Uttarakhand High Court
Om Prakash Yadav Yaduvanshi Motor ... vs Kameshwar Prasad on 26 September, 2023
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.119 of 2023
Om Prakash Yadav Yaduvanshi Motor Workshop
....Appellant
Versus
Kameshwar Prasad .... Respondent
Present:
Mr. Saurabh Kumar Pandey and Mr. Nalin Saun, counsel for the appellant.
Dated: 26.09.2023
Hon'ble Vivek Bharti Sharma, J. (Oral)
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.
2. 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.
3. 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/-.
4. 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.
5. 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."
6. 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.
7. 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.
8. In view of the above submission, this Court
does not find any merit in the present second appeal.
Same is hereby dismissed in limine.
(Vivek Bharti Sharma, J.)
26.09.2023
BS
