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Republic of the Philippines}

City of Manila} S.S.


Counter Affidavit

I, JOSZEF M. FURIGAY, of legal age, Filipino, married, and a resident of


Quezon City, after being sworn to law hereby depose and state:
1. That on March 21, 2015, on or about 10:00 PM, I suddenly felt
noxious and began vomiting. I took a rest for a while and hydrated
myself with water. My digorgement had stopped, until on or about
10:40 PM, I felt stomach cramps, pain, felt a little dizzy and began
vomiting again. In contemplation of getting dehydrated, I decided to
go to the nearest hospital.
2.

As I was alone in my house and there was none who could


accompany me to the hospital, I decided to drive myself. I hurriedly
dressed up before I rode my car.

3. While on my way to the hospital, I suddenly felt a stomach ache and


felt like defecating so I looked for the nearest gasoline station to
relieve myself.
4. When I reached the Caltex Gasoline Station along Quezon Avenue, I
saw a Starex Van approaching. I proceeded to park knowing that I was
ahead and almost in front of it, therefore, having the priority of way.
But the Starex van did not slack its speed and did not put on its brake
thereby hitting my car which was right in front of the involved Starex.
5. I was not able to step on my brake after the collision due to the feeling
of defecating and stomach cramps as my focus was to look for a near
parking spot.
6. I was indeed pale-faced because I was not feeling well. I was shocked
because the driver of the Starex van did not give its way despite of me
having the priority of way. His two companions likewise alighted the
car together with the complainant approached me while uttering
curses, saying bad words at me such as P.I.! Kung umasta ka parang

nabili mo na tong gas station. Bumaba ka sa sasakyan mo! Sayo ba


tong gas station? San ka ba grumaduate at tatanga tanga kang
magdrive?! Ibabalik kita sa grade one e! Taga san ka ba at ano
pinagmamalaki mo?! The driver used the size of its van to take
advantage to cut the way that was rightfully intended for me.
7. Had he stepped on the brake and allowed me to pass, no collision
could have happened as my car was only moving at a slow speed
because I was about to park. It was the Starex van which was moving
faster thereby cutting the path of my vehicle. Likewise, considering
the size of the Starex van, the driver could have easily seen my car
approaching and he could have just stopped moving. Furthermore it is
a well known fact that vans are specifically designed to have the least
blind spots among other types of vehicles because of their size. Hence
my car being right in front of the van is clearly within the sight of its
driver.
8. Contrary to the allegation of the complainant, I already had my nonprofessional drivers license but because of the urgency of the
situation, I did not notice that I was not able to bring my wallet
containing my non-professional drivers license. I only had my
student permit because it has always been in my car.
9. I did not compromise with Mr. Leano because he was alleging that I
was the one who was at fault.
10. When he asked for my drivers license, I also asked for his but he was
unable to show his drivers license. All that the three passengers,
including Mr. Leano, could show was their law school identification
cards introducing themselves as 4th year law students from the
University of the Philippines. I told them that I will not leave and I
just need to go to the toilet but at first, they prevented me. Afterwards,
they allowed me to use the toilet while accompanying me inside.
11. As I was being forced to admit that it was my fault and that I should
pay P50,000.00, I decided to call my mother to help me settle the
problem because my body was in a bad condition and I felt ill. They
complainant and his two companions are likewise threatening to hurt

me. I was intimidated especially by Mr. Reboroso who was more than
six feet tall and was holding a lug wrench while sharply staring at me.
12. The settlement at the police station did not prosper because the
police, although after having convinced that the collision was not my
fault, is clearly siding with the complainant and suggesting that we
pay P50,000.00. Later, we found out that the father of Mr. Leano, was
the police commander of the station.
13. When I reached the hospital, the doctors found out that I was
suffering from food poisoning and was confined for two days as
substantiated by medical certificate attached as Annex A.
14. The case of Cang vs. Cullen that was cited by the does not produce an
exclusive presumption of negligence on my part because, the
complainant was likewise driving without a drivers license, therefore
it must be applied equally creating a condition of in pari delicto.
Therefore, granting the arguendo that the complainant having equally
at fault, he should bear his own loss.
15. Under the Revise Penal Code, prosecutions for reckless imprudence
resulting in damage to property and a finding of guilt beyond
reasonable doubt requires the concurrence of the following elements,
namely:
1.
2.
3.
4.
5.

that the offender has done or failed to do an act;


that the act is voluntary;
that the same is without malice;
that material damage results; and
that there has been inexcusable lack of precaution on the
part of the offender taking in to consideration(a) his employment or occupation;
(b)degree of intelligence, physical condition; and
(c) other circumstances regarding persons, time and place.

Considering the following facts I deposed above, that first, it


was not an act I have done or failed to do, since it was the
complainant who have the last clear chance to avoid the said incident;

second, that there is no material damage to speak of, because the


parties is in pari delicto; and lastly, there was no inexcusable lack of
precaution on my part taking in to consideration that I was physically
ill at the time of the yet was safely driving, and no signs of overspeeding nor lack of foresight that was specifically alleged in the
complaint, nor was I driving in a reckless manner, my actions when I
proceeded to park was merely reflected what a prudent driver in the
right of way would normally do. Hence, the element for the crime of
reckless imprudence is wanting.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed
that the instant criminal complaint be DISMISSED for lack of merit.
Further, the respondents respectfully pray for such and other
reliefs as may be deemed just and equitable in the premises.

IN WITNESS WHEREOF, I have hereunto affixed my signature on


this 6th day of May, 2016 at Quezon City.

JOSZEF FURIGAY (sgd.)


Affiant

SUBSCRIBED AND SWORN to before me this 8th day of May, 2016


at Quezon City.
I hereby CERTIFY that I have personally examined the affiant and
that I am satisfied that he has voluntarily executed and understood his
CounterAffidavit.

Atty. Lee Marvin Nataniel T. Biglangnawawala (sgd.)


City Prosecutor