JUDGMENT Arun Mishra, J. 1. This appeal has been preferred by the unsuccessful plaintiff aggrieved by judgment and decree dated 2-9-2004 passed by Fourth Additional District Judge, Hoshangabad in Civil Suit No. 8-B/02 dismissing the suit filed for the purpose of claiming compensation of Rs. Ten Lakhs on account of failure of vasectomy operation performed on her husband Rajaram resulting into birth of a child. 2. Plaintiff Smt. Asha Devi filed a suit on 31-7-1999 as an indigent person claiming compensation of Rs. Ten Lakhs. It was averred that Rajaram husband of the plaintiff had undergone vasectomy on 7-11-1994 in the Hospital run by Central Railway at Itarsi. Plaintiffs husband was an employee of Railways. A notice was served under Section 80 of Code of Civil Procedure claiming compensation of Rs. Five Lakhs as a son was born on 15-11-1998 after four years due to failure of vasectomy. Husband of the plaintiff was a Peon, unable to bear the expenses of two daughters born to them, and thus underwent vasectomy on 7-11-1994 after birth of second daughter. He was assured by the Doctor that he would not have any further child, however, plaintiff became pregnant and delivered a third child. She had to undergo mental pain and suffering of pregnancy. She was looked after in the society with doubt. A Green Card was issued to her husband. When plaintiff and her husband contacted the Defendant No. 3 Medical Officer, they were informed that there was possibility of failure of sterilization operation, they could not help them and if plaintiffs husband desired, he could undergo fresh vasectomy, consequently the suit was filed. 3. The defendants in the written statement denied the averments made in the plaint and contended that plaintiffs husband failed to carry out the instructions to ensure that surgery became successful. No guarantee was given by the Doctor that surgery would be successful. There was no negligence on the part of the Doctor in performing surgery. As per medical science there was possibility of reunion of vass difference. It was also possible that the person may have two vass differences due to that there was possibility of becoming pregnant. After about four years wife became pregnant, indicated the fact that operation was not a failure. Surgery was done under the welfare scheme run by Government in the public interest. It was also possible that the person may have two vass differences due to that there was possibility of becoming pregnant. After about four years wife became pregnant, indicated the fact that operation was not a failure. Surgery was done under the welfare scheme run by Government in the public interest. As an exception it was possible that vasectomy could have been a failure as such defendants were not liable to make payment of compensation. Objection as to jurisdiction of the Court and suit being time barred, were also raised. 4. After recording the evidence, the trial Court as per impugned judgment and decree has found that negligence of the Surgeon who performed vasectomy had not been established. defendants failed to establish that plaintiffs husband did not take the care to ensure that surgery was successful. Suit has been held to be within limitation. Plaintiffs suit has been dismissed; consequently, this appeal has been preferred. 5. It was submitted by Ms. Jailaxmi Aiyer, learned counsel appearing for the appellant that whatever precautions were told to be observed, they were duly observed by the plaintiffs husband. It was not advised that husband should undergo sperm count test to know whether surgery was successful or not. When child was born such a test was performed and it was found that surgery was a failure. It was a case of negligence on the part of Dr. Karmarkar, who performed vasectomy. She has submitted that till the child becomes able to earn, respondents be directed to bear the expenses of bearing and education. She has relied upon decision of Apex Court in State of Haryana and Ors. v. Smt. Santra, AIR 2000 SC 1888 , decision of this Court in State of M. P. and Ors. v. Asharam, 1996 JU 630 and Sobhag Mai Jain v. State of Rajasthan and others, AIR 2006 Raj 66 . 6. Shri Rajneesh Jain, learned counsel appearing for respondents has submitted that negligence of Doctor has not been established. There may be several causes of failure of vasectomy. As there was no negligence of the Doctor and no guarantee was given for success of surgery, hence suit was rightly dismissed by the trial Court. No case for interference was made out in this appeal. 7. First question for consideration is, what are circumstances in which compensation can be claimed as against Doctor. As there was no negligence of the Doctor and no guarantee was given for success of surgery, hence suit was rightly dismissed by the trial Court. No case for interference was made out in this appeal. 