[G.R. No. 127326.

 December 23, 1999]

BENGUET ELECTRIC COOPERATIVE, INC., petitioner, vs. COURT OF

APPEALS, CARIDAD O. BERNARDO as Guardian Ad Litem for
Minors JOJO, JEFFREY and JO-AN, all surnamed BERNARDO, and
GUILLERMO CANAVE, JR., respondents.

DECISION
BELLOSILLO, J.:

This case involves a review on certiorari of the Decision of the Court of

Appeals[1]affirming with modification the decision of the Regional Trial Court of
Baguio City, and ordering petitioner Benguet Electric Cooperative Inc. (BENECO) to
pay Caridad O. Bernardo, as guardian ad litem of the three (3) minor children of the
late Jose Bernardo P50,000.00 as indemnity for his death, with interest thereon at the
legal rate from February 6, 1985, the date of the filing of the complaint, until fully
paid, P100,000.00 for moral damages,P20,000.00 for exemplary damages,
another P20,000.00 for attorney's fees, P864,000.00 for net income loss for the
remaining thirty (30) years of the life expectancy of the deceased, and to pay the costs
of suit.
The appellate court dismissed for lack of merit the counterclaim of BENECO
against the Bernardos and its third party complaint against Guillermo Canave, Jr., as
well as the latter's counterclaim.
For five (5) years up to the time of his death, Jose Bernardo managed a stall at the
Baguio City meat market. On 14 January 1985 at around 7:50 in the morning, Jose
together with other meat vendors went out of their stalls to meet a jeepney loaded with
slaughtered pigs in order to select the meat they would sell for the day. Jose was the
very first to reach the parked jeepney. Grasping the handlebars at the rear entrance of
the vehicle, and as he was about to raise his right foot to get inside, Jose suddenly
stiffened and trembled as though suffering from an epileptic seizure. Romeo Pimienta
who saw Jose thought he was merely joking but noticed almost in disbelief that he
was already turning black. In no time the other vendors rushed to Jose and they
discovered that the antenna of the jeepney bearing the pigs had gotten entangled with
an open electric wire at the top of the roof of a meat stall. Pimienta quickly got hold of
a broom and pried the antenna loose from the open wire. But shortly after, Jose
released his hold on the handlebars of the jeep only to slump to the ground.He died
shortly in the hospital. Cause of his death was "cardio-respiratory arrest secondary to
massive brain congestion with petheccial hemorrhage, brain bilateral pulmonary
edema and congestion and endocardial petecchial hemorrhage and dilation (history of
electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of Jose Bernardo, and their
minor children, Jojo, Jeffrey and Jo-an, all surnamed Bernardo, filed a complaint
against BENECO before the Regional Trial Court of Baguio City for a sum of money
and damages arising from the electrocution of Jose Bernardo. In the same civil action,
BENECO filed a third-party complaint against Guillermo Canave, Jr., the jeepney
owner.
In its decision dated 15 August 1994, the trial court ruled in favor of the
Bernardos and ordered BENECO to pay them damages. [2]Both petitioner and private
respondents herein appealed to the Court of Appeals. On 5 November 1996 the
appellate court promulgated its Decision which BENECO now assails
contending inter alia that the appellate court gravely erred in ordering BENECO to
pay damages in light of the clear evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole cause, or at least the principal
cause, of the electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by respondent court
notwithstanding a clear showing that the electrocution and death of Jose Bernardo
were directly attributable to the fault and negligence of jeepney owner Guillermo
Canave, Jr.
The records of the case show that respondent court did not commit any reversible
error in affirming the findings of the trial court that BENECO was solely responsible
for the untimely death of Jose Bernardo through accidental electrocution. According
to the trial court, which we find substantiated by the records - [3]

