1 FA.538/1998 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 538 OF 1998 United India Insurance Company Ltd.] ...Appellant. V/s. 1] Smt. Madhuri Mohan Wagwekar ] 2] Sau. Smita Subhash rao Mandlik ] ....Respondents. ­­­­­ Mr. M.G. Barve, for the Appellant. ­­­­­­ CORAM : A.S. OKA, J. DATED : 6 th OCTOBER, 2010. JUDGMENT: 1] The appellant who is insurer of the vehicle allegedly involved in the accident has taken exception to the judgment and award dated 29.1.1998 passed by the learned Member of Motor Accidents Claims Tribunal. The claim petition was filed under section 166 of Motor Vehicles Act, 1988 [ hereinafter referred to as ‘the said Act’] by the first respondent who is the mother of the deceased. 2] The learned counsel for the appellant has submitted that even taking the case made out in the evidence adduced by the first 2 FA.538/1998 respondent as it is, the compensation amount granted could not have been granted and impugned judgment and order be set aside. 3] Admittedly leave as contemplated under section 170 of the said Act has not been obtained by the Appellant. The defence covered by section 149(2) of the said Act is admittedly not taken by the appellant. In view of the decisions of Apex Court in the case of National Insurance Co. Ltd. V/s Nicollecta Rohatgi (2002) 7 SCC 456 as well as in the case of Sadhana Lodh Vs. National Insurance Co.Ltd[(2003)3 SCC 524], the appeal is not maintainable. The settled law as laid down in the aforesaid decisions is that when there is no defence under section 149(2) of the said Act, and when leave under section 170 of the said Act is not applied for and is not granted, the appeal at the instance of the insurer is not maintainable. 4] Without disputing the legal position, the learned counsel for the Appellant contended that another appeal has been admitted by this Court where there is no leave granted under section 170 of the said Act. 5] On the face of it such submission is not even worth considering. Admission of another appeal which is not maintainable will not make this appeal maintainable. As and when the said Appeal 3 FA.538/1998 comes up on board for final hearing, it if is found that it is not maintainable, it is bound to be dismissed. 6] Learned counsel for the appellant submitted that this being a First Appeal, illegality in the impugned order should not be tolerated. Law is well settled that an appeal is a creation of the statute and therefore, unless appeal is maintainable under the statute, the same cannot be entertained. Hence, Appeal is dismissed with no order as to costs. 7] Learned counsel for the appellant seeks leave to prefer an appeal to the Apex Court. As the appeal is dismissed on the basis of well settled law laid down by the Apex Court, the prayer is rejected. JUDGE