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CA

332 Phil. 157

FIRST DIVISION

[ G.R. NO. 103883, November 14, 1996 ]

JACQUELINE JIMENEZ VDA. DE GABRIEL, PETITIONER, VS. HON. COURT OF

APPEALS AND FORTUNE INSURANCE & SURETY COMPANY, INC.,
RESPONDENTS.

DECISION
VITUG, J.:
[1]
The petition for review on certiorari in this case seeks the reversal of the decision
of the Court of Appeals setting aside the judgment of the Regional Trial Court of
Manila, Branch 55, whic has ordered private respondent
Fortune Insurance & Surety
Company, Inc., to pay petitioner Jacqueline Jimenez vda. de Gabriel, the surviving
spouse and benificiary in an accident (group) insurance of her deceased husband, the
amount of P100,000.00, plus legal interest.

Marcelino Gabriel, the insured, was employed by Emerald Construction &

Development Corporation ("ECDC") at its construction project in Iraq. He was
covered  by a personal accident insurance in the amount of P100,000.00 under a
[2]
group policy procured from private respondent by ECDC for its overseas workers.
The insured risk was for "(b)odily injury caused by violent accidental external and
visible means which injury (would) solely and independently of any other cauyse"
[3]
result in
death or diability.

On 22 May 1982, within the life of the policy, Gabriel died in Iraq. A year later, or on
12 July 1983, ECDC reported Gavriel's death to private respondent by telephone.
[4]
Among the documents thereafter submitted to private respondent were a copy of
[5]
the
death certificate issued by the Ministry of Health of the Republic of Iraq-which
stated

"REASON OF DEATH: UNDER EXAMINATION NOW- NOT YET KNOWN"[6]-

[7]
and an autopsy report of the National Bureau of Investigation ("NBI") to the effect
that "(d)ue to advanced state of postmortem decomposition, cause of death (could)
[8]
not be determined." Private respondent referred the insurance
claim to Mission
Adjustment service, Inc.

Following a series of communications between petitioner and private respondent, the

later, on 22 September 1983, ultimately denied the claim of ECDC on the ground of
[9]
prescription. Petitioner went to the Regional Trial court of Manila. In her complaint

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against ECDC and the private respondent, she averred that her husband died of
electrocution while in the performance of his work and prayed for the recovery of
P100,000.00 for insurance indemnification and of various other sums by way of
actual, moral, and exemplary dam,ages,
plus attorney's fees and cost of suit.

Private respondent fired its answer, which was not verified, admitting the genuineness
and due execution of the insurance policy; it alleged, however, that since both the
death certificate issued by the Iraqi Ministry of Health and the autopsy report of the
NBi failed to
disclose the cause of Gabriel's death, it denied liability under the policy.
In addition, private respondent raised the defense of "prescription," invoking Section
384[10]of the Insurance Code. Later, private respondent filed an amended answer,
still
unverified, reiterating its original defenses but, this time, additionally putting up
a counterclaim and crossclaim.

The trial court dismissed the case against ECDC for the failure of petitioner to take
steps to cause the service of the fourth aliassummons on ECDC. The dismissal was
without prejudice.

The case proceeded against private respondent alone. On 28 May 1987, the trial court
rendered its decision[11]in favor (party) of petitioner's claim. In arriving  at its
conclusion the trial court held that private respondent was deemed to have waived
the
defense,i.e., that the cause of gabriel's death was not covered by the policy, when the
latter failed to impugn by evidence petitioner's averment on the matter. With regard
to thew defense of prescription, the court considered the complaint to have been
timely filed or
within one (1) year from private respondent's denial of the claim.

Petitioner and private respondent both appealed to the Court of Appeals. Petitioner
contended that the lower court should have awarded all the claims she had asked for.
Private respondent asserted, on its part, that the lower court erred in rukling (a) that
the insular had
waived ther defense that Gabriel's death was not caused by the insured
peril ("violent accidental external and visible means")specified in the policy and (b)
that the cause of action had not prescribed.

