Shiv Dayal, J.

1. In a collision between the M. P. Speedways bus No. MPG 4307 and the Bhuta Bus Service passenger bus No. MPG 4615, Satyendra Nath Raha and Uma Shankar Shastri, both of whom were travelling in the former, were killed. The Speedways bus was going from Bhind to Gwalior. The Bhuta bus was running in the opposite direction The accident occurred on 10th April, 1962 at about 11 A.M. near village Bidkhedi on the Gwalior Bhind Road.

2. The dependents of Raha (Manjusri Raha and two others) lodged before the Claims Tribunal a Claim under Section 110-A of the Motor Vehicles Act, 1939, (hereinafter called the Act) for Rs. 3,00,000/-against Mrs. Manjula Devi Bhuta, the proprietor, Sushil Kumar, the driver, and Oriental Fire and General Insurance Co. Ltd. the insurer of the Bhuta bus and also against B. L. Gupta, the owner, Ram Swaroop, the driver, and the New India Assurance Co. Ltd., the insurer of the Speedways bus. The dependents of Shastri (Padmavati and others) likewise filed a claim of Rs. 1,20,000/- against the aforesaid proprietors drivers and insurers of the two buses. As both the claims arose from the same accident, they were tried together by Mr. D.B. Pawdey, 1st Additional District Judge, Gwalior as the Claims Tribunal constituted under Section 110 of the Act.

3. In its award, the Tribunal held (1) that the dependents of Raha were entitled to Rs. 60,000/- as compensation from all the six non-Applicants because it found that both the drivers were negligent, and (2) that the dependents of Shastri were entitled to Rs. 40,000/- as compensation from the proprietor, driver and the insurer of the Bhuta Bus, but not from the proprietor, driver, or insurer of the Speedways bus.

4. Aggrieved by the Award made by the Claims Tribunal on the application of the dependents of Raha, the proprietor and driver of the Bruita Bus, preferred this appeal (M. F. A. No. 219 of 1965), joining all other parties as Respondents. The insurer of the Bhuta bus (Oriental Fire & General Insurance Co. Ltd.), likewise, filed Misc. First Appeal No. 223 of 1965. So also the proprietor and the insurer of the Speedways bus filed Misc. First Appeal No. 03 of 1965 and 218 of 1965 respectively. Against the Award made by the Tribunal on the application of the dependents of Shastri, the proprietor and driver of the the Bhuta bus and also the insurer Oriental Fire & General Insurance Co. Ltd. filed appeals Nos. 220 of 1965 and 222 of 1965. respectively. It may be mentioned just now that the dependents of Shastri did not file either an appeal against the proprietor, driver or insurer of the Speedways bus, nor did they file any cross-objections, for enhancement of the amount of compensation. It is convenient to dispose of all these appeals by a common judgment.

5. Mr. Dubey strenuously contended that the application under Section 110-A of the Act, which was filed before the Tribunal by the dependents of Raha, was barred by time. The period of limitation prescribed under Sub-section (3) of that section is 60 days from the date of the occurrence of the accident. The accident occurred on 10th April, 1962. The application was made on the 19th June, 1962. On the 9th June and thereafter up to the 18th June, the civil Courts remained closed. They reopened on the 19th June, 1962 after the summer vacations. The argument for the Appellants is that since in the discharge of his functions as the Tribunal under the Motor Vehicles Act, the Additional District Judge is not a Court, it is of no consequence that the Court of the Additional District Judge remained closed during the period from the 9th to 18th June 1962. Civil Courts were closed from 7th May to 16th June, 1962 by virtue of a notification of the High Court under Section 21 of the Madhya Pradesh Civil Courts Act, 1958. The 17th June was Sunday and the 18th June was general holiday. The Claims Tribunal condoned the delay on the ground that the Applicants belief that they could present the petition on the reopening of the Court was a sufficient cause within the meaning of the proviso to Section 110-A of the Act. In that context, the Tribunal observed thus:

It is wrong to say that the Claims Tribunal functioned during the summer vacations. I, who preside over the Claims Tribunal, though on duty for some part of the vacations actually did not take up any work on behalf of the Claims Tribunal, because the work before it was that of civil nature, and the same was closed during the period of vacations. The fact that the Petitioner filed her claim personally on the first opening day of civil work after the vacations, coming from Calcutta, shows her bona fides and vigilance for her claim.

Mr. Dubeys contention is that except the provisions specified in Section 110-C of the Act, the Code of Civil Procedure is not applicable to these proceedings.

6. It is true that haying regard to the provisions contained in Section 110(3) of the Act, which enumerates the qualifications for appointment as a member of the Claims Tribunal as also the scheme of the relevant provisions of the Act, there can be no doubt that the Additional District Judge acted as a persona designata and not as a civil Court. However, we are clearly of the view that where a proceeding is of a civil nature, as distinguished from a criminal proceeding, it will be taken that the Tribunal does not function during the summer vacations and is closed, as in the case of a civil Court.

7. Civil Court holidays are determined under Section 21 of the Madhya Pradesh Civil Courts Act. Civil Courts work during fixed hours. When a civil Court is assigned the functions of a Tribunal under Section 110 of the Act, it discharges those functions necessarily during the Court hours and on working days only. It was not as if the learned Additional District Judge was doing exclusively the work of the Claims Tribunal.

8. In our view, where the functions of the Tribunal under Section 110 of the Act) are assigned to the presiding Officer of an ordinary civil Court, in the absence of any specific provision to the contrary, the rules of practice of his Court will apply and he will not function as a Tribunal on the days when his civil Court is closed. It follows that the Rahas application under Section 110-A of the act was within time, as it was filed on the 19th June, that is, on the reopening day after the long holidays.

9. We are further of the view that the Claims Tribunal was right in giving the Applicants benefit- of Section 110-A (3) of the Act in those circumstances. This was also done in Madhya Pradesh State Road Transport Corporation v. Munnabai and Ors. : 1967 A. C. J. 214: 1967 M. P. L. J. 963.

