1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 733 OF 1997 United India Insurance Co. Ltd. .... Appellants Vs. Sou. Madhurita Sandip Joshi & Anr. .... Respondents Mr. Chotani i/b. Mr. M. G.Barve for the Appellants. Mr. G. S. Hegde for Respondent No.1. CORAM : A.S. OKA, J. DATE : MAY 6, 2010 JUDGMENT :- Heard the learned counsel appearing for the Appellant. The challenge in this First Appeal is to the Award made by the learned Member of the Motor Accident Claims Tribunal in a claim Petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred as the said Act 1988). The Appeal is filed by the insurer of the vehicle involved in the accident. A preliminary objection was raised by the learned counsel for the original claimant that the Appeal is not maintainable as defence under 2 section 149 (2) of the said Act 1988 has not been taken by the Appellant and that there is no leave granted under section 170 of the said Act, 1988. 2. The submission of the learned counsel appearing for the Appellant is that since the written statement was permitted to be filed as per the order passed below Exhibit 11, leave under section 170 of the said Act 1988 shall deemed to have been granted and therefore the Appeal is maintainable. 3. I have considered the submissions. Perusal of the Roznama shows that there was no Application made by the Appellant seeking a leave under section 170 of the said Act 1988. There is no prayer for grant of leave in the Application at Exhibit 11. Admittedly, there is no defence taken under section 149(2) of the said Act 1988. 4. As held by the Apex Court in the case of National Insurance Company Limited V/s. Nicolletta Rohtagi & Ors. [(2002) 7 SCC 456], this Appeal at the instance of the insurer is not 3 maintainable. Grant of leave under section 170 of the said Act 1988 requires application of mind. The Tribunal was not called upon to consider the prayer for grant of leave. 5. Hence, in view of the law laid down by the Apex Court, the Appeal is not maintainable and the same is dismissed only on the ground that it is not maintainable. There will be no order as to costs. If any amount deposited by the Appellant in this Court is pending, the same shall be transmitted to the concerned Tribunal. Tribunal will pass appropriate orders permitting withdrawal or disbursement of the amount. [A.S. OKA, J.]