JUDGMENT Rajiv Sharma, J.- This Regular Second Appeal has been directed against the judgment and decree dated 22.8.1998 passed by the learned Additional District Judge (1), Kangra at Dharamshala in CA No. 19D/97. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience) filed a suit for recovery of Rs. 60,000/-as damages on the ground that she had undergone operation of sterilization under the family planning programme on 19.3.1986 at Paprola. She was operated upon by respondent-defendant No.3-Dr. Kulwant Singh. He has issued certificate dated 19.3.1986. It has further been averred that after the sterilization operation, plaintiff conceived a child and she was examined by a competent Medical Officer on 21.5.1992. She gave birth to a female child named Minakshi Devi on 15.7.1992 in her house at village Ambari, District Kangra. It is alleged that the sterilization operation was not conducted by defendant No.3 under proper care and precaution. The suit was contested by respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) by filing written statement. It was primarily contended that defendant No.3 was not negligent in performing the sterilization operation and no liability can be fastened upon him. No replication was filed by the plaintiff. The learned Senior Sub Judge decreed the suit on 13.11.1996. The defendants preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala. The learned Additional District (1), Kangra at Dharamshala allowed the appeal on 22.8.1998 and set aside the judgment and decree passed by the trial courts below. The Regular Second Appeal has been filed against the judgment and decree dated 22.8.1998 by the plaintiff. This Regular Second Appeal was admitted on the following substantial questions of law. (1) Whether a doctor who is also a public servant is not under a legal duty to take due care and diligence while performing surgical operation? (2) Whether the principle of res ipsa loquitor is not attracted in the facts of the present case? (3) Whether a person is not entitled to damages even in a case where negligence is proved?” 3. Mr. Virender Rathore has supported the judgment and decree passed by the learned trial court. 4. Mr. Rakesh Jaswal appearing on behalf of respondents No.2 and 3 has supported the judgment and decree passed by the learned first appellate court. 5. (3) Whether a person is not entitled to damages even in a case where negligence is proved?” 3. Mr. Virender Rathore has supported the judgment and decree passed by the learned trial court. 4. Mr. Rakesh Jaswal appearing on behalf of respondents No.2 and 3 has supported the judgment and decree passed by the learned first appellate court. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 7. The plaintiff was operated upon at Paprola on 19.3.1986. The operation was undertaken by defendant No.3-Dr. Kulwant Singh. She gave birth to a female child on 15.7.1992. It is not disputed by the parties that defendant No.3 was a qualified doctor. Plaintiff examined herself as PW-1. She has testified that she has been operated upon by defendant No.3. She also deposed that defendant No.3 has assured her that the operation was successful in all respects and he issued certificate Ex.PA. She delivered a female child on 15.7.1992. Thus suffered a loss of Rs. 60,000/-. She has also produced in evidence copy of medical check up Ex. PW-1/A and prescription slip Ex. PW-1/B dated 21.5.1992. She has also proved on record copy of notice issued under Section 80 of the Code of Civil Procedure Ex. PW-1/D, postal receipts Ex.PW-1/E-1 to Ex. PW-1/E-3 and acknowledgements Ex. PW-1/F-1 & Ex. PW-1/F-2. She has deposed in her cross-examination that after operation, she was having regular menstruation cycle. She has admitted in clear terms that she was apprised that the operation was reversible and a child could be conceived. She was operated upon for sterilization in Civil Hospital. She was also made to understand by the doctor that all the operations are not successful and some precautions are required to be taken after the operation also. According to her, Dr. Karan told her that a wrong vein was cut due to which she conceived and gave birth to a child. DW-2 Shri Parsinda Ram is husband of plaintiff. He has admitted that his wife was operated upon for tubectomy. She was also examined at Railway Hospital, Paprola. She was told that there was some abcess in the stomach of the plaintiff. DW-2 Shri Parsinda Ram is husband of plaintiff. He has admitted that his wife was operated upon for tubectomy. She was also examined at Railway Hospital, Paprola. She was told that there was some abcess in the stomach of the plaintiff. He also testified that his wife conceived child due to negligence of defendant No.3. According to him, the doctors had overruled the chances of conception by issuing a certificate. PW-3 is Smt. Dhobi Devi. She was practicing as midwife. She has admitted that all the operations of tubectomy are not successful and there are chances of failure. 8. Defendant No. 3 Dr. Kulwant Singh has appeared as DW-1. He has admitted that he has undertaken the operation of tubectomy after regular checkup of the plaintiff. The husband of the plaintiff has acted as the motivator. He has conducted about 5000 sterilization operations. He has categorically deposed that the operation was conducted after taking due care and precaution. According to him, there was no negligence. He has admitted the issuance of certificate Ex. P-1. He has also admitted that even in case of a slight mistake, the chances of failure of operation could not be ruled out. He has finally deposed that the operation was undertaken after due diligence and by taking all the required precautions. 