Avadh Behari Rohatgi, J.
(1) The Facts. On 5-12-1961 at about 9.30 a.m. the respondent Kumari Lalita a girl of eight, was standing at the bus stand of Vinay Nagai Colony at Ring Road, New Delhi. She was waiting for the arrival of the bus to go to her school. All of a sudden a bus of appellant No. I, Delhi Transport Corporation (the Corporation), No. Dlp 705 driven by Suresh Chander, appellant No. 2 came and crushed her. Lalita received severe and lasting injuries. The accident was a disaster. She. was permanently disabled. She was crippled for life. The doctors gave evidence before the Motor Accidents Clamis Tribunal where she brought her claim for damages. They paid that she would never be a normal child again. She will never be able to walk. She will limp. She will not be able to bear children. She will have no control ever her bowel action. Her natural development has been retarded.
(2) On the question of negligence the tribunal was of the opinion that the driver was guilty of rash and negligent driving. But it found Lalita also guilty of contributory negligence to the extent of 20 percent. As regards comnensation the tribunal assessed damages at Rs. 15,000 but award- ed her only Rs. 12,000 because of her contributory negligence. This was the decision of the tribunal on 10th August, 1964.
(3) From the order of the tribunal the Corporation brought an appeal. Lalita filed cross-objections. A learned single judge (V. D. Misra, J. as he then was) by order dated July 21, 1972 increased the compensation from Rs. 12,000 to Rs. 50,000. He dismissed the appeal of the Corporation. He allowed the cross-objections of Lalita. From his order the Corporation has brought this lexers patent appeal Again Lalita has filed cross-objections claiming that the compensation be increased from Rs. 50,000 to Rs. 1 lakh. Contributory negligence of children.
(4) There has been a great deal of argument on the question of negligence before the tribunal and Misra J. The tribunal found Lalita Guilty of contributory negligence. Misra J. set aside that finding. He found that the accident was solely the result of negligence of the driver and there was no contribuory negligence on the part of the injured.
(5) Counsel for the Corporation again argued the question of negligence before us and tried to show that Lalita was equally to blame for the unfortunate accident. Now it is settled in England and India that a very young child, like this child of eight, cannot be guilty of contributory negligence. An older child may be; but it all depends on the circumstances. It will depend on the age and mental development of the child and other circumstances of the case. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precaution for his or her own safety, and then he or she is only to be found guilty it blame should be attached to him or her. A child has notthe road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy. Gouch vs. Thorne (1966) I Wlr 1387 (1) and A. R. Gandhi vs . A. K. Dewan, : AIR1979Guj14 , and R. Srinivasa vs. K. M. Parasivamurthy Air 1976 Karnataka 92 (3). A normal child of 7 or 8 is momentarily forgetful of the perils of crossing the road and no finding of contributory negligence can be made against it (Jones vs. Lawrence, (1969) 3 All E. R. 267) (4).
(6) Infants must, it seems, be treated as a category apart. In many cases infants have been held not guilty of contributory negligence where adults would, on similar facts, have been deemed to be contributorily negligent. The test is : What degree of care for his own safety can an infant of the particular age reasonably be expected to take The age of the child is a circumstance which must be considered in deciding whether it has been guilty of contributory negligence.
(7) In the case of a child of tender age, conduct on the part of such child contributing to an accident may not preclude it from recovering in full in circumstances in which similar conduct would preclude a grown up person from doing so. What is negligence in a grown up person is not necessarily negligence in a child. Negligence means want of ordinary care, and 'ordinary care must mean that degree of care which may reasonably be expected of a person in the plaintiff's situation,' (per Lord Denman in Lynch v, Nurdin (1841) 1 Q. B. 29, Pearson v. Coleman Bros. (1948) 2 K. B. 359 which in the case of a very young child would be nil.
(8) The child will be judged according to its own intelligence, experience and mental capacity so far as its ability to perceive the risk goes. Its perception of danger and judgment of speeds and distances have to be con sacred in each individual case Children are one of the most dangerous classes in society so far as causing motor accidents goes. Roads on which schools open are accident prone areas. There is no standard child. There is no standard of care required of children. The individual circumstances of each case have to be examined to determine the question of infant's liability to be guilty of contributory negligence. Regard must be had to its immaturity and tender age. Percention at risk. is the test.
