DEEPAK VERMA, J. ( 1 ) THIS first appeal under section 96 of the code of Civil Procedure has been preferred by unsuccessful plaintiff against the judgment passed by district Judge, Seoni in C. S. No. 9-A of 1998 on 14. 12. 2000, whereby her claim for damages to the tune of Rs. 5,00,000 on account of failure of sterilisation operation was dismissed. ( 2 ) FACTS, not in dispute, are mentioned hereinbelow: the appellant had undergone sterilisation operation at Khwasa Camp, Seoni on 17. 11. 1994. The said operation was performed by Dr. Sunanda Choudhary, the respondent No. 1, who was then serving as specialist in Obstetrics and Gynaecology in Civil Hospital at Seoni. She was under the control and supervision of respondent nos. 2 to 4. ( 3 ) ACCORDING to the appellant, she belongs to poor strata of society and was already having four children. Since her husband was drawing a meagre salary by doing labour work, both of them thought it fit that appellant should undergo sterilisation operation so as to restrict their family to the number which already existed. The precautions which were disclosed to her by respondent No. 1 at the time of operation were fully and strictly adhered to. Even after the sterilisation operation, when her menstrual cycle stopped, she went to a private doctor, who after examination raised a doubt that she had become pregnant. She, therefore, came to Seoni to meet respondent No. 1 to ascertain if this was true. Initially, respondent No. 1 did not examine her on the ground that she was extremely busy on the said day. She thereafter went to meet her again after a month. She was examined by respondent No. 1 and it was confirmed that she had become pregnant. No operation for termination of pregnancy could be performed on her at that time, as her pregnancy had reached at an advanced stage and any such operation could have proved fatal to her. Under these facts and circumstances she had no choice, but to wait for her delivery and ultimately, she gave birth to a female child. She was already under considerable monetary burden and it was difficult for her to bring her up and to provide her with the basic and necessary amenities that a normal child should be given. Under these facts and circumstances she had no choice, but to wait for her delivery and ultimately, she gave birth to a female child. She was already under considerable monetary burden and it was difficult for her to bring her up and to provide her with the basic and necessary amenities that a normal child should be given. On these pleadings, asserting that obviously the operation had been unsuccessful, she filed the suit for damages against the respondents claiming a sum of Rs. 5,00,000 together with interest at the rate of 8 per cent per annum on the same. ( 4 ) ON summons being issued to the respondents, respondent No. 1, the doctor who had performed the operation on the appellant, filed her own written statement denying the plaint averments. She admitted that operation of tubectomy was performed on the appellant at Khwasa Camp on 17. 11. 1994, but the same operation according to her was successful and ordinarily there should not have been any chances of her developing pregnancy. She has also taken the plea that on account of an undertaking given by the appellant before the operation that in case of failure of operation for any reason whatsoever, she would not be entitled to claim any damages nor the respondents would be liable to pay the same. She, therefore, contended that under the doctrine of estoppel, the appellant was estopped from claiming any damages from respondents. The said undertaking bears her signature. Thus, the defence was taken that in the light of the said undertaking appellant would not be justified nor legally entitled to claim any damages. It was further averred that suit has been filed only with an intention to harass, humiliate and malign her. Thus, the same deserves to be dismissed. ( 5 ) RESPONDENT Nos. 2 to 4 filed their own separate written statements denying the plaint allegations in toto. According to them, only on consent being given by the appellant, sterilisation operation was performed on her by the respondent No. 1, lady doctor, who had acquired sufficient amount of expertise in such operations and generally there were no chances of failure thereof. 2 to 4 filed their own separate written statements denying the plaint allegations in toto. According to them, only on consent being given by the appellant, sterilisation operation was performed on her by the respondent No. 1, lady doctor, who had acquired sufficient amount of expertise in such operations and generally there were no chances of failure thereof. They have also taken the plea that if appellant was desirous of getting her pregnancy terminated then she should have approached the respondents soon after her first menstrual cycle was disturbed, so that the unwanted child could be aborted, but deliberately and intentionally approached respondent No. 1 when her pregnancy was at an advanced stage where the operation was medically not advisable, otherwise the same would have endangered her life. They have also prayed that the suit filed by the appellant deserves to be dismissed with costs. ( 6 ) ON the aforesaid averments of the rival parties, issues were framed and parties went to trial. From the pleadings of parties, it is clearly borne out that there does not appear to be any dispute that the appellant had undergone sterilisation operation at Khwasa Camp on 17. 