9. Plaintiff has not alleged any negligence on the part of defendant No. 3 except that he has assured her that she will not conceive. PW-2 has deposed that his wife conceived due to negligence on the part of defendant No.3. PW-3 Smt. Dhobi Devi has admitted that there are chances of failure of family planning operations. Plaintiff has not examined any expert. Dr. Karan who has conducted second operation though available, was not examined by the plaintiff. The only issue required to be gone into by both the Courts below was whether defendant No. 3 took proper care and precaution at the time of operation or after the operation. In family planning operation, the chances of failure of the operation could not be ruled out in 1% cases. Plaintiff has failed to prove by leading any tangible evidence on record that defendant No.3 has not exercised due and proper care at the time of conducting operation. DW-3 has deposed that he has taken all the precaution and due care after examining the patient. Plaintiff has failed to prove by leading any tangible evidence on record that defendant No.3 has not exercised due and proper care at the time of conducting operation. DW-3 has deposed that he has taken all the precaution and due care after examining the patient. In “principles of Gynaecology” by Sir Norman Jeffcoate it is stated at page 630 that there are chances of failure of sterilization operation, which reads thus: “……..The only sterilization procedure in the female which are both satisfactory and reliable are (1), resection or destruction of a portion of both fallopian tubes, and (2) hysterectomy. No method, however, is absolutely reliable and pregnancy is reported after sub total and total hysterectomy, and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases in a persisting communication between the ovary or tube and the marginal vault. Even when tubal occlusion operations are competently performed and all technical precautions taken, intra-uterine pregnancy occurs subsequently in 0.3% cases. This is because an ovum gains access to spermatozoa through a recanalised inner segment of the tube…….” 10. Mr. Virender Rathore has relied upon State of Haryana and others versus Santra (Smt), (2000) 5 SCC 182. In this case also, the lady had undergone sterilization operation at Government Hospital. It was found that only her right Fallopian tube was operated upon and the left Fallopian tube was left untouched. In these circumstances, it was held that the doctor has acted negligently. The State was held vicariously liable for the negligence of its doctor. Their Lordships have held that every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. Their Lordships have further held that the Medical Officers entrusted with the implementation of the family planning programme cannot, by their negligent acts in not performing the complete sterilization operation, sabotage a scheme of national importance. Their Lordships have held as under: “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. Their Lordships have held as under: “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, Mc Nair, 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. 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." 19. Family Planning is a National Programme. It is being implemented through the agency of various Govt. Hospitals and Health Centres and at some places through the agency of Red Cross. In order that the Naitonal Programme may be successfully completed and the purpose sought may bear fruit, every body involved in the implementation of the Programme has to perform his duty in all earnestness and dedication. The Govt. 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 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 Govt. 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 Govt. officers, including Medical Officers involved in the 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 cooperate 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. 34. From the above, it would be seen that the courts in the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many other, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other cases, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. 37. Ours is a developing country where majority of the people live below the poverty line. On account of the ever-increasing population, the country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the State-sponsored family planning programmes and policies. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the State-sponsored family planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence. 39. "Maintenance" would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother. Section 22 of the Act sets out the principles for computing the amount of maintenance. Sub-section (2) of Section 23 provides that in determining the amount of maintenance, to be awarded to children, wife or aged or infirm parents, regard shall be had to the position and status of the parties; the reasonable wants of the claimant; if the claimant was living separately, whether the claimant was justified in doing so; the value of the claimants property and any income derived from such property, or from the claimants own earnings or from any other source and the number of persons entitled to maintenance under the Act. But we are not concerned with these factors in the instant case. A reference to Section 23 of the Hindu Adoptions and Maintenance Act has been made only to indicate that a Hindu father or a Hindu mother is under a statutory obligation to provide maintenance to their children. 