Through Virgilio Cerezo, a registered master electrician and presently the Chief
Electrical Building Inspector of the General Services Division of the City of Baguio,
who was tasked to investigate the electrocution of Bernardo, the plaintiffs adduced
proof tending to show that the defendant BENECO installed a No. 2 high voltage
main wire distribution line and a No. 6 service line to provide power at the temporary
meat market on Hilltop Road. It put up a three-inch G.I. pipe pole to which the No. 2
main line was strung on top of a stall where a service drop line was connected. The
height of the electrical connection from the No. 2 line to the service line was barely
eight (8) to nine (9) feet (Exhibit "E"; See Exhibit "D-1") which is in violation of the
Philippine Electrical Code which requires a minimum vertical clearance of fourteen
(14) feet from the level of the ground since the wiring crosses a public street. Another
violation according to Cerezo, is that the main line connected to the service line was
not of rigid conduit wiring but totally exposed without any safety protection
(Ibid). Worse, the open wire connections were not insulated (Ibid); See Exhibits "D-
6", "D-6-A", "D-7"). The jeep's antenna which was more than eight (8) feet high
(Exhibit "D-9") from the ground ( It is about six to seven feet long and mounted on
the left fender which is about three feet above the ground) got entangled with the open
wire connections (Exhibit "D-8"), thereby electrically charging its handlebars which
Bernardo held on to enter the vehicle resulting in his electrocution.

While Vedasto Augusto, an electrical engineer and the line superintendent in the
electrical department of the defendant BENECO, admitted that the allowable vertical
clearance of the service drop line is even 15 feet from the ground level and not only
14 feet, he and Jose Angeles, then an instrument man or surveyor of the BENECO,
insisted that BENECO installed (they do not know by whom in particular) from the
Apollo Building nearby a service drop line carrying 220 volts which was attached to a
G.I. pipe pole (Exhibits "1" and "1-A"). The vertical clearance of the point of
attachment of the service drop line on the G.I. post to the ground is 15.5 feet (Exhibit
"1-B"), which is more than the allowable 15-foot clearance. To this service drop line
was connected the service entrance conductor (Exhibit "1-D") to supply power inside
the premises to be serviced through an electric meter. At the lower portion of the
splicing or connecting point between the service drop line and the service entrance
conductor is a three to four-inch bare wire to serve as a ground.They saw the bare
wire because the splicing point was exposed as it was not covered with tape (Exhibit
"1-E"). The antenna of the jeep which electrocuted Bernardo got entangled with this
exposed splicing point.

Augusto claimed that it was not BENECO's job to splice or connect the service
entrance conductor to the service drop line but rather the owner of the premises to be
serviced whose identity they did not, however, determine.

Significantly, on cross-examination, Augusto admitted that the service drop line that
BENECO installed did not end at the point to which it is attached to the G.I. post.
Rather, it passed through a spool insulator that is attached to the post (Exhibit "1-F")
and extended down to where the service entrance conductor is spliced with the result
that the exposed splicing point (Exhibit "1-E") is only about eight (8) feet from the
ground level.

There is no question that as an electric cooperative holding the exclusive franchise

in supplying electric power to the towns of Benguet province, its primordial concern
is not only to distribute electricity to its subscribers but also to ensure the safety of the
public by the proper maintenance and upkeep of its facilities. It is clear to us then that
BENECO was grossly negligent in leaving unprotected and uninsulated the splicing
point between the service drop line and the service entrance conductor, which
connection was only eight (8) feet from the ground level, in violation of the Philippine
Electrical Code. BENECO's contention that the accident happened only on January
14, 1985, around seven (7) years after the open wire was found existing in 1978, far
from mitigating its culpability, betrays its gross neglect in performing its duty to the
public.[4] By leaving an open live wire unattended for years, BENECO demonstrated
its utter disregard for the safety of the public. Indeed, Jose Bernardo's death was an
accident that was bound to happen in view of the gross negligence of BENECO.
BENECO theorizes in its defense that the death of Jose Bernardo could be
attributed to the negligence of Canave, Jr., in parking his jeepney so close to the
market stall which was neither a parking area nor a loading area, with his antenna so
high as to get entangled with an open wire above the Dimasupil store. [5] But this line of
defense must be discarded. Canave's act of parking in an area not customarily used for
that purpose was by no means the independent negligent act adverted to by BENECO
in citing Manila Electric Co. v. Ronquillo.[6] Canave was well within his right to park
the vehicle in the said area where there was no showing that any municipal law or
ordinance was violated nor that there was any foreseeable danger posed by his
act. One thing however is sure, no accident would have happened had BENECO
installed the connections in accordance with the prescribed vertical clearance of
fifteen (15) feet.
Second. BENECO avers that the Court of Appeals gravely erred in
awarding P864,000.00 as net income loss for the thirty (30) years remaining of the life
expectancy of the deceased Jose Bernardo, albeit the trial court found no firm basis
for awarding this item of damages.
We recall that the trial court disallowed the award for net loss income in view of
the alleged contradictory and untrustworthy testimony of the deceased's surviving
spouse Caridad Bernardo. Thus -

