G.R. No.

138334               August 25, 2003

ESTELA L. CRISOSTOMO, Petitioner,
vs.
The Court of Appeals and CARAVAN TRAVEL & TOURS INTERNATIONAL, INC., Respondents.

DECISION

YNARES-SANTIAGO, J.:

In May 1991, petitioner Estela L. Crisostomo contracted the services of respondent Caravan Travel
and Tours International, Inc. to arrange and facilitate her booking, ticketing and accommodation in a
tour dubbed "Jewels of Europe". The package tour included the countries of England, Holland,
Germany, Austria, Liechstenstein, Switzerland and France at a total cost of P74,322.70. Petitioner
was given a 5% discount on the amount, which included airfare, and the booking fee was also
waived because petitioner’s niece, Meriam Menor, was respondent company’s ticketing manager.

Pursuant to said contract, Menor went to her aunt’s residence on June 12, 1991 – a Wednesday – to
deliver petitioner’s travel documents and plane tickets. Petitioner, in turn, gave Menor the full
payment for the package tour. Menor then told her to be at the Ninoy Aquino International Airport
(NAIA) on Saturday, two hours before her flight on board British Airways.

Without checking her travel documents, petitioner went to NAIA on Saturday, June 15, 1991, to take
the flight for the first leg of her journey from Manila to Hongkong. To petitioner’s dismay, she
discovered that the flight she was supposed to take had already departed the previous day. She
learned that her plane ticket was for the flight scheduled on June 14, 1991. She thus called up
Menor to complain.

Subsequently, Menor prevailed upon petitioner to take another tour – the "British Pageant" – which
included England, Scotland and Wales in its itinerary. For this tour package, petitioner was asked
anew to pay US$785.00 or P20,881.00 (at the then prevailing exchange rate of P26.60). She gave
respondent US$300 or P7,980.00 as partial payment and commenced the trip in July 1991.

Upon petitioner’s return from Europe, she demanded from respondent the reimbursement of
P61,421.70, representing the difference between the sum she paid for "Jewels of Europe" and the
amount she owed respondent for the "British Pageant" tour. Despite several demands, respondent
company refused to reimburse the amount, contending that the same was non-refundable. Petitioner 1 

was thus constrained to file a complaint against respondent for breach of contract of carriage and
damages, which was docketed as Civil Case No. 92-133 and raffled to Branch 59 of the Regional
Trial Court of Makati City.

In her complaint, petitioner alleged that her failure to join "Jewels of Europe" was due to
2 

respondent’s fault since it did not clearly indicate the departure date on the plane ticket. Respondent
was also negligent in informing her of the wrong flight schedule through its employee Menor. She
insisted that the "British Pageant" was merely a substitute for the "Jewels of Europe" tour, such that
the cost of the former should be properly set-off against the sum paid for the latter.

For its part, respondent company, through its Operations Manager, Concepcion Chipeco, denied
responsibility for petitioner’s failure to join the first tour. Chipeco insisted that petitioner was informed
of the correct departure date, which was clearly and legibly printed on the plane ticket. The travel
documents were given to petitioner two days ahead of the scheduled trip. Petitioner had only herself
to blame for missing the flight, as she did not bother to read or confirm her flight schedule as printed
on the ticket.

Respondent explained that it can no longer reimburse the amount paid for "Jewels of Europe",
considering that the same had already been remitted to its principal in Singapore, Lotus Travel Ltd.,
which had already billed the same even if petitioner did not join the tour. Lotus’ European tour
organizer, Insight International Tours Ltd., determines the cost of a package tour based on a
minimum number of projected participants. For this reason, it is accepted industry practice to
disallow refund for individuals who failed to take a booked tour. 3

Lastly, respondent maintained that the "British Pageant" was not a substitute for the package tour
that petitioner missed. This tour was independently procured by petitioner after realizing that she
made a mistake in missing her flight for "Jewels of Europe". Petitioner was allowed to make a partial
payment of only US$300.00 for the second tour because her niece was then an employee of the
travel agency. Consequently, respondent prayed that petitioner be ordered to pay the balance of
P12,901.00 for the "British Pageant" package tour.