10. It is contended by Mr. Dubey, learned Counsel for the proprietor and driver of the Bhuta bus that there was no negligence on the part of the Bhuta bus driver, it is the Speedways bus which is wholly to be blamed and consequently the entire responsibility to pay compensation is of the latter. The accident occurred, around 11 A. M. near the 19th mile stone from Bhind towards Gwalior. The Speedways bus (No. 4307) which was carrying both the victims (Raha and Shastri) had left Bhind at about 10 A.M. The tarred road is about 11 feet wide and on its either side there is Kacha (unmetalled) pathway about 8 feet wide. There was a stump on the left extreme of the, Kacha (unmetalled) pathway which the Speedways bus had to avoid, and this it did. But no sooner it crossed the stump, there was a collision between the two vehicles. According to Sushil Kumar (D. W. 5) (driver of the Bhuta bus), the Speedways bus suddenly swerved towards it and this resulted in the collision. On the other hand, Ram Swaroop (D. W. 3) says that he was driving the Speedways bus as much on the left as was possible, but Bhuta bus was running on so much portion of the tarred road, coming with such a speed towards him that he had to swerve his own vehicle towards the left, as soon as he crossed the stump. But just then the Bhuta bus dashed against his bus. Each of the two drivers says that he was partly on the tarred road and partly on the Kacha pathway. Each of them charges the other with negligence. We have carefully gone through the entire evidence.

11. The tarred road is 11 feet wide. On either side of it is Kacha pathway about 8 feet wide. The width of each of the bus is 8 feet. Sushil Kumar says that the Speedways bus was running on half of the tarred road and half on the Kacha. This means that the Speedways bus had occupied 4 out of 8 feet of the Kacha and 4 out of 11 feet of the tarred road. On the Kacha side only 4 feet were left, but the circumference of the stump was 2 feet. Thus the Speedways bus was on the extreme left and if it had gone little more towards left it would have struck against the stump. For the Bhuta bus there was sufficient space (7 feet of the tarred road and 8 feet Kacha) to pass by the Speedways bus.

12. It is a most remarkable feature of this case that the right front portion of the Bhuta bus (MPG 4615) was damaged, per photograph Ex. D. A. 8, while there was no damage at all to the front portion (head light, mudguard, grille or radiator of the Speedways bus (MPG 4307) (see photograph Ex. D. A. 1). It is behind the seat of the driver of the Speedways bus that the impact took place resulting in serious damage to that side of the bus and consequent injuries to Raha and Shastri, who were occupying seats behind Ram Swaroops. This position allows no escape from the conclusion that it was the Bhuta bus which dashed against the Speedways bus, just when it was in the process of swerving towards its further left. Otherwise, there would have been a head-on collision and damage to the front portion of the Speedways bus was inevitable.

13. Bearing in mind this position it must be held that the Speedways bus was occupying about 4 feet portion of the tarred road and the remaining 7 feet was covered by the Bhuta bus. Sushil Kumar admits that he had seen from about four furlongs the Speedways bus coming from the opposite direction and its driver having taken it on the kacha. He further admits that more than half of the Speedways bus was on the kacha. He says that when he was still about half a furlong from the stump, he took his bus on the kacha. We do not believe Sushil Kumar when he latter on says that at the place of the accident all the four wheels of the Speedways bus were on the tarred road and that the right wheels of the Bhuta bus were occupying only 1 or 1 1/2 feet of the tarred road. Suffice to say that if it had been so, there would have been at least 2 feet margin in between the two buses. We believe Sushil Kumars earlier statement that the Speedways bus was running on four feet of the tarred road and four feet on kacha (unmetalled). Ram Swaroops statement is very much near it when he says that his bus was running only 3 feet on the tarred road and 5 feet on the kacha. In this position, Ram Swaroop would have avoided the stump. But if he wanted to leave more space for the purpose of safety, this was bound to be anticipated by Sushil Kumar. When the driver of a vehicle notices that there is an obstacle on the left of another vehicle coming from the opposite direction, he necessarily anticipates that the latter will swerve a little towards the right to escape from the hurdle. This is ordinary sense which every driver acquires. Sushil Kumar had not only seen the Speedways bus but had also noticed the stump. He was bound to anticipate that the Speedways bus would swerve a little towards the right and would then go back towards the left to resume its former direction. Sushil Kumar admits that he neither stopped his bus, nor slowed it down. It is obvious enough that he was reckless in not stopping his bus or lowering its speed so as to allow the Speedways bus to pass freely. This constituted negligence within the meaning of the law of torts. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing some thing which a prudent and reasonable man would not do. This definition was given in the leading case of Blyth v. Birmingham Waterworks Co (1856) 11 Ex. 781. The standard to determine whether a person had been guilty of negligence is the conduct of a prudent man in the particular circumstances, the amount of care, skill, diligence or the like, varying according to the particular case. The amount of care, or the like, required may thus vary to a greatest extent, while the standard itself, the care, skill or diligence of a careful, skilful or diligent man in the particular circumstances, remains the same. The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of risk. If the danger of doing injury to the person or property of another by pursuing a certain line of conduct is great, the individual who professes to pursue that particular course is bound to use great care in order to avoid the foreseeable harm. The more serious the consequences if care is not taken, the greater the degree of care which must be exercised. (See Clark and Lindsell on Torts. 12th Edition, at pp. 358 to 361, and 381 to 385, and Salmond on Torts, 13th Edition, pp. 303 to 306, 429 and 433).

