1 caf2218-09 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 2218 OF 2009 ALONGWITH CIVIL APPLICATION NO.2219 OF 2009 IN FIRST APPEAL ST. NO. 12117 OF 2009 New India Assurance Co.Ltd. .. Applicant V/s. Jagdish Harisingh Sirsawal & Ors. .. Respondents ..... Mr. D. S. Joshi for the applicant. Mr. T. J. Mendon for respondent Nos.1 and 2. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 12, 2011. P.C.: Heard the learned counsel appearing for the applicant and the learned counsel appearing for the first and second respondents. This is an application for condonation of delay in preferring an Appeal against an Award made in a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). On the last date, an objection was raised by the learned counsel appearing for the first and second respondents to the maintainability of the Appeal on the ground that the defence under Section 149 (2) of the said Act 2 caf2218-09 has not been taken and the applicant has not obtained leave under Section 170 of the said Act. By specifically recording the said preliminary objection, on 20th August, 2011, time was granted to the applicant to take instructions. 2. The learned counsel appearing for the applicant states that he has not received any instructions. There is no averment in the Memorandum of Appeal that leave under Section 170 of the said Act was obtained by the applicant. Perusal of the Judgment shows that the insured contested the claim petition by filling written statement. Moreover, from the Judgment it appears that defence under Section 149(2) of the said Act was not raised by the applicant. 3. Hence, in view of settled law, the Appeal itself is not maintainable and, therefore, there is no reason to entertain the application for condonation of delay. 4. Hence, application is dismissed on the ground that Appeal itself is not maintainable. 5. The applicants will be entitled to refund of Court fees paid on Appeal. The refund will be as per the Rules. The applicant is entitled to withdraw a sum of Rs.25,000/- deposited in this Court with interest, if any, accrued thereon. 3 caf2218-09 6. Civil Application No.2219 of 2009 does not survive and the same is disposed of. (A.S.OKA, J.)