42. But we are not concerned with these factors in the instant case. A reference to Section 23 of the Hindu Adoptions and Maintenance Act has been made only to indicate that a Hindu father or a Hindu mother is under a statutory obligation to provide maintenance to their children. 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 the implementation of which it had created mass awakening for the use of various devices including sterilisation opertion, 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. 44. Smt. Santra, as already stated above, was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Govt. to enable her to bring up the child at least till she attains puberty.” 11. In this case it has been proved that only right Fallopian tube was operated upon and the left Fallopian tube was left untouched. In the present case, there is no evidence led by the plaintiff that the operation has failed due to negligent act of the doctor and he has failed to take due care and precaution. 12. Their Lordships of the Hon’ble Supreme Court in Jacob Mathew versus State of Punjab and another, (2005) VI SCC 1 have held that in a claim of medical negligence it is enough for defendant to show that standard of care and skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. 12. Their Lordships of the Hon’ble Supreme Court in Jacob Mathew versus State of Punjab and another, (2005) VI SCC 1 have held that in a claim of medical negligence it is enough for defendant to show that standard of care and skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. Their Lordships have further explained in detail that deviation from normal practice is not necessarily evidence of negligence by clarifying following contents: (1) State of knowledge by which standard of care is to be determined, (2) standard of care in case of charge of failure to use some particular equipment or to take some precaution, (3) enquiry to be made when alleged negligence is due to an accident or due to an error of judgment in choice of a procedure or its execution. Their Lordships have also defined the jurisprudential concept of negligence as well. Their Lordships have held as under: “10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. …………………. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." 11. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." 11. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:- (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24) 21. The degree of skill and care required by a medical practitioner is so stated in Halsburys Laws of England (Fourth Edition, Vol.30, Para 35):- "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care." Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110) 22. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 33. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Blacks Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. 45. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence: - "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." 13. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." 13. In State of Punjab versus Shiv Ram and others, (2005) 7 SCC 1, their Lordships of the Hon’ble Supreme Court have held that merely because of 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. Their Lordships have held as under: “10. In Jeffcoates Principles of Gynaecology, revised by V.R. Tindall, MSc.,MD,FRCSE, FRCOG, Professor of Obstetrics and Gynaecology, University of Manchester (Fifth Edition) published by Butterworth Heinemann, the following technique of female sterilization are stated: "Female Sterilization Techniques 1. Radiotherapy A menopausal dose of external beam irradiation to the ovaries is only attractive in so far that they sterilize without involving the woman in an operation. Their disadvantages (as stated at pages 93 and 528) are such that they are rarely used except in older women who are seriously ill. 2. Removal of the ovaries This sterilizes (provided an accessory ovary is not overlooked) but is very rarely indicated as it often results in severe climacteric symptoms. 3. Removal of the uterus This is effective but involves an unnecessarily major operation and destroys menstrual as well as reproductive function. Its chief place is in those cases where the need for sterilization is associated with disease in the uterus or cervix. But, to preclude further childbearing, it is commonly carried out as part of another operation. Examples are vaginal hysterectomy as part of the cure of prolapse, and caesarean hysterectomy. The latter is sometimes advocated, in preference to caesarean section and tubal ligation, on the grounds that it prevents future uterine disease as well as conception. Those women who have ethical objections to tubal ligation may well prefer to have a scarred uterus removed. Except in special circumstances, however, caesarean hysterectomy is not justified as a sterilization procedure. As an elective sterilization procedure for non-pregnant women, some gynaecologists advocate hysterectomy (preferably vaginal) in preference to tubal resection. This is because it removes the possibility of the future development of uterine disease such as carcinoma of the cervix and eliminates the chance of the woman suffering menstrual and other upsets which sometimes follow less radical procedures. As an elective sterilization procedure for non-pregnant women, some gynaecologists advocate hysterectomy (preferably vaginal) in preference to tubal resection. This is because it removes the possibility of the future development of uterine disease such as carcinoma of the cervix and eliminates the chance of the woman suffering menstrual and other upsets which sometimes follow less radical procedures. Hysterectomy, however, carries a much higher immediate morbidity rate than does surgical tubal resection and can be followed by other disturbances and regrets at loss of menstrual function _ an outward sign of femininity." 