After due proceedings, the trial court rendered a decision, the dispositive part of which reads:
4 

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Ordering the defendant to return and/or refund to the plaintiff the amount of Fifty Three
Thousand Nine Hundred Eighty Nine Pesos and Forty Three Centavos (P53,989.43) with
legal interest thereon at the rate of twelve percent (12%) per annum starting January 16,
1992, the date when the complaint was filed;

2. Ordering the defendant to pay the plaintiff the amount of Five Thousand (P5,000.00)
Pesos as and for reasonable attorney’s fees;

3. Dismissing the defendant’s counterclaim, for lack of merit; and

4. With costs against the defendant.

SO ORDERED. 5

The trial court held that respondent was negligent in erroneously advising petitioner of her departure
date through its employee, Menor, who was not presented as witness to rebut petitioner’s testimony.
However, petitioner should have verified the exact date and time of departure by looking at her ticket
and should have simply not relied on Menor’s verbal representation. The trial court thus declared
that petitioner was guilty of contributory negligence and accordingly, deducted 10% from the amount
being claimed as refund.

Respondent appealed to the Court of Appeals, which likewise found both parties to be at fault.
However, the appellate court held that petitioner is more negligent than respondent because as a
lawyer and well-traveled person, she should have known better than to simply rely on what was told
to her. This being so, she is not entitled to any form of damages. Petitioner also forfeited her right to
the "Jewels of Europe" tour and must therefore pay respondent the balance of the price for the
"British Pageant" tour. The dispositive portion of the judgment appealed from reads as follows:

WHEREFORE, premises considered, the decision of the Regional Trial Court dated October 26,
1995 is hereby REVERSED and SET ASIDE. A new judgment is hereby ENTERED requiring the
plaintiff-appellee to pay to the defendant-appellant the amount of P12,901.00, representing the
balance of the price of the British Pageant Package Tour, the same to earn legal interest at the rate
of SIX PERCENT (6%) per annum, to be computed from the time the counterclaim was filed until the
finality of this decision. After this decision becomes final and executory, the rate of TWELVE
PERCENT (12%) interest per annum shall be additionally imposed on the total obligation until
payment thereof is satisfied. The award of attorney’s fees is DELETED. Costs against the plaintiff-
appellee.

SO ORDERED. 6

Upon denial of her motion for reconsideration, petitioner filed the instant petition under Rule 45 on
7 

the following grounds:

It is respectfully submitted that the Honorable Court of Appeals committed a reversible error
in reversing and setting aside the decision of the trial court by ruling that the petitioner is not
entitled to a refund of the cost of unavailed "Jewels of Europe" tour she being equally, if not
more, negligent than the private respondent, for in the contract of carriage the common
carrier is obliged to observe utmost care and extra-ordinary diligence which is higher in
degree than the ordinary diligence required of the passenger. Thus, even if the petitioner and
private respondent were both negligent, the petitioner cannot be considered to be equally, or
worse, more guilty than the private respondent. At best, petitioner’s negligence is only
contributory while the private respondent [is guilty] of gross negligence making the principle
of pari delicto inapplicable in the case;

II

The Honorable Court of Appeals also erred in not ruling that the "Jewels of Europe" tour was
not indivisible and the amount paid therefor refundable;

III

The Honorable Court erred in not granting to the petitioner the consequential damages due
her as a result of breach of contract of carriage. 8

Petitioner contends that respondent did not observe the standard of care required of a common
carrier when it informed her wrongly of the flight schedule. She could not be deemed more negligent
than respondent since the latter is required by law to exercise extraordinary diligence in the
fulfillment of its obligation. If she were negligent at all, the same is merely contributory and not the
proximate cause of the damage she suffered. Her loss could only be attributed to respondent as it
was the direct consequence of its employee’s gross negligence.

Petitioner’s contention has no merit.

By definition, a contract of carriage or transportation is one whereby a certain person or association

of persons obligate themselves to transport persons, things, or news from one place to another for a
fixed price. Such person or association of persons are regarded as carriers and are classified as
9 

private or special carriers and common or public carriers. A common carrier is defined under Article
10 

1732 of the Civil Code as 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.

It is obvious from the above definition that respondent is not an entity engaged in the business of
transporting either passengers or goods and is therefore, neither a private nor a common carrier.
Respondent did not undertake to transport petitioner from one place to another since its covenant
with its customers is simply to make travel arrangements in their behalf. Respondent’s services as a
travel agency include procuring tickets and facilitating travel permits or visas as well as booking
customers for tours.