14. Mr. Dubey relied on the following passage in Charlesworth on Negligence, 4th Edition pp. 515:

If one party by his negligence places another in a position of danger in which it is necessary for that other to act quickly in order to extricate himself, it is not contributory negligence if that other fails to act in a way which is shown on reflection to have been the best way out of the difficulty. As Lord Hail sham put it (Swadling v. Cooper (1931) A. C. 1 (9)): Mere failure to avoid the collision by taking some extra-ordinary precaution does not in itself constitute negligence; the Plaintiff has no right to complain if in the agony of collision the Defendant fails to take some step which might have prevented the collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.

In our opinion the present case falls within the above exception.

15. As regards the Speedways bus, Ram Swaroop admits that he had seen the stump from about 50 yards. He says that as soon as he crossed the stump, the collision occurred. He had seen the Bhuta bus from about 300 feet. He had also seen that the driver of that bus did not slow down nor stop it. He says that the Bhuta bus was running at a speed of about 40 miles an hour. He then admits that he did not slow down nor did he apply brakes even when he saw that the entire Bhuta bus was on the road. He further admits that when Bhuta bus was about 20 yards away from him, all its four wheels were on the tarred road. It is also his statement that the Bhuta bus driver persisted in driving at the same speed, but even then he did not apprehend any danger According to his statement, he thought that the Bhuta bus would be able to pass by. He admits that unless the Bhuta bus swerved towards its left, collision was inevitable. In cross-examination, he was pointedly asked whether he had considered the desirability of allowing both the buses to cross each other before he reached the stump, that is to say, by lowering down the speed or stopping the bus before hand. His answer was that there was no question of such consideration because he was on his left. In our opinion, Ram Swaroop was also undoubtedly negligent and was responsible for the collision. He had seen that the Bhuta bus was persistently running towards him at such a high speed as 40 miles an hour with all its four wheels on the tarred road, leaving for him hardly 3 feet portion of the tarred road. Because of stump, not more than 5 feet was available on the unmetalled road. Thus the total was hardly 8 feet, which coincided with, or was less than, the width of his vehicle. He still chose to rush through in the hope of getting clearance. The duty cast on a carrier of passengers to carry them safely, necessarily demanded the driver to slacken the speed and even stop it, if necessary. This is what a prudent and reasonable driver would have done. Even if the driver of the Bhuta bus was rash, it did not justify Ramswaroops recklessness. We think it would be a pity if Courts were to give any countenance to the view that the driver of a passenger bus, when approaching another in such circumstances does not slow down or stop, according as the situation demands, and still not share the blame for any collision that may happen. The conclusion is that Ram Swaroop was also to blame and he substantially caused, or contributed towards the accident.

16. Where drivers of two buses persist. in driving on the metalled road each declining to make room for the other to pass by, both must be held liable (see the principle of Hills v. Armostrong (1888) 13 A.C.1 and Krishnaswami v. Narayanan I.L.R. 1939 Mad 306: A.I.R. 1939 Mad 261, [LQ/MadHC/1938/330] Lord Utha Watt pointed out in London Passenger Transport Board v. Upson 1949 A. C. 155 (173):

A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take.

17. In the present case, it is in evidence that the Speedways bus was running behind the schedule. But that could not justify his taking such risk as he did. In Daly v. Liverpool Corporation (19391 2 All. E. R. 142, it was held that an omnibus driver was negligent in driving as he did, although it would have been impossible for him to have fulfilled his duty of keeping to a reasonable time schedule had he driven more slowly. In Jamnagat Motor Transport Union v. Gokuldas Pitambars L.Rs. : 1966 A. C. J. 42. two buses grazed each other while crossing at a point where the road was narrow (19 feet). But it was straight over long stretches from the place of accident in both directions. Both the buses kept to the extreme left. The maximum breadth of each bus was a little over 8 feet. The Supreme Court held that if each of these buses was running at a speed at which it could be properly kept under control, no collision could have occurred. Their Lordships found it difficult to say that only the driver of one of the buses was negligent while that of the other was not and concluded that the drivers of both the buses were negligent. We may add that the criterion is not merely that the vehicle was on its left side. The test is whether the accident could have been averted if the driver had exercised that care and diligence which ordinarily cautious persons, put in similar circumstances, would have done. Lord Wright, in Hay (or Bourhill) v. Young (1943) A. C. 92 (107): (1942) 2 All E. R. 396, laid down thus:

This general concept of reasonable foresight as the criterion of negligence or breach of duty (strict or otherwise) may be criticised as too vague, but negligence is a fluid principle, which has to be applied to the most diverse conditions and problems of human life. It is a concrete, not an abstract, idea. It has to be fitted to the facts of the particular case.

Lord Macmillan expressed himself in Glasgow Corporation v. Muir (1943) A.C. 448 (457) as follows:

The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen.

The result of the above discussion is that the drivers of both the buses were negligent.

18. Mr. Dubey relied on Brij Mohan Sahni v. Mohinder Kumar : 1966 A. C. J. 83 in support of the proposition that the doctrine of "last opportunity" is obsolete. But, in our opinion, that case does not help the Appellants.

19. This also disposes of Mr. Tankhas contention that the entire responsibility of this accident lies with the Bhuta bus.

20. We would now deal with the question of compensation. Although the assessment of compensation in case of death due to a motor accident is often difficult and complicated, it is at least a task which can be approached upon a logical basis. Indeed, compensation can be determined arithmetically with a high degree of accuracy only where the Tribunal knows with certainty all the relevant, factors, far instance, where the widow remarries within a short time of the deceased husbands death. In such a case her loss during the period of her widowhood can be assessed accurately by simple arithmetic (see Mead v. Clarks Chapman and Co. Ltd. (1956) 1 W.L.R. 76 C. A.: (1956) 1 All E. R. 44 in all, except the simplest claim, there are so many uncertain and imponderable factors that an accurate arithmetical approach is quite impossible. In Austin v. London Transport Executive 1951 C.A. No. 293, (Kemp and Kemp, the Quantum of Damages vol. II p. 69), Birkett L.J. referred to this problem thus:

Some of the matters that the learned Judge is asked to take into account seem beyond the wit or wisdom of men to take into account in any sure or certain way. For example, how are you to take into account the prospects of marriage What is the learned Judge to do Whatever wisdom he may have, he cannot lift the veil of the future, and see among the seeds of time which will grow and which will not. He cannot do that. He can only do the best he can.

