JUDGMENT : (Satyen Vaidya, J.) 1. By way of instant appeal under Section 173 of the Motor Vehicles Act (for short “the Act”), the appellant/insurer has assailed Award dated 31.10.2017 passed by the learned Motor Accident Claims Tribunal, (CBI), Shimla, (for short “the Tribunal”) in MAC Petition No. 85-T/2 of 2013/12, whereby a sum of Rs.15,21,000/- along with interest @ 7.5 % per annum from the date of filing of petition till deposit has been awarded in favour of respondents No.1 to 3/claimants. 2. The claimants had approached the Tribunal for grant of compensation under Section 166 of the Act on account of death of Shri Sandeep Kumar. Claimants No.1 to 3 were mother, wife and minor son respectively of late Shri Sandeep Kumar. 3. Shri Sandeep Kumar had suffered injuries in a motor vehicle accident on 13.07.2011 and had died as a result thereof. The deceased was 19 years old at the time of his death. The vehicle involved in the accident was a truck bearing No. HP-11-4707 and was owned by respondent No.4 herein/owner and was being driven by respondent No.5 herein/driver at the time of accident. The accident was attributed to rash and negligent driving of the driver. Deceased Shri Sandeep Kumar was said to be travelling in the truck as the owner of the goods. The vehicle was insured by the appellant/insurer at the relevant time. 4. The owner in his reply before the learned Tribunal admitted that the deceased Shri Sandeep Kumar was travelling in the truck as the owner of goods. It was submitted that the truck was carrying sand for deceased Sandeep Kumar and others. Owner also disclosed that the truck was insured by the insurer at the time of accident. It was further submitted that the driver of the truck was driving the truck consciously and the accident had taken place due to slippery road. Owner had seen the driving licence of the driver at the time of his engagement. As per the owner, the driver was having valid and effective driving licence. 5. Insurer did not file any reply. It is revealed from the record that initially the claimants had impleaded National Insurance Company ltd. as insurer, but during the proceedings of the case, name of National Insurance Company was deleted from the array of respondents and appellant/insurer was added as respondent No.1. 5. Insurer did not file any reply. It is revealed from the record that initially the claimants had impleaded National Insurance Company ltd. as insurer, but during the proceedings of the case, name of National Insurance Company was deleted from the array of respondents and appellant/insurer was added as respondent No.1. Though, the National Insurance Company as the then respondent No.1 had filed its reply, but no separate reply came to be filed on behalf of the appellant/insurer. 6. Learned Tribunal framed the following issues:-- 1. Whether the deceased Sandeep Kumar had died due to the rash and negligent driving of the respondent No.3 on 13.07.2011, as prayed for?...OPP. 2. Whether the petitioners are entitled for adequate compensation and from whom?...OPP. 3. Whether the petition is not maintainable in the present form, as alleged?...OPP. 4. Whether the petitioners have no cause of action to file the present petition, as alleged?....OPR. 5. Whether the driver was driving the vehicle without any driving licence and in violation of the terms and conditions of the insurance policy?....OPR-1 7. Issues No.1 and 2 were decided in affirmative, whereas remaining issues were answered in the negative. The petition was allowed and claimants were awarded a sum of Rs. 15,21,000/- as compensation with interest at the rate of 7.5% per annum w.e.f. the date of filing of petition till the deposit of the awarded amount. The liability to pay compensation was fastened on the appellant/insurer. All the claimants were held entitled to compensation amount equally except for amount on account of loss of consortium, which was ordered to be paid to wife of deceased only. 8. I have heard learned counsel for the parties and have also carefully gone through the entire record. 9. Shri Jagdish Thakur, learned counsel for the insurer in the first instance has contended that the insurer was neither afforded any opportunity to file reply nor to have proper and effective representation in the case and hence the Award passed by the learned Tribunal suffered from grave illegality being in violation of principles of natural justice. He pointed out that initially the matter was being listed before the Tribunal at Shimla, but later the matter was being taken up and heard at Theog. No notice of such transfer was given to the insurer and in such circumstances, it remained unrepresented. He pointed out that initially the matter was being listed before the Tribunal at Shimla, but later the matter was being taken up and heard at Theog. No notice of such transfer was given to the insurer and in such circumstances, it remained unrepresented. He has further contended that the presence of insurer was marked through a counsel by the learned Tribunal on 21.02.2015 and thereafter the same counsel kept on representing the insurer without any instructions either from the insurer or the counsel who had filed his “Vakalatnama” for the insurer. It is also submitted that in such background the insurer did not get any opportunity to file reply and to lead evidence. 