7. First question for consideration is, what are circumstances in which compensation can be claimed as against Doctor. Cases may arise of deficiency in service due to fault, imperfection, shortcoming and inadequacy in quality, nature and manner of performance. Patient has the right to be informed of his illness, informed of available treatment/best possible treatment, negative effects/risks, bodily integrity and privacy, treatment to the extent agreed. Doctor is required not to divulge the details, as per the ethics as observed in Mr. X v. Hospital Z, (1998)8 SCC 296 . 8. It is necessary for a Doctor to exercise reasonable care with skill while taking down history, examining the patient, making diagnosis or investigation while treating the patient. Expectation from a Doctor is not too high nor too low. He is expected to possess "reasonable skill". He cannot give any guarantee for cure, much less for 100% cure of ailment by medicine/surgery. He is supposed to act as per acceptable standard. Cases of medical negligence may arise in the case of failure of pre operating assessment/failure to take pre operative, operative and post operative prescribed measures/ causing cardiac arrest or brain damage due to not taking proper care during operation/operating more parts than permitted by patient and operating other parts, committing gross medical mistake, submitting incorrect or false report of pathological examination. Examples of negligence per se consists of injecting anesthesia in fatal or in wrong doses, amputation of wrong organ/operation of wrong limb, operation of wrong patient, leaving tran quests too long causing gangrene, transfusing wrong blood, applying tight plaster causing paralysis, leaving sponge or gauge piece inside, criminal abortion etc. 9. The test laid down in Bolam v. Frienen Hospital, 1957(1) WLR 582 : (1957)2 All ER 118 has been widely accepted in India. As per Bolam's case test Doctor is supposed to act as ordinary skilled person, every person cannot have highest skill and expertise. Bolam's test like water has flown and passed several bridges. The Bolam's case was departed in Roger's v. Whitaker, 1993 AU 47. The Apex Court in Vanitha Ashok v. Laxmi Hospital and others, 2001(8) SCC 731 held that Bolam's case has been widely accepted in India. Bolam's test like water has flown and passed several bridges. The Bolam's case was departed in Roger's v. Whitaker, 1993 AU 47. The Apex Court in Vanitha Ashok v. Laxmi Hospital and others, 2001(8) SCC 731 held that Bolam's case has been widely accepted in India. It was laid down in Roger's case that test was reasonable care as per law not as per practice. The Apex Court held that in spite of professional opinion approving the conduct Court would be entitled to see whether opinion is reasonable or responsible. 10. Due care, skill and diligence is expected from a Doctor, not more than that. The standard of care has to be seen in the context that Doctor does not gain by negligence or omission. He is required to perform fearlessly with skill. He shall not have shaky hands or fear of prosecution or compensation while performing surgery. Chances of success in serious operations some time are only 10%. At the same time the Doctor should not lag behind, know advances, discoveries, developments, alert to hazards, not expected to be polymath or prophet, having wide ranging knowledge. As per Halsbury law's expectation, a Doctor is expected to be having reasonable degrees of skill and knowledge neither very high nor very low. Possession of greater skill and existence of different mode of treatment is not the test but the test is of acceptable general and proved standard as per the knowledge at the time of incident. In the case of failure to use equipment, the question relevant would be whether it was available. Every deviation in mode of treatment made by the Doctor is not negligence, mere accident is not negligence, in emergency error of judgment takes place, simple error of judgment is outside the purview of negligence, in case of lesser evil method merely the Doctor by choosing one procedure cannot be said to be negligent, there may be cases of higher risk in other technique with great chances of success and in case of lesser risk technique, there may be higher chances of failure. 11. Res Ipsa Loquitor cannot be readily inferred nor invoked. This test is to be applied with great care and caution in medical field. If patient has not responded to preliminary treatment or surgery has failed, Doctor is not liable per-se by applying doctrine of res ipsa loquitor. 11. Res Ipsa Loquitor cannot be readily inferred nor invoked. This test is to be applied with great care and caution in medical field. If patient has not responded to preliminary treatment or surgery has failed, Doctor is not liable per-se by applying doctrine of res ipsa loquitor. In the case of wrong guess, wrong drug, wrong anesthetic res ipsa loquitor applies as held in String Meadows Hospital v. Harpal Ahluwalia, (1998)4. SCC 39. Cases of negligence may be drawn from proved circumstances when cause of accident is unknown, this rule has no applicability to a criminal case. Inference of essential ingredients of an offence cannot be drawn by applying res ipsa loquitor. Every deviation from normal practice is not negligence. To fasten liability it should be proved that it was not a usual/normal practice and defendant adopted it, and practice adopted was such, no professional of ordinary skill would have adopted. 