In Gobald Motor Service v. Veluswami : A.I.R. 1962 S. C. 1 (6), Mr. Justice Subba Rao, speaking for the Court, laid down as follows:

It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the Respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained.

21. In estimating the amount of compensation, regard has to be had to several factors, such as (1) income of the deceased; (2) estimate of his; own personal expenses; (3) the number of years for which he would have continued to earn; and (4) deductions to be made for any pecuniary benefit derived by the dependent in consequence of the death of the deceased. In Davies v. Powell Duffryn Associated Collieries Ltd (1942) A.C. 601 (617): (1942) 1 All E.R. 657 (665)., Lord Wright observed as follows:

It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities.

And as observed in Krishnaswami v. Narayanan I.L.R. 1939 Mad 306: A.I.R. 1939 Mad 261 [LQ/MadHC/1938/330] .

assessment of damages in a case of this kind must necessarily be only rough and approximate.

22. The Tribunal has awarded Rs. 40,000/- to the dependents of Shastri and Rs. 60,000/- to the dependents of Raha. The Tribunal has found that Shastri was drawing Rs. 300/- per month and he died within a year of his appointment and after about four months of his marriage with Mrs. Padmavati, who, at the time of the accident, was about 15 years of age. Allowing half of his salary for his personal expenses, the loss to his dependents was assessed at Rs. 150/- per month or Rs. 1800/- per annum, and the expectation of life was estimated as upto 55 years. 5,500/- was deducted on account of life insurance policy. It is faintly contended by Mr. Dubey and Mr. Tankha that the amount awarded by the Tribunal is excessive.

23. Raha was officiating as Assistant Accounts Officer in the Accountant Generals Office, Gwalior. He was drawing Rs. 620/-per month at the time of the accident. He was in the scale of Rs. 590-30-830-35-900. He was about 37 years of age on the date of accident. In this case also, the Tribunal made allowances, for half of his salary for his personal expenses, and on the basis of Rs. 310/- per month fixing the expectation of life upto 55 years, the amount of compensation was assessed at Rs. 66,960/-. Rs. 2,000/- was deducted on account of life insurance policy. It was also taken into account that the amount would be received by the dependents in a lump sum which would have been spread over a period of 18 years, if the deceased had lived.

24. Mr. Dubeys contention is that Raha was only officiating as Assistant Accounts Officer. His substantive post was that of a Superintendent (confirmed). The grade of Superintendent was Rs. 270-757. We are not impressed by this argument. The age of retirement has been raised to 58 years. Calculating at the rate of 575/2 x 12 X 21, it comes to Rs. 63,504/- and if Rs. 2,000/- is deducted on account of life insurance policy, then also the figure does not come below Rs. 60,009/-. Neither Mr. Dubey, nor Mr. Tankha could tell us anything to warrant any reduction in the amount of compensation awarded by the Tribunal.

25. It is an argument advanced by Mr. Dubey that the possibility of an earlier retirement could not be ruled out. In our opinion, there is no substance in this contention. If that possibility is to be taken into account, the other possibility that he would have been promoted to a higher post will also have to be taken into consideration.

26. Bearing in mind the principles in Krishnaswami v. Narayanan I. L. R. 1939 Mad 306: A. I. R. 1939 Mad 261, [LQ/MadHC/1938/330] we are not prepared to say that the amount awarded by the Tribunal is so excessive that it can be described as arbitrary or whimsical.

27. The Rahas have preferred cross-objections under Order 41, Rule 22, Civil Procedure Code. Mr. Tankha for the proprietor of the Speedways bus contends that the cross-objections are not tenable because these appeals are not under the Code of Civil Procedure. We are of the opinion that as soon as this Court becomes seized of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of this Court applicable to a civil appeal will, in the absence of any specific rule to the contrary govern such appeal. Secretary of State for India v. Chelikani Rama Rao A.I. R. 1916 P. C. 21: 43 I. A. 192 was a case where an appeal lay to the District Court under the Madras Forest Act (V of 1882). The Privy Council observed thus:

What happened in the present case was that the claim was rejected. An appeal by the Respondents was thereupon made to the District Court, and a decision was pronounced. It was contended on behalf of the Appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders and decrees the ordinary rules of the Code of Civil Procedure apply.

These observations were relied on by the Supreme Court in N.S. Thread Co. v. James Chadwick and Bros : A.I.R. 1953 S.C. 357: (1953) S.C.R 1028. In that case, an appeal was preferred to the High Court of Bombay under Section 76 of Trade Marks Act. The question was whether a further appeal lay to the High Court under its Letters Patent. The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of such an appeal in the High Court. Their Lord. ships laid down thus:

Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that court.

28. Mr. Tankha relied on Rule 14 of the Madhya Pradesh Motor Accidents Claims Tribunal Rules, 1958 1959 M.P.L.J. 55 (Journal Section). That rule makes certain other provisions of the Code of Civil Procedure applicable to proceedings before the Claims Tribunal. But the very language of that rule shows that it is not exhaustive and it does not contain anything which is contrary to the rules of practice and procedure, which generally govern a civil appeal in this Court.

29. Mr. Dey claims enhancement of compensation by Rs. 90,000/-. We have already stated the factors which are to be taken into account in assessment of compensation. Mr. Dey made a sentimental appeal to us that Mrs. Manjusri Raha, widow of the deceased Raha, was only 26 years of age, her daughter only 7 years and her son only 1} years of age, at the time of the accident. They were for ever deprived of the protection of the deceased. Although the loss is irreparable, in awarding compensation these considerations have to be ignored. The law is quite clear that the measure of damage is the pecuniary loss which has been suffered and is likely to be suffered by each dependent and nothing can be given by way of solarium. Lord Wright said in Davies v. Powell Duffryn Associated Collieries Ltd (1942) A.C. 601 (617).