10. In order to assess the contention raised by the insurer, I have gone through the record and have found that on 21.02.2015 one Shri Suresh Verma, Advocate, had appeared before the learned Tribunal for the insurer vice Shri Jagdish Thakur, Advocate. Thereafter, on each and every date the same counsel i.e. Shri Suresh Verma, Advocate, had been appearing for the insurer. So much so, he has cross-examined the witnesses of the claimants. In this background, the contention raised on behalf of the insurer cannot be accepted for the simple reason that no material has been placed on record to show that the insurer had ever sought any explanation from such counsel. Except for raising objection by way of instant appeal, the insurer has not objected to the conduct of Shri Suresh Verma, Advocate, which clearly implies the consent on the part of the insurer in favour of Shri Suresh Verma, Advocate, for representation in the matter before the learned Tribunal. 11. Learned counsel for the insurer/appellant next submitted that the deceased was gratuitous passenger and there was no proof regarding the fact that he was travelling in the vehicle as owner of goods. The insurer has neither filed any reply nor has led any evidence. In this background, insurer cannot be heard on seeking benefit of exclusion clause(s), if any, of the policy of insurance. It is well settled principle of law that the onus to prove exception is on the insurer. Reference can be made to the following extract from the judgment passed by Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297 :- “66. It is well settled principle of law that the onus to prove exception is on the insurer. Reference can be made to the following extract from the judgment passed by Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297 :- “66. A bare perusal of the provisions of Section 149 of the Act leads to only one conclusion that usual rule is that once the assured proved that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. 67. In MacGillivray on Insurance Law it is stated: "25-82 Burden of Proof: Difficulties may arise in connection with the burden of proving that the facts of any particular case fall within this exception. The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an exception. It has therefore been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger and there is no evidence to show why he did so, they cannot succeed, because they have not proved that his behaviour was voluntary or that the danger was unnecessary. Since an extremely heavy burden is imposed on the insurers if they have to prove the state of mind of the assured, it has been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger." 68. In Rukmani and Others vs. New India Assurance Co. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger." 68. In Rukmani and Others vs. New India Assurance Co. Ltd. and Others [ 1999 ACJ 171 ], this Court while upholding the defences available to the insurer to the effect that vehicle in question was not being driven by a person holding a licence, held that the burden of the insurer would not be discharged when the evidence which was brought on record was that the Inspector of Police in his examination in chief merely stated, "My enquiry revealed that the respondent No.1 did not produce the licence to drive the abovesaid scooter. The respondent No.1 even after my demand did not submit the licence since he was not having it." 69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi (supra).” Thus, it was solely upon the insurer to discharge the burden of proof regarding allegations of gratuitous passenger, which the insurer miserably failed. 12. Shri Jagdish Thakur, learned counsel, further contended that the Award passed by the learned Tribunal is unreasonable and is not justified keeping in view the facts proved on record. He has submitted that the learned Tribunal proceeded to assess the income of deceased at Rs.6000/- per month by holding that the minimum wages fixed by the Government of Himachal Pradesh at the time of accident was at such rate. He has placed on record a document which reveals that minimum wages even in October, 2011 as notified by the Government of Himachal Pradesh for unskilled agricultural labourer was Rs.120/- per day i.e. Rs.3,600/- per month and on the strength of such document it has been submitted that the income of deceased, in the absence of any other proof, could not be assessed more than Rs.3,600/- per month at the time of his death. Learned counsel for the insurance has further asserted that impugned award also needs to be modified in respect of other heads under which compensation has been awarded to the claimants so as to bring it in conformity with the legal position as is prevailing at present. 