G.R. No.

138334               August 25, 2003 the "British Pageant" was merely a substitute for the "Jewels
of Europe" tour, such that the cost of the former should be
ESTELA L. CRISOSTOMO, Petitioner, properly set-off against the sum paid for the latter.
vs.
The Court of Appeals and CARAVAN TRAVEL & For its part, respondent company, through its Operations
TOURS INTERNATIONAL, INC., Respondents. Manager, Concepcion Chipeco, denied responsibility for
petitioner’s failure to join the first tour. Chipeco insisted that
DECISION 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
YNARES-SANTIAGO, J.: scheduled trip. Petitioner had only herself to blame for
missing the flight, as she did not bother to read or confirm her
In May 1991, petitioner Estela L. Crisostomo contracted the flight schedule as printed on the ticket.
services of respondent Caravan Travel and Tours
International, Inc. to arrange and facilitate her booking, Respondent explained that it can no longer reimburse the
ticketing and accommodation in a tour dubbed "Jewels of amount paid for "Jewels of Europe", considering that the same
Europe". The package tour included the countries of England, had already been remitted to its principal in Singapore, Lotus
Holland, Germany, Austria, Liechstenstein, Switzerland and Travel Ltd., which had already billed the same even if
France at a total cost of P74,322.70. Petitioner was given a petitioner did not join the tour. Lotus’ European tour
5% discount on the amount, which included airfare, and the organizer, Insight International Tours Ltd., determines the
booking fee was also waived because petitioner’s niece, cost of a package tour based on a minimum number of
Meriam Menor, was respondent company’s ticketing projected participants. For this reason, it is accepted industry
manager. practice to disallow refund for individuals who failed to take a
booked tour.3
Pursuant to said contract, Menor went to her aunt’s residence
on June 12, 1991 – a Wednesday – to deliver petitioner’s Lastly, respondent maintained that the "British Pageant" was
travel documents and plane tickets. Petitioner, in turn, gave not a substitute for the package tour that petitioner missed.
Menor the full payment for the package tour. Menor then told This tour was independently procured by petitioner after
her to be at the Ninoy Aquino International Airport (NAIA) realizing that she made a mistake in missing her flight for
on Saturday, two hours before her flight on board British "Jewels of Europe". Petitioner was allowed to make a partial
Airways. payment of only US$300.00 for the second tour because her
niece was then an employee of the travel agency.
Without checking her travel documents, petitioner went to Consequently, respondent prayed that petitioner be ordered to
NAIA on Saturday, June 15, 1991, to take the flight for the pay the balance of P12,901.00 for the "British Pageant"
first leg of her journey from Manila to Hongkong. To package tour.
petitioner’s dismay, she discovered that the flight she was
supposed to take had already departed the previous day. She After due proceedings, the trial court rendered a decision, 4 the
learned that her plane ticket was for the flight scheduled on dispositive part of which reads:
June 14, 1991. She thus called up Menor to complain.
WHEREFORE, premises considered, judgment is hereby
Subsequently, Menor prevailed upon petitioner to take another rendered as follows:
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 1. Ordering the defendant to return and/or refund to
(at the then prevailing exchange rate of P26.60). She gave the plaintiff the amount of Fifty Three Thousand
respondent US$300 or P7,980.00 as partial payment and Nine Hundred Eighty Nine Pesos and Forty Three
commenced the trip in July 1991. 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
Upon petitioner’s return from Europe, she demanded from filed;
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" 2. Ordering the defendant to pay the plaintiff the
tour. Despite several demands, respondent company refused to amount of Five Thousand (P5,000.00) Pesos as and
reimburse the amount, contending that the same was non- for reasonable attorney’s fees;
refundable.1 Petitioner was thus constrained to file a complaint
against respondent for breach of contract of carriage and 3. Dismissing the defendant’s counterclaim, for lack
damages, which was docketed as Civil Case No. 92-133 and of merit; and
raffled to Branch 59 of the Regional Trial Court of Makati
City. 4. With costs against the defendant.