While petitioner concededly bought her plane ticket through the efforts of respondent company, this
does not mean that the latter ipso facto is a common carrier. At most, respondent acted merely as
an agent of the airline, with whom petitioner ultimately contracted for her carriage to Europe.
Respondent’s obligation to petitioner in this regard was simply to see to it that petitioner was
properly booked with the airline for the appointed date and time. Her transport to the place of
destination, meanwhile, pertained directly to the airline.

The object of petitioner’s contractual relation with respondent is the latter’s service of arranging and
facilitating petitioner’s booking, ticketing and accommodation in the package tour. In contrast, the
object of a contract of carriage is the transportation of passengers or goods. It is in this sense that
the contract between the parties in this case was an ordinary one for services and not one of
carriage. Petitioner’s submission is premised on a wrong assumption.

The nature of the contractual relation between petitioner and respondent is determinative of the
degree of care required in the performance of the latter’s obligation under the contract. For reasons
of public policy, a common carrier in a contract of carriage is bound by law to carry passengers as
far as human care and foresight can provide using the utmost diligence of very cautious persons and
with due regard for all the circumstances. As earlier stated, however, respondent is not a common
11 

carrier but a travel agency. It is thus not bound under the law to observe extraordinary diligence in
the performance of its obligation, as petitioner claims.

Since the contract between the parties is an ordinary one for services, the standard of care required
of respondent is that of a good father of a family under Article 1173 of the Civil Code. This connotes
12 

reasonable care consistent with that which an ordinarily prudent person would have observed when
confronted with a similar situation. The test to determine whether negligence attended the
performance of an obligation is: did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence.13

In the case at bar, the lower court found Menor negligent when she allegedly informed petitioner of
the wrong day of departure. Petitioner’s testimony was accepted as indubitable evidence of Menor’s
alleged negligent act since respondent did not call Menor to the witness stand to refute the
allegation. The lower court applied the presumption under Rule 131, Section 3 (e) of the Rules of
14 

Court that evidence willfully suppressed would be adverse if produced and thus considered
petitioner’s uncontradicted testimony to be sufficient proof of her claim.

On the other hand, respondent has consistently denied that Menor was negligent and maintains that
petitioner’s assertion is belied by the evidence on record. The date and time of departure was legibly
written on the plane ticket and the travel papers were delivered two days in advance precisely so
that petitioner could prepare for the trip. It performed all its obligations to enable petitioner to join the
tour and exercised due diligence in its dealings with the latter.
We agree with respondent.

Respondent’s failure to present Menor as witness to rebut petitioner’s testimony could not give rise
to an inference unfavorable to the former. Menor was already working in France at the time of the
filing of the complaint, thereby making it physically impossible for respondent to present her as a
15 

witness. Then too, even if it were possible for respondent to secure Menor’s testimony, the
presumption under Rule 131, Section 3(e) would still not apply. The opportunity and possibility for
obtaining Menor’s testimony belonged to both parties, considering that Menor was not just
respondent’s employee, but also petitioner’s niece. It was thus error for the lower court to invoke the
presumption that respondent willfully suppressed evidence under Rule 131, Section 3(e). Said
presumption would logically be inoperative if the evidence is not intentionally omitted but is simply
unavailable, or when the same could have been obtained by both parties. 16

In sum, we do not agree with the finding of the lower court that Menor’s negligence concurred with
the negligence of petitioner and resultantly caused damage to the latter. Menor’s negligence was not
sufficiently proved, considering that the only evidence presented on this score was petitioner’s
uncorroborated narration of the events. It is well-settled that the party alleging a fact has the burden
of proving it and a mere allegation cannot take the place of evidence. If the plaintiff, upon whom
17 

rests the burden of proving his cause of action, fails to show in a satisfactory manner facts upon
which he bases his claim, the defendant is under no obligation to prove his exception or defense. 18

Contrary to petitioner’s claim, the evidence on record shows that respondent exercised due diligence
in performing its obligations under the contract and followed standard procedure in rendering its
services to petitioner. As correctly observed by the lower court, the plane ticket issued to petitioner
19 

clearly reflected the departure date and time, contrary to petitioner’s contention. The travel
documents, consisting of the tour itinerary, vouchers and instructions, were likewise delivered to
petitioner two days prior to the trip. Respondent also properly booked petitioner for the tour,
prepared the necessary documents and procured the plane tickets. It arranged petitioner’s hotel
accommodation as well as food, land transfers and sightseeing excursions, in accordance with its
avowed undertaking.

