ORDER The Branch Manager, Oriental Insurance Company Limited, Labbipet, Vijayawada, is appellant. Aggrieved by the award dated 29.1.2000 in O.P.No.767 of 1994 whereby and whereunder the Motor Accidents Claims Tribunal-cum-District Judge, Khammam, directed appellant and second respondent as well as Andhra Pradesh State Road Transport Corporation (APSRTC) jointly and severally pay a sum of Rs.49,000/- to first respondent, the present appeal is filed. 2. Brief fact of the matter is as follows. First respondent herein (hereafter, claimant) went to Yerrupalem railway station on his Moped bearing NO.AAH 2111 on 29.5.1995. When he reached Anjaneya Swamy Temple at the outskirts of Banigendlapadu village, bus owned by third respondent dashed against him resulting in accident. Claimant statedly suffered fracture injuries on his right leg and injuries on right hand. He was taken to Government Hospital, Madhira. As there was no orthopaedic surgeon, he was treated in a private hospital and discharged after two months. He filed original petition claiming a sum of Rs.75,000/-. 3. During the enquiry, negligence on the part of driver of bus bearing NO.AP 16-U 5965 was proved. However insurer sought exoneration from liability on the ground that as the bus was hired by APSRTC, it is alone liable to pay compensation, which was disputed by APSRTC. On considering the evidence, learned Tribunal came to the conclusion that as bus was originally insured by appellant, they are also jointly and severally liable along with owner of bus and APSRTC. 4. Placing reliance on Rajasthan State Road Transport Corporation v. Kailash Nath Kothari1, National Insurance Company Limited v. Lunavathi Ha, riya2 National Insurance Company Limited v. Deepa Devi and Godavari Finance Company v. Degala Satyanarayanama4 learned Counsel for appellant submits that when the bus is hired by APSRTC, insurer cannot be held liable for payment of insurance amount. Per contra, learned Standing Counsel for APSRTC submits that a similar question stands referred to Full Bench for consideration, and therefore, the point cannot be taken as well settled. 5. As the issue is covered by following three judgments of Supreme Court, reference of matter to Full Bench does not bar this Court from deciding the case. 6. In Kailash Nath Kothan', Supreme Court considered question whether RTC is liable to pay compensation under Motor Vehicles Act, 1988, when they hired a private bus insured with a nationalized insurance company. As the issue is covered by following three judgments of Supreme Court, reference of matter to Full Bench does not bar this Court from deciding the case. 6. In Kailash Nath Kothan', Supreme Court considered question whether RTC is liable to pay compensation under Motor Vehicles Act, 1988, when they hired a private bus insured with a nationalized insurance company. After making reference to various provisions of the Act, Supreme Court held that when the bus is hired by RTC, they alone would be vicariously liable to pay compensation for tort committed by driver even though driver is employee of registered owner. Relevant observation is as under. The definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be considered, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instruction~ and command the driver was to ply or not to ply the ill-fated bus on the fateful day. 7. In Lunavathi Hariya (2 supra), this Court considered a batch of cases involving death as well as injuries due to accident of a private bus on hire to APSRTC. Whether APSRTC can be held vicariously liable in such background was the question that fell for consideration. 7. In Lunavathi Hariya (2 supra), this Court considered a batch of cases involving death as well as injuries due to accident of a private bus on hire to APSRTC. Whether APSRTC can be held vicariously liable in such background was the question that fell for consideration. Making reference to General Manager, Andhra Pradesh State Road Transport Corporation v. Bodapati Kanaka Ratnabai5 and Kailash Nath Kothari (1 supra), this Court held that if original employer established that when he lent servant, effective control over him was also transferred to hirer, the original owner can avoid liability and the temporary employer or hirer as the case may be must be held vicariously liable for the tort committed by the concerned employee. It was observed therein as follows. As per the decision of the Supreme Court referred to herein above, if the original employer established that when he lent servant, effective control over him was also transferred to hirer, the original owner can avoid liability and the temporary employer