Republic of the Philippines )

City of Butuan ) SS

AFFIDAVIT TO CONTEST THE APPREHENSION

I, DIOSA B. DEBALUCOS, Filipino citizen, of legal age, married, and

presently residing at Ampayon, Butuan City, after having been duly sworn in
accordance with law, hereby depose and say:

1. That I am the registered owner of a Toyota Van 2015 Model (hereinafter

referred as VAN) with Plate No. ZAA 6054.

2. That on March 28, 2022 at about 8:00 AM, while the VAN driven by my
brother JULITO J. BRITAL was travelling along the Maharlika Highway at
the vicinity of Brgy. Taligaman, Butuan City, the VAN was flagged down
and subsequently apprehended by LTFRB Caraga Region personnel
allegedly for a violation “COLORUM – PRIVATE MOTOR VEHICLE
OPERATING AS FOR HIRE WITH 14 PASSENGER ON BOARD. 3500.00
PER DAY FROM TALIGAMAN TO LIANGA SDS.”

3. A corresponding Motor Vehicle Impounding Receipt No. 014636 was

issued thereafter.

4. THE ALLEGATION THAT THE VAN IS COLORUM IS NOT

ADMITTED THUS THE APPREHENSION IS HEREBY BEING
CONTESTED.

5. Under Joint Administrative Order No. 2014-01, a motor vehicle is

considered operating as “colorum” under any of the following
circumstances:
a. A private motor vehicle operating as a PUV but without proper
authority from the LTFRB;
b. A PUV operating outside of its approved route or area without a prior
permit from the Board or outside the exceptions provided under
existing memorandum circulars;
c. A PUV operating differently from its authorized denomination (ex.
Those approved as school service but operating as UV express, or those
approved as tourist bus transport but operating as city or provincial
bus);
d. A PUV with suspended or cancelled CPC and the Decision/Order of
suspension or cancellation is executory; and
e. A PUV with expired CPC and without without a pending application
for extension of validity timely filed before the Board.

6. For the private VAN to be apprehended as “colorum”, it must be operating

as a public utility vehicle.

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 7. The Implementing Rules and Regulations (IRR) of Republic Act No. 10916
otherwise known as the "Road Speed Limiter Act of 2016" defines public
utility vehicle, to wit:

Public Utility Vehicle (PUV} refers to a motor vehicle considered as a

public transport conveyance or common carrier duly registered with the
Land Transportation Office (LTO) and granted a franchise by the Land
Transportation Franchising and Regulatory Board (L TFRB);

8. Thus, the terms public utility vehicle, public transport conveyance, and
common carrier mean the same thing.

9. The determination whether the VAN is “colorum” boils down to the

question if it is operating as a private carrier or a common carrier (public
utility vehicle, public transport conveyance.

10. The Civil Code defines "common carriers" in the following terms:

"Article 1732. Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public."

11. Complementary to the codal definition is Section 13, paragraph (b), of the
Public Service Act; it defines "public service" to be –

"x x x every person that now or hereafter may own, operate, manage, or
control in the Philippines, for hire or compensation, with general or
limited clientele, whether permanent, occasional or accidental, and done
for general business purposes, any common carrier, railroad, street
railway, subway motor vehicle, either for freight or passenger, or both,
with or without fixed route and whatever may be its classification, freight
or carrier service of any class, express service, steamboat, or steamship, or
steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair
shop, wharf or dock, ice plant, ice refrigeration plant, canal, irrigation
system, gas, electric light, heat and power, water supply and power
petroleum, sewerage system, wire or wireless communication systems,
wire or wireless broadcasting stations and other similar public services. x x
x."

12. From the Civil Code and Public Service Act, the elements of a common
carrier/public utility vehicle/public transport conveyance are:

a. persons, corporations, firms or associations;

b. engaged in the business of carrying or transporting passengers, goods
or both;
c. means of carriage is by land, water or air;
d. the carrying of passengers, goods or both is for compensation;
e. the service is offered to the public without distinction.