(9) The conclusion from the cases seems to be that in considering whether a child has taken reasonable care for its own safety regard must be had to the age of the child, the circumstances of the case and the knowledge by the particular child of perils to which the defendant's negligence has exposed him. There is no age below which, as a matter of law, it can be said that child cannot be guilty of contributory negligence.
(10) On the evidence carefully analysed by Misra J. we agree that Lalita was riot to blame at all. She was not guilty of contributory negligence. In the face of rulings cited counsel for the Corporation conceded that he could not argue that the in lured was guilty of contributory negligence. We agree with Misra J. that the injured was not at fault atall.
(11) There remains the question of damage's. Counsel for the Corporation argued that the sum of Rs. 50,000 awarded by Misra J. was far too high and the court should reduce it. On behalf of Lalita, counsel said that the amount. was too low and ought to be raised to Rs. 1 lakh. What ought to be the reasonable compensation is the question that we have to decide.
(12) Immediately after the accident Lalita had to be removed to the hospital. She remained there till 12th June, 1962. For more than six months she was in hospital. Even afterwards she continued to go to the hospital. Fractures of right scapula, right humerus, right forearm, right femur and right leg were confirmed by X-ray. Dr. S. M. Tuli Orthopedic surgeon of Safdarjung Hospital, in his evidence said :
'IT is very doubtful if she would be ever a normal child. She has got permanent scarring of right upper limb and right lower limb. There is stiffness of right elbow, right forearm and right knee and right hip. She has got posthead injury (neurasthinia, that is, patient is uncoordinated and uncooperative in her activities. Without any reason the patient may start laughing, crying and give purposeless expressions). Besides, she has got prineal tear of third degree which would hinder her normal function as a mother. She is not able to walk at this time. She may take many years to walk and even when she walks, she would limp.'
(13) He further stated that she is permanently disabled and will always be dependent on attendants. Dr. Mrs. K. K. Sharma, gynaeocologist in the hospital, also gave evidence. She said that she doubted very much if Lalita would be a normal child ever and whether she would be able to have confinement through normal passages. She opined that her mental development has been retarded and she cannot even answer questions. She has no control over bowel action. She is a cripple. She cannot walk. 'This present condition is caused by the injuries', she said.
(14) On this evidence Misra J. summed up his conclusion in these words :
'THEmedical evidence shows that Kamari Lalita has become a cripple and she will never be in a position even to look after herself. She will always be in the need of an attendant. There is no possibility of her marriage. At the time of accident she was studying in second Class of Andhra Higher Secondary School in Rouse Avenue, New Delhi. The family circumstances. as deposed by her father, Shri N. R. Nippani (AW 8), show that she comes of a middle class family where the girls are reasonably educated and then go in for service.'
THENhe said :
'IN my opinion this amount of Rs. 15,000 is too low and is grossly inadequate. Kumari Lalita will require a constant attendant throughout her life. She will be in need of medicines and treatment because of the injuries received by her. There is no chance of her marriage or of her earning. She will not be able to maintain herself. Normally a person may be expected to live till the age of 65 years. but because of this accident her normal expectancy of life can be taken to have been reduced to 55 years. Thus, there is a period of 47 years which she has to pass in this condition. The compensation should be adequate to see her through this period.'
MISRAJ. awarded a lump sum of Rs. 50.000, as we have said.
(15) The respondent Lalita was brought before us. She is now a woman of 28 years. She is courageous. There was no self-pity in her eyes. She did not pull a long face. But she is now the wreck of a human being, suffering from extensive and irremediable injuries, which has made her totally dependant upon others. Opportunities to lead a full and normal life are now denied to her by her physical condition. At the age of eight everything that life held for her was taken away from her. She will always be tormented by the realisation of her helplessness. The expected span of life has been shortened. There is a general loss of the pleasure of living. It will be right to say that her loss of the amenities of a good and useful life is almost total. The question that now arises is that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness. Evaluation of happiness : A temporal good In Rose v. Ford 1937 Ac 826, Lord Roche said:
'Iregard impaired health and vitality not merely as a cause of pain and suffering but as the loss of a good thing in itself. In such a loss there is a loss of a temporal good, capable of evaluation in money through the evaluation is difficult.'