13. Section 166 and 168 of the Act empowers the Tribunal(s) and Court(s) with jurisdiction to award just compensation. The appeal is continuation of proceedings undertaken before the Tribunal(s) constituted under Act. It is bounden duty of the Tribunal(s) or/and Court(s) to calculate a just compensation on the basis of material on record. In Pappu Deo Yadav vs. Naresh Kumar and others, AIR 2020 (SC) 4424 , the Hon’ble Supreme Court has held as under: “8. This court has emphasized time and again that “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives....” 14. The accident in question had taken place on 13.07.2011. The rates of daily wages as notified by government of Himachal Pradesh w.e.f. October 01, 2011 reveal that the rate for unskilled agricultural labour was Rs.120/- per day i.e. Rs.3,600/- per month. Learned Tribunal has held the applicable minimum wages on the date of accident to be Rs.6000/- per month, however, such calculation appears to be a result of assumption as no tangible material has been relied upon by the learned tribunal for arriving such conclusion. This Court can always take judicial notice of the notifications issued by the State Government. Noticeably, the claimants had failed to place on record any proof with respect to the income of the deceased. Thus, the reliance on the minimum wages applicable on the date of accident is though justified; however, the rate of minimum wages as applicable on the date of death of deceased would apply. Thus, the income of deceased at the relevant time of his death can be assumed to be Rs.3600/- per month. Thus, the reliance on the minimum wages applicable on the date of accident is though justified; however, the rate of minimum wages as applicable on the date of death of deceased would apply. Thus, the income of deceased at the relevant time of his death can be assumed to be Rs.3600/- per month. Learned Tribunal has awarded addition of 50% of the monthly income on account of future prospects, whereas it has to be 40 % in terms of the dictum of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in (2017)16 SCC 680 . By such calculation the monthly income of deceased can be assessed at Rs.5,040/- per month. 15. Deceased had three dependents, therefore, deduction of 1/3rd of amount of assessed income of deceased as per the mandate of Sarla Verma (Smt) and Ors. Vs. Delhi Transport Corporation and Anr., reported in (2009) 6 SCC 121 is justified. A deduction of Rs.1680/- per month is liable to be made from the monthly income of the deceased. Consequently, total loss of dependency per month will be Rs.5,040 -Rs.1680= Rs. 3360. 16. The annual loss of dependency will be Rs.3360 x 12 = Rs.40,320. By applying the applicable multiplier of 18, the total loss of dependency will be Rs.40,320x18= Rs.7,25,760/-. 17. Learned Tribunal has awarded compensation for loss of consortium at Rs.1,00,000/-, whereas in terms of the judgment passed by the Supreme Court in Pranay Sethi's case (supra) and in Magma General Insurance Company Ltd. Vs. Nanu Ram @ Chuhru Ram and Ors. (2018) 18 SCC 130 , the consortium has to be at the rate of Rs.40,000/- per head. In the present case, there are three dependents hence the awardable amount for loss of consortium will be Rs.1,20,000/-. 18. Learned Tribunal has awarded Rs.25,000/- as funeral charges, whereas as per the mandate in Magma General Insurance Company (supra) it has to be Rs. 15,000/-. Nothing has been awarded by the learned tribunal to the claimant on account of loss of estate, whereas a sum of Rs.15,000/- is awardable under this head in terms of the mandate in Magma General Insurance Company Ltd. 19. In view of the award of amount for loss of consortium per head, nothing can be separately awarded under the head of loss of love and affection. 20. In view of the award of amount for loss of consortium per head, nothing can be separately awarded under the head of loss of love and affection. 20. In view of the above discussion, the impugned award requires modification and the claimants are held to be entitled to compensation as under: Sr. No. Head. Amount. 1. Total Loss of Dependency Rs.7,25,760/- (Rs.3,360/- X 12 X 18) 2. Loss of consortium Rs.1,20,000/- (Rs.40,000/-X 3) 3. Funeral Charges Rs. 15,000/- 4. Loss of estate Rs.15,000/- 5. Total compensation awarded Rs.8,75,760/- (Rs. Eight Lacs, seventy five thousand and seven hundred sixty only. In addition, the claimants shall also be entitled to interest @ 7.5 % per annum from the date of filing of petition i.e. 28.05.2012 till the deposit of such amount. The liability to pay compensation shall be on the appellant/insurer. The claimants shall be entitled to compensation amount in equal proportions. The appeal is accordingly allowed and is accordingly disposed of in above terms. No order as to costs.