JUDGMENT : JAYANT PATEL, J. 1. The present appeal is directed against the judgment and award passed by the Tribunal in Motor Accident Claim Petition No. 1309 of 2002, whereby, the Tribunal has awarded compensation of Rs. 20,00,000/- with interest at the rate of 9% per annum upto 31.12.2000 and at the rate of 6% per annum from 01.01.2011 till satisfaction of the award. 2. The short facts of the case appear to be that on 19.02.1998 when the deceased Shankarlal was going on scooter and when he reached near Sanjay Intermediates Company, one tanker bearing No. GJ-15X-548 dashed with the scooter and the deceased Shankarlal sustained serious injuries and ultimately, succumbed to the injuries. The dependent members of the family of the deceased Shankarlal filed claim petition being Motor Accident Claim Petition No. 1309 of 2002 for compensation of Rs. 50,00,000. The Tribunal at the conclusion of the petition, passed above referred judgment and award. Under the circumstances, the appellant-company with whom the tanker was insured, has preferred present appeal before this Court. 3. We have considered the judgment and award and reasons recorded by the Tribunal. We also considered the record and proceedings. We have heard Mr. Mehta, learned counsel for the appellant and Mr. Hakim, learned counsel for the original claimants - the main contesting parties. 4. The only contention raised by the learned counsel for the appellant was that the tribunal ought not to have attributed 100% negligence to the driver of the tanker insured with the insurance company. As per learned counsel, if the contents of the FIR are considered, the scooter had hit the tanker from the backside and on account of the same, the accident had resulted. He submitted that if the scooter was dashed on the backside of the tanker, naturally there would be negligence on the part of the driver of the scooter and the driver of tanker could not be faulted with. As against the same, the tribunal has found that the driver of the tanker fully negligent for the accident and therefore, there was error committed by the tribunal. If the contributory negligence is attributed to the driver of the scooter, proportionately, there will be reduction in the amount of compensation with the liability fasten upon the appellant-insurance company. 5. Whereas Mr. If the contributory negligence is attributed to the driver of the scooter, proportionately, there will be reduction in the amount of compensation with the liability fasten upon the appellant-insurance company. 5. Whereas Mr. Hakim, learned counsel for the original claimants contended that as per the deposition of the eyewitness, the tanker was coming from the backside and when overtaken the scooter, the scooter was hit and as a result thereof the driver of scooter had fallen down and the scooter was also damaged. Therefore, the tribunal has rightly held the driver of the tanker fully negligent for the accident. He alternatively contended that even if the aspect of negligence is considered to the extent of the driver of the scooter then also, the scooter being a small vehicle and if considered with the deposition of the eyewitness who has seen the accident, it would not exceed 20%. He submitted that as against the same, the tribunal while arriving at the conclusion for just compensation has not considered two aspects, one for averaging out of income as per the income tax return and the second for prospective income. In his submission, if the income is averaged out and prospective income is considered and thereafter, the dependency benefits are considered for the purpose of just compensation, the amount of compensation may be more than as awarded by the tribunal. But in any case, such would not call for reduction of the amount of compensation, since no cross-appeal has been preferred for enhancement of compensation by the original claimants. 6. The examination of the record shows that as per the claimants, on the account of rash and negligent driving by the driver of the tanker, the accident had resulted. The same was denied by the appellant-insurance company. In support of the claim petition, Lalitaben the claimant was examined at Exh.29, but she was not an eyewitness to the accident. Additionally, the claimant had examined one Kabir Ahemad Kunjmurekar at Exh.61 in support of the claim petition. As per the said witness, he had seen the accident, as he was working in the canteen at the relevant point of time, which was located at the place of the accident. As per the said witness, the tanker had dashed with the scooter at the time of overtaking and as a result thereof, the scooter had turtled and the driver of the tanker had run away. As per the said witness, the tanker had dashed with the scooter at the time of overtaking and as a result thereof, the scooter had turtled and the driver of the tanker had run away. The said aspect has not been contradicted in the cross-examination on behalf of the insurance company. He has specifically denied that the scooter was dashed from the backside of the tanker. Further, the panchnama at Exh.39 shows that the scooter was damaged on both side viz. left side where decky was located and also, on the engine side and the chassis were also damaged. If the aforesaid evidence led by the original claimants, is considered, it is not possible for us to conclude that the scooter was dashed from the backside of the tanker. 