In her complaint,2 petitioner alleged that her failure to join SO ORDERED.5

1
its employee, Menor, who was not presented as witness to The Honorable Court of Appeals also erred in not
rebut petitioner’s testimony. However, petitioner should have ruling that the "Jewels of Europe" tour was not
verified the exact date and time of departure by looking at her indivisible and the amount paid therefor refundable;
ticket and should have simply not relied on Menor’s verbal
representation. The trial court thus declared that petitioner was III
guilty of contributory negligence and accordingly, deducted
10% from the amount being claimed as refund.
The Honorable Court erred in not granting to the
petitioner the consequential damages due her as a
Respondent appealed to the Court of Appeals, which likewise result of breach of contract of carriage.8
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 Petitioner contends that respondent did not observe the
better than to simply rely on what was told to her. This being standard of care required of a common carrier when it
so, she is not entitled to any form of damages. Petitioner also informed her wrongly of the flight schedule. She could not be
forfeited her right to the "Jewels of Europe" tour and must deemed more negligent than respondent since the latter is
therefore pay respondent the balance of the price for the required by law to exercise extraordinary diligence in the
"British Pageant" tour. The dispositive portion of the fulfillment of its obligation. If she were negligent at all, the
judgment appealed from reads as follows: 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
WHEREFORE, premises considered, the decision of the gross negligence.
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 Petitioner’s contention has no merit.
defendant-appellant the amount of P12,901.00, representing
the balance of the price of the British Pageant Package Tour, By definition, a contract of carriage or transportation is one
the same to earn legal interest at the rate of SIX PERCENT whereby a certain person or association of persons obligate
(6%) per annum, to be computed from the time the themselves to transport persons, things, or news from one
counterclaim was filed until the finality of this decision. After place to another for a fixed price. 9 Such person or association
this decision becomes final and executory, the rate of of persons are regarded as carriers and are classified as private
TWELVE PERCENT (12%) interest per annum shall be or special carriers and common or public carriers. 10 A common
additionally imposed on the total obligation until payment carrier is defined under Article 1732 of the Civil Code as
thereof is satisfied. The award of attorney’s fees is persons, corporations, firms or associations engaged in the
DELETED. Costs against the plaintiff-appellee. business of carrying or transporting passengers or goods or
both, by land, water or air, for compensation, offering their
SO ORDERED.6 services to the public.

Upon denial of her motion for reconsideration,7 petitioner filed It is obvious from the above definition that respondent is not
the instant petition under Rule 45 on the following grounds: 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
I petitioner from one place to another since its covenant with its
customers is simply to make travel arrangements in their
It is respectfully submitted that the Honorable Court behalf. Respondent’s services as a travel agency include
of Appeals committed a reversible error in reversing procuring tickets and facilitating travel permits or visas as
and setting aside the decision of the trial court by well as booking customers for tours.
ruling that the petitioner is not entitled to a refund of
the cost of unavailed "Jewels of Europe" tour she While petitioner concededly bought her plane ticket through
being equally, if not more, negligent than the private the efforts of respondent company, this does not mean that the
respondent, for in the contract of carriage the latter ipso facto is a common carrier. At most, respondent
common carrier is obliged to observe utmost care acted merely as an agent of the airline, with whom petitioner
and extra-ordinary diligence which is higher in ultimately contracted for her carriage to Europe. Respondent’s
degree than the ordinary diligence required of the obligation to petitioner in this regard was simply to see to it
passenger. Thus, even if the petitioner and private that petitioner was properly booked with the airline for the
respondent were both negligent, the petitioner appointed date and time. Her transport to the place of
cannot be considered to be equally, or worse, more destination, meanwhile, pertained directly to the airline.
guilty than the private respondent. At best,
petitioner’s negligence is only contributory while
the private respondent [is guilty] of gross The object of petitioner’s contractual relation with respondent
negligence making the principle of pari delicto is the latter’s service of arranging and facilitating petitioner’s
inapplicable in the case; 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
II 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.