11. 1994, but despite this a baby girl was born to her on 4. 9. 1996, i. e. , after a period of 1 year 9 months and 17 days. Even though learned trial Judge recorded a finding in favour of the appellant on issue Nos. 1, 3, 4, 5, 6 and 7, but still proceeded to dismiss the suit. ( 7 ) WE have accordingly heard learned counsel for the parties and perused the record. ( 8 ) THE learned counsel for the appellant has argued on the following salient points: (i) The fact that a baby girl was born even after the sterilisation operation, would go to show that the operation had been unsuccessful and the appellant was misinformed about it being performed successfully. (ii) When a major finding in civil suit has been recorded in favour of the appellant, then there was no merit for dismissal of the suit. (iii) The respondent No. 1 committed breach of trust with regard to falsely stating to the appellant that operation has been successful. Had it really been so, then appellant would not have developed pregnancy and would not have delivered a child. (iii) The respondent No. 1 committed breach of trust with regard to falsely stating to the appellant that operation has been successful. Had it really been so, then appellant would not have developed pregnancy and would not have delivered a child. (iv) The financial condition of appellant and her family was not such to have borne the burden of one more child. To recompense the appellant, she was constrained to file a suit claiming damages against the respondents as an indigent person. The learned counsel for appellant submitted that in the light of directions contained in State of Haryana v. Santra, 2000 ACJ 1188 (SC), followed by a learned single judge of this court, in the case reported in jyoti Kewat v. State of Madhya Pradesh, (2003) 1 MPHT 482 , a case for awarding damages in the form of compensation was fully established by the appellant. ( 9 ) SHIV Kali Bai, appellant, PW 1, has deposed as under: she is acquainted with respondent No. 1. She had opted for sterilisation operation about 6 years before, as she was facing difficulty in bringing up her four children. The operation was performed by respondent No. 1 and she had gone to meet her at Khwasa. She disputes that any advice either before or after the operation was given to her. She has admitted that after the period of advice given by respondent No. 1 was over, she started cohabiting with her husband. After 2-3 months, her menstrual cycle stopped. She thereafter went to a private doctor at Khwasa so as to get herself examined, who had some doubts about her pregnancy. Accordingly, the appellant went to Seoni so that she could be examined by respondent No. 1 but she failed to do so and called her on some other day. After one month she again went to respondent No. 1, but unfortunately she was informed that her pregnancy is confirmed and it is at such an advanced stage that any operation performed on her could prove to be dangerous to her life. Under these circumstances, she was left with no choice but to unnecessarily bear the expenses of nurturing her unwanted child. Respondent no. 1 also did not take proper care of examining her at the first instance and was called on a later date. By that time, obviously her pregnancy also developed. Under these circumstances, she was left with no choice but to unnecessarily bear the expenses of nurturing her unwanted child. Respondent no. 1 also did not take proper care of examining her at the first instance and was called on a later date. By that time, obviously her pregnancy also developed. For all these reasons, she claimed a sum of rs. 5,00,000 from the respondents, jointly and severally. It is pertinent to mention here that the appellant admitted in para 19 of her cross-examination that the respondent No. 1 had performed the operation with full care and caution and under great skill. In the cross-examination suggestion was given to her that she should have kept away from her husband for 6 months, as advised by the respondent No. 1 and not having done so, obviously it had to result in a pregnancy and that is how appellant had become pregnant. By the time, she was examined by the respondent No. 1, it was too late to go for any operation. She had admitted in her cross-examination that neither she got herself examined nor made any enquiries from any of the doctors asking her the reasons for failure of the operation. She has admitted with regard to the undertaking given by her before the operation. For all these reasons, it was submitted that the plaint of appellant deserves to be allowed and learned trial Judge committed an error in dismissing the same. ( 10 ) KOMAL Prasad, PW 2, is husband of appellant. They were married for last 17-18 years and at that time they were having two sons and three daughters. His wife had undergone the sterilisation operation at khwasa Camp, which was performed by respondent No. 1 and after about 1 years from the date of the operation his wife had developed pregnancy which was indicative of failure of the operation. He has then deposed that they had come to Seoni from their village Khwasa to meet the respondent No. 1, but her house was locked. So they all went to Civil Hospital, seoni where respondent No. 1 met them. They were told to come over to the residence of the respondent No. 1, who then examined her at her house and confirmed with regard to