(16) A person is entitled to damages for the mental suffering caused by the knowledge that his or her life has been shortened or that his or her capacity for enjoying life has been curtailed through physical handicaps. A permanent cripple must experience distress because he or she is constantly dependent upon the care of other persons. The subject-matter of the claim is normal expectation of life and this is 'a thing of temporal value, so that its impairment is something for which damages can be given.' (Rose v. Ford (supra) at page 849 per Lord Wright). The loss of a measure of prospective happiness is the true head of damage in these cases. And there is a presumption in favor of happiness. (Salmon -torts 18th ed. page 541). Where a person suffers physical injuries of a nature to prevent him or her from living as full and complete a life as before, not in the matter of earning power, but in the matter of performing the functions and reaping the enjoyments of a normal life, substantial compensation must be awarded. (Rose v. Ford (supra) at page 859 per Lord Roche).
(17) These principles fully apply to Lalita. Money cannot renew a shattered human frame. But law must do as best as it canto compensate her for the multitude of deprivations and a diminution in the full pleasure of living. With frustration and handicap she must continue to live 'life's fitful fever' with its ups and downs.
(18) On account of the accident resulting in disfigurement and loss of limbs the prospect of marriage of this victim of misfortune has been greatly reduced. In the case of a female plaintiff serious injuries or disfigurement greatly reduce her prospect of marriage. This is a realand material loss, apart from the loss of amenities. Any injury which handicaps her in the marriage market represents a real pecuniary loss. 'The law must compensate her for the lost opportunity of marriage and the support of a husband.
(19) All human life is not continuously an enjoyable thing. The ups and downs of life. its pains and sorrows as well as its joys and pleasures all that makes up life's fitful fever' have to be allowed for in the estimate of comepensation. Benham v. Gambling; (1941) Ac 157 166.
(20) 'A man is not compensated for the physical injury : he is compensated for the loss which he suffers as a result of that injury' (Baker v. Willoughby (1970) Ac 467 per Lord Reid). Lalita's loss is not in having a stiff leg : it is in her inability to lead a full life her inability to enjoy those amenities which depend on freedom of movement. We think that a correct assessment of compensation in such a case can be reached by taking a comprehensive and unitary view of the damage caused by the original accident. Itemisation of the damages by dividing them into heads and sub-heads is often convenient, but is not essential (Baker v. Willoughby (supra) at page 496). The award which covers past, present and future injury and loss, must, under our law, be of a lump sum assessed at the conclusion of the legal process once for all. The award is final : it is not suspectible to review or revision as the future unfolds itself. In the end a lump sum award has to be made. This was the approach of Misra J. He awarded a lump sum of Rs. 50,000. We cannot say that he was entirely wrong in his comprehensive conclusion. Inflation
(21) Counsel for Lalita made a passionate appeal to us that seeing the severity of the injuries we should increase the amount of damages especially in view of the fact that there has been a steep fall in the purchasing power of money in recent years. He argued that on the ground of depreciation in the value of money the award of Misra 3. should be updated and brought in line with the current level of inflation.
'THISargument we cannot accept'.
(22) In our inflationary times the real value of damages is dependent upon the state of the currency. The nominal value of the award must increase as the value of the rupee decreases. There will be a tendency in times of inflation for awards to increase. Otherwise the amount awarded will be contemptible. If the requirement of the law is to be met, the sum awarded must be substantial in the context of current money values where the loss is substantial and the injury grievious. Increase for inflation is designed to preserve the 'real' value of money. (Pickett v. British Rail Engineering Ltd. (1979) (1) All E. R. 774 per Lord Wilberforce). The award should keep pace with the times. The award must be reasonable and should have a relation with the changing value of money. While it is important from the point of view of public policy that the general level of damages should he kept moderate rather than extravagent, a judge must keep up with the times and in particular with the decline in the purchasing power of money. (Bingham's Motor Claims Cases 8th ed. P. 482).
(23) It would be unrealistic to disregard the present fall in the value of money. Judges cannot shut their eyes to the world outside the courts. They do not forget that inflation affects the plaintiffs as it affects them. If judges do not adjust their awards to changing conditions and rising standards of living, their assessment of damages will be unreal and illusory. In England a radical reappraisal of the law has been recommended by suggesting periodic payments and periodic reviews in personal injury actions. This has been done to mitigate the injustice of the lump sum system. (See Pearson Report).