7. However, Mr. Mehta, learned counsel for the appellant attempted to rely upon the contents of the FIR filed by the driver at Exh.36, wherein, he had stated that the scooter had dashed from the backside of the tanker and therefore, he submitted that when the FIR was produced, the tribunal could not have relied on the evidence of other witness and attributed 100% negligence to the driver of the tanker. 8. In our view, since the driver of the tanker who had filed FIR, had not entered into witness box, so as to make him available for cross-examination by the original claimants, the contents of the FIR cannot be said as reliable on the face of it. As against the same, eyewitness was examined. Further, the panchnama shows damage to the scooter on the engine side which is right side of the scooter. Such damages could happen, if the tanker has overtaken the scooter. The said aspect is coupled with the evidence of the eyewitness, who was cross-examined by the appellant-insurance company, but no contradiction has come out on the aspect of the witnessing of the accident. 9. Therefore, if the principles of reliability of evidence is considered, it cannot be said that sufficient evidence was there on record to show that the scooter had dashed from the backside of the tanker. But it can rather than be said the tanker had dashed with the scooter. 10. 9. Therefore, if the principles of reliability of evidence is considered, it cannot be said that sufficient evidence was there on record to show that the scooter had dashed from the backside of the tanker. But it can rather than be said the tanker had dashed with the scooter. 10. Apart from the above, even if the contention of the learned counsel for the appellant is considered for the sake of examination that the scooter had dashed with tanker from the backside, then also, we find that considering the damage caused to the scooter and no damage whatsoever to the tanker and the circumstance that the driver of tanker had run away from the spot, which has been stated even in the FIR and further, considering the fact that the scooter is a vehicle of small size in comparison to the size of tanker, contributory negligence may be considered to the extent of 20% to the driver of the scooter. It is true that on account of reduction of the contributory negligence to the driver of tanker, there may be reduction in the amount of compensation, but the facts of the case further shows that in the earlier income tax return, the income of the deceased was about Rs. 6,00,000/- out of which, he had paid income tax of Rs. 2,02,463/- during the year 1997-98. If the income tax is excluded from the income, the income may be around Rs. 4,00,000/- during the said year and in the last year, during the period of accident, the income was Rs. 3,35,000. As against the aforesaid income, the tribunal has assessed the income of Rs. 3,30,000. If the income is averaged out, it would be more than Rs. 3,30,000/- i.e. around Rs. 3,50,000. Further, the deceased was doing regular business and was also, maintaining books of account and was paying income tax and such incomes were assessed and therefore, it can be said that he was earning income in a systematic manner by doing regular business. The age of the deceased was 50 years and therefore, taking into consideration the aforesaid peculiar circumstances for regular income of the deceased, it was a case, where the prospective income in any case to the extent of 30% could have been considered by the tribunal. The age of the deceased was 50 years and therefore, taking into consideration the aforesaid peculiar circumstances for regular income of the deceased, it was a case, where the prospective income in any case to the extent of 30% could have been considered by the tribunal. In our view, if the aspect of averaging out of the income and prospective income are considered and thereafter, the dependency benefits are calculated, such may exceed the amount of compensation than awarded by the tribunal. But it is an admitted position that there is no cross appeal for enhancement of amount. Hence, we may not be required to examine the said aspect. However, this Court while considering the appeal can examine as to whether the compensation awarded by the tribunal, would meet with test of just compensation or not? Under the circumstances, even if, 20% contributory negligence is considered as that of the driver of the scooter and as against the same, the tribunal has not considered the aspect of assessment of the income by averaging out of the income as per the income tax return and has not considered the aspect of prospective income, we are of the opinion that it cannot be said that the ultimate amount of compensation awarded by the tribunal, would call for any reduction. 11. In view of the above, we find that the compensation awarded by the tribunal, does not deserve to be interfered with. Under the circumstances, the appeal deserves to be dismissed. Hence, dismissed. Considering the facts and circumstances of the case, no order as to costs. Appeal dismissed.