There is no question here of what may be called sentimental damage, bereavement or pain and suffering.

30. We have already given in detail the facts and figures on which the amount of compensation awarded by the Tribunal is based. Nothing has been shown to us by Mr. Dey, which would persuade us to enhance the compensation by Rs. 90,000/-or any other amount. Thus, there is no substance in the cross-objections.

31. It is contended by Mr. Dubey that just because both the persons, who were killed in the accident were travelling in the Speedways bus, the entire liability to pay compensation lies with the proprietor and insurer of that bus. In our opinion there is no substance in this contention, as there is no v/arrant in law to support it. Whether the insurer of a passenger bus is liable for compensation awarded to the dependents of a passenger who was killed in the accident, even if there was no negligence on the part of the bus driver, is altogether a different question. But merely because of such liability, the proprietor and the insurer of the other bus, which, by the negligence of the driver, collided against the former, are not exonerated.

32. Mr. Dubey alternatively urges that the Tribunal was in error when it held that in respect of the amount of compensation awarded to the dependents of Shastri, the proprietor, driver and insurer of the Bhuta bus alone were exclusively liable. In our opinion, this contention must be accepted. The only ground on which the Tribunal exonerated the Speedways bus from the liability is that negligence on the part of Ram Swaroop driver was not alleged in the application under Section 110-A of the Act, filed by Mrs. Padmavati and others. It is true that Ram Swaroops negligence was not specifically pleaded by the dependents of Shastri, yet the following circumstances are significant: (1) In the claim application of Mrs. Raha and others, compensation was claimed from the proprietors of both the buses and their insurers jointly and severally and all of them were joined as non-Applicants. (2) In that application, Ram Swaroops negligence was specifically pleaded (3) Both the applications were tried together. (4) Both the cases have arisen from the same accident and it was found in case No. 6 of 1962 (filed by the Rahas) that both the drivers were negligent and all the non-Petitioners were held liable. In Bhagwati v. Chandra Maul : A.I.R. 1966 S.C. 735 (738) the rule laid down is:

If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.

* * * * * * * * * *

What the Court has to consider in dealing with such an objection is, did the parties know that the matter in question was involved in the trial; and did they lead evidence about it.

In this case the question must be answered in the affirmative. We hold that as regards the compensation for the death of Shastri also, the proprietor, driver and the insurer of the Speedways bus are, liable. Moreover, it is the right of the Appellants (proprietor and driver of the Bhuta bus) that the liability of the proprietor, driver and insurer of the Speedways bus be also declared so far as the liability to pay compensation to the dependents of Shastri is concerned.

33. Here, it must be mentioned that although the dependents of Shastri had claimed the amount of compensation against the proprietors, etc. of both the buses jointly and severally, they did not prefer appeal nor did they file any cross-objections in this Court. However, Mr. Dabir, their learned Counsel made an application invoking powers of this Court under Order 41, Rule 33, Code of Civil Procedure. Mr. Tankha opposed the application on the ground that the Code of Civil Procedure is not applicable, as this is not an appeal under Section 96, Code of Civil Procedure. We have already dealt with this point and desire to add that Rule 33 of Order 41, Code of Civil Procedure is enacted under the heading "Judgment in appeal". In the absence of any other rule to the contrary, Rules 30 to 34 necessarily apply to a judgment of this Court in appeal under Section 110-D of the Motor Vehicles Act 1939. Rule 30 lays down when and where the judgment is to be pronounced, Rule 31 is about contents, date and signature of the judgment, Rule 32 provides for what the judgment may direct; and Rule 33 enacts the power of the appellate court to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the Respondents or parties. Although such Respondents or parties may not have filed any appeal or objection. This rule is not confined to any particular class of cases and the appellate Court has extensive jurisdiction to interfere in favour of the non-appealing parties in order to do substantial justice. The range and sweep of the discretion under this Rule is very wide. It enables the appellate Court to use it in any proper case so as to prevent justice being defeated, even in favour of a party who has not appealed or filed cross-objections. (See Hari Shankar Pal v. Anath Nath Mitter 1949 F. C. R. 36). This rule gives the appellate Court fullest power to give complete justice between the parties even where an appeal does not extend to the whole of the decree and although some of the parties appealed and others did not. The appellate Court has ample power to pass such order as may be necessary for the end" of justice and when so doing a party who has not appealed may be benefitted by the order. Weighty observations were made by their Lordships in Panna Lal v. State of Bombay : A. I. R. 1963 S. C. 1516 (1519).

Even a bare reading of Order 41, Rule 33 is sufficient to convince any one that the wide wording was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the Appellant and the Respondents but also as between a Respondent and a Respondent. It empowers the appellate Court not only to give or refuse relief to the Appellant by allowing or dismissing the appeal but also to give such other relief to any of the Respondents as "the case may require.

The caution which has to be observed in exercising such power has been stated in Nirmala Bala v. Balai Chand : A. I. R. 1965 S. C. 1874, that is, the rule must be applied with discretion and it must be borne in mind that no unrestricted right is conferred upon it to reopen decrees which have become final. But their Lordships have made it clear that if an appellate Court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the Appellant it is found necessary to grant relief to a person who has not appealed, the power under Order 41, Rule 33, Code of Civil Procedure may properly be invoked. This pronouncement of the Supreme Court is apposite to the present case. For reasons already stated, we must hold that the dependents of Shastri are entitled to recover the amount of compensation from the proprietor, driver and insurer of the Speedways bus as well.