(24) It is true that 'compensation demanded say ten years ago, is less than quarter of its value when it is received today.' (Motor owners' Insurance Co. ltd. v. J. K. Modi, : 1SCR860 per Chandrachud CJ). But the factor of future inflation cannot be taken Into account in the assessment of damages. That will introduce speculation and uncertainty in the estimates. The awards will become more uncertain than before. Because of the imponderables no one can say what the future holds for us. The imponderables defy the forecasts of the economists. So future inflationary trends should not be admitted. 'It would thereforee be wrong for the court to increase the award of damage's by attempting to make further specific allowance for future inflation' (Cookson v. Koowles (1979) Ac 556. Only in exceptional cases would it be right to make some specific allowance for future inflation. In a recent case in England Lord Scarman has said :
'THEcorrect approach should be, thereforee, in the first place to assess damages without regard to the risk of future inflation. If it can be demon-started that upon the particular facts of a case, such an assessment would not resuit in a fair compensation (bearing in mind the investment opportunity that a lump sum award offers), some increase is permissible. But the victims of tort who receive a lump sum award are entitled to no better protection against inflation than others who have to rely on capital for their future support. To attempt such protection would be to put them into a privileged position at the expense of the tortfeasor, and so to impose upon him an excessive burden, which might go far beyond compensation for loss.'
(25) In the present case the accident happened on 6-12-1961. In 1964 the tribunal assessed the damages after examining the medical evidence and the nature of injuries. We have to keep these years 1961 and 1964 in mind while assessing damages. The principle of law is that damages must be assessed as at the date when the damages occurs. The material date for ascertaining the extent of liability is the date of the accrual of the cause of action for a claim arising out of the accident, which in general would be the date of the accident. (Padma Srinivasan v. Premier Insurance Co. Ltd. : 3SCR244 (14). tort losses are ordinarily assessed as of the time when the cause of action accrued, but in case of personal injuries the judgment date is justified for continuing iniuries (Philips v. Ward (1956) I All E. R. 874. The award must be made in the context of the time. The computation of loss has to be made in this case with reference to early sixties. For the loss of 1962 we cannot adopt the yardstick of 1982. This will be doing injustice to the tortfeasor. Damages must not be unreasonably deficient nor a windfall to the injured. The damages 'must necessarily fall to be estimated within a bricket in justice both to the sufferer and to the tortfeasor' Yorkshire Electricity Board v. Naylor (1968) Ac 529, Rs. 50,000 the learned judge thought was the right sum to award to Lalita 'to see her through' the rest of her life. Some element of conjecture or prophecy is inevitable in assessment of damages (M.P. State Road Transport Corporation vs. Sudhakar (1977) Acj 290. Unless we find that Misra J. has made an entirely erroneous estimate of damages we ought to to interfere with his award.
(26) Future inflation has to be disregarded for another good reason. As has been said by Lord Scarman in Lim's case (supra) that the victim of the injury is not entitled to more protection than any other economic group of society. He cannot enjoy a privileged position. As another judge has put it. 'In an inflationary period the plaintiffs cannot expect to find themselves in a class which is shielded from the effects of inflation which the rest of their fellow citizens battle with.' (Moriarity v. McCarthy (1978) (18) I Wlr 155, per O'Connor J.).
(27) The truth is that judicial awards of damages follow but rarely keep pace with inflation (Pickett (supra) at page 800). In this case Misra J. could not have gazed into the future and predicted that some day the value of rupee will go down to less than 25 paise. Knowledge of the future was denied to him as it is denied to all of us.
(28) If we remember that the years with which we are concerned are 1961 to 1964 we must come to the conclusion that the damages awarded are fair and reasonable compensation for the injury. Money cannot renew a physical frame that has been battered and shattered. All that the Courts can do is to award sums which must be regarded as giving reasonable compensation. (H. West & Sons Ltd. v. Shephard (1964) Ac 326.
