Om Prakash Yadav Yaduvanshi Motor Workshop vs Kameshwar Prasad

Vivek Bharti Sharma, J

This second appeal has been filed against the judgment and order dated 22.07.2023 passed by IVth Addl. District Judge, Dehradun in Civil Appeal No.72 of 2022, “Kameshwar Prasad vs. Om Prakash Yaduvanshi Motor Workshop”, whereby the appeal filed by the respondent/plaintiff has been allowed thereby decreeing the suit of the respondent/plaintiff for damages against the appellant/defendant.

Counsel for the appellant/defendant would submit that the respondent/plaintiff had filed a suit against the appellant/defendant for recovery of damages to the tune of ₹60,000/- with the averments that the respondent/plaintiff gave his Swift Car bearing No.UK07 BF 9555 for servicing and the same was serviced by the appellant/defendant and a payment of ₹9,650/- was paid for the same; that, out of this engine oil of ₹1,750/- was also poured into the engine; that, after service this vehicle was returned to respondent/plaintiff on 01.10.2017; that, on 07.10.2017 when this vehicle was being plied by the respondent/plaintiff it got ceased, therefore, the respondent/plaintiff took this vehicle to D.D. Motors Workshop; that, D.D. Motor Workshop engineers examined the vehicle and gave the opinion that during the previous service old engine oil was poured into the engine, therefore the engine got ceased; that, the respondent/plaintiff was compelled to pay about ₹60,000/- for the servicing and the damages.

Counsel for the appellant/defendant would further submit that the suit was dismissed by the trial court vide its order dated 12.05.2022; that, aggrieved from the dismissal of the suit, the respondent/plaintiff preferred an appeal; that, the First Appellate Court vide its judgment dated 22.07.2023 set aside the judgment and decree of the trial court and decreed the suit thereby directing the appellant/defendant to pay ₹60,000/-.

Counsel for the appellant/defendant would submit that the First Appellate Court erred in not appreciating that during the period from 01.10.2017 to 07.10.2017 the vehicle was functioning smoothly; that, the respondent/plaintiff was present at the time of changing of the engine oil in the vehicle and he plied the vehicle 100 kilometer after this service without any hiccups.

Counsel for the appellant/defendant would further submit that the following substantial question of laws would arise in the present appeal:-

“a) Whether the impugned judgment of the learned first appellate court is vitiated by its failure to consider the entire evidence on record and apply the correct principle of law.

b) Whether the findings recorded by the learned first appellate court are against the weight of evidence on records.

c) Whether the findings of learned first appellate court are based on misreading and misinterpretation of the evidence on record.”

During the course of arguments, counsel for the appellant/defendant could not point out what exactly was the evidence which was not considered by the First Appellate Court and what was the evidence which has been misinterpreted by the First Appellate Court.

Counsel for the appellant/defendant would further submit that it was actually the thermostat, which went out of order, causing the overheating of the engine leading for ceasing of the engine while being plied by the respondent/plaintiff. However, the counsel for the appellant could not specify as to whether at the time of servicing by the appellant/defendant the thermostat was checked or not, what was the reading in the odometer when that vehicle was received for servicing by the appellant/defendant, and what actually was lifetime of the thermostat as per the company norms.

In view of the above submission, this Court does not find any merit in the present second appeal. Same is hereby dismissed in limine.