pregnancy. At the time of first examination, she had prescribed some medicines to her and called her after one month. So they all went to Civil Hospital, seoni where respondent No. 1 met them. They were told to come over to the residence of the respondent No. 1, who then examined her at her house and confirmed with regard to pregnancy. At the time of first examination, she had prescribed some medicines to her and called her after one month. When they went again second time, then only found a lock in the house of respondent No. 1. On the third occasion, his wife was examined by respondent No. 1, but to the utter surprise it was disclosed that his wife is now 5-6 months pregnant and nothing could be done in the matter, as the same may prove to be fatal. He has also deposed that he had taken all precautions which were given to the couple before and after the operation, but still after expiry of 1 year and 6 months, his wife had become pregnant. Thus, it should be construed that the operation was unsuccessful. Hence the respondents would be liable to pay and the appellant would be entitled to receive damages. As per his evidence, wife was required to visit the respondent No. 1 thrice before it was confirmed that nothing could be done to avoid pregnancy of the appellant. He has admitted that whether the doctor committed negligence is not known to him. He has also stated that after the operation he was rewarded as per the scheme of the State. ( 11 ) NOW, coming to the evidence of mangli Bai, PW 3, she had admitted that after 5-6 months when the appellant had become pregnant they all had gone to respondent No. 1 and appellant was examined in the chamber of respondent No. 1, where no one was allowed. She has further admitted that operation on appellant for sterilisation was performed by respondent No. 1 with great patience, care and caution. From her evidence, it is borne out that the appellant was examined by the respondent no. 1 on her first visit, but she had gone to see the doctor at a very late stage and by that time the possibility of termination of pregnancy had already come to an end. ( 12 ) HOWEVER, the appellant did not produce any expert evidence to prove negligence on the part of respondent No. 1 in performing the tubectomy operation. ( 12 ) HOWEVER, the appellant did not produce any expert evidence to prove negligence on the part of respondent No. 1 in performing the tubectomy operation. ( 13 ) RESPONDENTS examined Dr. Sunanda choudhary, DW 1. She has deposed with regard to her qualification and also with regard to operation having been performed for sterilisation on appellant on 17. 11. 1994 at Khwasa Camp. The said operation was performed in the course of her official duty. Necessary precautions which were required to be observed were explained to the appellant. She has deposed that failure of this operation is to the extent of 7-8 per cent. In case of failure of the operation, she would not be liable to pay any damages, as there was no negligence on her part. It could have been for a variety of reasons. She had denied that the failure was on account of her negligence or callousness. She has denied that appellant had come to her soon after her first menstrual cycle was missed. If she had done so, then safely the pregnancy could have been terminated. This would go to show that appellant was not interested in getting the pregnancy terminated. Hence, it would not be called an unwanted child. ( 14 ) MUNNI Soni, DW 2, was working as auxiliary nurse-midwife in the Primary health Centre at Khwasa. She has deposed that she had also explained it to the appellant that sometimes the operations are failure and it is not a foolproof method under which one could avoid pregnancy. She has then proved, Form Exh. D1, which was filled up by the appellant. She has further admitted that after one and a quarter year from the date of operation, appellant had become pregnant. After 10-15 days from the time she had conceived, she had met this witness and was advised to see a doctor. Dr. B. K. Shukla had given her some medicines and she also advised her to go to respondent No. 1 for complete checkup. According to this witness, there was no negligence on the part of respondent No. 1 in the operation. Thus, they would not be liable to pay any damages. ( 15 ) DR. S. C. Jain, DW 3, has been examined to show the causes for failure of the operation and that it is generally to the extent of 7 per cent. Thus, they would not be liable to pay any damages. ( 15 ) DR. S. C. Jain, DW 3, has been examined to show the causes for failure of the operation and that it is generally to the extent of 7 per cent. The main causes are breaking of the ring; slipping of the ring from the fallopian tube; and having more fallopian tubes than two. According to him, there are no methods to make such an operation foolproof. ( 16 ) AS mentioned hereinabove, learned trial Judge after appreciating the evidence on record proceeded to dismiss the suit. ( 17 ) SIMILAR question had also cropped up for consideration before the Supreme court in State of Haryana v. Santra, 2000 acj 1188 (SC ). The observations of the supreme Court in para 42 are mentioned hereinbelow: " (42) Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the government had taken up the family planning as an important programme, for implementation of which it had created mass awakening for the use of various devices including the sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation. " In the same judgment, negligence has also been considered, which finds place in para 10, reproduced hereinbelow:" (10) Negligence is a 'tort'. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In Bolam v. Friern hospital Management Committee, (1957) 2 All ER 118, Mcnair, J. , summed up the law as under: 'the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent'. " While considering the importance of family planning as a national programme, the apex Court has held in para 19, as under:" (19) Family Planning is a national programme. It is being implemented through the agency of various government hospitals and health centres and at some places through the agency of Red Cross. In order that the national programme may be successfully completed and the purpose sought may bear fruit, everybody involved in the implementation of the programme has to perform his duty in all earnestness and dedication. The government at the Centre as also at the state level is aware that India is the second most populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of the population is arrested. It is with this end in view that the family planning programme has been launched by the Government which has not only endeavoured to bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilising the male or female. The implementation of the programme is thus directly in the hands of the Government officers, including medical officers involved in family planning programmes. The medical officers entrusted with the implementation of the family planning programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who co-operate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of additional child. The people of the country who co-operate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of additional child. " ( 18 ) IT was also contended that relying on the aforesaid judgment of the Supreme court, learned single Judge has also passed an order awarding compensation in Jyoti kewat v. State of Madhya Pradesh, (2003)1 MPHT 482 . ( 19 ) HOWEVER, the view expressed by the apex Court in the matter of Santra, 2000 acj 1188 (SC), has been distinguished by a three-Judge Bench of the Supreme Court in State of Punjab v. Shiv Ram, (2005) 7 scc 1 : 2005 ACJ 2084 (SC ). In the said case, it has been held as under: "merely because a woman after having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth. The proof of negligence shall have to satisfy Bolam's test, (1957) 2 All ER, 118, 121 D-F, set out in Jacob Mathew's case, 2005 ACJ 1840 (SC) at page 1850, para 20. Failure due to natural causes would not provide any ground for a claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilisation operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3 (2)read with Explanation II thereto, of the medical Termination of Pregnancy Act, 1971, provides under the law, a valid and legal ground for the termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. Section 3 (2)read with Explanation II thereto, of the medical Termination of Pregnancy Act, 1971, provides under the law, a valid and legal ground for the termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. So also, the surgeon cannot be held liable in contract unless plaintiff alleges and proves that the surgeon had assured 100 per cent exclusion of pregnancy after the surgery and it was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. Ordinarily a surgeon does not offer such guarantee. Where a doctor contracted to carry out a particular operation on a patient and a particular result was expected, the court would imply into the contract between the doctor and the patient, a term that the operation would be carried out with reasonable care and skill, but would be slow to imply a term or unqualified collateral warranty that the expected result would actually be achieved, since it was probable that no responsible medical man would intend to give such a warranty. " ( 20 ) THUS, the effect of Santra's case, 2000 ACJ 1188 (SC), has been watered down by a Larger Bench in Shiv Ram's case, 2005 ACJ 2084 (SC ). Accordingly, even if there has been failure of sterilisation operation, it would necessarily not mean that failure has occasioned due to negligence on the part of the doctor. Proof of negligence has to be established by the plaintiff and only thereafter it can be ascertained whether any case for damage has been made out. ( 21 ) KEEPING in view the dictum of the supreme Court, in the latter case of Shiv ram, 2005 ACJ 2084 (SC), we have no doubt in our mind that appellant herein has failed absolutely to prove by cogent evidence, the negligence of doctor. On the other hand, evidence on the record would show that appellant and her witnesses have admitted that due care and precaution was taken at the time of performing the operation. Thus, negligence is completely ruled out. ( 22 ) IF that be the position, then the learned trial Judge committed no error in dismissing the appellant's suit. ( 23 ) CONSEQUENTLY, and as a result thereof, we find there is no merit or substance in this appeal. Thus, negligence is completely ruled out. ( 22 ) IF that be the position, then the learned trial Judge committed no error in dismissing the appellant's suit. ( 23 ) CONSEQUENTLY, and as a result thereof, we find there is no merit or substance in this appeal. It is hereby dismissed, but with no order as to costs. Appeal dismissed. .