12. In Hack's v. Cole, (1968) 118 NEW U 469 Lord Denning opined that Doctor is not liable for erring judgment, he is liable if conduct fell below reasonably competent practitioner. In Maynards v. West Midland Authority, 1985(1) All ER 635, the House of Lord's opined that wrong decision was no ground to come to the finding of negligence. It was not enough subsequent event show operation was not necessary if decision to operate was reasonable. The Court may prefer one opinion or other but that cannot be a basis for negligence. 13. The object of liability of profession is to make the life safer, eliminate possibility of recurrence of negligence in future. The methodology of treatment differs. Whether conduct is blameworthy or blameless is to be probed. Human body is highly complex machine, there is no room for misimpression, misgiving and misplaced allegation. Legal proceedings must be based on firm moral and scientific ground, real causes identifiable and out of several persons tendency is to blame last person. Act or omission is required to be considered in the context of duty, its breach and resulting damage. Simple lack of care, an error of judgment, an accident, adopting an acceptable practice, having not adopted better alternative course, having not adopted more skilled method which expert Doctor would have chosen and if used knowledge/equipments available at the time of accident, it cannot be said to be case of per-se negligence. 14. Simple lack of care, an error of judgment, an accident, adopting an acceptable practice, having not adopted better alternative course, having not adopted more skilled method which expert Doctor would have chosen and if used knowledge/equipments available at the time of accident, it cannot be said to be case of per-se negligence. 14. In State of Punjab v. Shiv Ram and Ors. (2005)7 SCC 1 , the Apex Court has laid down that merely because the woman having undergone a sterilization 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 may be sustained only if there was negligence on the part of the Surgeon performing the surgery not on account of birth of child. The proof of negligence must satisfy Bolam's test as set out in Jacob Mathew case, (2005)6 SCC 1 . Surgeon cannot be held liable in contract unless plaintiff alleges and proves that surgeon had assured 100% exclusion of pregnancy after the surgery and it was only on the basis that plaintiff had agreed to undergo surgery. Ordinarily a surgeon does not offer such guarantee, since it was probable that no responsible medical man would intend to give such a warranty. There are several alternative methods of sterilization, some of them are popular. None is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. In the case of sterilization operation of a woman, the textbooks recognize the failure rate from 3 to 7% depending on the technique recognized and accepted ones. The cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of re-sterilization. If the surgeon was competent and (here was no negligence proved, it cannot be said that the surgeon has committed breach of any duty cast on her as a surgeon. The surgery was performed by a technique known and recognized by medical science. It was a pure and simple case of sterilization operation having failed though duly performed, hence decree for compensation was set aside. The surgery was performed by a technique known and recognized by medical science. It was a pure and simple case of sterilization operation having failed though duly performed, hence decree for compensation was set aside. 15. In State ofHaryana v. Rajrani, (2005)7 SCC 22 , the Apex Court has followed the decision of State of Punjab v. Shivram (supra) and reiterated that the fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science, thus the pregnancy can be for reasons de hors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation, consequently State could not be held vicariously liable to pay compensation. 16. In the instant case when we consider the plaint's averments, there is no whisper as to negligence of the Doctor Karmarkar who performed vasectomy of husband of the plaintiff. Negligence has also not been proved. Dr. Karmarkar had died by the time suit was filed, thus he was not available to depose. Dr. Krishna Kumar Damade (DW-1), Superintendent of Railway Hospital, Itarsi has been examined. He has stated that no guarantee can be taken by Doctor for the success of vasectomy operation. As per Medical Record/books-Preventive and Social Medicine by Dr. J.E. Park, failure of vasectomy was 0.15% per year. There may be different causes as per medical science for failure of vasectomy: i) Natural re-canalization of vass difference. ii) Thickened lymphatic has been tied in place of vass difference. iii) If a person is having more vass difference on one side. Ordinarily