As to lost earnings. The court finds the allegations of the plaintiffs, particularly

Caridad Bernardo contradictory and untrustworthy. While in the complaint, which she
herself verified, she asseverated that at the time of his death on January 14, 1985, her
late husband was earning no less than P150.00 daily after deducting personal expenses
and household and other family obligations; at the trial she bloated this up
to P3,000.00 gross daily or P300.00 profit a day or a net income of P200.00 daily after
deducting personal and household expenses. But inexplicably she could not present
the income tax return of her husband for 1983 and 1984 although she stated that he
had been filing such returns. What she submitted are his income tax returns for 1981
and 1982 showing a much lower annual gross income ofP12,960.00 and P16,120.00,
respectively. The Court, therefore, finds no firm basis for awarding this item of
damages.
 In modifying the decision of the trial court, the Court of Appeals relied on the
testimony of Rosita Noefe, sister of the deceased, that her brother started as her helper
in the several meat stalls she operated until 1982 when she allowed Jose to operate
one of her stalls as his own and gave him an initial capital of P15,000.00 to add to his
own. She explained that her brother sold from 100 to 150 kilos of pork and 30 to 50
kilos of meat a day earning an income of about P150.00 to P200.00 pesos daily. After
deducting his personal expenses and family obligations, Jose earned a daily net
income between P70.00 and P80.00. Jose Bernardo died of electrocution at the age of
thirty-three (33). Following the ruling in Villa Rey Transit v. Court of
Appeals[7] and Davila v. PAL[8]his life expectancy would allow him thirty and one third
(30-1/3) years more. Assuming on the basis of his P80.00 daily net income translated
to P2,400.00 monthly orP28,800.00 yearly, the net income loss for the thirty (30)
years remaining of his life expectancy would amount to P864,000.00.[9]
While we are of the opinion that private respondent Bernardo is entitled to
indemnity for loss of earning capacity of her deceased husband we however find that a
modification is in order. The amount corresponding to the loss of earning capacity is
based mainly on two factors: (a) the number of years on the basis of which the
damages shall be computed; and, (b) the rate at which the losses sustained by the
widow and her children should be fixed.[10]
We consider that the deceased was married with three (3) children and thirty-three
(33) years old at the time of his death. By applying the formula: 2/3 x (80 - 33) = Life
Expectancy, the normal life expectancy of the deceased would be thirty-one and one-
third (31-1/3) years and not thirty (30) as found by the respondent court. By taking
into account the nature and quality of life of a meat vendor, it is hard to conceive that
Jose would still be working for the full stretch of the remaining thirty-one (31) years
of his life; and therefore it is but reasonable to make allowances and reduce his life
expectancy to twenty-five (25) years.[11]
Anent the second factor, we are of the view that the Court of Appeals was correct
in relying on the unrebutted testimony of Rosita Noefe concerning the income of Jose,
thus providing a basis for fixing the rate of damages incurred by the heirs of the
deceased. Rosita clarified as follows:
Q: Now you said that you brother's stall is just very near, about 4 to 5 meters away from your
stall. Do you know more or less how your brother was earning by way of income because the
stall belongs also to you and your husband?
A: Yes, sir (italics supplied).
Q: How much more or less would you say was his daily income from the stall, if you know?
A: P150 to P200 more, sometimes more than P200.
Q: What is this? Monthly, daily, or what?
 A: Daily sir.
Q: Now, when you said that he earns sometimes 150 or 200 in a day can (sic) you tell this court more
or less how many in terms of net or in terms of kilos that he can sell with that amount daily?
A: More than one hundred (100) kilos, sir, or one hundred fifty kilos (150).
Q: By the way what was your brother selling also in that meat stall?
A: Pork and beef, sir.
Q: In terms of how many slaughter(ed) pigs would that be if you know? 100 to 150 kilo
A: Two (2) pigs, sir.
Q: Is this... How about meat, I mean, aside from pigs?
A: About thirty (30) to fifty (50) kilos for beef.
Q: Now, will you tell this court why you know more or less that this is his daily income?
A: I know it because I experienced it and I only transferred this stall to him.
Q: And his income, you said, of 150 daily to 200 for the sale of pork and meat will you know what are
his family expenses being your brother and is living with you in the same place at the slaughter
house?
A: About P70.00 to P80.00 a day.
Q: And what are the other income that your brother derive (sic) aside from the meat stall after
spending these daily expenses?
A: None, sir.

