Petition for certiorari, prohibition and mandamus, with a prayer for a restraining order, to annul and set aside the orders of the respondent Court of Appeals issued in Case CA-G.R. No. SP-09113, entitled: "Summit Guaranty & Insurance Co., Inc., petitioner, versus Hon. Insurance Commissioner and Leonardo Certeza, respondents", as well as the decision of the Insurance Commissioner in I.C. Case No. 631, entitled: "Leonardo Certeza, complainant, versus Summit Guaranty Insurance Co., Inc., respondent", to restrain the Insurance Com­missioner from further proceeding with I.C. Case No. 631, and to direct the said Insurance Commissioner to dismiss the complaint against the petitioner.

The undisputed facts show that the Certeza & Sons, Inc. acquired from Felipe Uy a Toyota jeep with Motor No. 12 RC36-9122, insured with the herein petitioner, Summit Guaranty & Insurance Co., Inc., under a private car comprehensive Policy No. 181764 for third-party liability in the amount of P20,000.00 for the period from October 19, 1976 to October 19, 1977.  The said policy was endorsed by the insurance company to Certeza & Sons, Inc. per Indorsement No. PC-0043/77, effective January 13, 1977.

On August 20, 1977, the insured vehicle, while travelling along E. Lopez St., Jaro, Iloilo, driven by Rico Certeza, side­swiped a pedestrian and collided with a jeepney owned by a certain Daniel Dorillo.  The accident caused the death of George Certeza, a passenger in the insured vehicle, injuries to the pedestrian Tony Posa, and injuries to passengers in the jeepney.

The injured were taken to the Iloilo Mission Hospital and Gov. Benito Lopez Memorial Hospital Medical and hospitalization expenses incurred therein amounted to P15,000.00, more or less, which Leonardo Certeza settled by executing two (2) promissory notes in the amount of P8,344.80 for the injured pedestrian Tony Posa and P6,344.80 for the passengers of the other vehicle, in favor of the Iloilo Mission Hospital and Gov. Benito Lopez Memorial Hospital, respectively.  Subsequently, demand for payment of the hospitalization and medical expenses of the injured and in­demnity for the death of George Certeza in the amount of P20,000.00 was made upon the insurance company.  When the insurance company failed to pay, a complaint against the insurance company was filed with the Insurance Commission on January 31, 1978, docketed therein as I.C. Case No. 631.^[1]

After appropriate proceedings, judgment was rendered against the insurance company on February 9, 1979, as follows:

"In view of the foregoing, judgment is hereby rendered ordering respondent company to indemnify complainant the sum of P20,000 with interest provided for in Section 244 of the Insurance Code (P.D. 612) from the date the complaint was filed until fully satisfied, plus the sum of P1,000 as attorney's fees, with costs."^[2]

From the above judgment, the petitioner appealed to the Court of Appeals, docketed therein as CA-G.R. No. SP-09113^[3] and on May 10, 1979, the respondent appellate court dismissed the petition for review.^[4] The petitioner moved for the reconsideration of the resolution,^[5] but its motion was denied on May 31, 1979.^[6] Where upon, the petitioner filed the present recourse.

The petitioner claims that the resolutions issued by the re­spondent Court of Appeals on May 10 and 31, 1979 in CA-G.R. No. SP-09113 are null and void for having been issued without jurisdic­tion; and that the Insurance Commission erred in ordering petitioner to pay the private respondent Leonardo Certeza the value of the policy.

The petitioner argues that the Court of Appeals has no appellate jurisdiction over decisions, rulings and orders of the In­surance Commissioner.

The contention is meritorious.  Section 416 of the Insurance Code, as amended by Presidential Decree No. 1455 which took effect on June 11, 1978, provides that appeals from decisions, orders, and rulings of the Insurance Commissioner should be addressed to the Supreme Court.  The pertinent portion of said Section reads, as follows:

"Any decision, order or ruling rendered by the Commissioner after a hearing shall have the force and effect of a judgment.  Any party may appeal from a final order, ruling or decision of the Commissioner by filing with the Commissioner within thirty days from receipt of copy of such order, ruling or deci­sion a notice of appeal and with the Supreme Court twelve printed or mimeographed copies of a petition for certiorari or review of such order, ruling or decision, as the case may be.  A copy of the peti­tion shall be served upon the Commissioner and upon the adverse party, and proof of service thereof attached, to the original of the petition." (Under­lining for emphasis)

Petitioner, however, is estopped, on ground of public policy, from invoking the plea of lack of jurisdiction after submitting itself to the jurisdiction of the Court of Appeals and assailing its jurisdiction only after an adverse judgment was rendered against the petitioner.  It appears that Presidential Decree No. 1455, transferring jurisdiction over appeals from decisions, orders and rulings of the Insurance Commissioner to the Supreme Court, was enacted on June 11, 1978, long before the Insurance Commissioner rendered a decision against the petitioner on Feb­ruary 2, 1979.  This decree notwithstanding, petitioner filed a notice of appeal, serving notice that it is appealing the judgment of the Insurance Commissioner to the Court of Appeals,^[7] and filed with the Court of Appeals, an urgent motion for extension of time within which to submit a petition for review.^[8] The motion was granted,^[9] and the petitioner submitted its petition for review with the Court of Appeals on April 25, 1979.^[10] No­where in its petition for review did the petitioner raise the question of lack of jurisdiction.  Petitioner merely claimed therein that the Insurance Commissioner erred in finding private respondent entitled to the payment of indemnity.  Then, after the Court of Appeals had dismissed the petition on May 10, 1979, the petitioner filed a motion for the reconsideration of the resolution.^[11] Again, the petitioner did not question the jurisdiction of the Court of Appeals.  On the contrary, the petitioner main­tained "that this Honorable Tribunal (Court of Appeals) acquired jurisdiction over the case from the time the notice of appeal from the decision was filed seasonably by herein petitioner with the Office of the Insurance Commissioner." It is only in the petition under consideration that the petitioner has raised for the first time the issue of lack of jurisdiction.  The petitioner can not be permitted to belatedly raise the issue of lack of juris­diction.  In the case of Tijam vs. Sibonghanoy,^[12] this Court said:

"A party may be estopped or barred from raising a question in different ways and for different rea­sons.  Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches.

