ash 1 fa-944.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.944 OF 2011 United India Insurance Company Limited. .. Appellant Vs Shri Madhav Vithoba Jadhav & Ors. .. Respondents -- Shri Rahul Mehta i/by KMC Legal Venture for the Appellant. Shri Sachin Kadam for Respondent Nos.1 to 6. -- CORAM ; A.S. OKA, J DATED : 4TH JULY, 2011 P.C. . Heard learned counsel appearing for the Appellant. The Appellant has challenged the judgment and award dated 16th September, 2008 passed by the learned Member of the Motor Accident Claim Tribunal in a claim petition under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act”). 2. The Appellant is the insurer of the offending vehicle. Admittedly, the Appellant did not apply for grant of leave under Section 170 of the said Act. Admittedly, no defence has been taken under Section 149(2) of the said Act. In view of the law laid down by the Apex Court in the case of National Insurance Company Limited, Chandigarh v. Nicolletta Rohtagi & Others [(2002)7 SCC 456] and in ash 2 fa-944.11 the case of Sadhana Lodh v National Insurance company Limited & Anr., [(2003)3 SCC 524], the Appeal is not maintainable. 3. The law on this aspect is very well settled in the year 2002. Knowing fully well that the Appeal is not maintainable, the Appellant Insurance Company has chosen to prefer this Appeal by making payment of Court fees of Rs.26,000/-. On 28th June, 2011, by a speaking order, this Court recorded that the Appeal was not maintainable and an opportunity was given to the learned counsel appearing for the Appellant to take instructions regarding withdrawal of the Appeal so that substantial refund of court fees could be obtained. However, the Appellant has not instructed the counsel to withdraw the Appeal. 4. In this Appeal, which was not maintainable, a notice of delay condonation application was served to the Claimants. Therefore, they were required to engage an advocate. Hence, while dismissing the Appeal, costs will have to be awarded to the original claimants. q5. Accordingly, the Appeal is dismissed with a direction to the Appellant to pay costs quantified at Rs.10,000/- to Respondent Nos.1 to 6. The amount of costs shall be paid within a period of eight weeks from today. ash 3 fa-944.11 6. A sum of Rs.25,000/- deposited by the Appellant shall be refunded to the Claimants. 6. The Civil Application No.1377 of 2009 and the Civil Application No.2399 of 2011 do not survive and the same are disposed of. ( A.S. OKA, J )