Contrary to the assertion of BENECO, there is ample basis for the fixing of
damages incurred by the heirs of the deceased.Notwithstanding the failure of private
respondent Bernardo to present documentary evidence to support her claim, the
unrebutted testimony of Rosita Noefe supplied this deficiency. Indeed, there is no
reason to doubt the veracity of Rosita's testimony considering that she owned the very
same stall that Jose was operating and managing before his death. Her testimony on
the earning capacity of Jose is enough to establish the rationale for the award.
The discrepancy between private respondent Bernardo's claims regarding her
husband's income as contained in the complaint, where she alleged that Jose was
earning no less than P150.00 a day, and her testimony during trial that he
earned P300.00 daily, could not obviate the fact that at the time of his death Jose was
earning a living as a meat vendor. Undoubtedly, his untimely death deprived his
family of his potential earnings. The allegation in the complaint fixing his income
at P150.00 a day was corroborated by the unqualified declaration of Rosita Noefe that
he was earning P150.00 to P200.00 a day. Obviously the bloated figure of P300.00
given by private respondent Bernardo was an afterthought perhaps impelled by the
prospect of being awarded a greater sum.
 We now fix Jose's daily gross income at P150.00 or his annual gross income
at P54,000.00. After deducting personal expenses, household and other family
obligations, we can safely assume that his annual net income at the time of death
was P27,000.00 or 50% of his yearly gross earnings of P54,000.00.[12]
Accordingly, in determining the indemnity for the loss of earning capacity, we
multiply the life expectancy of the deceased as reduced to twenty-five (25) years by
the annual net income of P27,000.00 which gives us P675,000.00. Therefore, we
deduce that his net earning capacity is P675,000.00 computed as follows:[13] Net
Earning Capacity = Life Expectancy x Gross Annual Income - Necessary Living
Expenses. Reduced to simpler form:

Net Earning = Life x Gross Annual - Necessary

Capacity Expectancy Income Living Expenses

= 2 (80 - 33) x (P54,000 - P27,000)

3

= 31-1/3
(reduced to 25) x 27,000 = 675,000.00

=P675,000.00 NET INCOME LOSS (as reduced)

