JUDGMENT

Dr. Kaushal Jayendra Thaker, J.

This appeal, at the behest of U.P.S.R.T.C. challenges the judgment and award dated 28.5.1993 passed by IXth Additional District Judge/ Motor Accident Claims Tribunal, Kanpur Nagar in Claim Petition No. 55 of 1990 whereby the learned Tribunal has awarded Rs. 1,65,000/- as compensation with interest at the rate of 12% per annum with a direction upon the appellant herein to pay the above.

2. Heard Sri Sunil Kumar, learned counsel for the appellant. For a period of from 1993 till today, steps have not been taken to see that notices be served to the respondents.

3. Be that as it may, as 20 years have elapsed, this Court deems it fit to decide this appeal where the Court had granted stay vide order dated 30.9.1993 which reads as follows :

"Issue notice.

Till further orders, operation of impugned award dated 28.5.1993 passed by Motor Accident Claims Tribunal, Kanpur Nagar, will remain stayed, subject to appellants' depositing Rs. 1,65,000/- minus the amount, which has already been deposited by the appellants in this Court.

Half of the amount may be withdrawn by the claimants without furnishing security and the balance may be withdrawn subject to the furnishing adequate security to the satisfaction of the Tribunal."

4. Brief facts as culled out from the record are that deceased-Nitin Kumar who was aged about 30 years and was working as a Clerk in U.P. Bidi Agency, met with an accident on 30.10.1989 at about 10.30 a.m. He was hit by Bus No. U.H.J. 8106 owned by U.P.S.R.T.C. while he was going on his scooter No. UMF-3643. He was with another employee namely Magal Bhai Patel who was pillion rider on the said scooter. The bus was being driven rashly and negligently. The deceased died out of said vehicular accident. The claimants are the legal heirs of the deceased. The claim petition filed by the claimants were contested by the defendant. The U.P.S.R.T.C. had filed its reply contending that its bus was not involved in the accident. The Tribunal had framed five issues and decided the same in favour of the claimants and against the appellant-herein.

5. The grounds urged are that the vehicle owned by U.P.S.R.T.C. was not involved in the accident and in the alternative, even if it was involved, it was the scooterist who was negligent and, therefore, no liability can be fastened on the U.P.S.R.T.C. In the other alternative argument, it is submitted that it is a case of contributory negligence and, therefore, holding that the driver of the bus was negligent is against the record.

6. It is further submitted by learned counsel for the appellant that the parents of the deceased do not come within the definition of family and, therefore, the claim was not maintainable. It is further submitted that the deceased was 30 years of age and was newly married and, therefore, multiplier of 15 have been illegally granted and it should have been 7 or 8. There should have been lump sum deduction to the tune of 1/3rd and not 1/6th, therefore, on that count also the impugned award is bad. The award of non pecuniary damages is also bad.

7. The Apex Court in UPSRTC v. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal required to be addressed and decided by the first appellate court.

8. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.

9. The term negligence means failure to