(29) The object of damages is to compensate the plaintiff and not punish the defendant. Perfect justice is unattainable. 'Perfect compensation is hardly possible and would be unjust'. Only rough justice can be done by forming a rough and ready estimate. When the judge deals with the present he is living in a world of reality. When he has to perform the task of taking the future into account he moves at once in a world of unreal speculation. For example, how long will the plaintiff live (Cunnigham v. Harrison (1973) 3 All E. R. 463 per lawton LJ). The choice of the right order of figure of compensation is essentially empirical. There is so much room for individual choice. 'The assessment of damages is more like an exercise of discretion than an ordinary act of deci- sion.' (Davies v. Powell Duffryn Collieries Ltd. (1942) Ac 601 (616, 617) (21) per Lord Wright).
(30) The learned judge has taken all the relevant factors affecting this school girl into account. The starting point for his voyage of assessment was this. He classified Lalita as a 'total wreck' case because there was complete incapacity for work and virtually no enjoyment of life. Multiple inluries have left the victim a complete cripple, dependent in all respects on the nursing and care of others. For this he swarded a global sum of Rs. 50,000. He has not given us the components of the award. The reason is that Lalita's claim is essentially a claim for general damages for nonpecuniary loss, such as pain and suffering, past and future, and her loss of amenity and enjoyment of life, loss of expectation of life and loss of marriage prospect. Damages for cost of nursing care have also been taken into account. Loss of capacity total or partial, permanent or temporary to live the life that could otherwise have been lived is, apart from damages for pain and suffering, the fundamental loss for which general damages for personal injuries are awarded. It is from this loss that other losses stem.
(31) The assessment of damages was for a girl of eight. In the case of a child's future there is an uncertainty and no confident estimate of prospective happiness can be made. The court has to take into account the risks and uncertainties of childhood. The age of the sufferer is an important consideration. In the case of a young child 'neither present no future earnings could enter into the matter' (Pickett supra).
(32) The principle on which the court of appeal reviews the assessment of damages, whether too high or too low is not because the court of appeal might have given rather more or rather less, but only (1) if the judge has omitted some relevant consideration, or (2) if the amount is so excessive or insufficient, as to be plainly unreasonable (Greenfield v. London and North Eastern Rly. (1944) 2 All Er 438. In an appeal against the assessment of damages by a indge, the court of appeal acts upon the principle that it will not interfere unless the amount is 'so inordinately low or so inordinately high' as to be 'a wholly erroneous estimate of the damage suffered'. (Nance vs. British Columbia Electric Railway Co. 1951 Ac 601. In the present case we are not prepared to say that the award of Misra J. is on the high side or out of all proportion to the circumstances of the case. The award is fair. In our opinion the judge has awarded proper compensation for the injury suffered and the loss sustained.
(33) Counsel for the Corporation argued that since Lalita is being looked after by her mother compensation ought to be reduced. We do not agree. In the case of Lalita the main question is of future care. Today she is being helped by her mother. But that does not mean that she is not to be compensated for services rendered to her. A legal agreement between mother and daughter is not necessary to claim compensation. We cannot deduct what is described as the 'domestic element' from the cos.t of care. A wrong doer cannot take advantage of this 'domestic element.' If the mother renders service to her, instead of a nurse, it is right and fust that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison (Supra) at page 469). The services of a wife and mother are worth more than those of a house-keeper because she is in constant attendance and does many more things than a house-keeper. (Regan v. Williamson (1976) 2 All E. R. 241.
(34) We may helpfully refer to M. P. State Road Transport v. Sudhakar 1977 Acj (SC) page 290 as a guide to the range of damages current in 1961. For the death of I Sudhakar's wife, a woman of about 23 years, as a result of the accident which happened on .Tune 23, 1961, the Supreme Court confirmed the award of Rs. 15,000 made by the tribunal. It was held that in view of the uncertainties of life and the fact of accelerated payment the sum of Rs. 15,000 was a reasonable figure. That was a case of death. This is a case of permanent disability. 'Damages which would be proper for a disabling injury may well be much greater than for deprivation of life'. (Benham v. Gambling (supra) page 168). This is well recognised. Lalita's prospects of healthy and happy life have all been shattered. In those circumstances we are unable to say that the award of Rs. 50,000 is inordinately high.