The Court of appeals, on 18 september 1991, reversed the decision of the lower court.
The appellate court held that the petitioner had failed to substantiate her allegation
that her husband's death was caused by a risks insured against. The appellate court
observed that the only
evidence presented by petitioner, in her attempt to show the
circumstances that led to the death of the insured, were her own affidavit and letter
allegedly written by a co-worker of the deceased in Iraq which, unfortunately for her,
were held to be both hearsay.[12]

The motion for reconsideration was denied.[13]

Petitioner's recouirse to this Court must also fail.

On the issue of "prescription," private respondent correctly invoked Section 384 of

thew Insurtance Code;viz:

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"Sec.384. Any person having any claim upon the policy issued pursuant to this
chapter shall, without any unecessary delay, present to the insurance company
concerned a written notice of claim setting forth the nature, extent and duration
of the injuries sustained as
certified by a duly licensed physician. Notice of claim
must be filed within six months from date of the accident, otherwise, the claim
shall be deemed waived. Action or suit for recovery of damage due to loss or
injury must be brought, in proper cases, with the Commissioner or
the Courts
within one year from denial of the claim, otherwise, the claimant's right of action
shall prescribe."

The notice of death was given to private respondent of death was given to private
respondent, concededly, more than a year after the death of petitioner's husband.
Private respondent, in invoking prescription, was not referring to the one-year period
from the denial of the claim
within which to file an action against an insurer but
obviously to the written notice of claim that had to be submitted within six months
from the time of the accident.

Petitioner argues that private respondent must be deemed to haver waived its right to
controvert the claim, that is, to show that the cause of death is an accident is an
excepted peril, by failing to have its answers (to the Request for Admission sent by
petitioner) duly
verified. It is true that the matter of which a written request for
admission is made shall be deemed impliedly admitted" unless, within a period
designated in the request, which shall not be less than ten (10) days after service
thereof, or within such further time as the court
may allow on motion and notice, the
party to whom the request is directed serves upon the party requesting the admission
a sworn statement either denying specifically the matters of which an admission is
requested or setting forth in detail the reasons why he cannot truthfully
either admit
or deny those matters,"[14] however, the verification, like in most cases required  by
the rules of procedure, is a formal, not jurisdictional, requirement, and mainly
intended to secure an assurance  that matters which are alleged
are done in good faith
or are true and correct and not of mere speculation. When circumstances  warrant, the
court may simply order the correction of unverified pleadings or act on it  and waive
strict compliance with the rules in order that the ends of justice may
thereby be
served.[15]In the case of answers to written requests for admission particularly, the
court can allow the party making the admission whether made expressly or deemed to
have been made impliedly, "to withdraw or amend it upon such terms as may be
just."
[16]

The appellate court acted neither erroneously nor with grave abuse of discretion when
it seconded the court a quo and ruled:

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"As to the allegation of the plaintiff-appellant that the matters requested by her
to be admitted by the defendant-appellant under the Request for Admission were
already deemed admitted by the latter for its failure to answer it under oath, has
already been properly
laid to rest when the lower court in its Order of May 28,
1987 correctly ruled:

"At the outset, it must be stressed that the defendant indeed filed a written
answer to the request for admission, sans verification. The case of Motor Service
Co., Inc. vs. Yellow Taxicab Co., Inc., et al. may not therefore be controlling, or
actually opposite. In
said case, there was an absolute failure on the part of the
defendant to answer the request for admission, and thus the court was justified
in rendering a summary judgment. Here, however, as clearly intimated
elsewhere above, the defendant answered in writing practically every
question
posed in the request for admission. The Court believes, under the peculiar
circumstance, that the more controlling jurisprudence on the mater would be
those cited by the efendantr in its memorandum, particularly the case of Quimpo
vs. de la Victoria, 46 SCRA 139.'

"Prescinding from the foregoing, ther is absolutely noi basis in fact and in law for
the lower court to hold that the appellant insurance company was deemed to
have waived the defense, that the death of plaintiff-appellant's husband was not
caused by violent accidental external
and visible means' as contemplated in the
insurance policy. The Death Certificate (EXh. 9) and the Autopsy Report (Exh.
10), more than controverted the allegation of the plaintiff-appellant as to the
[17]
cause of death of her husband."

