1 fa792-97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.792 OF 1997 The New India Assurance Co. Limited ..Appellant Vs Bashira Chandsaheb Momin and others ..Respondents ­­ Mr.M.G.Barve, for appellant. ­­ CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 JUDGMENT: The appellant which is the insurer of the vehicle allegedly involved in the accident has taken an exception to the judgment and award dated 24 th November, 1996 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition under Section 166 of the Motor Vehicles Act, 1988. The first to third respondents are the original claimants. The case made out by the claimants is that the accident occurred on 18 th April, 1990. The allegation in the claim petition is that the truck owned by the fourth respondent which was being driven by the fifth respondent was involved in the accident. The truck was insured with the appellant at the relevant time. A written statement was filed by the fourth respondent 2 fa792-97.sxw contending that though the truck was owned by him and was validly insured by the appellant, the truck was not at all involved in the accident. The fifth respondent also filed a written statement contending that the truck was not involved. The appellant filed written statement admitting that the truck of the fourth respondent was insured with it on the date of alleged accident. However, it was contended that the appellant was not liable to pay the compensation. 2] Thus, admittedly, no defence covered by Sub­Section 2 of Section 149 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”) was taken by the appellant. Admittedly, a leave under Section 170 of the said Act was not at all applied for and was, therefore, not granted to the appellant. 3] Learned counsel for the appellant submitted that notwithstanding the aforesaid position, the appeal is maintainable in as much as the insured is a party respondent to the appeal and is represented by an advocate. He submitted that there is no evidence on record to show involvement of the vehicle insured with the appellant and that the fact that the vehicle was not involved goes to the root of the matter. He, therefore, submitted that the appeal will have to be entertained on merits. 4] I have considered the submissions. An appeal is always a creation of statute and there is no inherent right vesting in a party to prefer an appeal. Unless the appeal is created by the statute, the same cannot be entertained by the Court. As far as the right of insurer to prefer an appeal 3 fa792-97.sxw under Section 173 of the said Act is concerned, the Apex Court has repeatedly held that the said right is a limited right. An appeal is available when the insurer has taken a defence covered by Sub Section 2 of 149 of the said Act. Appeal is also maintainable when a condition precedent under Section 170 of the said Act is satisfied and the Claims Tribunal grants a leave to the insurer. In the present case, Section 170 will have no application in as much as the insured himself contested the claim by filing written statement. In any event, leave was not even sought by the appellant. 5] In the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others [2002 (7) SCC 456], the Apex Court reiterated that the right of appeal is available to the insurer only in aforesaid two contingencies. The same view is reiterated by the larger bench of the Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and anr. [2003(3)SCC 524]. In view of the admitted position reflected in paragraph 4 above, in the present case, the appeal at the instance of the appellant was not maintainable. Hence, the same is hereby dismissed only on the ground that that it is not maintainable. There shall be no order as to the costs. If the amount of statutory deposit made by the appellant under Section 173 of the said Act is pending in this Court, the same shall be refunded to the appellant together with interest, if any, accrued thereon. [A.S.OKA, J]