R. A. MEHTA, J. ( 1 ) ALL these appeals raise a question of failure of family planning operation and birth of a child in spite of the family planning operation. It is alleged by the original plaintiffs that the operation failed because of the negligence of the doctor and, therefore, the doctor, the hospital and the employer are liable for damages. The Trial courts have decreed the suits for different amounts ranging from Rs. 46,000/- to Rs. 89,000/ -. Two sets of appeals, i. e. First appeals Nos. 145 to 150" df 1990 are arising out of three suits. The first set of three appeals is filed by the District panchayat and the other set of three appeals is filed by the State Government. Their challenge is the same and identical. In each of these cases, identical amount of Rs. 70,000/- has been awarded. In First Appeal no. 1090 of 1987, the award is of Rs. 89,800/-In First Appeal No. l762 of 1987 the award is for Rs. 41,700/ -. In First appeals No. 1856 of 1990 and 74 of 1993, the award is of Rs. 35,000/- and Rs. 42,000/- respectively. The dates of operation, dates of birth and the dates of filing of the suits are as follows: f. A. No. Date of Date of Date of operation birth suit 145/90 27-12-1980 27-1-1984 4-9-1986 146/90 10-1-1984 20-9-1984 4-9-1986 147/90 25-5-1982 to-li-i984 3-10-1986 148/90 10-1-1984 20-9-19*4 4^9-1986 149/90 23-12-1980 27-1-1984 2-9-1986 150/90 25-5-1982 10-11-1984 3-10-1986 1090/87 27-9-1980 1-2-1982 4-4-1985 1762/87 13-2-1978 2^11-1978 15-2-1980 1856/90 27-7-1983, - 30-1-1984 74/93 3-1-W81 4-10-1983 13-2-1985 ( 2 ) THE learned Counsel for the appellants have submitted that the Lower Courts have erred in holding that there is negligence on the part of the doctor in performing the operation merely on the allegation that the family planning operation had failed and the pregnancy and the birth which was to be prevented had taken place and as a consequence, the defendants are liable for their negligence and for damages. The learned Counsel for the appellants has submitted that the Lower Court have erred in taking a too simplistic view of the whole matter. It is assumed that when the operation failed, it is necessarily due to the negligence of the operating surgeon. The learned Counsel for the appellants has submitted that the Lower Court have erred in taking a too simplistic view of the whole matter. It is assumed that when the operation failed, it is necessarily due to the negligence of the operating surgeon. It is taken as if that the doctor has performed the operation; operation has failed and this speaks for itsejf and the doctrine of res ipsa loquitur has come into play and that the doctor is necessarily negligent. In fact, that is the argument of the plaintiffs and has been accepted by the Trial Court and it is required to be tested. ( 3 ) THE learned Counsel for the appellants has drawn our attention to a Population report on Female Sterilization published in may 1985 by the Population Information program, the Johns Hopkins University, baltimore, Maryland, USA. Therein, it is observed that the most common reasons for pregnancies after sterilization are a pregrian6y already conceived but too early to recognize, a surgical error in identifying a fallopian tube, spontaneous rejoining of a severed tube, or formation of a new passage in the tube that allows sperm and ovum to meet. In the rare cases, when pregnancies occur after sterilization, they are more likely to be ectopic (implanted outside the uterus) and, therefore, require prompt medical attention. ( 4 ) IN these cases, the doctor himself has given evidence that there is a possibility of the operation failing in four to five cases out of 1000. The doctor who has been examined in the first case has stated that he has performed 10,000 operations; in this country of vast population and acute problem of over-population, these operations are performed in millions every year and there will be hundreds of Cases where these operations fail in spite of having taken all care and having performed the operations properly, but that percentage is very small even though figures might be running in hundreds. The percentage might be less than 1%, hardly 0. 1 to 0. 4%, but it is certain that these 0. 4% of the operations are likely to fail and it would not be possible to say that it is necessarily due to negligence of the doctor. The percentage might be less than 1%, hardly 0. 1 to 0. 4%, but it is certain that these 0. 4% of the operations are likely to fail and it would not be possible to say that it is necessarily due to negligence of the doctor. In some extreme cases of medical negligence, the doctrine of res ipsa loquitur may apply, but in these kind of operations, where thousands are successful and only a small fraction of a portion is failing, it cannot by any means be taken as a proof of negligence by the doctrine of res ipsa loquitur. ( 5 ) IN the case of Considine v. Camp Hill hospital (1982) 133 D. L. R. (3d) 11, Nova scotia Supreme Court held that res ipsa loquitur did not apply when the evidence showed that 1% to 4% of the operations for removal of tissue in the region of the prostate could cause incontinence. ( 6 ) IN the case of Grey v. Webster (1984) 14 D. L. R. (4th) 706, it was held that res ipsa loquitur would not apply in the case of failure of sterilization by means of tubal ligation. ( 7 ) IN two of the cases, the child birth is within the period of less than nine months from the date of the operation which clearly indicates in absence of any evidence to the contrary, that the child, was already conceived and there was. a pre-existing pregnancy and, therefore, the pregnancy and the birth the the child cannot be attributed to the failure of the operation. These are First Appeals Nos. 146 of 1990 and 1762 of 1987. ( 8 ) IN a similar case being First Appeal no. 736 of 1994, the Division Bench consisting of B. N. Kirpal, CJ and R. K. Abichandani, J. in the case of State of gujarat v. Anjanaben Jagdish, decided on 26-4-1994, in para 6, held as follows:"6. The duty of the medical officer may have required him to have examined whether the plaintiff was carrying at the time when the operation was to be performed. Even if he was negligent and did not carry out the said examination, that would not be a ground for claiming any damages or any compensation. The duty of the medical officer may have required him to have examined whether the plaintiff was carrying at the time when the operation was to be performed. Even if he was negligent and did not carry out the said examination, that would not be a ground for claiming any damages or any compensation. If the plaintiff had conceived, the performing or non-performing of the family planning operation on 31st March 1988 would have had no effect In fact, the doctor was conscious of the fact that there was a possibility that at the time when the operation was performed, the plaintiff may have already conceived. It is for this reason that advice was given to the plaintiff to get her medically examined at the hospital in case she did not have the next M. C. period after the operation. Admittedly the plaintiff was negligent and did not bother about this advice. Had she heeded to the advice of the doctor, then, possibly, the pregnancy could have been terminated at the initial stage. She, however, took a chance, waited for the child to be born and it is only thereafter, possibly having realised that another girl would born, the present suit was filed. It was held that the suit could not have been decreed. ( 9 ) IN view of the above, it is not possible to uphold the contention that there was any negligence on the part of the doctor; the plaintiffs have failed to prove the negligence on the part of the defendants and, therefore, all these suits should have been dismissed. ( 10 ) IN the result, all these appeals are allowed and the decrees passed in the suits are quashed and set aside and the suits are dismissed with costs althroughout. Appeals allowed. .