2
The nature of the contractual relation between petitioner and In sum, we do not agree with the finding of the lower court
respondent is determinative of the degree of care required in that Menor’s negligence concurred with the negligence of
the performance of the latter’s obligation under the contract. petitioner and resultantly caused damage to the latter. Menor’s
For reasons of public policy, a common carrier in a contract of negligence was not sufficiently proved, considering that the
carriage is bound by law to carry passengers as far as human only evidence presented on this score was petitioner’s
care and foresight can provide using the utmost diligence of uncorroborated narration of the events. It is well-settled that
very cautious persons and with due regard for all the the party alleging a fact has the burden of proving it and a
circumstances.11 As earlier stated, however, respondent is not mere allegation cannot take the place of evidence. 17 If the
a common carrier but a travel agency. It is thus not bound plaintiff, upon whom rests the burden of proving his cause of
under the law to observe extraordinary diligence in the action, fails to show in a satisfactory manner facts upon which
performance of its obligation, as petitioner claims. he bases his claim, the defendant is under no obligation to
prove his exception or defense.18
Since the contract between the parties is an ordinary one for
services, the standard of care required of respondent is that of Contrary to petitioner’s claim, the evidence on record shows
a good father of a family under Article 1173 of the Civil that respondent exercised due diligence in performing its
Code.12 This connotes reasonable care consistent with that obligations under the contract and followed standard
which an ordinarily prudent person would have observed procedure in rendering its services to petitioner. As correctly
when confronted with a similar situation. The test to observed by the lower court, the plane ticket 19 issued to
determine whether negligence attended the performance of an petitioner clearly reflected the departure date and time,
obligation is: did the defendant in doing the alleged negligent contrary to petitioner’s contention. The travel documents,
act use that reasonable care and caution which an ordinarily consisting of the tour itinerary, vouchers and instructions,
prudent person would have used in the same situation? If not, were likewise delivered to petitioner two days prior to the trip.
then he is guilty of negligence.13 Respondent also properly booked petitioner for the tour,
prepared the necessary documents and procured the plane
In the case at bar, the lower court found Menor negligent tickets. It arranged petitioner’s hotel accommodation as well
when she allegedly informed petitioner of the wrong day of as food, land transfers and sightseeing excursions, in
departure. Petitioner’s testimony was accepted as indubitable accordance with its avowed undertaking.
evidence of Menor’s alleged negligent act since respondent
did not call Menor to the witness stand to refute the allegation. Therefore, it is clear that respondent performed its prestation
The lower court applied the presumption under Rule 131, under the contract as well as everything else that was essential
Section 3 (e)14 of the Rules of Court that evidence willfully to book petitioner for the tour. Had petitioner exercised due
suppressed would be adverse if produced and thus considered diligence in the conduct of her affairs, there would have been
petitioner’s uncontradicted testimony to be sufficient proof of no reason for her to miss the flight. Needless to say, after the
her claim. travel papers were delivered to petitioner, it became
incumbent upon her to take ordinary care of her concerns.
On the other hand, respondent has consistently denied that This undoubtedly would require that she at least read the
Menor was negligent and maintains that petitioner’s assertion documents in order to assure herself of the important details
is belied by the evidence on record. The date and time of regarding the trip.
departure was legibly written on the plane ticket and the travel
papers were delivered two days in advance precisely so that The negligence of the obligor in the performance of the
petitioner could prepare for the trip. It performed all its obligation renders him liable for damages for the resulting
obligations to enable petitioner to join the tour and exercised loss suffered by the obligee. Fault or negligence of the obligor
due diligence in its dealings with the latter. consists in his failure to exercise due care and prudence in the
performance of the obligation as the nature of the obligation
We agree with respondent. so demands.20 There is no fixed standard of diligence
applicable to each and every contractual obligation and each
case must be determined upon its particular facts. The degree
Respondent’s failure to present Menor as witness to rebut of diligence required depends on the circumstances of the
petitioner’s testimony could not give rise to an inference specific obligation and whether one has been negligent is a
unfavorable to the former. Menor was already working in question of fact that is to be determined after taking into
France at the time of the filing of the complaint, 15 thereby account the particulars of each case. 21 1âwphi1
making it physically impossible for respondent to present her
as a witness. Then too, even if it were possible for respondent
to secure Menor’s testimony, the presumption under Rule 131, The lower court declared that respondent’s employee was
Section 3(e) would still not apply. The opportunity and negligent. This factual finding, however, is not supported by
possibility for obtaining Menor’s testimony belonged to both the evidence on record. While factual findings below are
parties, considering that Menor was not just respondent’s generally conclusive upon this court, the rule is subject to
employee, but also petitioner’s niece. It was thus error for the certain exceptions, as when the trial court overlooked,
lower court to invoke the presumption that respondent misunderstood, or misapplied some facts or circumstances of
willfully suppressed evidence under Rule 131, Section 3(e). weight and substance which will affect the result of the case. 22
Said presumption would logically be inoperative if the
evidence is not intentionally omitted but is simply In the case at bar, the evidence on record shows that
unavailable, or when the same could have been obtained by respondent company performed its duty diligently and did not
both parties.16 commit any contractual breach. Hence, petitioner cannot
recover and must bear her own damage.

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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.