JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the Judgment and decree dated 21.11.2019 passed in M.C.O.P.No.1037 of 2015 on the file of the learned Special Subordinate Judge [Motor Accident Claims Tribunal] of Thiruchirapalli by allowing this appeal.)

1. This Civil Miscellaneous Appeal has been preferred by the insurance company against the Judgment and decree, dated 21.11.2019 in M.C.O.P. No.1037 of 2015 passed by the learned Special Subordinate Judge/Motor Accident Claims Tribunal, Thiruchirapalli.

2. It is a case of accident, which took place on 15.04.2014, at about 03.30 p.m., Dindigul to Trichy Road, near Ariyavur Primary School, one Praburaj was riding his two wheeler bearing registration No.TN-45-BD-8051 with rash and negligent manner in terrific speed, the claimant and one Sathyanarayanan were riding as pillion riders and dashed against the wall of the Primary School, Ariyavur. Due to the said accident, the rider of the two wheeler died due to head injuries and the claimant sustained injuries.

3. The claimant has filed a petition in M.C.O.P. No.1037 of 2015 on the file of the learned Special Subordinate Judge/Motor Accident Claims Tribunal, Thiruchirapalli,

4. Before the Tribunal, on the side of the claimant two witnesses were examined as P.Ws.1 & 2 and marked ten documents as Exs.P.1 to P.10 and R.W.1 was examined and Ex.R.1 and Ex.R.2 were marked. The disability certificate was marked as Ex.X.1.

5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimant and the insurance company and also on appreciating the evidences on record, held that the accident was occurred only, due to the rash and negligent riding of the two wheeler and directed the appellant/insurance company to pay a sum of Rs.15,72,800/-as compensation.

6. The appellant/Insurance company has preferred this present appeal.

7. Heard Mr.V.Sakthivel, learned counsel appearing for the appellant and Mr.R.Maheswaran, learned counsel appearing for the respondents. Perused the material documents available on record.

8. This Civil Miscellaneous Appeal is filed on the ground that the Tribunal has failed to note that at the time of accident three persons were travelled in the two wheeler including the rider of the two wheeler. The Tribunal has failed to note that rider and pillion riders of two wheeler shall wear the Protective Head Gear (Helmet) as mandated under Section 129 of the Motor Vehicles Act travelled in the second respondent/first respondent two wheeler have not wear the protective Head Gear (Helmet) as mandated under Section 129 of the Motor Vehicle Act and responsible for the Accident.

9. The Claimant has filed a petition in M.C.O.P.No.1037 of 2015 for claiming compensation under Sections 163A & 166 of M.V.Act for injuries sustained by him in a road accident took place on 15.04.2014 at 03.30 p.m when he travelled in a two wheeler as pillion rider. The tribunal has awarded a sum of Rs.15,72,800/-as compensation with 7.5% interest from the date of petition and directed the appellant/insurance company to pay compensation.

10. Aggrieved by this award, the appellant/insurance company has preferred this Civil Miscellaneous Appeal on the ground that at the time of accident there are three persons were travelled in a motor cycle including the claimant. The tribunal has failed to note that there is a violation of policy. Since the rider of the two-wheeler did not wear Helmet, he died due to head injuries.

11. The learned counsel appearing for the appellant/insurance company relied upon the Judgment reported in 2021 (2) TNMAC 393 in the case of Managing Director, Karnataka State Road Transport Corporation, Chikekballapura Division, Bengaluru Vs. R.Venkatesan, Ramamani and V.Harish, wherein this Court held as follows:

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“12. From the materials available on record, it is seen that at the time of accident, four persons i.e., the Respondents i