a normal person has one vass difference on left side and one vass difference on right side. iv) Upto 30 ejaculations patient cannot be said to be sterilized. He has further stated that after surgery has been performed, there may be presence of spermatozoa in the semen, it was also possible to have re-canalization operation to obtain re-production capacity. Due to natural re-canalization even after 3 years a person may be capable of reproduction, ordinarily it is informed to the patient what care and precautions he has to observe. Semen examination for presence of sperm has to be done so as to ascertain the success of sterilization operation after 30 ejaculations. Due to natural re-canalization even after 3 years a person may be capable of reproduction, ordinarily it is informed to the patient what care and precautions he has to observe. Semen examination for presence of sperm has to be done so as to ascertain the success of sterilization operation after 30 ejaculations. In the report if Sperms are absent, only then it can be said that operation is successful. As he was not present at the time of surgery, he was obviously not in a position to say what was told to the patient Rajaram. Dr. Rameshwar Dayal (DW-2), a Surgical Specialist posted at Itarsi Hospital has stated that vasectomy on male is performed by two modes (i) conventional vasectomy and (ii) non-scalpel vasectomy (NSVT). In the conventional vasectomy knife is used so as to cut the skin and stitches are applied. In the later kind of surgery knife is not used and no stitches are applied, however, internal process in both the modes is similar, 1 cm. portion of the vass difference has to be removed and then cut portions are tied separately. Ordinarily a male has two vass differences, failure rate of such operation was l%-3%, and patient used to be informed to take care, to avoid jerk, to use condom for doing sexual intercourse up to 15 times after surgery. Within three months of surgery there may be availability of sperm. So as to ensure the successful surgery it has to be ensured that test for absence of sperm is made, in case of any swelling and pain etc. to contact the Doctor, Patient has to obtain scrotum support so as to avoid pushes for atleast 15-20 days and to keep the wound neat and clean. In case any patient failed to observe any of the precautions that may lead to failure of surgery. The patient should contact after three months for test of semen to ensure that he is free of sperms, only then it can be said that surgery is successful. In the cross-examination Dr. Rameshwar Dayal has stated that spontaneous re-canalization is also a possibility at any time and after that pregnancy is possible. What emerges from the statement of Dr. Rameshwar Dayal that patient is told to take certain precautionary measures in order to ensure the success of vasectomy. In the cross-examination Dr. Rameshwar Dayal has stated that spontaneous re-canalization is also a possibility at any time and after that pregnancy is possible. What emerges from the statement of Dr. Rameshwar Dayal that patient is told to take certain precautionary measures in order to ensure the success of vasectomy. Yet another witness Madan (DW-3), a Dresser in the operation theater has stated that vasectomy operation of Rajaram Gupta was done by late Dr. Karmarkar on 7-11-1994. He was present at the time of surgery in the capacity of dresser. Dr. Karmarkar was a Doctor of repute and he used to look after the patients effectively and used to give the patients necessary instructions and care to be observed to ensure successful surgery. Dr. Karmarkar had informed Rajaram to observe certain precautions so as to keep the bandage and wound clean for 15 days. After 30 ejaculations he had to undergo the sperm test, until and unless sperm test comes negative, it could not be said that surgery was successful. He was told not to ride the cycle, not to perform sexual intercourse for 15 days and to use the condom till obtaining negative report of sperm test. Several times Dr. Karmarkar used to give these suggestions to the patients undergoing vasectomy operation. When we consider the statement of Rajaram, husband of plaintiff, he has stated that he had undergone vasectomy. Dr. Karmarkar did not advise him to obtain report of semen test to ensure absence of sperms. No instructions in writing were given. Dr. Karmarkar had asked him to report after 7 days for removal of stitches. Remaining instructions which were given were not to have relationship with wife for six months, which he complied with. After one week Doctor had informed him that everything was alright. Thus Rajaram has stated that certain instructions weire in fact given but orally, however, no instruction was given to get the semen test done. The plaintiff Asha Devi has stated that her husband did not commit sexual intercourse for six months. He took the bath after stitches were removed. He did not lift any weight for 35 days. He took the leave for 15 days. Her statement makes it clear that she was aware that certain precautions