- (1.) RAJES Kumar and B. K. Narayana, JJ. Present appeal has been filed under Section 173 of Motor Vehicles Act, 1988 against the order dated 19. 11. 2. 007, passed by Additional District Judge (Court No. 12)/m. A. C. T. , Lucknow in Claim Petition No. 132 of 2005, Smt. Renu Mishra and others v. Sanjay Kumar and others.
(2.) APPELLANT is the insurance company. Admittedly, the permission under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as "act") has not been granted. Learned counsel for the appellant submitted that an application under Section 170 of the Act was moved before the Tribunal but no order has been passed. He further submitted that the claim petition was not maintainable before the Tribunal for the various reasons. We are afraid to accept the argument of learned counsel for the appellant. Unless the permission under Section 170 of the Act is granted to contest the case, which was available to the owner of the vehicle, the appeal filed by the appellant under Section 173 of the Act is not maintainable. Reliance is placed on the decision of the Apex Court in the case of National Insurance Company Ltd. , Chandigarh v. Nicolletta Rohtagi and others, (2002) 7 SCO 456 : 2003 (1) AWC 23 (SC ). No case under Section 149 (2) of the Act has been made out. The question of maintainability of the claim petition, which was filed before the Tribunal can only be entertained and considered when the appeal of the appellant is maintainable under Section 173 of the Act.
(3.) IN view of the above, appeal fails and is accordingly, dismissed. Office is directed to remit the statutory amount deposited to the concerned Tribunal within 3 weeks. .;