34. This brings us to the question of the extent of the liability of the insurer under Section 96 of the Motor Vehicles Act. Mr. Naiks contention is that the Tribunal has erred in holding the insurance company liable to pay the entire amount of compensation as awarded both to the dependents of Raha and the dependents of Shastri. Stress is laid by the learned Counsel on Sub-section (1) of Section 96. The argument is that as the insurance was not for any specified sum so far as third party risks were concerned, the minimum as well as the maximum liability will be determined by Section 95 of the Act. Mr. Verma associates himself with Mr. Naik in this contention. His argument is that the New India Insurance Co. Ltd. is not liable to pay more than Rs. 2000/- in case the liability of the Speedways bus is restricted to the claim of the Rahas, and Rs. 4,000/- if the Speedways bus. is liable to pay to the dependents of both the deceased persons.

35. Mr. Dubeys reply is that by virtue of Section 96(4) of the Act, both the insurers are liable to pay jointly and severally the entire amount of compensation as awarded to the dependents of Raha and to the dependents of Shastri, and it is for the insurers to take recourse to the remedy under Section 96(4), if according to them, the amount of compensation to be thus paid under the award exceeds the limit of their liability. Mr. Tankha, Mr. Dey and Mr. Dabir have supported Mr. Dubey on this point.

36. Under Section 110-B of the Act, the amount payable by the insurer has to be specified. From the scheme of the Act, it is quite clear to us that the only substantive provision in Section 96 of the Act, under which the insurer is bound to pay to the claimant, is contained in Sub-section (1). It casts a duty on the insurer to satisfy a judgment against the insured in respect of third party risks. The section enables a third party to recover the amount of compensation awarded to it from the insurer notwithstanding that there is no privity of contract between the third party and the insurer. The liability of the insurer is statutory. It has to pay the amount decreed to the person entitled to the benefit of the decree and this liability exists notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy. However, the limit of the liability is also specified in the same Sub-section in these words:

...the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor in respect of the liability....

There are two phrases in the expression just now quoted, which require attention and on which much, argument was addressed. On a plain reading of the section it becomes at once clear that the liability of the insurer does not exceed the sum assured which is payble under the policy. What is the meaning of "sum assured The sum assured may be specified in the policy, or it may not be so specified. In the latter case, the policy would be deemed to be one under Section 95(2) of the Act that is to say in the case of a big passenger bus, the liability is: (1) in respect of persons other than passengers carried for hire or reward, a limit of Rs. 20,000/-; (2) in respect of passengers, a limit of Rs. 20,000/-in all, and (3) in respect of an individual passenger, a limit of Rs. 2,000/-. Thus, where in the policy, so far as third party risks are concerned, the sum assured is not specified or, if specified, it is less than the above sums, the statute comes in. Section 95 (2) fixed both the minimum amount for which the insurance shall be deemed to be effected, as well as the maximum liability for payment. But, where the sum assured is specified in the policy and it exceeds Rs. 20,000/- or other sum of maximum liability fixed under Section 95(2) the insurer is liable to pay under Section 96(1) such specified sum assured and, in that case, Section 95(2) is out of the picture.

37. On this interpretation in the former case, even though the amount of compensation awarded exceeds the limit prescribed under Section 95(2), the insurer is not liable to pay anything more than Rs. 20,000/- in respect of persons other than passengers, and not more than Rs. 2,000/-per individual passenger subject to a limit of Rs. 20,000/- in all.

38. At the first sight, Sub-section (4) of Section 96, presents same difficulty. That Sub-section runs thus:

If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.

It is true that this Sub-section gives a right to the insurer to recover from the person insured, if it becomes liable to pay any sum exceeding the sum assured. But the question is, does this section also fix the liability of the insurer to pay an amount in excess of the sum assured Perhaps that meaning would have been implicit, if the words "liable under this section to pay" were not there. That expression refers to the substantive provision in Section 96 itself under which the insurer is liable to pay and that substantive provision is contained in the first Sub-section of Section 96 alone. Therefore, when Mr. Dubey asks us to apply Sub-section (4), we have necessarily to go back to Sub-section (1) and there the limit of the liability is fixed by the words "sum not exceeding the sum assured payable under the policy." On a careful scrutiny of this provision, it seems to us that Sub-section (4) is not a provision which fixes liability of the insurer to pay an amount but it is a provision which confers a right on the insurer to recover an amount.

39. A question arises that if the insurer is not liable to pay any sum exceeding the sum assured, is Sub-section (4) otiose The following illustration will afford an answer. Suppose in the case of an Act policy, there is a specific contract between the insurer and the insured that the latter will be liable for the first Rs. 5,000/- out of the amount of compensation to be paid in excess of the amount. In such a case under Section 96(1) in spite of such contract, the sum payable under the policy within the meaning of Section 96(1), shall be the sum as prescribed in Section 95(2), that is, Rs. 20,000/- etc., because that is the sum payable under the policy. Under Sub-section (3) of Section 96, "so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions...shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95, be of no effect". If in an accident, Rs. 6,000/- are awarded to three individual passengers, the insurer will be liable to pay that amount under Section 96(1), but will be entitled to recover Rs. 5,000/- from the insured under Section 96(4) because apart from the provisions of Section 96, the insurer would have been liable to pay only Rs. 1.000/-.

40. Mr. Dey strongly relied on New Asiatic Insurance Co. v. Pessumal : A. I. R. 1964 S. C. 1736, which lays down that where the insurer has been served with a notice under Section 96(2) of the Act, he has to satisfy any decree which a person receiving injuries from the use of the vehicle insured obtains against any person insured by the policy. The company, by agreeing with the person who affects the policy, to insure him against liability to third parties, takes upon itself the entire liability of the person effecting the insurance". Emphasis has been laid on the expression "entire liability". But it is quite clear to us that the above dictum really applies where the vehicle is not of a class covered by Clause (a) or Clause (b) of Section 95(2) of the Act, but by Clause (c) under which the liability extends to the amount of liability incurred, and there is no such limit prescribed as are prescribed in Clauses (a) and (b).