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13. In Philippine American General Insurance Company vs. PKS Shipping
Comapany (G.R. No. 149038 April 9, 2003), the Supreme Court held:

"So understood, the concept of `common carrier’ under Article 1732 may
be seen to coincide neatly with the notion of `public service,’ under the
Public Service Act (Commonwealth Act No. 1416, as amended) which at
least partially supplements the law on common carriers set forth in the
Civil Code."

Much of the distinction between a "common or public carrier" and a

"private or special carrier" lies in the character of the business, such that
if the undertaking is an isolated transaction, not a part of the business or
occupation, and the carrier does not hold itself out to carry the goods for
the general public or to a limited clientele, although involving the
carriage of goods for a fee, the person or corporation providing such
service could very well be just a private carrier.

14. The word "common" is an important distinction here. A common carrier,

such as a bus service, offers its services to the general public, unlike a
private carrier that might be available to only specific clients on a
contractual basis. A business that does not use a common carrier but
instead uses its own fleet to transport its goods is called a private carrier.
(https://www.investopedia.com/terms/c/common-carrier.asp)

15. In Valenzuela Hardwood and Industrial Supply Inc. vs Court of Appeals

(G.R. No. 102316 June 30, 1997), the Supreme Court ruled:

Unlike in a contract involving a common carrier, private carriage does not

involve the general public. Hence, the stringent provisions of the Civil
Code on common carriers protecting the general public cannot justifiably
be applied to a ship transporting commercial goods as a private carrier.

16. In this instant case,

a. The VAN is a private motor vehicle registered under the name of the
undersigned affiant.
b. The VAN is not engaged in the business of carrying or transporting
passengers.
c. The VAN does not hold itself out to carry passengers from the general
public.
d. The use of the VAN was just an accommodation to the request of family
friends who after attending a wedding of a relative decided to have a
beach outing at Lianga and Enchanted River at Hinatuan, Agusan del
Sur. (Please refer to the attached Affidavits of some of the passengers.)
e. The passengers collectively attested and confirmed that “We did not
pay any amount for the use of the vehicle.” (emphasis ours)

17. Based on applicable Transportation laws, Supreme Court rulings, LTFRB

issuances, and established references, THE CIRCUMSTANCES SHOW,

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 THE VAN IS NOT OPERATING AS A COMMON CARRIER OR
PUBLIC UTILITY VEHICLE. IT IS A PRIVATE CARRIER.

18. Therefore, under Joint Administrative Order No. 2014-01, it cannot be

considered COLORUM under the circumstance “A private motor vehicle
operating as a PUV but without proper authority from the LTFRB.”

19. That I am executing this affidavit to contest the apprehension and in order
to attest to the truth of the foregoing facts.

20. Attached to this Affidavit to Contest are the affidavits of the passengers.

PRAYER

WHEREFORE, foregoing considered, undersigned Affiant-Owner is

respectfully praying for the kind compassion and understanding of the Honorable
DOTr/LTFRB to RELEASE the VAN on the ground that, it was NOT A
CIRCUMSTANCE CONSIDERED AS COLORUM - A PRIVATE MOTOR VEHICLE
OPERATING AS A PUV.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 29 th day

of April 2022 at Butuan City, Philippines.

DIOSA B. DEBALUCOS
Owner-Affiant

SUBSCRIBED AND SWORN TO BEFORE ME, this 29 th day of April 2022 at

Butuan City, Philippines. Affiant exhibited to me his competent proof of identity.

Doc. No. _____;

Page No. _____;
Book No. IX; DELMER LAGASCA RIPARIP
Series of 2022. Notary Public
Roll of Attorneys No. 66714 (May 23, 2017)
IBP O.R.: 150401 (Jan 12, 2021)
PTR No. BC 2015702 (Jan 06, 2021)
MCLE Compliance No. VI-0007798
MCLE Compliance No VII-0011677
TIN 924-782-121-000
Email add: delmer.riparip@yahoo.com
Mobile No. 09483603708

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