IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.6262 OF 2007. APPLICATION NO.6262 OF 2007. APPLICATION NO.6262 OF 2007. IN IN IN FIRST FIRST FIRST APPEAL (ST) NO.26220 OF 2007. APPEAL (ST) NO.26220 OF 2007. APPEAL (ST) NO.26220 OF 2007. The State of Maharashtra ...Applicant Versus. Sanjay Anandrao Patil & Ors. ...Respondents Ms Geeta Mulekar, A.G.P for the Applicant. Shri S.S.Tambekar for the Respondent Nos.1 and 2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 19th MARCH, 2008. : 19th MARCH, 2008. : 19th MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard the learned A.G.P for the applicant. This is an application for condonation of delay in preferring an appeal against the judgment and award dated 20th April, 2008 passed by the learned Member of the Motor Accident Claims Tribunal at Kolhapur. The award has been made against the Commissioner of the Kolhapur Municipal Corporation and the Director of Insurance. It is alleged that the bus involved in the accident was insured with the second applicant (Director of Insurance). 2. The cause-title of the First Appeal shows that the same has been filed by the State of Maharashtra through the Commissioner of Kolhapur Municipal Corporation as well as by the Director of Insurance. However, in this application for condonation of delay only the Director of Insurance has been shown as the applicant. In any event, State of Maharashtra cannot represent the Kolhapur Municipal Corporation and : 2 : 2 : 2 : therefore, the appeal will have to be treated as one filed by the Director of Insurance. 3. There is nothing on record to show that the applicant Director of Insurance had applied for and obtained a leave under section 170 of Motor Vehicles Act, 1988. In view of settled position of law as reflected from the decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi [(2002) 7 S.C.C. page 456], an appeal at the instance of insurer is not maintainable unless there is a leave granted under section 170 of the Motor Vehicles Act, 1988. In this case, there is no defence raised by the applicant which is covered by sub-section 2 of section 149 of the said Act of 1988. Hence, it is obvious that appeal at the instance of Director of Insurance is not maintainable. As the appeal itself is not maintainable, this application for condonation of delay need not be entertained. The application is accordingly rejected. This order will not preclude the Commissioner of Kolhapur Municipal Corporation from preferring an appeal. 4. Civil Application No.6263 of 2007 does not survive and the same is disposed of. 5. A sum of Rs.25,000/- deposited by the applicant in this Court shall be refunded to the applicant. : 3 : 3 : 3 : Judge. Judge. Judge.