(35) M.P. State Road Transport case has not been referred to as a precedent because the facts of that case were different. There is no doctrine of precedent in fixing The quantum of damages. The court does not look for precedents, but for a general guide to the current range of damages. It looks for assistance in a difficult problem, not for an inflexible pattern which would confine the courts within fixed limits. In general, too. it does not look at particular cases, but at the general level of recent assessments in cases which are fairly close to the case under consideration. It may happen, of course, that a certain case offers a particularly good illustration.
(36) It is true that each case has to be weighed upon its own individual merits, since no two cases are exactiv alike. But awards in comparable cases do enable the court to seek guidance, not by referring to a particular case and treating it as a precedent, but by looking at the general level of damages in the same type of case, or cases which offer some means of comparison by analogy. The notion of a 'ranks' of figures is important. The sum awarded to one plaintiff should not be out of all proportion to the sum awarded to another in respect of similar physical injuries. I It has been said that fairness between one plaintiff and another requires some degree of uniformitv. Thi's approach has received the anwoval of the House of Lords and the Privy Council. (H. West & Sons Ltd. (supra) (Munkmen Damages for Personal Injuries and Death (1980) S E158.
(37) There are some kinds of damage for which no true compensation can be given in this world by any amount of money, no matter how elaborate an arithmetical computation is employed. This is particularly so with claims for loss of expectation of life and pain and suffering, yet the courts are obliged to do the best they can. In such cases the plaintiff is entitled to fair and reasonable compensation, assessed in the light of previous awards in respect of comparable damages. (Salmond on torts 13th ed. (1961) page 736).
(38) In a case such as this, it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. Who can say what this girl of eight would have done with her life? She may have married and brought up a large family, but earned nothing herself. Or, she may have been a career woman, earning high wages. This is all speculative in the extreme. But one thing is clear. At all times damages must be assessed with a sense of proportion (Mallett vs. McMonagle (1969) 2 Wlr 767. They should not be inordinately high or inordinately low.
(39) The global sum awarded represents damages for all the plaintiff's loss past, present and future. In awarding damages two things have to be borne in mind : ( I ) Damages must be assessed on the basis that the total sum will be exhausted at the end of the period contemplated and that during that period the plaintiff will draw upon both the income from the investment of the sum awarded and upon the capital itself. (Taylor v. Connor (1971) Ac 115 That damages benefit the victim himself rather than his surviving relatives.
(40) Above all damages must be in tune with the times. If the inflation is low the awards will be low. If the inflation is high the awards are bound to be high. The awards are dependent upon the movement of money values.
(41) The accident in this case happened in 1961. The tribunal assessed damages in 1964. Misra J. decided the first appeal in 1972. We are deciding this appeal in 1982. In the intervening 20 years there has been a big drop in the value of money : and the rate of inflation has advanced in giant strides. Nevertheless, it is our duty to throw our minds back to 1964 and assess the damages as at that date. We must relive in the past. We must see with the eyes of early sixties when there was no such galloping inflation as we are battling with today. In a case of continuing injury damages should be assessed as on the date of the trial. No one should be encouraged to appeal by the idea that the court of appeal will take into account changes in values since the trial. The compensation would become altogether excessive if it were based on the expectation of future inflation. To keep it within bounds, it must be based on the value of money at the date of the trial. (Taylor v. Bristol Omnibus Co. Ltd. 1975 (1) Wlr 1054 per Lord Denning M. R.). In 1964 the value of money had not depreciated so much as in the seventies and eighties. There was no dramatic rise in inflation in 1964 as in the years between 1974 and 1982. When Misra J. decided the appeal in 1972 even then the value of money was much more than what it is today. We should, thereforee, disregard future inflation in the estimate of compensation in this case.
(42) On the question of negligence the tribunal was wrong in holding that Lalita was part author of her own injury and could not call on the Corporation to compensate her in full. We find that the driver of the Corpora- corporation was alone to blame. For his negligence the Corporation is vicariously liable in damages.
(43) On the whole case we are of opinion that the award of Misra J. was entirely fair. His estimate is not so inadequate as to call for revision. We are not inclined to upset his award. It is neither too high nor too low. Nor is it out of all proportion to the circumstances of the case.
(44) For these reasons the appeal and the cross-objections are dismissed with no order as to costs.