41. Mr. Deys contention cannot be accepted without doing violence to the language of Section 96, and either the words not exceeding the sum assured payable thereunder" in Sub-section (1), or the words "under this section" in Sub-section (4) of Section 96 have to be ignored. But this is not permissible under the cannons of interpretation of statutes.

42. The result of the above discussion is that, in our judgment, the limit of liability of an insurer in respect of third party risks is prescribed in Section 96(1) of the Act, so that (a) where the sum assured is not specified, or the specified sum is less than the sum payable under Section 95(2) of the Act, the maximum liability will be that as laid down in Section 95(2); and (b) if the sum specified in. the policy as payable thereunder exceeds the sum payable under Section 95(2), the maximum liability shall be the sum specified in the policy. Sub-section (4) of Section 96 does not deal with the liability of the insurer but it confers a right upon the insurer to recover an amount from the insured.

43. Applying this conclusion to the present case, it must be held that since Raha and Shastri were both passengers of the Speedways bus, the New India Assurance Co. Ltd. is liable to pay Rs. 2,000/- in respect of each of them and the Oriental Fire & General Ins. Co. Ltd. is liable to pay Rs. 20,000/- in respect of both. How the amount payable by the Oriental Fire & Gen. Ins. Co. is to be apportioned between the dependants of Raha and those of Shastri will be considered by us when we deal with the question of apportionment.

44. Mr. Tankha urged that the liability of the insurer of the Speedways bus (New India Assurance Co. Ltd.) would be Rs. 24,1)00/-. It is argued that under Section 95(2)(b) the liability to pay Rs. 2,000/- in respect of an individual passenger is in addition to the limit of Rs. 20,000/-. We do not accept this contention because the words "in all" in the expression "in respect of passengers a limit of Rs. 20,000/- in all" make the whole thing clear beyond doubt. The same view was taken by a Full Bench of the Punjab High Court in Northern India Transporters Insurance Co. Ltd. v. Antra Wati. A.I.R. 1966 P&H 288: : 1966 A.C.J. 13

45. An argument advanced by Mr. Dey and and Mr. Dabir remains to be considered. Learned Counsel contended that the insurer has no right of appeal except on a ground contained in Section 96(2). In our opinion, that contention must be rejected. It is, true that the only defences open to an insurer are those enumerated in Section 96(2) and it is also true that if any of those grounds is taken before the Tribunal and the insurer is aggrieved by its decision on it, it has a right of appeal. But where the Tribunal, by virtue of Section 110-B of the Act specifies an amount which shall be paid by the insurer and the insurer has a grievance against it on the ground that it exceeds its liability under the law, he is certainly a person aggrieved within the meaning of Section 110-D and has a right of appeal. The insurer certainly cannot in the appeal, question the correctness of the finding of the Tribunal as to the manner in which the accident happened, or its estimate of compensation awarded, or the liability of the insurer. But it can certainly challenge the correctness of the award, if it is in contravention of Section 96(1) of the Act. This is not to transgress the limits of Section 96(2). The decisions in British India General Insurance Co. Ltd. v. Itbar Singh : A.I.R. 1959 S C. 1331; Motor and General Insurance Co. Ltd. v. Hota Ram : A.I.R. 1961 P&H 190; and Premier Life & General Insurance Co. Ltd. v. H. Krishna A.I.R. 1962 Mys 171 do not take a contrary view and do not help Mr. Dey and Mr. Dabir in their contention.

46. We would now advert to the contest between Mr. Dubey and Mr. Tankha as to apportionment of the amount of compensation. They blame each other for a higher degree of negligence. Mr. Dubey argued that even if the driver of the Bhuta bus was negligent his responsibility should be fixed at not more than l/3rd. Mr. Tankha maintains that the apportionment should be just the reverse, that is to say, the responsibility should be apportioned as 2/Jrd to the Bhuta bus and l/3rd to the Speedways bus. When both the learned Counsel relied on State of Punjab v. Phool Kumari : A.I.R. 1963 P&H 125 and Lang v. London Transport Executive (1959) 3 All E. R. 609, it became evident that they drew inspiration from those cases in constructing their rival contentions. In the State of Punjab v. Phool Kumari : A.I.R. 1963 P&H 125 a collision occurred in Chandigarh between an omnibus and a truck. The bus started from the High Court and after picking up passengers including the deceased, had just completed the last stretch of its route in sector 16, when at the intersection of the roads leading to Sector 23 and the University, it got struck by a truck coming at a fast speed from the side of the University. Both the drivers of the bus and the truck blamed each other for the accident. The Tribunal apportioned the blame to both the drivers and fixed their liability at two thirds and one third respectively. The High Court came to the conclusion that the truck struck the omnibus, when it was being driven at a considerable speed. As the truck driver was on the main road, his responsibility for the accident was held to be somewhat less. It was then observed--

The authority of Lang v. London Transport Executive (1959) 3 All E. R. 609 relied upon by the Tribunal, has been rightly applied in apportioning the liability.

After discussing the facts and conclusion of that case his Lordship of the Punjab High Court held--

Whereby the fault of two or more persons damage is caused, the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. The apportionment made by the Tribunal, in my opinion, appears to be reasonable and I have no reason to differ from this conclusion.

With utmost respect, we are unable to concur in this view. There is a clear distinction between contributory negligence and, what has been termed by Pollock as composite negligence.

47. The facts of Lang v. London Transport Executive (1959) 3 All E. R. 609 were these: Lang, while driving a solo motor-cycle, emerged from a minor side road on to a major road and collided, at the junction of the two roads, with an omnibus which was travelling along the major road. He was killed. It is not necessary to give the details of the warning signals on the two roads. On an appreciation of the facts and circumstances of- the case, it was held by the Queens Bench Division that the possibility of danger was reasonably apparent and the bus driver was negligent in not taking the precaution of looking at the traffic in the side road as he approached it to see whether Lang was still moving at twenty miles an hour and obviously intending to cross the major road. At the same time, it was held that Lang was much more responsible for the accident than the bus driver. In the result, the responsibility was apportioned as two thirds to Lang and one third to the Defendants.