or hirer as the case may be must be held vicariously liable for the tort committed by the concerned employee. In this case, the driver remained ex parte. Though the owner of the bus, respondent No.2, filed counter, he did not come into box and produce necessary documents. Even the insurance company which examined its Branch Manager did not take any steps to summon the agreement between the A.P.S.R.T.C. and the respondent NO.2. In the absence of any agreement, the submission that even if there is such clause in the agreement excluding the liability of A.P.S.R.T.C. on the authority of the Apex Court in the case of Rajasthan State Road Transport Corporation v Kailash Nath Kothari [1997 ACJ 1148 (SC) = 1997 (5) AL T 18 (DN SC)], such clause must be held contrary to public policy, cannot be countenanced. This is the most glaring and distinguishable feature in Rajasthan State Road Transport Corporation v Kailash Nath Kothari (supra), as well as the case in General Manager, Andhra Pradesh (State Road Transport Corporation v Bodapati Kanaka Ratnabai [2000 (2) c AL T 56 = 2001 ACJ 401 (AP)]. In the c absence of agreement between respondent Nos.2 and 3, it is impermissible to surmise as to what are the rights and obligations of respondent Nos.2 and 3 under the agreement. In the c absence of agreement between respondent Nos.2 and 3, it is impermissible to surmise as to what are the rights and obligations of respondent Nos.2 and 3 under the agreement. Hence, I am of tile considered opinion that the judgment of the Apex Court in Rajasthan State Road Transport Corporation v Kailash Nath Kothari (supra), goes against the contention of learned counsel for the appellant. In these cases, the original employer, the respondent No.2, has failed to establish the necessary facts to come to a conclusion that the hirer (A.P.S.R.T.C.) was having control over the driver and, therefore, it has vicarious liability. 8. In Oeepa Devi (3 supra), Maruti Gypsy jeep was requisitioned by the Sub-Divisional Magistrate, Rampur, in 1993 elections for the State of Himachal Pradesh. While the hire was in force, vehicle met with an accident resulting in death of a boy. The Motor Accidents Claims Tribunal upheld contention of insurance company that in terms of insurance policy, it is not liable to pay compensation. A Division Bench of High Court of Himachal Pradesh reversed the same. Before Supreme Court, it was contended by insurance company that as the vehicle was not used for the purpose for which contract of insurance was entered into, on the principle of Kailash Nath Kothari (1 supra), insurer cannot be made liable. The submission found favour with Supreme Court and it was held that when a vehicle is hired by. a third party having effective control over driver, such third party would be alone liable to pay compensation for the tort. 9. In Godavari Finance Company (4 supra), Supreme Court considered the question whether a financier of a motor vehicle would be 'owner' within the meaning of Section 2(30) of the Act. It was held that as the vehicle was in possession of hire-purchaser and was being used by him, financier would not be liable to pay compensation under Section 168(1) read with Section 2(30) of the Act. While making reference to Kailash Nath Kothari (1 supra) and Deepa Devi (3 supra), Supreme Court made following observations. It was held that as the vehicle was in possession of hire-purchaser and was being used by him, financier would not be liable to pay compensation under Section 168(1) read with Section 2(30) of the Act. While making reference to Kailash Nath Kothari (1 supra) and Deepa Devi (3 supra), Supreme Court made following observations. An application for the payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily, if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the vehicle, although may not have any ting to do with the use of vehicle at the time of accident actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorily insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role. 10. There is no dispute that though appellant insured the offending bus, it was on hire to APSRTC. There is also no dispute that the bus was put to schedule as per the trip sheet fixed by concerned APSRTC officials and the driver was under the control of hirer. In such a case, APSRTC alone would be liable to pay compensation. In that view of the matter, the appellant cannot be made jointly and severally liable to pay award sum. If so advised, first respondent may proceed against APSRTC and recover entire amount awarded. 11. The civil miscellaneous appeal, subject to above observations, is accordingly allowed. No costs.