4. Resection of fallopian tubes Provided the pelvic organs are healthy, one of the best methods is to remove 1-2 cm of the middle of each tube and to bury the ligated ends separately under the peritoneum. Sometimes the cornua of the uterus are excised, together with the adjacent portions of the tubes. Excision of the whole of both tubes is not so safe because it leaves the ovum free to wander into a possible uterine fistula and fimbriectomy should never be performed. Retention of the abdominal ostia is an advantage for it tends to ensure that ova become trapped in the occluded tubes. Of the more simple operations on the fallopian tubes the best is the Pomeroy procedure in which a loop of tube is excised and the cut ends secured with a ligature. This method has the advantage of avoiding troublesome haemorrhage which can attend the techniques described above, requires only limited access, is speedy, and fails in not more than 0.3 per cent of cases. The technique of crushing and ligation of the tubes without excising any part of them (Madlener operation) is very unreliable, the failure rate being 3.0 per cent; it is rarely practised now. Whatever technique be used for dividing the tubes, it is important to ligature their cut ends with plain catgut. This is much more likely to result in firm closure than is the use of unabsorbable material, or even chromic gut. Most failures are due to neglect of this medicolegally very important point. Resection of the tubes is usually carried out abdominally and is particularly easy to perform 2-4 days after delivery when the uterus is an abdominal organ and the tubes readily accessible. It can then, if necessary, be carried out under local analgesia. Most failures are due to neglect of this medicolegally very important point. Resection of the tubes is usually carried out abdominally and is particularly easy to perform 2-4 days after delivery when the uterus is an abdominal organ and the tubes readily accessible. It can then, if necessary, be carried out under local analgesia. Tubal resection (preferably using the Pomeroy technique) can also be performed vaginally either during the course of another operation or as the route of choice. As a method of choice it is not new as is sometimes suggested; it was regularly carried out in the 1920s." 11. Dealing with reliability of the sterilization procedures performed and commonly employed by the gynaecologists, the text book states (at p.621):- Reliability The only sterilization procedures in the female which are both satisfactory and reliable are: resection or destruction of a portion of both fallopian tubes; and hysterectomy. No method, however, is absolutely reliable and pregnancy is reported after subtotal and total hysterectomy , and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and the vaginal vault. Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 per cent of cases. This is because an ovum gains access to spermatozoa through a recanalized inner segment of the tube. There is clinical impression that tubal resection operations are more likely to fail when they are carried out at the time of caesarean section than at any other time. The fact that they occasionally fail at any time has led many gynaecologists to replace the term sterilization by "tubal ligation" or "tubal resection" in talking to the patient and in all records. This has real merit from the medicolegal standpoint." [underlining by us] 12. In Shaws Textbook of Gynaecology , after describing several methods of female sterilization, the textbook states that the most popular technique adopted in Mini-lapartomy sterilization is Pomeroy method in which the fallopian tube is identified on each side, brought out through the incision, and the middle portion is formed into a loop which is tied at the base with catgut and excised. The failure rate is only 0.4% and it is mainly due to spontaneous recanalization. The failure rate is only 0.4% and it is mainly due to spontaneous recanalization. The operation is simple, requires a short hospitalization, does not require any sophisticated and expensive equipment like a laparoscope, and can be performed in a primary health centre by a doctor trained in this procedure. In Madlener method, a loop of the tube is crushed and ligated with a non-absorbable suture. Failure rate is of 7% and occurrence of an ectopic pregnancy are unacceptable though it is a simple procedure to perform. There are other methods, less popular on account of their indications, which are also stated. Dealing with the topic of complications and sequelae of sterilization, the textbook states: "Failure rate of sterilization varies from 0.4% in Pomeroys technique, 0.3-0.6% by laparoscopic method to 7% by Madlener method. Pregnancy occurs either because of faulty technique or due to spontaneous recanalization." 13. In The Essentials of Contraceptive Technology, written by four doctors and published by Center for Communication Programs, The Johns Hopkins School of Public Health in July, 1997, certain questions and answers are stated. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under: "5. Will female sterilization stop working after a time? Does a woman who had a sterilization procedure ever have to worry about getting pregnant again? Generally, no. Female sterilization should be considered permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilization is about 1.8 per 100 women _about 1 in every 55 women. The risk of sterilization failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. Methods that cut away part of each tube work better than spring clips or bipolar electrocoagulation (electric current). Effectiveness also depends on the skill of the provider. The same US study found that 1 of every 3 pregnancies after sterilization was ectopic. If a woman who has had sterilization ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away. [underlining by us] 6. Pregnancy after female sterilization is rare but why does it happen at all? The most common reason is that the woman was already pregnant at the time of sterilization. If a woman who has had sterilization ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away. [underlining by us] 6. Pregnancy after female sterilization is rare but why does it happen at all? The most common reason is that the woman was already pregnant at the time of sterilization. Pregnancy also can occur if the provider confused another structure in the body with the fallopian tubes and blocked or cut the wrong place. In other case pregnancy results because clips on the tubes come open, because the ends of the tubes grow back together, or because abnormal openings develop in the tube, allowing sperm and egg to meet." 14. In newsletter "alert" September, 2000 issue, Prof.(Dr.) Gopinath N. Shenoy writes: "Female sterilization can be done by many methods/techniques, which are accepted by the medical professionals all over the world. It is also an accepted fact that none of these methods/techniques are cent percent failure free. This failure rate may vary from method to method. A doctor is justified in choosing one method to the exclusion of the others and he cannot be faulted for his choice if his choice is based on reasonable application of mind and is not palpably wrong. A doctor has discretionary powers to choose the method/technique of sterilization he desires to adopt." [emphasis supplied] 15. In "The New England Journal of Medicine" , owned, published and copyrighted by Massachusetts Medical Society, the result of a research carried out by a team of doctors has been published and widely circulated. 10,685 women enrolled and eligible for long term follow up and willing to cooperate and providing information were studied. The relevant part of the result of the study reads as under: "The median age of women at the time of sterilization was 30 years (range, 18 to 44; mean [+ SD],31+6). Most women were white and had been pregnant at least twice (Table 1). In all, 143 women (1.3 percent) reported pregnancies that were classified as true failure of sterilization. For 66.4 percent of these pregnancies, the classification was based on a review of medical reports by the investigators. The remainder were classified on the basis of the womans history alone." 16. In Medico-legal Aspects in Obstetrics and Gynaecology, edited by three doctors, Chapter 18, deals with Medico-legal Problems in Sterilization Operations. For 66.4 percent of these pregnancies, the classification was based on a review of medical reports by the investigators. The remainder were classified on the basis of the womans history alone." 16. In Medico-legal Aspects in Obstetrics and Gynaecology, edited by three doctors, Chapter 18, deals with Medico-legal Problems in Sterilization Operations. It is stated therein that there are several methods of female sterilization of which one that will suit the patient and the surgeon/gynaecologist should be selected. In India, Pomeroys method is widely practised. Other methods include _ Madleners, Irvings, Uchidas methods and so on. The text further states that failure is one of the undesirous outcome of sterilization. The overall incidence of failure in tubectomy is 0.4 per 100 women per year. The text describes the following events wherefrom sterilization failure usually results: (i) Spontaneous recanalisation or fistula formation is perhaps the most common cause of failure. Though these are generally non-negligent causes of failure, it is very difficult to convince the patient if they are not informed beforehand about the possibility. (ii) Undetected pregnancy at the time of sterilization is an indefensible offence. To avoid such incidence, tests to detect pregnancy should be done before sterilization operation is undertaken. (iii) Imperfect occlusion of the tube is a technical loophole which may result in an unwanted pregnancy. The chance is particularly high in laparoscopic methods. If a gynaecologist fails to place ring on any one of the tube due to improper visualization, he or she must inform the patient and her husband, and some other contraceptive method should be advised. (iv) Occlusion of the wrong structure(s), e.g. round ligament is a common, indefensible error which may particularly happen if the surgeon is inexperienced. This is more frequent in laparoscopic methods where even confirmation of the structure by biopsy is difficult, in case of doubt. 17. It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, 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. However, 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. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning. 18. An English decision Eyre v. Measday (1986) 1 ALL ER 488 is very near to the case at hand. The facts of the case were that in 1978, the plaintiff and her husband decided that they did not wish to have any more children. The plaintiff consulted the defendant gynaecologist with a view to undergoing a sterilization operation. The defendant explained to the couple the nature of the particular operation he intended to perform, emphasising that it was irreversible. He stated that the operation must be regarded as a permanent procedure but he did not inform the plaintiff that there was a small risk (less than 1%) of pregnancy occurring following the operation. Consequently, both the plaintiff and her husband believed that the result of the operation would be to render her absolutely sterile and incapable of bearing further children. In 1979 the plaintiff became pregnant and gave birth to a child. The plaintiff brought an action against the defendant for damages, inter alia, for breach of contract, contending that his representation that the operation was irreversible and his failure to warn her of the minute risk of the procedure being unsuccessful, amounted to breach of a contractual term, or express or implied collateral warranty, to render her irreversibly sterile. The judge dismissed her claim and the plaintiff appealed to the Court of Appeal. 19.The Court held – "(1) The contract undertaken by the defendant was to carry out a particular type of operation rather than to render the plaintiff absolutely sterile. The judge dismissed her claim and the plaintiff appealed to the Court of Appeal. 19.The Court held – "(1) The contract undertaken by the defendant was to carry out a particular type of operation rather than to render the plaintiff absolutely sterile. Furthermore, the defendants representations to the plaintiff that the operation was irreversible did not amount to an express guarantee that the operation was bound to achieve its acknowledged object of sterilizing the plaintiff. On the facts, it was clear that the representations meant no more than that the operative procedure in question was incapable of being reversed. (2) Where a doctor contracted to carryout 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. On the facts, no intelligent lay bystander could have reasonably inferred that the defendant was intending to give the plaintiff a guarantee that after the operation she would be absolutely sterile and the fact that she believed that this would be the result was irrelevant." 20. The appeal was dismissed. The Court of Appeal, upheld the finding of the trial judge that the risk of pregnancy following such a procedure to which the plaintiff was subjected is described as very small. It is of the order of 2 to 6 in every 1000. There is no sterilization procedure which is entirely without such a risk. 21. Slade L J, stated in his opinion that "In the absence of any express warranty, the court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a responsible medical man would intend to give a warranty of this nature. Of course, objectively speaking, it is likely that he would give a guarantee that he would do what he had undertaken to do with reasonable care and skill; but it is quite another matter to say that he has committed himself to the extent suggested in the present case." 22. Of course, objectively speaking, it is likely that he would give a guarantee that he would do what he had undertaken to do with reasonable care and skill; but it is quite another matter to say that he has committed himself to the extent suggested in the present case." 22. Purchas LJ, stated in his opinion that "It is true that as a matter of deliberate election the defendant did not, in the course of describing the operation which he was recommending, disclose that there was a very small risk, one might almost say an insignificant risk, that the plaintiff might become pregnant. In withholding this information it must be borne in mind, first that the defendant must have believed that the plaintiff would be sterile, second that the chances were extremely remote that the operation would be unsuccessful, third that in withholding this information the defendant was following a practice acceptable to current professional standards and was acting in the best interest of the plaintiff, and fourth that no allegation of negligence in failing to give this information to the plaintiff is pursued any longer in this case. There are, therefore, in my judgment, no grounds for asserting that the result would necessarily be 100% successful." 23. In Thake v Morris , [1986] 1 All ER 497 (CA) the claim for damages was founded on contract and not in torts. The Court of Appeal firmly rejected the possibility of an enforceable warranty. Neill L J said: "The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality: he would not have expected the defendant to give a guarantee of 100% success." 24. Nourse L J said: "Of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 25. We are, therefore, clearly of the opinion that merely because a 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 can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolams test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. 26. The cause of failure of 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 resterilisation. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139) 27. 27. Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiffs-respondents placed reliance on a 2-Judge Bench decision of this Court in State of Haryana & Ors. v. Smt. Santra, JT 2000 (5) SC 34, wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts. 28. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts. 28. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section (2) of Section 3 provides ____ "Explanation II. ____ Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman." 29. And that provides, under the law, a valid and legal ground for 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. 30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for 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 sterilization 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. 31. Having gathered the knowledge of conception in spite of having undergone sterilization 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. 31. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer __ the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside. 32. We have decided the question of law and held that the decree awarding the damages was totally uncalled for and had no foundation in law, and therefore, has to be set aside. The present case is an occasion, which we would like to utilize for the purpose of making certain observations on three related topics noted hereunder.” 14. Their Lordships of the Hon’ble Supreme Court in State of Haryana and others versus Raj Rani, (2005) 7 SCC 22 have held that failure of sterilization operation is only cognizable if there is negligence on the part of surgeon performing the surgery and not otherwise. Their Lordships have held as under: “3. A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ram & Ors. (C.A. 5128 of 2002 decided on August 25, 2005) that child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. 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. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld.” 15. Their Lordships of the Hon’ble Supreme Court in Ins. Malhotra (Ms) versus Dr. A. Kriplani and others, (2009) 4 SCC 705 have held that no liability on the doctors can be fastened unless negligence of doctors is established. Their Lordships have held as under: 50. In the case of State of Punjab v. Shiv Ram and Others [2005] 7 SCC 1, a three Judge Bench of this Court while dealing with the case of medical negligence by the doctor in conducting sterilisation operations, reiterated and reaffirmed that unless negligence of doctor is established, the primary liability cannot be fastened on the medical practitioner. In paragraph 6 of the judgment it is said: (page no. 7) "6. Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) popularly known as Bolams test, in its applicability to India". 16. Reference may be had to Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) popularly known as Bolams test, in its applicability to India". 16. In Nizam’s Institute of Medical Sciences versus Prasanth S. Dhananka and others, (2009) 6 SCC 1, their Lordships have held that misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. Their Lordships have further held that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors. Their Lordships have held as under: “51. The evidence in the present case has to be evaluated in the background of the above observations. It is clear that a mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. It is also evident that a doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolams principle). 77. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. “ 17. Their Lordships of the Hon’ble Supreme Court in C.P. Sreekumar (Dr.) Ms (Ortho) versus S. Ramanujam, (2009) 7 SCC 130 have laid down that too much suspicion about negligence of attending doctors and frequent interference by courts is a dangerous proposition as it would prevent doctors from taking decisions which could result in complications and in this situation patient is the ultimate sufferer. Their Lordships have held as under: “28. In Jacob Mathews case, this Court adopted the test laid down in Bolam vs. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD) in which it has been observed as under : "…..Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and profession 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. This Court then observed that this judgment had been followed repeatedly not only in India but in other jurisdictions as well and that it was the statement of law as commonly understood today.” 18. In a recent judgment in Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others, (2009) 9 SCC 221, their Lordships of the Hon’ble Supreme Court have laid down the parameters for determination of medical negligence as under: “157. There cannot be, however, any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following: (i) No guarantee is given by any doctor or surgeon that the patient would be cured. (ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill. (iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence. (iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence. (v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence. (v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability. Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.” 19. The judgment in Samira Kohli versus Dr. Prabha Manchanda and another, (2008) 2 SCC 1 cited at Bar will not be applicable in the present case since it only pertains to “consent”, “real consent” and “informed consent”. 20. In the present case, the plaintiff has failed to prove that defendant No.3 was negligent at the time of undertaking sterilization operation. The case of the plaintiff does not fall within the parameters laid down by the Hon’ble Supreme Court in the judgment cited hereinabove. 21. Accordingly, the principle of res ipsa loquitur is also not attracted in the present case. Accordingly, in view of the discussion made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.