The insurance policy expressly provided that to be compensable, the injury or death
should be caused by "violent accidental external and visible means." In attempting to
prove the cause of her husband's death, all that petitioner could submit were a letter
sent to her husband's
co-worker, stating that Gabriel died when he tried to haul water
out of a tank while its submerged motor was still functioning,[18] and petitioner's
sinumpaang salaysay[19]which merely confirmed the receipt and stated contents
of
the letter. Said the appellate court in this regard:

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"xxx It must be noted that the only evidence presented by her to prove the
circumstances surrounding her husband's death were her purported affidavit
and the letter allegedly written by the deceased co-worker in Iraq. The said
affidavit however suffers from
procedural infirmnity as it was not even testified
to or identified by the affidavit (plaintiff-appellant) herself. This self-serving
affidavit therefore is a mere hearsay under the rules,xxx.

xxx                     xxx                    xxx

"In like manner, the letter allegedly written by the deceased's co-worker which
was never identified to in court by the supposed author, suffers from the same
[20]
defect as the affidavit of the plaintiff-appellant."

Not one of the other documents submitted, to wit, the POEA decision, dated

06 June 1984,[21]the death certifdicate issued by the Ministry of Health of Iraq and
the NBI autopsy report,[22]could give any probative value to petitioner's claim. The
POEA decision did not make any categorical holding on the
specific cause of Gabriel's
death. Neither did the death certificate issued by the health authorities in Iraq nor the
NBI autopsy report provide any clue on the cause of death. All that appeared to be
clear was the fact of Gabriel's demise on 22 May 1982 in Iraq.

Evidence, in fine, is utterly wanting to establish that the insured suffered from an
accidental death, the risk covered by the policy, In an accident insurance, the
insured's benificiary has the burden of proof in demonstrating that the cause of death
is due to the covered
peril. Once that fact is established, the burden then shifts to the
insurer to show any excepted that may have been stipulated by the parties. An
"accident insurance" is not thus to be likened to an ordinary life insurance where the
insured's death, regardless of the cause
thereof, would normally be compensable. The
latter is akin in property insurance to an "all risk" coverage where the insured, on the
aspect of burden of proof, has merely to show the condition of the property insured
when the policy attaches and the fact of loss or damaged
during the period of the
policy and where, thereafter, the burden would be on the insurer to show
any"excluded peril." When, however, the insured risk is specified, like in the case
before us, it lies with the claimant of the insurance proceeds to initially prove that the
loss
is caused by the covered peril.

While petitioner did fail in substantiating her allegation that the death of her husband
was due to an accident, considering, however, the uncertainty on the real cause of
death, private respondent might find its way clear into still taking a second look on the
matter and
perhaps help ease the load of petitioner's loss.

WHEREFORE, the decision appealed from is AFFIRMED. No costs.

SO ORDERED.

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Vitug, Padilla, Bellosillo, Kapunan and Hermosisima, Jr. concur

[1] Penned by Associate Justice Bonifacio A. Cacdac, Jr. and concurred in by

Associate  Justices Nathanael P. de Pano, Jr. and Fortunato A. Vailoces.

[2] Policy No. PA 11644, Exh. 7, Rollo, p. 76.

[3] Ibid., 76.

[4] TSN, October 19, 1987, p.4.

[5] Rollo, p. 77.

[6] Exh. 9-A, Rollo, p. 77.

[7] Autopsy Report No. N-82-1157, Exh. 10, Rollo, p. 78.

[8] Exh. 10-A, Rollo, p.78.

[9] Exh. 4, Record, p. 188.

[10] Infra.

[11] Penned by Judge Hermogenes R. Liwag.

[12] CA Decision, p. 7, Rollo, p. 29.

[13] Penned by Associate Justice Fortunato A. Vailoces and concurred in by Associate

Justices Natanael P. de Pano, Jr. and Asaali S. Isnani.

[14] Sec. 2, Rule 26, Revised Rules of court.

[15] Sy vs. Habacon-Garqayblas, 228 SCRA 644, citing the Minute Resolution in
Villarica vs. Court of Appeals, G.R. No.96085, March 16, 1992.

[16] See Section 4, Rule 26, Revised Rules of Court.

[17] Rollo, p. 84.

[18] Exh. I-1;Record, p. 224.

[19] Exh. I; Record, p. 223.

[20] Rollo, p. 85.

[21] Exh. L, Record, pp. 230-233.

[22]
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[22] Which petitioner herself likewise offered in evidence.

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