48. It will be clearly seen that that case was one where the principle of contributory negligence was applied. That expression, although too firmly established to be disregarded, is apt to be misleading, unless properly understood. "It applies solely to the conduct of a Plaintiff. It means that there has been an act or omission on the part of the Plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning". (See Charlesworth on Negligence, 3rd Edition, para 828). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But, in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.

49 Where a person is injured without any negligence on his part but as a result of | the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as "injury by composite negligence". (Torts, 15th Edition, p. 361). If due to negligence of A and B, Z has been injured, A cannot avail himself as against Z of the so called contributory negligence of B and say: "It is true you were injured by my negligence, but it would not have happened if B had not been negligent also". What is open to A to answer to Z is: "You were not injured by my negligence at all, but only and wholly by Bs". If the conclusion arrived at is that Z was injured as a result of the negligence on the part of both A and B, Z can sue both A and B. The statement of law is in these words (see Pollock on Tort, page 362):

Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons though in any case he cannot recover in the whole more than his whole damage.

We will follow and apply this rule to the present case. Pollock has further remarked:

The phrase Contributory negligence of a third person which has sometimes been used, must therefore be rejected as misleading

50. Section 110-B of the Motor Vehicles Act. 1939 enjoins the Claims Tribunal to make an award: (1) determining the amount of compensation which appears to it to be just; (2) specifying the person or persons to whom compensation shall be paid ; and (3) specifying the amount which shall be paid by the insurer. In our view where, as a result of collision between two motor vehicles, a person, other than their driver, is injured the Tribunal will not fix contribution as between persons liable (apart from specifying the liability of the insurer). We do not find any reasoning in the State of Punjab v. Phool Kumari : A.I.R. 1963 P&H 125 except for the application of Lang v. London Transport Executive 1959) 3 All E.R. 609. We respectfully concur in the concluding remark of Mr. Justice Varada chariar speaking for himself and Mr. Justice Abdul Rahman in Krishnaswami v. Narayanan I.L.R. 1939 Mad 306: A.I.R. 1939 Mad 261 [LQ/MadHC/1938/330] :

We are not prepared to do anything which will affect the Plaintiffs right to recover the full amount of damages from either of the Defendants.

51. However, as regards the insurer of the Bhuta bus, its liability has, in a case like this, to be apportioned between the two victims to whom it has to pay Rs. 20,000/-in all, as its maximum statutory liability. In the circumstances of the case, it will only be just and proper that the Oriental Fire & Genl. Insurance Co. Ltd. pays Rs. 20,000/-in all to the dependants of Shastri and to those of Raha in proportion to the compensation allowed to them.

52. The New India Assurance Co. Ltd. (Appellant in M.F.A. No. 218 of 1965) in its memorandum of appeal, though not at the hearing, attacked the findings of fact reached by the Tribunal, contending that the driver of the Speedways bus was neither rash nor negligent and that it was Bhuta bus which was rash and negligent, and further contended that the assessment of the amount of compensation at Rs. 60,000/- was erroneous. So also the appeal filed by the Oriental Fire & Gen. Insurance Co. Ltd. raises those contentions and that the driver of the Speedways bus was negligent. Suffice to say that these grounds were not open to the insurers in view of the undoubted language of Section 96(2) and the decision in British India General Insurance Co. v. Itbar Singh : A.I.R. 1959 S.C. 1331. Although neither Mr. Naik, nor Mr. Verma pressed these grounds, yet, as they were raised in the memorandum of appeals, both the insurer Appellants are disentitled to costs.

53. All the parties in all the appeals have partly succeeded and partly not. In our opinion all the parties should be left to bear their own costs.

54. The result is: (i) this appeal, M.F.A. No. 219 of 1965 (Mrs. Manjula Devi Bhuta and Anr. v. Mrs. Manjusri Raha and Ors.) is dismissed, (ii) M.F.A. No. 203 of 1965 (B.L. Gupta v. Mrs. Manjusri Raha and Ors.) is dismissed, (iii) M.F.A. No. 220 of 1965 (Mrs. Manjula Devi Bhuta and Anr. v. Padmawati and Ors.) is partly allowed and it is held that B.L. Gupta (Respondent 4) and Ram Swaroop (Respondent 5) are also liable with the Appellants jointly and severally for the amount of compensation awarded in respect of the death of Shastri. (iv) M.F.A. No. 218 or 1965 (New India Assurance Co. v. Manjusri Raha and Ors.) is partly allowed. It is held that the Appellant is liable to pay Rs. 2000/-to the dependants of Shastri (that is, claimants in claim application No. 5 of 1962 before the Claims Tribunal) and Rs. 2,000/-to the dependants of Raha (Claimants in claim application No. 6 of 1962, before the Claims Tribunal) but no more, (v) M.F.A. No. 222 of 1965 (Oriental Fire and General Insurance Co. Ltd. v. Mrs. Padmawati and Ors.) and M.F.A No. 223 of 1965 (Oriental Fire and General Insurance Co. Ltd. v. Manjusri Raha and Ors.) are partly allowed and it is held that the Appellant shall be liable to pay Rs. 8000/ to the dependants of Mr. Shastri (Claimants in claim application No. 5 of 1962, before the Claims Tribunal), and Rs. 12,000/- to the dependants of Raha (claimants in claim application No. 6 of 1962, before the Claims Tribunal), that is, Rupees Twenty thousand in all, but, no more, (vi) Cross-objections filed by the dependants of Raha are dismissed, (vii) In all the appeals, parties shall bear their own costs as incurred.