Third. BENECO contends that exemplary damages should not be awarded as the

amount claimed was not specified in the body nor in the prayer of the complaint, in
contravention of the mandate in Rule 11 of the Interim Rules and Guidelines
implementing BP 129 which requires the amount of damages to be specifically
alleged apparently for the purpose of computing the docket fees.
BENECO's contention deserves no merit. The amount of exemplary damages
need not be pleaded in the complaint because the same cannot be predetermined. One
can merely ask that it be fixed by the court as the evidence may warrant and be
awarded at its own discretion. [14] In fact, the amount of exemplary damages need not be
proved because its determination is contingent upon or incidental to the amount of
compensatory damages that may be awarded to the claimant. Moreover, this Court in
a number of occasions ruled that the amount of docket fees to be paid should be
computed on the basis of the amount of the damages stated in the complaint. Where
subsequently however the judgment awarded a claim not specified in the pleading, or
if specified, the same was left for the determination of the court, an additional filing
fee therefor may be assessed and considered to constitute a lien on the judgment. [15]
We are not unaware of the principle laid down in Tacay v. Regional Trial Court
of Tagum[16]where the trial court was ordered to either expunge the unspecified claim
for exemplary damages or allow the private respondent to amend the complaint within
a reasonable time and specify the amount thereof and then pay the corresponding
docket fees. However, we prefer not to expunge the claim for exemplary damages and
pursue the Tacay lead, for to delete the claim for exemplary damages would be to give
premium to BENECO's gross negligence while to order the amendment of the
complaint would be to unjustly delay the proceedings and prolong further the almost
fifteen-year agony of the intended beneficiaries.
Exemplary damages are imposed by way of example or correction for the public
good, in addition to moral, temperate, liquidated or compensatory damages. It is
awarded as a deterrent to socially deleterious actions. In quasi-delict, exemplary
damages are awarded when the act or omission which caused injury is attended by
gross negligence.[17] Gross negligence has been defined as negligence characterized by
the want of even slight care, acting or omitting to act in a situation where there is duty
to act, not inadvertently but willfully and intentionally, with a conscious indifference
to consequences in so far as other persons may be affected. [18]
In the instant case, there is a clear showing of BENECO's gross negligence when
it failed to detect, much less to repair, for an inexcusably long period of seven (7)
years the uninsulated connection which caused the death of Jose Bernardo. The
gravity of its ineptitude was compounded when it installed the service drop line way
below the prescribed minimum vertical clearance of fifteen (15) feet. Again,
precautionary measures were not taken in wanton disregard of the possible
consequences. Under these circumstances, we find no reason to disturb the finding of
respondent court awarding exemplary damages to private respondent Bernardo in the
amount ofP20,000.00.
Finally, BENECO questions the grant of moral damages and attorney's fees on the
same ground of non-culpability. It is settled that moral damages are not intended to
enrich the complainant but to serve to obviate his/her spiritual suffering by reason of
the culpable action of the defendant. Its award is aimed at the restoration of the
spiritual status quo ante, and it must be commensurate to the suffering inflicted. As a
result of the accidental death of Jose, his widow Caridad and their three (3) minor
children had to scrounge for a living in order to keep their heads above water. Caridad
had to depend on the generosity of her relatives which came intermittently and far
between and augment whatever she received from them with her meager income from
her small business. She must have agonized over the prospect of raising her three (3)
small children all by herself given her unstable financial condition. For the foregoing
reasons, we sustain the award of moral damages by respondent court except as to the
amount thereof. In the instant case, we are of the opinion that moral damages in the
amount of P50,000.00 are more in accord with the injury suffered by private
respondent and her children.
 As for attorney's fees, we find no legal nor factual basis to overturn the ruling of
respondent court on the matter; accordingly, the grant of P20,000.00 attorney's fees to
private respondent Bernardo is adopted.
WHEREFORE, the assailed Decision of the Court of Appeals dated 5 November
1996 ordering petitioner Benguet Electric Cooperative, Inc., to pay private respondent
Caridad O. Bernardo as guardian ad litem for the minors Jojo, Jeffrey and Jo-an, all
surnamed Bernardo, P20,000.00 as exemplary damages, another P20,000.00 for
attorney's fees, and P50,000.00 as indemnity for the death of Jose Bernardo, is
AFFIRMED with the MODIFICATION that the P864,000.00 as net income loss is
reduced to P675,000.00 and the P100,000.00 as moral damages is also reduced
to P50,000.00.
Costs against petitioner.
SO ORDERED.