"Laches, in a general sense, is failure or neg­lect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.

"The doctrine of laches or of 'stale demands' is based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims and, unlike the statute of limitations, is not a mere question of time but is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.

"It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79).  In the case just cited, by way of explaining the rule, it was further said that the question whether the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgement or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated -obviously for reasons of public policy.

"Furthermore, it has also been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease vs. Rathbun-Jones, etc.; 243 U.S. 273, 61 L.Ed. 715, 37 S.Ct. 283; St. Louis etc. vs. McBride, 141 U.S. 127, 35 L.Ed. 659).  And in Littleton vs. Burges, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdic­tion of a court in a particular matter to secure an affirmative relief, to afterwards deny that same juris­diction to escape a penalty.

"Upon this same principle is what We said in the three cases mentioned in the resolution of the Court of Appeals of May 20, 1963 (supra) - to the effect that we frown upon the 'undesirable practice' of a party submitting his case for decision and then accept­ing the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse - as well as in Pindanganetc. vs. Dans, et al., G.R. L-14591, Septem­ber 26, 1962; Montelibano, et al. vs. Bacolod-Murcia Milling Co., Inc., G.R. L-15092; Young Men Labor Union etc. vs. The Court of Industrial Relations, et al., G.R. No. L-20307, Feb. 26, 1965, and Mejia vs. Lucas, 100 Phil. p. 277."

At any rate, the defense of the petitioner that it is exempt from liability under the insurance contract is without merit. The excepted risk provision in the insurance policy reads, as follows:

"(1) death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment or death or bodily injury to any person being a member of the Insured's household who is a passenger in the Motor Vehicle."

Under the aforequoted provision, the insurer is exempt from liability in cases of: (1) death or injury to any person in the employment of the insured arising out of and in the course of such employment; and (2) death or injury to a member of the Insured's household who is a passenger in the motor vehicle.

In the instant case, there is no evidence that the deceased George Certeza was an employee of the insured Certeza & Sons, Inc. and that his death arose out of and in the course of employment, as to exempt the petitioner from liability.  The claim of the peti­tioner that "It is the burden of private respondent to prove that GEORGE CERTEZA who is his son is not an employee of this family corporation,"^[13] is untenable.  Section 1, Rule 131 of the Revised Rules of Court provides that "each party must prove his own affir­mative allegation." The rule imposes upon the defendant who alleges an affirmative matter in avoidance of plaintiff's claim or cause of action, upon which the issue is taken by the plaintiff, the burden of establishing the facts which are thus alleged by presenting proof in support thereof.^[14] Thus, in the case of Paris-Manila Perfume Co. vs. Phoenix Assurance Company,^[15] where a fire insurance company issued a policy insuring certain property against loss by fire, but did not cover any loss or damage oc­casioned by an explosion, and the insured property was destroyed by fire during the life of the policy, and the insurance company contended that the fire was the result of an explosion which was the primary cause of the fire, the Court held that the burden of proof of that fact is on the insurance company, and for want of proof, the insurance company is liable.

There is, likewise, no evidence that the deceased George Cer­teza was a member of the household of the insured.  While Leonardo Certeza, the father of the deceased is an officer in the Certeza & Sons, Inc., it cannot be implied that the deceased is a member of the household of the insured since the insured is a corpora­tion that has a personality separate and distinct from its offi­cers and stockholders.

WHEREFORE, the petition should be, as it is hereby, DENIED.  The judgment of the Insurance Commission in I.C. Case No. 631, entitled: "Leonardo Certeza, com­plainant, versus Summit Guaranty & Insurance Company, Inc., respondent," is AFFIRMED.  The temporary restraining order heretofore issued is hereby lifted and set aside.  With costs against the petitioner Summit Guaranty & In­surance Co., Inc.

SO ORDERED.

Barredo, (Chairman), Abad Santos, De Castro, and Ericta, JJ., concur.
Aquino, J., see concurring opinion.
Escolin, J., no part.

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^[1] Rollo, pp. 7, 12-13.

^[2] Id., p. 12.

^[3] Id., pp. 16, 22.

^[4] Id., p. 33.

^[5] Id., p. 38.

^[6] Id., p. 50.

^[7] Id., p. 16.

^[8] Id., p. 17.

^[9] Id., p. 31.

^[10] Id., pp. 19-29.

^[11] Id., p. 38.

^[12] L-21450, April 15, 1968, 23 SCRA 29, 35, reiterated in Rodriguez vs. Court of Appeals, L-29264, August 29, 1969, 29 SCRA 419, 429.

^[13] Rollo, p. 3.

^[14] 20 Am Jur 142.

^[15] 49 Phil. 753.

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