Therefore, it is clear that respondent performed its prestation under the contract as well as
everything else that was essential to book petitioner for the tour. Had petitioner exercised due
diligence in the conduct of her affairs, there would have been no reason for her to miss the flight.
Needless to say, after the travel papers were delivered to petitioner, it became incumbent upon her
to take ordinary care of her concerns. This undoubtedly would require that she at least read the
documents in order to assure herself of the important details regarding the trip.

The negligence of the obligor in the performance of the obligation renders him liable for damages for
the resulting loss suffered by the obligee. Fault or negligence of the obligor consists in his failure to
exercise due care and prudence in the performance of the obligation as the nature of the obligation
so demands. There is no fixed standard of diligence applicable to each and every contractual
20 

obligation and each case must be determined upon its particular facts. The degree of diligence
required depends on the circumstances of the specific obligation and whether one has been
negligent is a question of fact that is to be determined after taking into account the particulars of
each case. 21 
1âwphi1

The lower court declared that respondent’s employee was negligent. This factual finding, however, is
not supported by the evidence on record. While factual findings below are generally conclusive upon
this court, the rule is subject to certain exceptions, as when the trial court overlooked,
misunderstood, or misapplied some facts or circumstances of weight and substance which will affect
the result of the case. 22
In the case at bar, the evidence on record shows that respondent company performed its duty
diligently and did not commit any contractual breach. Hence, petitioner cannot recover and must
bear her own damage.

WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the Court of Appeals
in CA-G.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is ordered to pay respondent the
amount of P12,901.00 representing the balance of the price of the British Pageant Package Tour,
with legal interest thereon at the rate of 6% per annum, to be computed from the time the
counterclaim was filed until the finality of this Decision. After this Decision becomes final and
executory, the rate of 12% per annum shall be imposed until the obligation is fully settled, this interim
period being deemed to be by then an equivalent to a forbearance of credit. 23

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

Footnotes

TSN, March 4, 1993, pp. 4-6.

1 

RTC Records, p. 1.
2 

TSN, August 30, 1994, pp. 6-9.

3 

Rollo, pp. 38-43.

4 

Id. at 43; penned by Judge Lucia Violago Isnani.

5 

Id. at 36.
6 

Id. at 37.
7 

Id. at 15.
8 

Commentaries and Jurisprudence on the Commercial Laws of the Philippines, Vol. 4 (1993
9 

Edition), Aguedo F. Agbayani, p. 1, citing 1 Blanco 640.

10 
Id. at 4.

11 
Civil Code of the Philippines, Article 1755.

Article 1173. The fault or negligence of the obligor consists in the omission of that diligence
12 

which is required by the nature of the obligation and corresponds with the circumstances of
the persons, of the time and of the place. When negligence shows bad faith, the provisions
of Articles 1171 and 2201, paragraph 2, shall apply.
 If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.

Jarco Marketing Corporation v. Court of Appeals, 378 Phil. 991, 1003 (1999), citing Picart v.
13 

Smith, 37 Phil. 809 (1918).

14 
This rule states:

SEC. 3. Disputable presumptions. – The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:

x x x           x x x          x x x

(e) That evidence willfully suppressed would be adverse if produced;

x x x           x x x          x x x

15 
Supra, note 3 at 10.

The Revised Rules of Court in the Philippines, Vol. VII, Part II (1999 Edition) V. Francisco,
16 

p. 92.

17 
Pimentel v. Court of Appeals, 307 SCRA 38.

Castilex Industrial Corporation v. Vasquez, Jr., 378 Phil. 1009, 1018 (1999), citing Belen v.
18 

Belen, 13 Phil. 202, 206 (1909), cited in Martin v. Court of Appeals, G.R. No. 82248, 205
SCRA 591 (1992).

19 
Supra, note 2 at 60 & 94.

Bayne Adjusters and Surveyors, Inc. v. Court of Appeals, G.R. No. 116332, 323 SCRA 231
20 

(2000), citing Articles 1170, 1172-73, Civil Code; Southeastern College, Inc. v. Court of
Appeals, 354 Phil 434 (1998).

Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. IV (1999
21 

Edition), Arturo M. Tolentino, p. 124.

Supra, note 13, citing Borillo v. CA, G.R. No. 55691, 209 SCRA 130 (1992); Mckee v.
22 

Intermediate Appellate Court, G.R. No. 68102, 211 SCRA 517 (1992); and Salvador v. Court
of Appeals, 313 Phil. 36 (1995).

Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12 July 1994, 234 SCRA
23 

78, 97.
Crisostomo v. CA
G.R. No. 138334, August 25, 2003, 409 SCRA 528

FACTS:

Petitioner contracted the services of respondent Caravan Travel and Tours International, Inc. to
arrange and facilitate her booking, ticketing and accommodation in a tour dubbed Jewels of Europe.
Pursuant to said contract, the travel documents and plane tickets were delivered to the petitioner
who in turn gave the full payment for the package tour on June 12, 1991. Without checking her travel
documents, petitioner went to NAIA on Saturday, June 15, 1991, to take the flight for the first leg of
her journey from Manila to Hongkong. To petitioner’s dismay, she discovered that the flight she was
supposed to take had already departed the previous day. She learned that her plane ticket was for
the flight scheduled on June 14, 1991. She thus called up Menor to complain. Subsequently, Menor
prevailed upon petitioner to take another tour- the British Pageant. Upon petitioner’s return from
Europe, she demanded from respondent the reimbursement of the difference between the sum she
paid for Jewels of Europe and the amount she owed respondent for the British Pageant tour.

Petitioner filed a complaint against respondent for breach of contract of carriage and damages
alleging that her failure to join Jewels of Europe was due to respondent’s fault since it did not clearly
indicate the departure date on the plane, failing to observe the standard of care required of a
common carrier when it informed her wrongly of the flight schedule. For its part, respondent
company, denied responsibility for petitioner’s failure to join the first tour, insisting that petitioner was
informed of the correct departure date, which was clearly and legibly printed on the plane ticket. The
travel documents were given to petitioner two days ahead of the scheduled trip. Respondent further
contend that petitioner had only herself to blame for missing the flight, as she did not bother to read
or confirm her flight schedule as printed on the ticket.

ISSUE:

Whether or not Caravan Travel & Tours International Inc. is negligent in the fulfilment of its obligation
to petitioner Crisostomo thus granting to the petitioner the consequential damages due her as a
result of breach of contract of carriage.

RULING:

Contention of petitioner has no merit. A contract of carriage or transportation is one whereby a

certain person or association of persons obligate themselves to transport persons, things, or news
from one place to another for a fixed price. Such person or association of persons are regarded as
carriers and are classified as private or special carriers and common or public carriers. Respondent
is not an entity engaged in the business of transporting either passengers or goods and is therefore,
neither a private nor a common carrier. Respondent did not undertake to transport petitioner from
one place to another since its covenant with its customers is simply to make travel arrangements in
their behalf. Respondent’s services as a travel agency include procuring tickets and facilitating travel
permits or visas as well as booking customers for tours.

The object of petitioner’s contractual relation with respondent is the service of arranging and
facilitating petitioners booking, ticketing and accommodation in the package tour. In contrast, the
object of a contract of carriage is the transportation of passengers or goods. It is in this sense that
the contract between the parties in this case was an ordinary one for services and not one of
carriage. Since the contract between the parties is an ordinary one for services, the standard of care
required of respondent is that of a good father of a family under Article 1173 of the Civil Code. The
evidence on record shows that respondent exercised due diligence in performing its obligations
under the contract and followed standard procedure in rendering its services to petitioner. As
correctly observed by the lower court, the plane ticket issued to petitioner clearly reflected the
departure date and time, contrary to petitioner’s contention. The travel documents, consisting of the
tour itinerary, vouchers and instructions, were likewise delivered to petitioner two days prior to the
trip. Respondent also properly booked petitioner for the tour, prepared the necessary documents
and procured the plane tickets. It arranged petitioner’s hotel accommodation as well as food, land
transfers and sightseeing excursions, in accordance with its avowed undertaking. The evidence on
record shows that respondent company performed its duty diligently and did not commit any
contractual breach. Hence, petitioner cannot recover and must bear her own damage.