Cornista, 11 SCRA 181 (1964); Verzosa v.
Baytan, et al., 107 Phil. 1010 (1960); Layda v. Court of Appeals and
Brillantes, 90 Phil. 724 (1952).

^[19]
Article 2208(2) and (11) Civil Code.