Judgment 1. Claimant and Second respondent insurance Company in MVC No. 6900 /2007 on the file of MACT, Bangalore have come up in these two appeals Appeal in MFA No . 414/2009 is filed by second respondent–insurance Company challenging saddling of liability to pay the compensation on the insurance Company and so far as MFA No.8507/2009 is concerned, it is filed by claimant seeking enhancement of compensation. 2. Brief facts leading to these two appeals are as under: Accident dated 20.8.2007 involving tipper lorry bearing Registration No. KA50-1531 and motor cycle bearing Registration No. KA.50-E-3180 is not in dispute and so also injuries suffered by the claimant. Thereafter claim petition came to be filed by the injured against owner and insurer of the tipper lorry. Now, the point that arise for consideration in these appeals is, admittedly first respondent owner of tipper lorry secured cover note for issue of policy to tipper lorry bearing Registration No. KA-50-1531 by tendering premium amount by way of cheque drawn in favour of appellant – Insurance Company for a sum of Rs.57, 446/- The said cover note is issued from mid night of 18.5.2007 to 17.5.2008 vide ExR-4 which clearly indicates that what is issued is only a cover note and not the policy. The validity of cover note and insurance of policy pursuant to that is subject to encashment of cheque. The condition incorporated in the cover note is as under: “In the event of dishonour of cheque insurance cover under this documents automatically gets cancelled abinitio. The company is not under an obligation to send the cheque.” 3. It is stated that subsequently, the said cheque came to be dishonoured with an intimation from the Bank that cheque is returned for insufficient funds. Hence appellant – Insurance Company said to have communicated the same to first respondent by letter dated 31.5.2007 indicating cancellation of cover note issuance. There is noting on record to show that in fact policy was issued pursuance to the cover note. As could be seen from the records, even at the stage of issuing cover note itself there is cancellation of the document issued by the Insurance Company. There is noting on record to show that in fact policy was issued pursuance to the cover note. As could be seen from the records, even at the stage of issuing cover note itself there is cancellation of the document issued by the Insurance Company. In that view of the matter, it is stated that finding of the Tribunal that there exists a policy as on the date of the accident that is on 20.8.2007 is erroneous and the judgment requires to be set aside so far as it pertains to fastening of liability on the Insurance Company. 4. Head learned counsel appearing for both the Insurance Company as well as claimant. Perused the aforesaid document. On going through the same, it is seen that there is force in the argument submitted by the learned counsel for the Insurance Company that as on the date of the accident there was no policy in existence. However learned counsel for claimant tried to rely upon Full Bench decision of Apex Court in the matter of Oriental Insurance Company Limited Vs. Inderjit Kaur and others reported in 1998 ACJ 123 wherein it is held as under: “8. We have, therefore, this position. Despite the bar created by section 64-VB of the Insurance Act, the appellant, an authorized insurer, issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of section 147(5) and 149(1) of the Motor Vehicles Act, the appellant become liable to indemnify third parties in respect of the liability which that policy covered and to satisfy awards of compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that the cheque issued in payment of the premium thereon had not been honoured. 9. The policy of insurance that the appellant issued was a representation upon which the authorities and third parties were entitled to act. The appellant was not absolved of its obligations to third parties under the policy because it did not receive the premium. Its remedies in this behalf lay against the insured.” 5. In response to that, learned counsel for the Insurance Company tried to distinguish the aforesaid judgment with reference to subsequent judgment of the Apex Court wherein the said judgment, in the case of New India assurance co., Ltd. Vs. Its remedies in this behalf lay against the insured.” 5. In response to that, learned counsel for the Insurance Company tried to distinguish the aforesaid judgment with reference to subsequent judgment of the Apex Court wherein the said judgment, in the case of New India assurance co., Ltd. Vs. Rula and others reported in 2000 ACJ 630 wherein there is reference to the aforesaid decision of the Full Bench of Apex Court and the manner in which the applicant of the same was distinguished and similarly it was also brought to the notice of this Court that aforesaid Full Bench decision of Apex Court is followed and circumstance under which the same would be applicable is explained in the case of Deddappa & Others Vs. The Branch Manager, National Insurance co, Ltd., reported in AIR 2008 Supreme Court 767. 6. On going through the aforesaid judgments, it is seen that the ratio laid down by the Apex Court in the matter of Inderjit Kaur referred to supra is different on the facts and circumstance of present case. In the aforesaid case as on the date of the accident policy was still in force and it was not cancelled. The said decision is further clarified in the aforesaid two decisions of the Supreme Court which is relied upon by learned counsel for the Insurance Company. 7. In the present case, the case of the Insurance Company is on better footing than the facts stated in the aforesaid case. In the instant case no policy was issued. Initially what was issued was only a cover note on 18.5.2007 vide Ex.R-4. In Ex .R-4 at coloumn-7 the period of validity of the said document is up to 17.7.2007 i.e., for a period of two months from the date of cover note and again with a condition mentioned there in to the effect that “subject to said cheque being encashed.” In the instant case, cheque was not encashed and hence cover note was cancelled. Therefore, policy was not at all issued as on 20.8.2007 and even cover note which was issued earlier had expired. In the absence of policy not being issued pursuant to the said cover note, finding of the Tribunal that there existed a policy, is without any basis and contrary to the document which is at Ex.R4. which is not looked into. In the absence of policy not being issued pursuant to the said cover note, finding of the Tribunal that there existed a policy, is without any basis and contrary to the document which is at Ex.R4. which is not looked into. In that view of the matter, this Court holds that the finding of the Tribunal that policy issued by second respondent – Insurance Company in the said proceedings was valid as on 20.8.2007 is factually incorrect inasmuch as cover note itself had expired by then without policy being issued pursuant to that. 8. In that view of the matter, the appeal filed by the Insurance Company in MFA No. 414/2009 is allowed. Liability fastened on the Insurance Company by the judgment impugned is exonerated. While doing so it is clarified that right of the claimant to receive compensation as against owner of offending lorry does not get disturbed because of the aforesaid observation and he shall be entitled to recover compensation from the owner of the offending lorry. Since the appeal file in MFA No. 414/2009 is allowed, the amount in deposit is ordered to be released to the Insurance Company. 9. Now coming to the second appeal in MFA.No.8507/2009 filed by the claimant seeking enhancement of compensation is concerned, this appeal does not survive for consideration for the reason that notice to respondent is already dispensed at the risk of claimant. In the absence of notice to respondent No.1, appeal cannot be decided regarding enhancement or quantum of compensation to be awarded since liability to pay compensation is squarely on respondent No.1. 10. Accordingly, the filed by claimant in MFA.No.8507 /09 is dismissed.