Hon’ble Attau Rahman Masoodi, J.—Heard Sri Sudeep Kumar, learned counsel for the appellant and Sri M.E. Khan for respondent Nos. 1 to 6. Sri Jitendra Narain Misra has put in appearance on behalf of respondent No. 8.

2. Affidavit of publication of notice on 8.9.2016 for service of this F.A.F.O upon respondent Nos. 7 to 9 in terms of order dated 13.7.2016 has been placed on record.

Despite publication of notice in the newspapers respondent Nos. 7 and 9 have neither appeared in person nor through counsel.

3. Sri Jitendra Narain Misra has, however, put in appearance on behalf of respondent No. 8.

Notice to respondent Nos. 7 and 9 is thus, deemed sufficient.

4. This FAFO filed under Section 173 of Motor Vehicles Act, 1988 has questioned the correctness of judgement/award rendered by Motor Accident Claims Tribunal in Claim Petition No. 376 of 2003 awarding a compensation of Rs. 4,22,000/- fixing liability upon the appellant jointly and severally to the extent of whole amount. The vehicle was not insured as such insurance company stands exonerated of the liability.

5. The impugned award has been challenged only by appellant whose liability has been fixed being in possession of the offending vehicle at the relevant point of time allegedly under an agreement. The indolent owner has not filed any appeal against the impugned award nor did he appear before the Tribunal.

6. Learned counsel for the appellant has vehemently argued on issue No. 1 in particular, which essentially was framed to adjudge his liability. The issue was, as to whether on the date of accident i.e. 21.4.2005, the offending vehicle was operated by the appellant under an agreement, if yes, then its effect.

7. The claim petition in paragraph 23 stated that Vikram Tempo No. UP 32 T 7249, on the date of accident, was engaged in the business operation of appellant in the city of Lucknow which had its registered office at 22, Jopling Road, Hazratganj, Lucknow. The plea set out in paragraph 23 of the claim petition was denied by appellant in paragraphs 24, 37 and 38 of the written statement. It appears that in order to test the correctness of averments made in paragraph 23 of the claim petition, the Tribunal passed an order on 1.5.2008 directing production of the vehicle movement register and the register relating to payments as well as the agreement in relation to the offending vehicle. The order passed by the Tribunal on 1.5.2008 was complied with by placing on record a photostat copy of the agreement in relation to the offending vehicle as well as photocopy of vehicle movement register for the period 1.3.2003 to 31.5.2003.

In the light of documentary evidence available on record, learned counsel for the appellant invited attention of this Court to the specific finding recorded by the Tribunal where it is said that the appellant having failed to produce any record beyond 15th April, 2003, thus, suppressed the relevant evidence, hence the liability. It was argued that the Tribunal by making such an observation clearly fell into an error once the relevant record of vehicle movement register was made available up to 31.5.2003. The submission put forth was carefully analyzed in the light of material placed on record. It is seen that photocopy of the agreement between the appellant and the owner i.e. respondent No. 2 placed on record indicates that the offending vehicle had come in the operation of appellant under an agreement.

Insofar as the operation of vehicle as on 21.4.2003 is concerned, there is no specific denial in the written statement by making a mention to the agreement and date of its validity. If any agreement between the appellant and owner of the offending vehicle had overrun its validity period as on the date of accident, there was no reason as to why such a fact would not find mention in para-24 of the written statement. The denial of liability in paragraphs 37 and 38 also does not make a mention of the agreement which existed between appellant and owner