were informed by the Doctor. Doctor had asked her husband not to ride the cycle, not to eat vegetables of such as cabbage, brinjal etc. He did not lift any weight for 35 days. He took the leave for 15 days. Her statement makes it clear that she was aware that certain precautions were informed by the Doctor. Doctor had asked her husband not to ride the cycle, not to eat vegetables of such as cabbage, brinjal etc. What emerge?, from aforesaid evidence is that Doctor had told to the patient Rajaram to observe certain precautions. We find in the statement of Madan, Dresser, who was present at the time of surgery of Rajaram that Doctor used to inform to the patients inter alia for getting the semen test performed. We disagree with the finding recorded by the Court below that no such advice was given. It was not. necessary to give such advice in writing or print it particularly in Green Card., as observed by the trial Court, which contains what are the benefits available to the Green Card holder, there was rightly no mention on it as to precautions to be observed by the patient undergoing vasectomy surgery. It was necessary for Rajaram to obtain semen test report so as to ensure absence of sperm. Child was born after four years, natural re-canalization' is also a possibility after 3-4 years, that could not be ruled out in the facts of the case. We are not inclined to accept bald claim of plaintiff that Doctor assured him of full success, there is absence of any reliable evidence showing that Doctor gave any guarantee to Rajaram for successful surgery, the Doctor was an expert, quite senior and of repute, on the contrary he had informed precautions were required to be observed. The statement as to precautions observed by Rajaram made by the plaintiff Smt. Asha Devi was more, Rajaram has not stated in detail as to the precautions observed as advised by Dr. Karmarkar, thus in the absence of Rajaram stating that he undertook all the precautions advised by Dr. Karmarkar, statement of his wife in improving upon his statement indicating that he took all the precautions which were advised, could not have been accepted, thus in our opinion it was for Rajaram to state in detail not only the advise given but also to state that he duly observed each and every precaution advised by the Doctor. Karmarkar, statement of his wife in improving upon his statement indicating that he took all the precautions which were advised, could not have been accepted, thus in our opinion it was for Rajaram to state in detail not only the advise given but also to state that he duly observed each and every precaution advised by the Doctor. We are of the opinion that even due to the failure to observe precautions could have been the cause of failure of surgery performed. 17. Above all there is no evidence on record showing negligence on the part of Dr. Karmarkar, he has performed the surgery with competence, reasonable diligence, skill and also advised precautions to be observed. Thus in our opinion merely a child was born after four years was not enough to record a finding as to negligence of Dr. Karmarkar consequently question of saddling upon the vicarious liability on the defendants, does not arise. 18. Ms. Jailaxmi Aiyer, learned counsel appearing for the appellant has placed reliance on a decision of Apex Court in State of Haryana and Ors. v. Smt. Santra (supra), in which the Apex Court has laid down that in the case where negligence was proved, it was permissible to saddle the vicarious liability on the State to enable her to bring up the child till child attains puberty. In our opinion proof of negligence is sine qua non, to award compensation hence decision is of no help. She has further relied upon the decision of this Court in State of M.P. and Ors. v. Asharam (supra), on negligence having been found by Court below, interference was not made by this Court in the appeal. She has also relied upon the decision in Subhag Mai Jain v. State of Rajasthan and Ors. (supra), in which there were post delivery complications on account of negligence of the Doctor who treated her. The report of Dy. Director was obtained, holding the concerned Doctors negligent since they were dilatory in attending the wife of the patient. State was held to be vicariously liable. There is no dispute with the aforesaid preposition, however, on facts in the instant case negligence has not been found as per the Bolam's case test. 19. Thus, in our considered opinion, no liability could have been fastened on Dr. Karmarkar consequently no vicarious liability on the defendants. 20. State was held to be vicariously liable. There is no dispute with the aforesaid preposition, however, on facts in the instant case negligence has not been found as per the Bolam's case test. 19. Thus, in our considered opinion, no liability could have been fastened on Dr. Karmarkar consequently no vicarious liability on the defendants. 20. Resultantly, the appeal being meritless, is hereby dismissed. Parties to bear their own costs as incurred of this appeal. Appeal dismissed.